author: By HOLTSBERRY, J.

text:
    STATE, Plaintiff, v. WESTLAKE, Defendant.
    Common Pleas Court, Licking County.
    No. 9150.
    Decided April 27, 1957.

      Forrest B. Ashcraft, Pros. Atty., on behalf of plaintiff.
    James A. Westlake, represented himself.
   OPINION

By HOLTSBERRY, J.

Defendant having been found guilty by a jury in the Common Pleas Court of Licking County, Ohio, of assault with intent to rob, was sentenced on May 15, 1956, to the Ohio Penitentiary for an indeterminate sentence as provided by law. Motion for new trial was overruled. Upon appeal to the Court of Appeals of the Fifth District said conviction and sentence was affirmed. Among other questions before the trial court on the motion for a new trial and the appeal before the appellate court was the weight of the evidence. Defendant was taken to the Ohio Penitentiary to serve his sentence on May 15, 1956, during a prior term of this court, and is still there.

On April 18, 1957, defendant, in his own behalf, filed a motion in this Court for modification in that the Court now modify the sentence to one for plain assault. He filed a brief and certain exhibits. The Prosecuting Attorney has also filed a brief herein. Defendant was represented by legal counsel at all stages of his trial and appellate proceedings. The said James A. Westlake who refers to himself as petitioner in his brief will be herein referred to as defendant.

Two questions are posed to this Court. One, does the trial court have jurisdiction or power to modify the sentence under the facts herein if the court should in the exercise of its discretion desire to do so. And two, is such- reduction in sentence as requested, justified?

As a general rule, the power of a court over a valid sentence pronounced by it ceases at the end of the term, except for purposes of enforcement. Unless the judgment rendered at a previous term was void, the court expressly carried disposition of the case over to a subsequent term, or power is expressly conferred by constitution or statute, a court has no power, at a subsequent term, to vacate its previous judgment. 15 American Jurisprudence, page 129 (Criminal Law).

At common law a sentence could be revised during the term at which it was imposed if it remained unexecuted, but not thereafter. Fine v. Com., 312 Mass., 252; 44 Northeastern Second, 659; 145 A. L. R., 392.

Some courts have said that an attempt of a trial court to reduce sentence after term after it goes into execution is an infringement upon the exclusive power of the executive to commute sentence. People v. Fox, 312 Michigan, 577; 20 Northwestern, Second, 732; 168 A. L. R., 703.

It is well established that a trial court has discretionary power, under certain circumstances to revise, modify or vacate a judgment in a criminal case, at the term at which judgment and sentence were entered. But after term at which judgment entered and where sentence has gone into operation, a Court of Common Pleas has no authority or power to modify a sentence unless such is authorized by the statute. 16 O. Jur., Second, page 103 (Criminal Law).

In State v. Yontz. 87 Oh Ap 526, the court held that where judgment had been entered in a criminal case, the court was without jurisdiction to thereafter again pronounce sentence and judgment until the first order is vacated or set aside. Therefore, before a court could modify a sentence imposed previously, it must set that sentence aside and grant a new trial.

Sec. 2945.79 R. C., sets forth the grounds for a new trial and the time thereof in §2945.80 R. C. Motions for new trial on account of newly discovered evidence shall be filed within 120 days following the day upon which the verdict was rendered. The motion filed herein would not have merit under the theory of newly discovered evidence because such would have to be material newly discovered evidence which he could not with reasonable diligence have discovered and produced at the trial. Defendant was not unavoidably prevented from doing so because a consideration of the record and the motion and affidavits herein show there is no newly discovered evidence which would have affected the outcome of the trial, or which was not known to defendant, or could not have been discovered with reasonable diligence. Further, it has been held that a Common Pleas Court does not have jurisdiction after conviction in a criminal case to entertain a motion for new trial filed at a subsequent term upon grounds of newly discovered evidence. In Weaver v. State, 120 Oh St 44, the Supreme Court said: “If it should develop that a person is wrongfully convicted, he is not without remedy, for the executive department of the government upon proper showing, has full power to grant a pardon, parole, commutation of sentence or such executive clemency as is authorized by law, and justified by the facts in the case.”

The filing of the motion herein is not such step in a criminal proceeding as to prohibit a court from entertaining and determining such without requiring the production of the prisoner at a hearing. In any event, there are no material and substantial issues of fact requiring a hearing herein, as the motion and briefs together with the records and files of the case, considered in view of the law in such instances, conclusively show defendant is not entitled to the relief he asks for.

This Court is of the opinion that under the law it has no power or jurisdiction to entertain the motion filed herein for the reasons stated. Therefore, this Court would need go no further. However, since defendant in his brief urges this Court to exercise its discretion and cites certain claimed authorities, the Court will briefly refer thereto. If other courts have changed sentences as defendant contends, by referring to unreported cases, then I would be of the opinion that such courts certainly followed no patterned or logical reasoning process with respect to the law in arriving at such decisions.

Defendant now wants to admit plain assault, which in effect means he was guilty of doing the acts the State relied upon for conviction, except the element of intent to rob. The jury found such intent beyond a reasonable doubt, the trial court overruled the motion for a new trial, and the appellate court affirmed.

It is well established law in Ohio that—

“The intent of an accused person dwells in his mind. Not being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances under proper instruction from the court.”

If defendant had the intent in his mind of things other than to rob, he had the opportunity to take the witness stand and tell the jury what was dwelling in his mind. He did not choose so to do. Defendant admits in his brief that he was in prison before, and cites this as his reason for not taking the witness stand in his own defense.

Assuming for the sake of answering defendant’s request, but not holding that this Court has discretion as he claims, and that it should be exercised in his favor, this Court would refuse to reduce the crime to plain assault, and said motion would still be overruled.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    EVANS, Plaintiff-Appellant, v. DeCOLA et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5503.
    Decided November 1, 1956.
    Barkan, Brown, Reeves, Dobbs & Crites, Morton Y. Reeves, of Counsel, Columbus, for plaintiff-appellant.
    Jenkins, Williams, Wendt, Murray & Deeg, Gordon E. Williams, of Counsel, Columbus, for defendants-appellees.
    (HUNSICKER, PJ, of the Ninth District; FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, Ohio.

James DeCola and Joseph J. DeCola, doing business as DeCola Motor Sales, herein called DeCola, operated a garage and gasoline station in Columbus, Ohio. Errett S. Evans, herein called Evans, operated the Evans Carry-Out Store adjoining the garage, which store he rented from DeCola.

Evans claimed that DeCola, in the repair of automobile motors in the garage without properly ventilating the premises, caused carbon monoxide fumes to enter the carry-out store at various times from August 19, 1952 to December 16, 1952. Evans said that on December 16, 1952, DeCola allowed or caused a motor to be operated in the garage and to discharge carbon monoxide fumes of a bluish-colored air into his store; he warned DeCola, who ceased such operation; later DeCola again began the operation of the motor and the fumes penetrated the Evans store; these fumes were inhaled by Evans, causing him to suffer carbon monoxide poisoning and serious injury therefrom. Damages are sought from DeCola for the claimed injuries.

A general denial was filed by DeCola. A trial resulted in a verdict and judgment for DeCola. Thereafter, an appeal was perfected to this Court.

The principal question involved concerns the propriety of the following special instruction given to the jury at the request of counsel for DeCola before argument. The Court said:

“I charge you that one who exposes himself to an obvious and appreciated danger, even though he should not appreciate to the full extent the possible consequences of the danger, assumes the risk of injury that may result to him therefrom, and if you find by a preponderance of the evidence that the plaintiff, Errett S. Evans, on the night of December 16, 1952, was aware of and appreciated the danger from the presence of gaseous fumes on the premises of the Evans Carry-Out and voluntarily exposed himself to said danger, then I charge you that he assumed the risk of injury from said condition and cannot recover from the defendants.”

That portion of the charge which is strenuously objected to is the phrase “* * * even though he should not appreciate to the full extent the possible consequences of the danger.”

An examination of the authorities shows that this charge is taken almost verbatim from the syllabus of the Supreme Court of Ohio in the case of Davis v. The Somers-Cambridge Co., 75 Oh St 215. No further direct authority is found in Ohio, although that case has been mentioned several times in subsequent cases.

In the case of Gill, Jr., v. Arthur, 69 Oh Ap 386, at p. 395, the Court followed a rule similar to the one set out above, although the Davis v. The Somers-Cambridge Co. case was not cited.

The Supreme Court of Ohio, in Flynn v. Sharon Steel Corp., 142 Oh St 145, at pages 163, 164, quote without comment, but with apparent approval, the rule set out in the Davis v. The Somers-Cambridge Co. case, supra, as found in 89 O. Jur. 536, Sec. 91. See also Fay v. Thrasher, 77 Oh Ap 179 at 185.

Judge Doyle of the Ninth District, while sitting in the Eighth District, in the case of Mudrich v. The Standard Oil Co., 87 Oh Ap at p. 17, affirmed 153 Oh St 31, said on the assumption of risk, that:

“We recognize as a rule of law that, independently of the relation of master and servant, there may be, under certain circumstances, a voluntary assumption of risk of a known danger which will preclude an injured person from recovery. This rule rests on the general principle expressed in the maxim, volenti non fit injuria. However, before the principle may be applied to a given set of facts, there must be evidence from which reasonable persons could reach different conclusions: First, that the injured person accepted a danger which was clearly understood and, second, that he had foresight of the consequences and a readiness to accept them.”

