dissenting. Among the questions raised by the petitioner in his application for release by habeas corpus are:
“(4) Is it legal to put a prisoner on trial prima facie [sic]?
*42“ (5) Was this a fair trial?”
I believe that these questions should be answered in the negative.
Petitioner being indigent, the court appointed counsel pursuant to the provisions of Section 2941.50 of the Revised Code. The petitioner entered a plea of not guilty.
Upon advice of counsel, petitioner waived his right to trial by jury and agreed to be tried by the court.
Respondent contends that petitioner “agreed,” upon advice of counsel, to stand convicted of the crimes charged in the indictments if the evidence established a “prima facie case” of guilt.
In respect to this phase of the proceedings the record discloses :
“The Court: * * * I understand you signed two waivers of trial by jury.
“A [Defendant]: Thats correct, Your Honor.
í Í # * *
‘ ‘ The Court: Let the record so show, and then let the record show that counsel for the defendant has agreed to try, for the court to try the indictment No. 18101 and 18139 in the same trial.
“* * * [defense counsel]: Thats correct, Your Honor.
“The Court: Anything further?
“* # * [Prosecutor]: Nothing further.
“* # * [defense counsel]: The only thing is, Your Honor, this matter is before the court on a prima facie case.
“The Court: There being no . . . going to be no cross-examination of the witnesses, so the court will know and the state can’t be taken by surprise, the court doesn’t want to be fooled and have your client change his mind half way through the trial and really contest it, the state has a contest, we want to know in fairness to them so they can put on complete proof.
“* * * [defense counsel]: I might say this, Your Honor, if there is any testimony adduced here this morning which leaves any question as to this defendant in connection with this crime I would like to reserve the right to cross-examine at that time,
*43“The Court: That is raising another . . . that is putting the state on the spot and the court on the spot, I won’t find him guilty if the evidence is substantial.
‘ ‘# * * [defense counsel]: We have a jury question in the court, undoubtedly there will be . . .
‘ ‘ The Court: Ordinarily in a prima facie case ... the prima facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the state to proye it.
“ * * * [defense counsel]: That is correct.
‘ ‘ The Court: And the court knowing that and the prosecutor knowing that, instead of haying a half a dozen witness [sic] on one point they only have one because they understand there will be no contest.
“A [Defendant]: I would like te point out in no way am I pleading guilty to this charge.
‘1 The Court: If you want to stand trial we will give you a jury trial.
“A [Defendant]: I have been incarcerated now for the last eighteen months in the county jail.
“The Court: You don’t get credit for that.
“A [Defendant]: For over two months my nerves have been ... I couldn’t stand it out there any longer, I would like to be tried by this court.
“The Court: Make up your mind whether you require a prima facie case or a complete trial of it.
“* * * [defense counsel]: Prima facie, Your Honor, is all we are interested in.
“The Court: All right.” (Emphasis added.)
It cannot be doubted that the court accepted a special plea, this prima facie proof plea. Recognition of special pleas in criminal cases is denied both by statute and this court.
Section 2943.03, Revised Code, definitely specifies the pleas that may be entered:
“Pleas to an indictment or information are:
“(A) Guilty;
“(B) Not guilty;
“(C) A former judgment of conviction or acquittal of the offense;
*44“(D) Once in jeopardy;
“(E) Not guilty by reason of insanity.”
The majority opinion recognizes its vulnerability by reason of tbe intrusion of the special plea in the trial court and in defense of this procedural novelty likens it to the old common-law of nolo contendere. Nolo contendere is not a plea but merely a formal declaration by an accused person that he will not contest the charge. 22 Corpus Juris Secundum 1202, Criminal Law, Section 425 (1); annotation, 89 A. L. R. 2d 540 (1963).
The majority opinion relies heavily upon the case of McNab v. State, 42 Wyo. 396, where the court reluctantly approved the use of nolo contendere in one case without commending it for use in general practice. But why look to Wyoming when the statutes, supra, do not recognize special pleas, and this court, in Richards v. State, 110 Ohio St. 311, at page 313, spoke as follows:
11 The criminal procedure of Ohio does not recognise a special plea of the character whioh was entered in this case, and it is clearly contemplated by the statutes that the plea must either be that of guilty or not guilty. This special plea must therefore be treated as either the one or the other. If it should be held that the special plea as entered does not admit the material allegations of the indictment, then it should be held to constitute a plea of not guilty. If on the other hand the material allegations of the indictment are not controverted by the special plea, then it must be held to amount to a plea of guilty of the offense charged.” (Emphasis added.)
