Opinion
No. 1353
Decided July 8, 1968.
Court of Appeals — Appellate jurisdiction — Judgment for defendant on demurrer to indictment — No appeal by state as matter of right, when.
APPEAL: Court of Appeals for Allen County.
Mr. Robert L. Balyeat, prosecuting attorney, for appellant.
This is an attempt by the state of Ohio by the mere filing of a notice of appeal to perfect an appeal as of right from a judgment of the Common Pleas Court for defendant entered pursuant to the sustaining of a demurrer to the indictment. Under the provisions of Section 6 of Article IV of the Constitution of Ohio, as it existed at the time this appeal was attempted to be perfected, and under the provisions of Section 4 of Article IV of the Constitution of Ohio, effective May 7, 1968 ( Euclid v. Heaton, 15 Ohio St.2d 65), Courts of Appeals have "such jurisdiction as may be provided by law," i. e., as determined by the Legislature. Notwithstanding that the Legislature has provided a means of review of a ruling of a trial court on a demurrer to an indictment, which review is still discretionary with the Courts of Appeals (see State v. Benjamin [ Euclid v. Heaton], 15 Ohio St.2d 65, and Section 2945.67 et seq., Revised Code), there is no existing legislative enactment providing for an appeal as of right by the state of Ohio, by the mere filing of a notice of appeal, from a judgment of a Common Pleas Court in favor of defendant in a criminal action, whether or not jeopardy has attached. Compare Toledo v. Crews, 174 Ohio St. 253, and State v. Dodge, 10 Ohio App.2d 92 (affirmed 15 Ohio St.2d 65).
Appeal dismissed.
GUERNSEY, P. J., YOUNGER and COLE, JJ., concur.