The authors of Sherman and Redfield on Negligence, revised edition Vol 1, Sec. 135, at p. 332, state that:

“The essential elements of assumed risk are knowledge, actual or implied, by the plaintiff of a specific defect or dangerous condition caused by the negligence of the defendant in the violation of some duty owing to the plaintiff, the public or persons in his position, together with the plaintiff’s appreciation of the danger to be encountered and his voluntary exposure of himself to it.”

These same authors in Volume 2, Sec. 236, at page 594, state in a discussion of the assumption of risk by a servant employed to perform certain work that:

“* * * one who comprehends the danger is not excused by his inability to realize the full extent of the injuries which may possibly result therefrom.”

An examination of authorities in other states, on the question, discloses that on the entire subject of the defense of assumption of risk, there is a paucity of case comment. The usual manner in which this subject is treated arises out of the employer’s liability to an employee for injuries received while working at a place of obvious danger. The authority for the statement contained at page 594 in Volume 2, revised edition of Sherman & Redfield on Negligence, set out above, also arises out of the relationship of employer and employee. In one of the cases so cited, Feely v. Pearson Cordage Co., 161 Mass., 426, 37 N. E. 368 (1894) the Court said:

“The danger of stepping or falling into the well was an obvious one, and the plaintiff must be held to have assumed the risk. It does not matter that he did not know the precise extent or character of the injury which he would sustain if he fell into the well. Such a test would introduce an impracticable element into the doctrine of assumption of risk.”

The rule of this case, so far as we have been able to discover, has not been overruled.

Of similar import is the case of Truntle v. North Star Woolen Mills Co., 58 N. W. 832 (1894) (Minnesota), although the employee in that case was deemed guilty of negligence which contributed proximately to his injury. A search for later authority fails to disclose any cases wherein a change is made in the rule as thus announced. It may be noted that the Ohio case of Davis v. The Somers-Cambridge Co., supra, from which the charge under discussion herein was taken, was decided in 1906. twelve years after the cases cited by Sherman and Redfield as authority for their conclusion.

In the instant case, there was no request by counsel for additional instructions on the subject herein. There was no request that the instructions as given be amplified in the general charge.

We therefore determine that no error prejudicial to the rights of the appellant intervened when the trial court gave the special instruction before argument requested by the appellee.

We have examined ail other claimed errors and find none prejudicial to the rights of the appellant.

The judgment will be affirmed.

FESS and DEEDS, JJ, concur.


author: By THE COURT.

text:
    STATE, DEPARTMENT OF LIQUOR CONTROL, Plaintiff-Appellant, v. SLAUGHTER, d. b. a. MANHATTAN TAP ROOM, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4917.
    Decided June 3, 1953.

      Hon. C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for plaintiff-appellant.
    H. David Lefkowitz, Cleveland, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court reversing an order of the Board of Liquor Control which had affirmed an order of the Director of Liquor Control refusing to authorize the appellant to transfer his D-5 liquor permit from 8507 Huff Avenue, Cleveland, to 9903 Cedar Avenue, Cleveland.

The order of rejection by the Director, the subject under consideration on the appeal to the Common Pleas Court and here, is as follows:

“Under the provision of Regulation 12, Section III of the Board of Liquor Control, the department is required to consider environmental factors including the number and location of other permit premises and as a condition of issuing a permit to find that no substantial prejudice to public decency, sobriety and good order will result. In this case, the department is unable to make the required finding due to the number and location of other permit premises in the area.
“The department finds further that the local authorities having the primary responsibility for the enforcement of the Liquor Control Act and for the maintenance of law and order in the community object to the issuance of the permit. The department considers said objections reasonable and well founded.”

The evidence upon which the Director and the Board acted is in the record and was not extended in the Common Pleas Court.

In an opinion of the Common Pleas Judge with which we have been favored, it appears that the reversal was based upon the conclusion,

“that the existence of a relatively large number of liquor permit premises in a concentrated area is not a legal justification, alone, for a denial of a transfer of a permit by the Liquor Department, or for the affirmance of such action by the Board of Liquor Control.”

The Court relied upon language in the opinion of Mandalla v. Board of Liquor Control, 60 Abs 345, to the effect that,

“It is essential to any system of regulation that applicants for the privilege of engaging in the sale of intoxicating liquors be given equal and fair consideration by the authority delegated to accord them such privilege. * * *.”

In that case, we held that a rule of the Board restricting the issue of permits was discriminatory but the Supreme Court held dlifferently. However, the principle of equal and fair consideration between applicants for permits is sound. We do not have here any controversy between applicants for permits but the basis of the denial is upon an excess of liquor outlets within a certain area, a condition established, in part, by the presumed proper issuance of other permits in the vicinity of appellee’s proposed place of business.

The evidence upon which the Director acted established that within four blocks of Cedar Avenue in Cleveland, two blocks either way from the premises where appellee seeks his liquor permit, there were at the time of ■ his application twelve permit premises having outlets for the sale of intoxicating liquor. If the permit applied for were granted it would be the thirteenth permit in the above area. The classes of these permits and how distributed, a vital factor, does not appear.

It further develops that in the premises where appellee proposed to move and exercise his permit there had been in recent years 180 arrests for gambling and during the two years wherein appellee was joint owner of the premises there had been some 50 arrests for gambling and the number of convictions on the arrests were disclosed only, and if at all, by cards offered in evidence by the Board. It further appeared that the occupant of the premises when the arrests and convictions were made was evicted by appellee and his wife, joint owners of the premises and that one of the grounds for the eviction was the conduct of gambling on the premises. There was no showing of knowledge by the appellee of the conduct of gambling in his property, or that he had the right to, or did exercise any control over these gambling activities. In this situation it was not proper to consider this evidence as affecting the personal fitness of appellee to be granted a permit. Barn Cafe and Restaurant, Inc., v. Board of Liquor Control, 63 Abs 351. The trial judge was correct in holding that these arrests and convictions would not support a denial of a permit to appellee.

The finding of the Director does not expressly hold that the arrests of the proprietor of the premises in question were the basis of the denial of the transfer of the permit but it appears, inferentially, that this evidence was considered probative of the findings.

We find no support for the finding that “the local police authorities object to the issuance of the permit.” Their testimony was restricted to the number of arrests and the reputation of the permit premises.

Although the Common Pleas Court Judge does not expressly consider or discuss Regulation 12, Section III of the Board of Liquor Control under which it acted in supporting the order refusing the transfer of the permit, it is manifest that he was of opinion that such a rule could not be supported because it is inconsistent with the statutory law which provides for the number of permits that shall be granted by the Department. In this conclusion we cannot concur.

We have heretofore held that the Department may properly consider the location of a prospective permit premises as an environmental factor in the determination that a permit should or should not be granted. The case to which we refer is Strohm, d. b. a. Railroad Restaurant, v. Board of Liquor Control, 57 Abs 378. In this case the denial of a renewal of a permit was based solely upon the objection of certain resi-rents of the Village Tipp City, Miami County, Ohio, to the granting of a permit at the location where it was sought to operate the tavern. It appeared that there was no unwillingness to grant the permit because of any personal unfitness of the applicant and that it would have been granted for a location elsewhere. It appears in this case that no rule or regulation of the Board was brought to the attention of the Court. At page 381 of the opinion it is said:

“Prom the standpoint of law enforcement, decency and order in the community the location of a tavern may be a controlling factor in determining whether a permit shall be issued or renewed. In the case at bar the Department had a right to and did consider environmental factors in arriving at its decision. The Department found that the conduct of appellant’s business in that part of the village was not only inadvisable but undesirable from the viewpoint of law enforcement and police protection. In our opinion, the factual situation presented constituted sufficient cause for rejection of the application.”

In effectuating the enforcement of the Liquor Control Act the Legislature, as we say in Board of Liquor Control v. Tanner, 48 Abs 63, has by §6064-8 GC reposed in the Board of Liquor Control the power to grant or refuse permits. As long as it does so in accordance with the statute and other applicable laws its decision is final and conclusive.

The section of the Code, §6084-8 GC, restricting and limiting the number of permits to be issued in various classes and Regulation 64, June 27, 1952, implementing and applying that statute, do not attempt to define or control the immediate locality in which permittees shall operate under their permits. There is no purpose in the instant cause to deny the number of permits allowed to the City of Cleveland nor to refuse a permit to appellee upon the claim that he is not entitled to it under any quota.

We are of opinion that the rule under which the Board acted is a proper exercise of its obligation to regulate the liquor traffic with the purpose of maintaining the highest degree of public decency, sobriety and good order consistent with the traffic in intoxicating liquors.

It is suggested in the opinion of the trial judge that there may have been some discrimination against appellee because of his color. We find nothing whatever in the record, or in the finding of the Director or the Board, which suggests in the slightest degree any basis for the claim of discrimination, or that the appellee at any time made such claim.

We therefore hold that the Common Pleas judge on appeal erred in holding that there was no support, as a matter of law, for the action of the Board in affirming the rejection of the transfer of appellee’s permit and that the finding of the Board could be supported upon the evidence as to the location of the permit premises in the light of the facts appearing. However, as we found in the case of Eastern Ohio Distributing Co. v. Board of Liquor Control et al, 59 Abs 188, the Director in making his order and the Board in support thereof, improperly considered evidence. The testimony improperly received and the subject matter of the last paragraph of the finding of the Director which is unsupported by the evidence, no doubt weighed heavily in shaping the action of the Director and the Board.