It was the duty of the trial court under the Ohio Constitution, statutes and the pronouncement of this court in the Richards case to have considered the special plea as one of not guilty and proceeded to try the cause. The majority opinion supports this conclusion when it says:
“# # # although he did not plead guilty * * (Emphasis added.)
The only plea that the trial court could properly consider was one of not guilty. The cause should have proceeded upon such a plea which clothed the petitioner with the presumption of innocence, which remained with him until his guilt was proved beyond a reasonable doubt. Section 2945.04, Revised Code.
*45Both the trial court and defense counsel considered the petitioner guilty before the hearing commenced, as is evidenced by the record, in this language:
“The Court: # * the prima facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the state to prove it.
“* * * [defense counsel]: That is correct.”
City of Cleveland v. Keah, 157 Ohio St. 331, in the second paragraph of the syllabus, takes issue with the trial court’s conception of a prima facie case, when it states this principle of law:
“A prima facie case is one in which the evidence is sufficient to support but not to compel a certain conclusion and does no more than furnish evidence to be considered and weighed hut not necessarily to he accepted by the trier of the facts.” The trial judge eliminated from his mind any thought of acquittal or any presumption of innocence. This is but an example of the confusion and injustice certain to follow in Ohio under the majority opinion which opens the door to any type of special plea that a trial court may accept. The trial court during the proceedings also said:
“* * # I won’t find him guilty if the evidence is substantial.”
It appears that the judge was of the opinion that he would not be required to return a verdict of acquittal unless the petitioner produced substantial evidence of innocence.
It appears reasonable to conclude that the trial court considered the defendant guilty before the beginning of the proceedings as is evidenced by its language that:
<i* # # prjma facie case is where the defendant, not technically or legally, in effect admits his guilt and wants the state to prove it.”
Also, after finding the defendant guilty of the charges, the trial court stated as follows:
“The Court: * # * his attitude in standing trial on these cases is nothing more than just taking a flier. He knew he was taking it, the court certainly knows he was just taking a flier, he never expected to he acquitted * #
*46It is claimed in the majority opinion that:
“The procedure followed was agreed to by petitioner in open court while represented by counsel.” On the contrary, the record transcribed by the ‘ ‘ official shorthand reporter ’ ’ discloses that the petitioner in open court, addressing the court, said:
“I would like to point out in no ivay am I pleading guilty to this charge.”
His counsel:
“Prima facie, Your Honor, is all we are interested in,”
It is reasonable to conclude that the petitioner correctly interpreted the colloquy between court and counsel that prima facie proof was an admission of guilt on his part and he protested vigorously against such proceedings. In fact, following that protest petitioner stated: “I would like to be tried by this court.”
Since petitioner did not acquiesce in the statement of his counsel to the court, the question arises as to who has the final control over decisions of a defense, when the defendant is present in court and understands the circumstances from which he draws his conclusions. It is our belief that under such circumstances the decision of the defendant is conclusive.
It appears to the writer of this dissent, however, that a far graver question arises from the apparent coercion and duress visited upon the petitioner by the state. Again we refer to the record:
“A [Defendant]: I would like to point out in no way am I pleading guilty to this charge.
‘ ‘ The Court: If you want to stand trial we will give you a jury trial.
“A [Defendant]: I have been incarcerated now for the last eighteen months in the county jail.
“The Court: You don’t get credit for that.
“A [Defendant]: For over two months my nerves have been ... I couldn’t stand it out there any longer, I would like to be tried by this court.” (Emphasis added.)
It appears further that the petitioner had been an inmate of a mental institution. He was held in jail without trial for 18 months and was denied a trial during all that period until in *47desperation lie said to the court, “I couldn’t stand it out there any longer.”
We do not believe that justice requires such treatment of indigents who are held in jail. Their cases should be disposed of at the earliest opportunity, but for some reason, which we do not know, this man, contrary to the provisions of the federal and state Constitutions, was denied a speedy public trial, with the result that even under those circumstances he insists that he does not plead guilty, declares that he will not make any admissions of guilt, and the court refuses to follow the procedure required when the defendant stands on a plea of not guilty.
The Constitution of Ohio, in the Bill of Rights, provides in Section 10, Article I, that:
“ * * * in any trial, in any court, the party accused shall be allowed * * * a speedy public trial * #
In the Sixth Amendment to the federal Constitution, it is declared that:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * *
The proceedings involved in the case at bar were not authorized by the law of Ohio, nor did the court have jurisdiction to pronounce sentence upon the petitioner. Consequently his imprisonment is illegal and contrary to law and he is deprived of his liberty without due process of law. The court should order the petitioner released from custody.
Matthias, J., concurs in the foregoing dissenting opinion.