A question has been submitted on application of defendants for rehearing.
The application is extended and in the main a reiteration of the claims made by the defendants in their original briefs, and a discussion of some new aspects of the case provoked by our opinion and there considered at length. The only additional authority cited is State v. Simmons, 49 Ohio St. 305,31 N.E. 34, which, in our judgment, has no application to the factual situation presented in the instant appeal.
The Simmons case arose in 1891, construed Section 7356, Revised Statutes, and held that this controlling section made no provision for an error proceeding to the Circuit Court on behalf of the state after a demurrer to an indictment had been sustained and the defendant discharged by the Court of Common Pleas. The case of Eastman v. State, 131 Ohio St. 1, 1 N.E.2d 140, was decided in 1936, construed the right of the state to an appeal in a criminal case, under the Constitution of 1912, in a situation like unto that presented in State v. Simmons, supra, and supported the jurisdiction of the Court of Appeals to entertain the appeal. Both of these decisions treat of the jurisdiction of the reviewing court. Of course, the Eastman case is controlling.
Although we indicated in our original opinion the scope and effect of State v. Grisafulli, 135 Ohio St. 87,19 N.E.2d 645, we reiterate that we cannot overlook the fact that the Supreme Court there had under consideration Section 12223-7, General Code, the identical section of the Code under which, if the contention of the defendants in this case is well made, the state must be controlled in its procedure on appeal. *Page 504 The court without qualification carried the proposition into the syllabus that Section 12223-7, General Code, is without application to felony cases. The instant cases must be classified as felony cases.
It is our judgment, that the state either had the procedural right to file its notice of appeal under Section 13459-4, General Code, or no statutory authority is granted to file such notice. We concede that the question is close, but are still of the opinion as announced in our original decision. The application for rehearing will, therefore, be overruled.
Application denied.
BARNES, P.J., and HORNBECK, J., concur.
GEIGER, J., dissents. *Page 505