It will be the order of this Court that the judgment of the Common Pleas Court be reversed and that the cause be remanded to the Board of Liquor Control to reconsider the appeal of appellee from the action of the Department in refusing to order a transfer of appellee’s permit.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


author: Per CURIAM:

text:
    STATE, Plaintiff-Appellee, v. JONES, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2377.
    Decided November 21, 1956.
    Mathias H. Heck, Pros. Atty., By J. B. Carter, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    William T. Poliak, Dayton, for defendant-appellant.
   OPINION

Per CURIAM:

This is an appeal from conviction and sentence of defendant on the charge of contributing to the neglect of a minor three years of age. Two errors are assigned, namely, that the State failed to prove venue of the crime charged, and to establish the essential of the offense that defendant encouraged and contributed to the neglect of the minor.

The record is in the form of an entry authenticated by the trial judge and made a part of the transcript of docket and journal entries. Although the testimony is set out in narrative form, we must accept it as being a complete and accurate statement of the evidence adduced, although it may be the fact that, in the mass of cases which the juvenile judge has to consider and adjudicate, by inadvertence some evidence adduced at the trial is not incorporated in the entry. However, we may not, as urged by appellee in its brief, assume that there was any other or further evidence before the trial judge at the time of the conviction and sentence. We set out all of the material parts of the judgment entry reciting the evidence:

“Mabel McDavis, being first duly sworn according to law testified to the following; to-wit: Her name was Mabel McDavis and that she was a case worker of the Montgomery County Child Welfare Board, which had temporary custody of Jeffrey Lynn Jones, a minor, age 3 years. That sometime in February, 1956, in a discussion with Herta Lee Jones, mother of the child. Jeffrey Lynn Jones she advised the defendant. Herta Lee Jones that an investigation of home of the Aunt of Herta Lee Jones showed the Aunt’s home to be a proper home to place the child. That the Aunt’s name was Sadie Colburn of Lewisburg. Mississippi.
“That she, Mabel McDavis, took the child to the train station and delivered the child there to Herta Lee Jones, who was to take the child to Sadie Colburn’s home in Lewisburg, Mississippi and that Herta Lee Jones did take the child to said Aunt’s home in Lewisburg Mississippi.
“That thereafter she received a letter from a case worker in Mississippi concerning the child. Defendant’s counsel objected and the court sustained the objections as to the contents of the letter.
“That Mabel McDavis testified that on March 5, 1956, she had received information which led her to believe that the child was with its mother, Herta Lee Jones, that she telephoned defendant Herta Lee Jones and asked her if she had the child.
“Herta Lee Jones replied she did not have the child and Mabel McDavis on the telephone said she did. Mabel McDavis thereupon in the same March 5, 1956 telephone conversation told defendant to return the child to her by noon, and that if Herta Lee Jones did not or could not, that she, Mabel McDavis, would come and get the child. Herta Lee Jones replied there was no use to come and get the child, that she did not have it and could not give the child to her.”

It is unnecessary to eleborate at length upon the complete failure of proof of the essentials of the offense charged which is exemplified by a mere reading of the testimony. It is true that the court may take judicial notice of the fact that the Montgomery County Child Welfare Board was an organization functioning in Montgomery County. Ohio, and that it had temporary custody of the minor, Jeffrey Lynn Jones, but it was essential to the proof that the defendant unlawfully removed the minor from the control and custody of the Eoard. that it be done against the will and without the consent of said Board. The proof according to the record is that at no time there appearing did the defendant have the custody of the minor except by and with the consent of the Board and it appears that she took the child to Lewisburg, Mississippi, as directed by the Board. There is no showing whatever that the defendant had possession of the child at any other place than Dayton and Mississippi and during the time and at the places where she had the custody, it was by and with the direction of the Board. There is no showing whatever that subsequent to the time that she left the child in Mississippi she again had its custody. Thus, it is evident that the State failed completely to establish venue or to establish the other essentials of the offense charged.

Both errors assigned are well made. The motion to dismiss the defendant at the conclusion of the testimony should have been sustained.

Judgment reversed and defendant discharged.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By THE COURT: By HORNBECK, J.

text:
    STINE, Plaintiff-Appellant, v. SPRINGFIELD CITY LINES, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 521.
    Decided December 19, 1955.
    George B. Smith, William T. Hicks, Springfield, for plaintiff-appellant.
    Kenneth L. Rush, John W. Henderson, Springfield, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of the appellee seeking an order dismissing the appeal for failure to file assignment of errors and brief within the time required by Rule VII of this Court. The record reveals that the judgment was entered on January 24, 1955, and motion for a new triai was overruled on February 23, 1955; that a bill of exceptions was seasonably filed on April 9, 1955, but that nothing further has been filed up to the time of the filing of this motion, to wit, October 11, 1955. It therefore appears that the appellant has been in default for a period of some seven months. For many years this Court has strictly enforced the aforesaid rule unless good cause was shown for the failure to do so. Counsel for the appellant has filed a memorandum opposing the motion, which is not supported by affidavit, in which he urges that the appellant became dissatisfied with her counsel who instituted the appeal and discharged them; that the appellant was not familiar with the rule and was also unable to secure new counsel until recently. These are merely conclusions on the part of counsel based upon hearsay evidence, and will not be considered as good cause for noncompliance with the rule. See §2505.31 R. C.

No. 521.

Decided June 28, 1956.

William H. Ruger, Cincinnati, for plaintiff-appellant.

Kenneth L. Rush, John W. Henderson, Springfield, for defendant-appellee.

The motion will be sustained.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

OPINION

By HORNBECK, J.

Submitted on general demurrer of appellee to the petition.

The petition of appellant seeks a vacation of a judgment of a dismissal of an appeal, in a case bearing the same number as the petition, for failure of appellant to file briefs in conformity to Rule VII of this court.

At the time that the motion to dismiss the appeal was decided appellant was and had been for seven months in default for failure to file briefs. In opposition to the motion counsel for appellant, without supporting affidavit, stated that the appellant became dissatisfied with her counsel, who instituted the appeal, and discharged them; that the appellant was not familiar with the rule and was unable to secure new counsel until recently. There was no statement to the effect that counsel for appellant had been discharged prior to the time when briefs should have been filed in her behalf in compliance with Rule VII. There was no statement that counsel for appellant was unfamiliar with the rule. Obviously, it would not be expected that appellant would be conversant with the rule. Notwithstanding the averment that counsel for appellant had been discharged it was said that appellant was prepared to file her brief if the court permitted.

Obviously, there was no sufficient cause appearing to prevent the enforcement of Rule VII.

The right of appellant to have the judgment of dismissal vacated is properly set up by petition inasmuch as the order was made at a prior term of court. It should, if conformable to §2325.01 R. C., set up one of the grounds therein which, if true, would support a vacation of the judgment. We find no one of these grounds asserted in the petition.

The gist of the petition supported by several affidavits is that appellant relied upon her counsel and that they failed to act in her behalf on the appeal as she had been premised they would do. This petition was filed May 33, 1956, five months after the opinion sustaining the motion to dismiss.

In the last analysis it is the claim of the appellant that her counsel did not properly represent her. This, if true, is an unfortunate situation, but it did not prevent counsel acting in her behalf in conducting the appeal and she was bound by the acts of her counsel.

We regret that appellant has been denied her day in court, but we can find no substantial reason, by the averments of the petition, which would justify this court in opening up the judgment after the term.

The demurrer will be sustained.

MILLER, PJ, WISEMAN, J, concur.

No. 521.

Decided October 24, 1956.

OPINION

By THE COURT.

Submitted on general demurrer to plaintiff’s amended petition.

Plaintiff’s appeal in this case in this court was dismissed for failure to observe Rule VII as to the filing of assignments of error and briefs. A petition filed after term seeking to set aside the order of dismissal was challenged by general demurrer which was sustained.

An amended petition has been filed, the averments of which are quite different and much more detailed in factual development than those appearing in the petition. After setting out the basic allegations for relief after judgment under §2325.01 R. C., viz., “unavoidable casualty or misfortune preventing the party from prosecuting * * *” incorporates many grounds for the conclusion of law. Without enumerating them, suffice to say, they involve the charge that counsel for plaintiff who were representing her at the time that her appeal was perfected and pending in the Court of Appeals, with knowledge of the legal procedure essential to protect plaintiff’s rights on her appeal, deliberately failed to protect her interest. These averments, if true, disclose a violation of the basic obligations of an agent toward his principal, viz., loyalty, obedience to instructions, disclosure of information to principal vital to her interests and a failure to exercise due care, professional skill and diligence. 2 O. Jur. 2d, Agency, 170, 171.

The amended petition with affidavits pleads ultimate facts which as against the demurrer must be accepted as true and in the broad sense of the term constitute “unavoidable misfortune” as appearing in §2325.-01 (G) R. C. which prevented plaintiff having her day in court on her appeal.

The demurrer will be overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By PHILLIPS, PJ.

text:
    STATE, ex rel. MILD, Relator-Appellee, v. YOUNGSTOWN (City), Respondents-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3828.
    Decided March 28, 1956.
    Joseph E. Julius, Youngstown, for relator-appellee.
    Felix S. Mika, Director of Law, Frank J. Eattisti, Joseph L. Heffernan, Asst. Directors of Law, Youngstown, for respondents-appellants.
   OPINION

By PHILLIPS, PJ.

Relator was appointed a patrolman in the Department of Police of respondent city on October 3, 1945. On June 27, 1953, he was injured in the performance of his duty, and on the following day while on sick leave he was operating an automobile which came into collision with another automobile on a highway of respondent city, as a result of which relator was injured when not in the performance of his duty as a patrolman, and thereafter was absent from his post of duty until September 1, 1953, when his sick leave was cancelled.

On December 9, 1953, relator was placed on sick leave again, which second sick leave was cancelled on March 16, 1954, when he was removed from the payroll of the Department of Police of respondent city by writing on the assigned ground of inability to perform his duty as a patrolman because of the condition of his health.

On November 14, 1954, relator applied for reinstatement as a patrolman alleging that his health was such that he was and in the future would be able to perform the duties assigned to a patrolman in the Department of Police of respondent city.

Two medical doctors who examined relator recommended neurological examinations. Thereafter relator’s application for reinstatement was denied without further mental or physical examination.

In relator’s action in mandamus filed in the court of common pleas the trial judge found for relator and ordered that a preemptory writ of mandamus issue requiring and ordering respondents City of Youngstown and Paul H. Cress as Chief of the Department of Police thereof to restore relator to his office as patrolman and assign him to duty; that respondent Chief of Police certify to the Civil Service Commission of respondent city all salaries and emoluments of said position of patrolman due to relator from November 4, 1954, to October 18, 1955, at the rate of $356.95 per month; and that “the respondent members of the Civil Service Commission of said city approve such certification of relator’s salary as submitted to it by said Chief of Police, and submit the same to the Finance Director of said City of Youngstown, Ohio, for payment to the relator; and, that all such acts and things be done by each of said respondents forthwith.”

Respondent city appealed to this court from the judgment of the trial court on questions of law and fact.

Legally we are unable to hear and determine this appeal as one on questions of law and fact because “a mandamus proceeding is regarded as an action at law, as distinguished from a proceeding in equity, and for this reason it has been held that the action of mandamus does not constitute a chancery case within the purview of Article 4, Section 6, Ohio Constituion.” 25 O. Jur., Mandamus, Section 4, Page 976. See also State, ex rel. Carson v. Board of Education, 115 Oh St 55.

Accordingly, the words “and fact” are stricken from respondent’s notice of appeal, and it appearing that a bill of exceptions and assignments of error and briefs were duly filed the appeal was retained, submitted, heard and will be determined as an appeal on questions of law only.

One of the commission’s examining physicians testified on cross-examination that relator was physically fit to return to work, and there is no evidence that relator was found guilty of misconduct unbecoming a police officer. Another of the examining doctors testified that relator had a “slightly enlarged heart and hyperactive reflexes; that he was unstable in his reactions, and had an abnormal nervous system, but recommended to the Police Relief and Pension Fund a psychiatrist or neuro-surgeon for a further checking to determine if relator was physically fit otherwise “to perform duties of a police officer” as he was able to do so, so far as his heart was concerned.

If relator was injured in the performance of his duty as a patrolman clearly §143.35 R. C., enjoined a duty upon the Chief of the Department of Police to reinstate relator after he passed a physical examination.

There is no evidence that relator appealed to the Civil Service Commission within ten days from the cancellation of his sick leave nor review of his application for reinstatement to the position of patrolman, nor otherwise attempted to bring his case before the commission.

By assignments of error respondents contend the court of common pleas erred in the following respects;—

“1. In interpreting the testimony as to the physical condition of the relator.
“2. In interpreting and applying the permissive and mandatory provisions of §143.35 R. C., as to reinstatement of a patrolman.
“3. In finding that the relator, although his disability was sustained otherwise than in the performance of duty, must be reinstated and assigned to duty.
“4. In overlooking the rule that mandamus should command the performance of the first act left unperformed by those administering the statute; hence, if the examination had not been made and the relator was entitled to any relief, the respondents should have been commanded to proceed with an examination.”

We answer respondent city’s second assigned ground of error first. In his opinion, in which we cannot concur, and to which respondent city refers in its second assigned ground of error, the trial judge said:—

“Where the word ‘may’ is used in connection with the exercise of power by a public official in a situation involving the public interest, as it does in this case, the permissive power becomes mandatory, and the word ‘may’ should be interpreted as ‘must.’ ”

The required examination was made in compliance with law, which does not require neurological examinations.

As applicable §143.35 R. C., provides:—

“Any person holding an office or position under the classified service in a fire department or a police department who is separated therefrom due to injury or physical disability incurred in the performance of duty shall be reinstated immediately, or one suffering injury or physical disability incurred other than in the performance of duty may be reinstated, upon filing with the chief of the fire department or the chief of the police department, a written application for reinstatement, to the office or position he held at the time of such separation, after passing a physical examination showing that he has recovered from the injury or other physical disability. The physical examination shall be made by a licensed physician designated by the firemen’s pension board or the policemen’s pension board, within two weeks after application for reinstatement has been made, provided such application for reinstatement is filed within five years from the date of separation from the department, and further provided that such application shall not be filed after the date of service eligibility retirement.”

The applicable portion of §143.35 R. C., provides that the Chief of Police may under certain conditions in his discretion reinstate relator who was injured when not performing any of his duties as a patrolman. Sec. 143.35 R. C., does not specifically enjoin a duty upon the Police Chief to perform a ministerial and non-discretionary act, not involving his judgment.

However, even if §143.35 R. C., did specifically enjoin the duty upon the Chief of Police to reinstate relator upon passing a physical examination, the evidence discloses that relator’s ability to perform the duties of a member of the police department of the City of Youngstown has not been established.

In our opinion, in the absence of an abuse of discretion, which the evidence does not disclose, mandamus is not the remedy under the evidence in this case to control the discretion of the reinstating officer.

Reviewing all of the evidence, and the law applicable thereto, in this case carefully we conclude that the Chief of the Department of Police of the City of Youngstown is under the evidence in this case under no mandatory duty to restore plaintiff to the position in such department that he occupied when injured.

The judgment of the court of common pleas is reversed and final judgment is entered for respondents.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By THE COURT. By THE COURT.

text:
    WOMELDORF, Plaintiff-Appellee, v. TRANSAMERICAN FREIGHT LINES, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5478.
    Decided October 22, 1956.
    R. Brooke Alloway, Columbus, for plaintiff-appellee.
    Sebastian, Fais & Durst, G. W. Fais, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an action in which the plaintiff-appellee is seeking the right to participate under the Workmen’s Compensation Law of Ohio for accidental injuries arising out of his employment with the defendant-appellant who, ic is admitted, is amenable to the provisions of the Act.

The oniy error assigned is that the court erred in its charge to the jury in that, in defining the issues, it made no reference to the intervening cause of the plaintiff’s injury as alleged in the second defense of the defendant’s answer. This defense reads as follows:

“For its second defense to the plaintiff’s petition, defendant avers that any alleged disability suffered by the plaintiff after August 1st, 1953, was not due to any accident or injury sustained in the course of his employment for the defendant, nor did the alleged disability of the plaintiff arise out of any accident or injury sustained in the course of plaintiff’s employment for the defendant.
“Defendant further avers that on May 9th, 1953, the plaintiff was involved in an automobile accident, in which accident the plaintiff sustained certain injuries to his back; that the plaintiff, following said automobile accident, filed an action for damages in this court against the operator of the other automobile; that the plaintiff, in filing his said action for damages, stated that 'his neck was injured severely, and his back which had been injured previously, but which had almost become well again, was reinjured, and that plaintiff has ever since been and will always be incapacitated from doing any work because of said injury.’ Defendant says that the plaintiff signed the petition in said damage action, being case number 187926, on the docket of this court, and plaintiff under oath made the above statement regarding his injuries in said automobile accident. Defendant says that any disability claimed by plaintiff after August 1, 1S53, was due directly and proximately to the automobile accident in which plaintiff was involved on May 9, 1953.”

We are of the opinion that the pleading of an intervening cause in this defense is merely a reiteration, in different words, of what has been alleged in the first paragraph of the same, to wit, “that any alleged disability suffered by the plaintiff after August 1, 1953, was not due to any accident or injury sustained in the course of his employment.”

The first paragraph of this defense is a direct denial of the allegations contained in the petition, while the second paragraph denies indirectly the same averments. However, it does not change the issue made in the first paragraph.

We have examined the entire charge of the court to the jury and find that although it made no specific mention of any intervening cause for the injuries of which the plaintiff complained, it did charge correctly with reference to the requirement that the plaintiff must prove by the proper degree of proof that there was a causal connection between the plaintiff’s accidental injury and his employment and that said injury was the proximate cause of the condition of which he now complains, before a verdict could be returned in his favor.

The judge included in his charge the following:

“If the condition of which plaintiff complains occurred or resulted from any other reason or cause then the plaintiff would not be entitled to recover and your verdict should be for the defendant.”

No. 5478.

Decided September 4, 1956.

And,

“Now I have used the term ‘proximate cause’ and by ‘proximate cause,’ * * * is meant that cause which in its natural and continued sequence unbroken and uninterrupted by any new, independent or intervening agency produced the thing complained of, or the injury alleged.” (Emphasis ours.)

This was correct and had reference to the intervening accident upon which defendant based its defense. If it desired a further charge it should have requested it. We find no error in the charge as given. Failure to give additional charges which might properly have been given is not ground for error unless such further instruction was requested and refused. The law relating to the necessity for such a request is well set forth in 39 O. Jur., p. 1008, Section 297, to wit:

“It is undoubtedly the duty of the court to instruct the jury as to the law governing the situation developed in the particular case, but this duty of the court must be considered in connection with the duty of counsel to request an instruction upon specific questions arising during the trial of a case, where the court has omitted to charge upon them. In other words, in the event that the trial court neglects or omits fully to charge upon some important issue or issues in a case, it becomes the duty of counsel who desires that further and more complete instructions on a matter in issue be given, to call such fact to the attention of the court and request that additional instructions be given. So, if counsel considers the instructions of the court on certain questions insufficient, desires more specific instructions or more comprehensive instruction, or desires that the court elaborate upon or explain instructions given in its general charge, he should call the court’s attention to the fact and request that the instructions given be elaborated or amplified to the extent necessary for full development of the law. Such a rule is necessary, as it is hardly possible for any court in its charges to the jury, unaided by suggestions from counsel, to comprehend every possible point of view and cover every phase of the case.”

It is our conclusion that the court did instruct upon all the issues raised by the pleadings and that the jury was not misled by the same.

The judgment will be affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.

OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that the appellant has failed to comply with Rule VII of this Court relative to the filing of brief and assignments' of error. Affidavits have been filed by each of the parties from which it appears that there was an agreement as to an extension of time, but there has been some misunderstanding as to the length of the same. We are of the opinion that good cause has been shown for the failure to comply with said Rule, and the motion will be overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By BARTLETT, J.

text:
    MANGOLD, d. b. a. CLOVER CLUB, etc., Appellant, v. BOARD OF LIQUOR CONTROL, etc., Appellee.
    Common Pleas Court, Franklin County.
    No. 195183.
    Decided November 13, 1956.
    S. Myron Gurevitz, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., for appellee.
   OPINION

By BARTLETT, J.

THE ORDER OF THE BOARD OF LIQUOR CONTROL (REVOKING APPELLANT’S D-l and D-2 PERMITS), IS REVERSED AND THE APPEAL THEREFROM SUSTAINED.

This is an appeal from an order of the Board of Liquor Control, under §119.12 R. C., wherein said Board revoked appellant’s D-l and D-2 permits, based on the alleged possession and sale upon the permit premises of whiskey, while not the holder of a proper permit therefor, and while said permits D-l and D-2 were suspended.

The only witnesses for the Department were a stool-pigeon and two deputy sheriffs who sent their stooge to the permit premises to make a buy, with an understanding that a charge pending against him of driving while intoxicated, would be dismissed, if he complied with their request of going to the permit premises and making a buy, and later the charge was dismissed.

This court refuses to place its stamp of approval upon such rotten methods of so called law enforcement. There can be no justification of police officers becoming criminals themselves, in their goal to pin a law violation on some one else.

A crooked police officer, or deputy sheriff, who resorts to such methods, cannot be a reliable witness. The stooge testified he paid $5.00 for a bottle of whiskey in the premises, and it was delivered to him across the road. The bartender said he bought Kingsbury 3.2 beer with the marked $5.00 bill and received his change, and then went across the road where he paid $4.00 for the bottle of whiskey. There was no evidence as to where the other two bottles were purchased, one of which was found in the men’s toilet and the other in a booth, “sitting down behind.”

The memory of the stooge and the two deputies, certainly was bad on details: but more important, their testimony cannot be considered as trustworthy, under the circumstances. Police officers who resort to such practices, are more dangerous to society, than the violation of the law, such as cheating bartenders and their ilk.

The court, on consideration of the entire record, fails to find that the order of said Board is supported by reliable, probative and substantial evidence; and therefore, reverses said order and sustains the appeal therefrom.


author: By THE COURT: By CONN, J.

text:
    STATE, Plaintiff-Appellee, v. MARTIN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2397.
    Decided October 26, 1956.
    Mathias H. Heck, Pros. Atty., Dayton, By Herbert M. Jacobson, First Asst., for plaintiff-appellee.
    Jack H. Patricoff, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal on the ground that appellant has failed to file assignments of error and brief with the transcript, pursuant to §2953.04 it. C.

No. 2397.

Decided November 29, 1956.

Mathias H. Heck, Pros. Atty., Dayton, By Herbert M. Jacobson, First Asst. Atty., for plaintiff-appellee.

Jack H. Patricoff, W. Gale Everman, Dayton, for defendant-appellant.

(CONN, J, of the Sixth District, sitting by designation in the Second District.)

The Supreme Court, in State v. Niekles, 159 Oh St 353 (1953), 112 N. E. (2d) 531, held that the provision in §2953.04 R. C., requiring the filing of the assignments of error and brief with the transcript in criminal cases is directory and not mandatory.

Motion overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.

OPINION

By CONN, J.

The defendant was indicted at the September Term (1954) of the Grand Jury of Montgomery County for receiving and concealing stolen property, to which indictment said defendant pleaded not guilty. The sufficiency of the indictment was not raised by motion to quash or for bill of particulars.

Upon the trial in the court of common pleas, the jury returned a verdict of guilty as charged, and fixed the value of the property to be in the sum of $400.00. From the finding of the jury and judgment of the court thereon, defendant has appealed to this Court on questions of law, and grounds her appeal on the following assignments of error of the trial court, re-stated in abridged form, to-wit:

That the verdict of the jury is against the manifest weight of the evidence and contrary to law;

Failure of the trial court to sustain defendant’s motion for dismissal of the case or to grant defendant a new trial;

Improper and prejudicial argument of the prosecuting attorney to the jury, which prevented defendant from having a new trial;

Evidence offered by the State was at variance with the allegations contained in the indictment, which constituted prejudice against defendant; and

For “irregularities in the proceedings of Sergeant Jack Peake while on the witness stand for the State of Ohio, by which defendant was prevented from having a fair trial.”

The record is voluminous and it is impractical to review the evidence in detail and comment thereon.

The State called as its witnesses three young men, Richard Fry, Ray Walters and John Kraft, each approximately 18 years of age, who previously had been arrested on three felony charges, including burglary of a retail store in Springfield known as “Whitaere Pharmacy,” and had been sentenced to Mansfield Reformatory for an indeterminate term of one to twenty years.

These witnesses testified that they, and a fourth boy named Arnold Kumler, had driven to Springfield in two stolen automobiles, broken into said store after midnight, and had taken seventy cartons of cigarettes, four cameras, twelve watches, billfolds, lighters and a safe and contents.

These witnesses also testified that they had placed the stolen property in a carton and brought the carton and safe back to Dayton the same night and hid the carton and safe in the brush near Drexel Jungles; that later in the morning, about six-thirty, three of the boys, Walters, Kraft and Fry, went to defendant’s home in Walters’ automobile; that Walters went inside, talked with defendant, and in a short time returned and said to his companions to “go get the box.”

The evidence offered by the State further shows that the carton was brought to defendant’s home, placed on the front porch and covered with pieces of carpet; that defendant gave the boys $54.00 to apply on the cartons of cigarettes at the price of $1.00 per carton. The boys also testified that they opened the safe, took a number of small bottles of narcotics therefrom and placed them into the carton, and the money in the safe was divided among them.

Further testimony offered by the State tended to show that defendant arranged to have the carton taken from her home to the premises of one Harold Crow, who lived in a trailer near defendant’s home; that the carton was discovered by Crow in the back seat or trunk of an old automobile which he had on his premises, and at that time the box had some rags on top; that he saw some little bottles in the carton, which he later, on Saturday night, gave to one Frank Smith; that he also saw in the box some cigarettes and that he took the carton into the trailer and placed it under the couch, where the police later found it.

The State’s evidence further tends to show that following defendant’s arrest at her home, and on the way to the station, she attempted to conceal three watches in the back seat of the police car where she was sitting and which she had taken from her hand bag. Later these watches were identified by the proprietor of the Whitacre Pharmacy as three of the watches taken from his store.

The testimony offered by the State in many material respects was denied by defendant and her husband in the course of their testimony and defendant denied any knowledge that the carton and contents had been brought to her residence. The defendant admitted having previously purchased cartons of cigarettes from Walters, Fry and Kraft on four or five occasions at the price of $1.00 per carton.

The defendant also testified that she knew the three boys and had seen them at her place of business; that she had known the Walters boy since he was six years old; that he had visited in her home, and that the three boys were guests for Thanksgiving Day dinner, at which time Walters had given her the three watches as a present for the grandchildren.

The evidence offered by defendant tended to show that she and her husband were industrious and frugal people and were generous, charitable and hospitable toward others in their home life.

The evidence in this case was in sharp conflict on the material issues of fact. Under these circumstances it was for the jury to judge the credibility of the witnesses and the weight of the evidence. Moreover, evidence offered by the State was substantial and the jury, having returned a verdict of guilty, must have determined that the State’s witnesses testified truthfully in support of the indictment returned against defendant.

The rule is uniformly recognized that, where there is a conflict of evidence, the verdict of the jury will not be set aside by a reviewing court unless it is manifestly against the weight of the evidence, or unless the evidence weighs against the verdict so strongly as to indicate that the jury was moved by passion or prejudice in returning the verdict.

The Court has considered each of the assignments of error relied on by defendant and has reached the conclusion that the verdict is supported by substantial evidence and that defendant had a fair trial.

It should also be noted that the issues raised on the indictment and the evidence were ably presented to the court and jury by learned counsel and that the numerous questions raised during the trial were each carefully and judiciously considered by the trial court in protecting the rights of defendant. In the light of the whole record the errors, if any, that may have intervened in the extended and hotly contested trial do not appear to have been prejudicial to the defendant.

It is the conclusion of this Court that no error prejudicial to the defendant affirmatively appears on the record and that the defendant has had a fair trial. Under the statutory rule, the judgment of the trial court should be affirmed.

Judgment affirmed and cause remanded for execution of sentence.

HORNBECK and WISEMAN, JJ, concur.


author: By THE COURT. By HORNBECK, J.

text:
    KATZ and ARNOVITZ, d. b. a. CENTURY GRILL, Appellants-Appellees, v. DEPARTMENT OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5434.
    Decided March 16, 1956.
    Isadore Topper, Columbus, Joel Krupman, Cleveland, for appellants-appellees.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.!
   OPINION

By THE COURT.

This is a motion filed by Sanford D. Katz and Max Arnovitz, appel-lees herein, seeking an order dismissing the appeal of the Board of Liquor Control for the reason that the Court does not have jurisdiction to hear an appeal filed by an administrative agency pursuant to §119.12 R. C. when the only question presented is one of fact. Counsel for the appellants concede in their brief that the only question presented is whether or not the order of the Board of Liquor Control was supported by reliable, probative and substantial evidence. The right to such an appeal is purely statutory, Corn v. Board of Liquor Control, 160 Oh St 9, and if the Board has such a right it exists only by virtue of §119.12 R. C. This section provides:

“Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in §2505.01 to §2505.45. inclusive, R. C. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record. Such appeals may be taken regardless of the fact that a proceeding was pending prior to the amendment of this section expressly authorizing such appeals, provided such appeals are perfected by the filing of notice of appeal within the time prescribed by §2505.07 R. C.”

It appears that the Legislature in granting an administrative agency a right of appeal from an adverse decision of the Court of Common Pleas spelled out the scope and nature of the appeal and limited the appeal to questions of law involving the “constitutionality, construction or interpretation of statutes and rules and regulations of the agency,” and that in such appeal the Court “may also review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record.”

The record discloses that this appeal does not involve the constitutionality or construction of any statute or rule of the Board but it relates solely to the sufficiency of the evidence. The language of the statute quoted makes it a condition precedent to the review of the correctness of the judgment of the Court of Common Pleas on the question of evidence that there be an appeal by the administrative agency on questions of law involving the constitutionality or construction of a statute or rule. The statute specifically provides that the Court of Appeals “in such appeal” (that is one involving a rule or statute) may also review the correctness of the judgment of the Court of Common Pleas on the evidentiary question. It is our conclusion that where the appeal does not involve the constitutionality or construction of a statute or rule there can be no review of the correctness of the judgment of the Court of Common Pleas that the order of the administrative agency is not supported by reliable, probative and substantial evidence.

The motion will be sustained.

MILLER, PJ, FESS, J, concur.

HORNBECK, J, dissents.

DISSENTING OPINION

By HORNBECK, J.

The case of Corn v. Board of Liquor Control, 160 Oh St 9, was decided on June 10, 1953. This case held that the Board of Liquor Control, the Department of Liquor Control, or the Director of Liquor Control could not prosecute an appeal from an adverse judgment of the Court of Common Pleas. This reversed ruling which had been followed since the enactment of the present Liquor Control Act during which the jurisdiction of the Appellate Court to review such orders had been theretofore questioned in that Court and the Supreme Court. A little more than a month after the release of the opinion in the Corn case, supra, the Legislature enacted the amendment to §119.12 R. C., which is under consideration on this motion to dismiss the appeal of the Board of Liquor Control.

To illustrate the concept which I have of the construction of the amended section, will divide it into:

(1) Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in §2505.01 to §2505.45. inclusive, R. C.

(2) Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency.

(3) In such appeal the Court may also review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the record. (Emphasis oursj

It is my judgment that the term “such appeal” in (2) is synonymous, in the singular form, with “such appeals” in paragraph (1) and that “such appeal” in (3) also refers to “such appeals” in (1) and that in all appeals by the agency the authority to review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency was not supported by any reliable, probative and substantial evidence is not confined to appeals which question only the constitutionality, construction or interpretation of statutes and rules and regulations of the agency.

In the light of the history of the legislation, it would seem illogical to attribute to the Legislature an intention to permit the Court of Appeals to pass only upon an order of the agency to determine if it is in conflict with Constitution, statute or rules and regulations of the agency. Such construction would provoke continual consideration of the good faith of the appellant agency in asserting grounds of appeal which would assure a complete review in the Court of Appeals. By such construction, no matter how flagrant the error of the Common Pleas Court in determining the reliability and the probative and substantial character of the evidence relating to the order of the Board of Liquor Control, no redress to the agency would be afforded by the statute.

While not controlling of the legislative processes, it has long been the concept of the law of our trial and appellate procedure in Ohio in the light of our Constitution that one trial and one review would be accorded in all cases. Inasmuch as the recent holding of the Supreme Court in the case of Andrews, Jr., d. b. a. Buffalo Grill and Hotel v. Board of Liquor Control, 164 Oh St 275, that appeals to the Common Pleas Court of Franklin County from orders of the Board of Liquor Control are de novo appeals, the construction of the majority of the amendment will deny any review whatever to an agency of the State Government unless it has a question relating to the constitutionality or construction or interpretation of statutes and rules and regulations of the agency. I would hesitate to make such determination unless the letter of the statute clearly requires it and I do not believe that it does.

The motion of the appellee should be overruled.


author: By GESSAMAN, J.

text:
    KENNEDY, Plaintiff, v. ALVIS, Warden, etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 198126.
    Decided July 9, 1957.
    James L. Kennedy, per se
    William Saxbe, Atty. Geni., William M. Vance, Asst. Atty. Geni., Norman J. Putnam, Pros. Atty., for the defendant.
   OPINION

By GESSAMAN, J.

The plaintiff is an inmate of the Ohio Penitentiary and has filed for himself his petition for a Writ of Habeas Corpus. His contention is “that his present confinement is illegal through the fact that the indictment on which his charges were based was not a true bill and fatally defective and void, due to the absence of the signature of the Grand Jury Foreman as provided by law.”

The undisputed facts are that on July 8, 1955, the Grand Jury of Stark County, Ohio, returned what purported to be an indictment charging the petitioner, James L. Kennedy, with the offense of armed robbery. Plaintiff entered a plea of not guilty and upon trial was convicted and subsequently sentenced to the Ohio Penitentiary. Some time later it was discovered that the endorsement “a true bill” was not signed by the Foreman of the Grand Jury. This fact is not disputed.

The question presented to the Court is not whether there is a defect in an indictment but rather whether there is in this case an indictment.

Sec. 2939.20 R. C., provides as follows:

“At least twelve of the grand jurors must concur in the finding of an indictment. When so found, the foreman shall endorse on said indictment the words ‘a true bill’ and subscribe his name as foreman.”

Sec. 2939.10 R. C., provides in part as follows:

“* * * but no person other than the grand jurors shall be permitted to remain in the room with the jurors while the jurors are expressing their views or giving their votes on a matter before them.”

Considering the mandate of the former section, in the light of the cloak of secrecy placed over the discussions and vote of the Grand Jury by the latter section, it becomes clear that the intention of the General Assembly was that the signature of the foreman is an indispensable requisite to a valid indictment. No one but the fifteen persons on the Grand Jury know whether or not at least twelve of them concurred “in the finding of an indictment.” The signature of the foreman to the endorsement “a true bill” is the certification by the Grand Jury, and the only one provided for in the laws of Ohio, to the effect that the indictment was lawfully found. Without the endorsement and the foreman’s signature thereto, we have no certification from the Grand Jury that the indictment was found as provided by law. In that event, the paper writing which purported to be an indictment, is nothing more than a paper writing of no legal effect.

We have been favored by the Prosecuting Attorney of Stark County with a photostatic copy of “Entry on Fourth Partial Report of Grand Jury,” dated July 8, 1955, and signed by the Honorable D. Deane McLaughlin, a Judge of the Court of Common Pleas of said county. This entry recites that the foreman presented to the Court “18 bills of indictment; each endorsed by Richard N. McCracken, the said Foreman of the Grand Jury, ‘a true bill,’ to which endorsement said foreman subscribed his name; * * Then follows, among others, a secret indictment, No. 16428, James L. Kennedy, for armed robbery. Obviously, the statement is incorrect as to the indictment No. 16428, and therefore, adds nothing to the indictment itself. The mere fact that a paper writing was presented to the Court (§2939.22 R. C.), does not validate that which prior thereto had not attained the position of validity by means of the foreman’s signature.

The Prosecuting Attorney has referred the Court to the case of Picket v. State, 22 Oh St 405. In this case the indictment did not carry the endorsement of the name of the prosecuting witness as required by Section 83 of the Court of Criminal Procedure. The Court held that in view of the fact that the plaintiff-in-error, the defendant in the Trial Court, had not taken advantage of the error in the indictment, he could not do so in the reviewing court. It is quite apparent that the Court did not feel that the failure to endorse the name of the prosecuting witness upon the indictment was such an omission as would invalidate the indictment itself. The Prosecutor also refers to the case of Zenz v. Alvis, Warden, 66 Abs 696. In that case the Court held in effect that the question of a defect in an indictment should be raised at the time of trial and where an objection is not made at that time, such defect or irregularity in form or substance, will not render the conviction or sentence void. This rule, of course, is well settled. It must be remembered, however, that before there can be an objection, there must first be an indictment to which the objection may be directed.

Our attention has also been called to the case of Frisbie v. United States, 157 U. S. 160. At page 163 the Court points out that at that time there was no Federal statute which contained the mandatory provision requiring an endorsement or authentication on the indictment by the foreman of the Grand Jury. The Court then went on to hold that the fact that the Grand Jury had returned the indictment into court is evidence of approval of the indictment by the Grand Jury and therefore the formal endorsement by the foreman of the Grand Jury loses its essential character. As we have already pointed out, the situation in Ohio is different. In this state the General Assembly has made it mandatory that the foreman endorse on the indictment “a true bill” and attach his signature thereto. It is quite apparent that the General Assembly intended that that act by the foreman was the certification or authentication by the Grand Jury of the indictment.

The case of Coburn v. State, 44 Southern, 58 (Alabama), holds that the objection to the indictment because of the failure of the foreman to sign it, should have been raised “in accordance with the rules of Pleading.” As opposed to this we refer to the case of Whitley v. State, 52 Southern, 203 (Alabama), decided three years later than the Coburn case, in which the Court said:

“There is no endorsement on the indictment, as required by Section 7300 of the Code of 1907, to-wit, 'a true bill,' signed by the foreman of the grand jury. Until an indictment is so endorsed, there is no valid indictment.”

In the case of Day v. State, 134 S. W. 215 (Texas), the Supreme Court held just the opposite and said that

“The failure of the foreman of the Grand Jury to sign an indictment officially does not invalidate the same.”

The weight of authority, however, seems to be just the opposite. We have already referred to the case of Whitley v. State, decided by the Supreme Court of Alabama in 1910.

In U. S. ex rel. Caudron v. Commonwealth of Pennsylvania, 96 Fed. Supp. 487, the Court spoke as follows at page 488 of the opinion:

“Indictment No. 14 of Clearfield County was neither signed by the District Attorney of the county nor by the foreman of the Grand Jury: no witnesses’ names appear on it nor that of a private prosecutor. Without doubt this indictment was defective. It amounted to not much more than a blank sheet of paper to which the petitioner pleaded guilty.”

To the same effect are the cases of State v. Bay, 87 Southern, 294 (Louisiana); People v. Rice, 56 NYS, 2d, 833 (New York); People v. Lester, 48 NYS, 2d, 409 (New York); and Cassidy v. Court, 167 Pac. 2d, 970 (Utah).

A very concise statement is found in the Cassidy case, supra, at page 972 of the opinion as follows:

“It is obvious that the document made by the district attorney in this case is not an indictment because the ‘true bill’ indorsement thereon was not signed by the foreman of the grand jury; * * *”

We are not unmindful of the provisions of §2941.08 R. C., which enumerate certain factors which do not invalidate an indictment. Among those enumerated is Subsection (K) which reads as follows:

“For other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”

For the reasons which we have given, it is our opinion that the failure of the foreman of the Grand Jury to attach his signature to the endorsement “a true bill” on an indictment, does prejudice the substantial rights of the defendant for the reason that he is presented with no certification by the foreman of the Grand Jury to the effect that the indictment was found by the Grand Jury in the manner provided by law. For the same reason, provisions of §§2941.29 and 2941.54 R. C., do not apply. When there is no indictment there is nothing to which a person may move or demur.

For the reasons which we have given, it is our opinion that the failure of the foreman to subscribe his name to the endorsement “a true bill” on the indictment in question is fatal and the purported indictment is therefore a nullity. It therefore follows that all proceedings had subsequent to the returning of the alleged indictment are void and that the plaintiff’s commitment to and detention in the penitentiary of Ohio is illegal. A writ of Habeas Corpus is therefore allowed as prayed for. In view of the fact that the plaintiff was not represented by counsel, the Court requests the Attorney General to prepare the proper entry.


author: By THE COURT:

text:
    WEST, Plaintiff-Appellant, v. BALLENTINE et, Defendants-Appellees.
    Ohio Appeals, Second District, Clark County.
    No. 490.
    Decided November 1, 1952.
    Drewey H. Wysong, Dayton, for plaintiff-appellant.
    David W. Carter, Cole & Cole, Springfield, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal which proceeds as upon questions of law from a judgment ot the Common Pleas Court entered upon a verdict of a jury in favor of defendants, Dennis Patton and Luretta Patton, a motion for new trial also having been filed and overruled.

There are seven errors assigned. , The third and fourth relate to claimed misconduct of four members of the jury. The record does not exemplify this assignment. The sixth assignment relates to the action of the Court in overruling plaintiff’s motion for a change of venue. The affidavits supporting this motion are not properly before the Court in any bill of exceptions or in any other recognized legal manner. Simes v. Dayton-Xenia Ry. Co., 24 Abs 595, 597.

The seventh assignment of error also relates to motion for change of venue as to which we make the same observation as to assignment No. 6. The other errors assigned are that the verdict is against the manifest weight of the evidence and that the Court erred in its charge to the jury, and in overruling the motion for new trial.

We shall not consider these questions at great length. We have read the evidence in its entirety and the charge of the Court and the pleadings upon which the parties were at issue and went to trial.

There were two theories upon which the jury could have returned its verdict. One, that the plaintiff did not establish by the requisite degree of proof his claim to damages. Two, that if plaintiff had any claim for damages it was released by agreement of appellant and appellees.

Plaintiff proceeded upon the claim that he had three written contracts which were in the possession of appellees and that they conspired to defraud him to his damage in excess of $40,000.00. Appellees denied any written contracts other than a bill of sale for personal property and claimed that they accounted to the plaintiff for all that was due him under their agreement respecting the operation of his welding business.

The issues of fact were primarily for the determination by the jury which held against the contention of the plaintiff. Under the rules controlling our action in granting a motion for new trial because a verdict and judgment are against the manifest weight of the evidence, we may not disturb this judgment.

We have also examined the charge of the Court. As to plaintiff’s case the charge followed his theory of conspiracy to defraud by the breaching of the written contracts and fairly presented the question to the jury. The Court, likewise, charged the obligation of the defendants to prove their affirmative defense by a preponderance of the evidence.

It will be noted that counsel for plaintiff interposed no exception whatever to the charge. We find no error in the charge as given which can be held to be prejudicial to the plaintiff.

There are some unfortunate aspects of this case. One in particular is the unusual delay in bringing it to trial and determination. This, however, may not be the basis of any relief in this error proceeding.

The judgment must be affirmed.

It will be so ordered.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By HUNSICKER, J.:

text:
    NOVY, Admrx. et, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23866.
    Decided January 16, 1957.
    Krewson, Williams & Krewson, for plaintiff-appellee.
    Robert P. Mooney, Patrick P. Doyle, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.:

This is an appeal on questions of law from a judgment awarded Emilia Novy, administratrix of the estate of John Novy, her deceased son, who lost his life on October 6, 1951, when thrown over the handle bars of his motorcycle while riding on a heavily travelled thoroughfare in the city of Cleveland, Ohio.

John Novy, the deceased, while riding his motorcycle west on Detroit Avenue, in the vicinity of West 70th Street, veered to the left off the asphalt-covered portion of the street, apparently to avoid a truck parked in his line of travel. The street was partially paved with cobblestones, which stones were adjacent to and between the streetcar tracks on Detroit Avenue. Near the edge of the tracks, and in the portion paved with cobblestones, were holes, made either from the lack of stones, or the pressure of streetcars as they passed over the tracks. These holes varied in size from twelve to sixteen inches long, eight or ten inches wide, and two to four inches deep. There were many of such holes in this vicinity along Detroit Avenue, in addition to those near West 70th. The City of Cleveland admitted that they had knowledge of the j condition of this street for a long period of time.

Mrs. Novy, as administratrix of the estate of her deceased son, sued the City of Cleveland for negligently failing to keep Detroit Avenue open, in repair, and free from nuisance.

From a judgment for the administratrix, the City of Cleveland appeals to this court, saying that prejudicial error intervened in the trial court. Nine assignments of error are asserted. We shall only comment on a claim of error in failing to compel the jury to reply to an interrogatory, and a claim of error in failing to give certain written requests to charge before oral argument.

The jury did not return a reply to one interrogatory, which asked how far from the crosswalk at West 70th Street the hole or holes were which John Novy hit. An interrogatory that was answered did say the | holes were on the crosswalk and west of it. 1

The statute with reference to findings on questions of fact, is Sec. 2315.16 K. C. (former §11420-17 GC).

The purpose of interrogatories has been set forth by the Supreme Court in Anderson, Admrs. v. S. E. Johnson Co., 150 Oh St 169, where the court said:

“2. The purpose of these provisions is to elicit from the jury such special findings on particular questions of fact as will test the correctness of the general verdict, if a general verdict is returned; and it is error to submit to the jury interrogatories which do not serve such purpose.”

And in Bradley, etc., v. Mansfield Rapid Transit, Inc., 154 Oh St 154, the court said:

“1. To be proper, under §11420-17 GC, interrogatories prepared and submitted by counsel must call for findings by the jury on particular questions of fact of an ultimate and determinative nature — such findings as will test the correctness of the general verdict returned and enable the court to determine as a matter of law whether such verdict shall stand.”

In the light of the reply to the interrogatory which placed these holes in the crosswalk and west of it, we do not believe the trial court erred in not requiring the jury to fix the distance in feet, and furthermore this was evidentiary matter and not a proper subject of an interrogatory under the circumstances herein. The fact that some questions submitted to a jury are not answered is not ground for a reversal, if there is substantial evidence to support the verdict. Smith, Admr., v, Cushman Motor Delivery Co., 54 Oh Ap 99.

The City of Cleveland submitted to the trial judge a number of special written requests to charge the jury before oral argument. Several of these requests were refused, and it is this action of the trial judge which counsel for the City now assign as prejudicial error.

It would serve no good purpose to review in detail each special request, since our examination discloses that the trial court acted properly in his ruling on each such special request. Some of these requests to charge the jury did not relate to the evidence, and, in other instances, the request was a repetition of a requested charge previously given to the jury at the instance of counsel for the City.

The Supreme Court said, concerning special requests, in the case of Centrello, etc., v. Basky, et al, 164 Oh St 41, that:

“5. The trial judge is not required to give to the jury before argument any special instruction which is not accurate or correct in essential details or which under the facts of the particular case states the law too strongly against one of the litigants.
“6. It is not prejudicial error to refuse special instructions before argument, where the substance thereof has been embodied in other requested special instructions given before argument at the instance of the same party.”

Counsel for the City of Cleveland in the brief raises another question, that was not called to the attention of the trial judge at the conclusion of the general charge, or at the motion for a new trial. It first appears in this case as comment in the brief. It was not assigned as error in the list of assignments filed herein.

The complaint made here for the first time is that the trial court should have directed a verdict for the City on the basis that John Novy, the deceased, was guilty of negligence as a matter of law in failing to stop within the assured clear distance ahead; or, if such request was refused, that the trial court should have charged on the subject of the assured clear distance ahead. (Sec. 4511.21 R. C.)

One of the witnesses did testify that these holes in Detroit Avenue were visible to her for a distance of nearly 100 feet; however, pictures taken by a competent photographer, and introduced as exhibits herein, make it difficult to see and appreciate the size and nature of these holes when looking straight forward along the street. From a side view, which the witness had, these holes are more easily seen. The witness also was very familiar with the street, for she lived on West 70th Street and came to the intersection every day.

We do not think it was prejudicial error on the part of the trial court to fail to charge on the subject, or to refuse to direct a verdict for the City, on the basis herein now set forth for the first time.

There are several reasons why we come to this conclusion, among them being that these holes were not discernible in the sense that such term is found in the Ohio law.

In the case of Farris v. City of Columbus, 85 Oh Ap 385, the court said, at p. 390:

“The application of the principle of law laid down in the Smiley case hinges on the question whether a hole in the pavement is a discernible object. In the Smiley case the court cites numerous cases where the rule was not applied. It is pointed out in those cases that the driver would not be able to discern a thin wire, a small stake, a patch of ice on the pavement causing the automobile to skid, an unlighted ditch extending across the highway or an unlighted excavation in the highway. The rule is not applicable unless it be shown that the obstruction or defect is discernible in time to permit the driver to avoid it. If the obstacle in front is, for the first time, in the driver’s view after the vehicle has passed the point where the ‘assured clear distance ahead’ rule would be effective, and the obstacle is then too close to be avoided, the rule has no application.”

See also: Brown v. Wackman, 87 Oh Ap 61, at p. 67.

The word “discernible,” according to Webster’s New International Dictionary, Second Ed., means “Capable of being discerned by the senses or the understanding; distinguishable * * Synonyms are: “Perceptible, apparent, visible, evident, manifest.”

Under the circumstances and the evidence in the instant case, reasonable minds could differ as to the discernibility of the holes, and hence it was not a subject for the court to pass on the question as a matter of law.

In the case of Keech v. City of Elyria, 85 Oh Ap 503, the court said that:

“4. Pedestrians on sidewalks are not required, as a matter of law, to keep their eyes continually sighted on the walk. They are required only to exercise such watchfulness and care for their own safety as persons of ordinary carefulness and prudence would observe under the same or similar circumstances.”

We must also bear in mind that there is here a claim of omission to charge, not a claim that a charge as given was wrong. The duty of counsel in such a case has been stated frequently. See: Columbus Ry. Co. v. Ritter, 67 Oh St 53; Beeler v. Ponting, 116 Oh St 432, at p. 434; Lytle v. Pennsylvania Rd. Co., 91 Oh Ap 232; Adams, Exr., et al., v. Foley, et al.. 36 Oh An 295.

We have carefully read the record of testimony in this case, and find it discloses evidence of sufficient probative value to sustain the claim of the existence of a nuisance, in that the City of Cleveland negligently, after full knowledge of the facts, permitted the existence of potential and unreasonable risk of harm to users of the highway in the form of holes along the car track, and in the travelled portion of the highway, and that, as a direct and proximate result thereof, John Novy was violently thrown from his motorcycle and killed.

We have examined all of the claimed errors, and find none prejudicial to the substantial rights of the appellant, City of Cleveland.

The judgment will be affirmed.

STEVENS, PJ, DOYLE, J, concur.


text:
    REISS et, Plaintiffs, v. MUNICIPAL COURT OF COLUMBUS et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    No. 5507.
    Decided June 4, 1956.
    Emile Reiss, Columbus, for plaintiffs.
    Chalmers P. Wylie, City Atty., J. Russell Leach, Chief Counsel, Columbus, for defendants.
   OPINION

By THE COURT.

This is an application for an order staying all proceedings in the Municipal Court of Columbus, Ohio, in the following causes pending therein, to wit:

City of Columbus v. Emile Reiss, No. 14,350; and City of Columbus v. Margaret Reiss, No. 14349.

It appears that in these cases the plaintiffs are charged with violating certain traffic ordinances of the City of Columbus. A petition for a writ of prohibition filed in this Court alleges:

1. That the plaintiffs are not guilty of the alleged violation.

2. That the ordinance involved in said prosecution is unlawful.

3. That the legislation creating the Municipal Court of Columbus is unconstitutional and therefore the defendants have no jurisdiction to hear and determine said cases.

4. That affidavits of prejudice are pending in the Common Pleas Court against all of the Judges of said Municipal Court.

5. That certain Judges of said Court are not qualified electors of the City of Columbus and therefore are not legally qualified to hold office.

6. That a jury will not be impaneled in accordance with law.

7. That if required to go to trial before any of said Judges the plaintiffs will be denied certain privileges accorded to them by the Constitution of the United States.

While we are not passing upon the merits of the plaintiffs’ cause of action at this time, we are of the opinion that a temporary writ should not issue. Prohibition is a high prerogative writ which should be issued with great caution in the furtherance of justice and only when there is no other regular and adequate remedy by appeal or otherwise. State, ex rel. Brickell v. Roach, 122 Oh St 117; State, ex rel. Carmody v. Justice, 114 Oh St 94; State, ex rel. Nolan v. Clendening, 93 Oh St 264; State, ex rel. Moss v. Clair, 148 Oh St 642.

No. 5507.

Decided June 25, 1956.

Emile Reiss, Columbus, for plaintiffs.

Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, John C. Young, Senior Asst. City Atty., Columbus, for defendants.

Other remedies appear to be available to these plaintifls; hence the temporary writ will be denied.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

OPINION

By THE COURT.

The respondents have demurred to the petition for the reason that the same does not state a good cause of action. On June 4th this Court filed its opinion denying the relators a temporary writ on the ground that other remedies are available which appear to be adequate. We are still of the same opinion. In State, ex rel. Focke v. Price, 165 Oh St 341, the relator was seeking his release from prison on a writ of habeas corpus upon the ground that the arrest was made in violation of his constitutional rights which entitle him to due process of law and to be secure from unreasonable search without probable cause. The relator was being detained upon the warrant of arrest and there had been no trial or conviction. The Court held that the appellant had an adequate remedy by way of appeal. Although this cause of action is different from the cited case, the same legal principle appears to be applicable.

The constitutionality of the statute creating the Municipal Court appears to be the only question raised by the petition upon which there can be any doubt as to the propriety of the remedy sought. In 32 O. Jur. 576, the general rule relating to constitutional questions arising in prohibition cases is stated as follows:

“Where the validity of a statute or ordinance is involved, the general rule obtains that a writ of prohibition will not be granted in advance of the trial or determination in the inferior court where the question is presented, when a plain remedy by appeal is afforded, though it may be that the higher court will, when the question is presented to it, determine that the statute or ordinance is invalid.”

Relators here clearly have the right of an appeal in case of an adverse ruling by the Municipal Court. At page 575, supra, it is said:

“It is a well-recognized principle that wherever a statute provides a specific remedy fully adequate to correct the grievances complained of, the writ of prohibition will not issue.”

The writ of prohibition is a high prerogative writ that should be issued only in cases of extreme necessity because of the absence or inadequacy of other remedies and then only when the right thereto is clear. It should never issue in a doubtful case. Page 566, supra.

The demurrer will be sustained and judgment rendered in favor of the respondents for costs.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


text:
    COLUMBUS (City), Plaintiff-Appellee, v. REISS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5520, 5521.
    Decided August 10, 1956.
    Chalmers P. Wylie, City Atty., William Gillie, City. Pros., Columbus, for plaintiff-appellee.
    Emile Reiss, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

On July 19, 1956, this Court sustained the plaintiff’s application for permission to substitute copies of the original affidavits which were filed in the Municipal Court of Columbus, Ohio, and made a part of the records in these cases, now pending in this Court. The defendants now move to vacate the aforesaid orders for the alleged reason that they were given no notice that the plaintiff intended to apply for leave to make such substitution, and for the further reason that the same was requested in order to harass the defendants and subject them to prosecution under the criminal charge pending in the Columbus Municipal Court.

In granting the motions the Court was exercising its discretionary power, and we find no reason for changing the aforesaid orders.

The motions are not well taken, and the same are overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.