191 N.E.2d 825 (Ohio 1963), 37808, State v. Beck

Docket Nº:37808.
Citation:191 N.E.2d 825, 175 Ohio St. 73
Opinion Judge:ZIMMERMAN, J.
Party Name:The STATE of Ohio, Appellee, v. BECK, Appellant.
Attorney:Ralph S. Locher, Director of Law, Richard F. Matia and Edward V. Cain, Cleveland, for appellee. Defendant, William Beck, appellant herein, was charged in the Cleveland Municipal Court under Section 2915.111, Revised Code, with the offense of having in his possession and under his control on the 1...
Judge Panel:MATTHIAS, O'NEILL, GRIFFITH and HERBERT, JJ., concur. TAFT, C. J., and GIBSON, J., dissent. GIBSON, Judge (dissenting).
Case Date:June 26, 1963
Court:Supreme Court of Ohio
 
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Page 825

191 N.E.2d 825 (Ohio 1963)

175 Ohio St. 73

The STATE of Ohio, Appellee,

v.

BECK, Appellant.

No. 37808.

Supreme Court of Ohio.

June 26, 1963

Page 826

Syllabus by the Court

1. All searches and seizures without warrants are not prohibited by law. The search of an individual's person on the honest belief of an arresting officer, based upon probable cause that a felony has been committed, does not constitute an unlawful search, and incriminating articles seized during the search may properly be received in evidence against the individual at his trial for having in his possession such articles.

2. It is not reversible error on the part of a trial court to refuse to order the disclosure of the identity of an informer, whose information led in part to the apprehension and arrest of an accused person, where such disclosure would not be helpful and beneficial to the accused in making a defense to a criminal charge lodged against him.

Defendant, William Beck, appellant herein, was charged in the Cleveland Municipal Court under Section 2915.111, Revised Code, with the offense of having in his possession and under his control on the 10th day of November 1961 certain clearinghouse slips.

Before trial, defendant filed a written motion to suppress the evidence on the ground that his arrest and the search of his person, resulting in the discovery and seizure of incriminating evidence, were unauthorized, unwarranted, unreasonable and a violation of his rights under the Fourth and Fifth Amendments to the federal Constitution. The motion was heard and overruled. A plea of not guilty was entered, and the defendant was found guilty and fined.

An appeal on questions of law to the Court of Appeals [175 Ohio St. 74] resulted in the affirmance of the judgment below, and the cause is now here for decision pursuant to an appeal as of right and the allowance of a motion to require the Court of Appeals to certify the record.

Ralph S. Locher, Director of Law, Richard F. Matia and Edward V. Cain, Cleveland, for appellee.

James R. Willis, Cleveland, for appellant.

ZIMMERMAN, Judge.

Section 2915.111, Revised Code, recites:

'No person shall own, possess, have on or about his person, have in his custody, or have under his control a ticket, order, or device for or representing a number of shares or an interest in a scheme of chance known as 'policy,' 'numbers game,' 'clearing

Page 827

house,' or by words or terms of similar import, located in or to be drawn, paid, or carried on within or without this state.

'Whoever violates this section shall be fined not more than five hundred dollars and imprisoned not more than six months for a first offense; for each subsequent offense, such person shall be fined not less than five hundred nor more than one thousand dollars and imprisoned not less than one nor more than three years.'

It has been held that where the violation of a criminal statute carries a penalty of a substantial fine and imprisonment for a period of one or more years and the person convicted under the statute is sentenced to the penitentiary, his offense is classed as a felony. Ex parte Thorpe, 66 Ohio App. 128, 32 N.E.2d 571, affirmed, 137 Ohio St. 325, 30 N.E.2d 335. See, also, In re Thorpe, 132 Ohio St. 119, 5 N.E.2d 333, and Smith v. Alvis, Warden, Ohio App., 134 N.E.2d 868, 869.

The Cleveland police had good reason to believe that defendant was regularly engaged in carrying on a scheme of chance involving clearinghouse slips. There was testimony that he had previously been convicted on that score. Information was given to the police by an informer that defendant would be in a certain locality at a certain time pursuing his unlawful activities. He was found in that locality, as predicted, driving an automobile. Police officers stopped the car and searched it, [175 Ohio St. 75] without result. Defendant was then arrested and taken to a police station, and his clothing was examined, resulting in the discovery and seizure of the illegal clearinghouse slips, which formed the basis of the charge against him and his subsequent conviction.

In response to questions asked him by counsel for the defendant, one of the arresting officers testified as follows:

'A. I heard reports and found that he [defendant] has a record in connection with clearing house and scheme of chance.

'Q. Previous convictions? A. Yes.'

Although there are a number of errors assigned by defendant, only two are of real importance:

1. Were the clearinghouse slips obtained by an illegal search and seizure, so as to render erroneous the refusal of the trial court to sustain the motion to suppress?

2. Did the trial court err in refusing to order the police to disclose the identity of the informer?

The search herein took place as an incident of an arrest, and it has been held that a search which is incidental to a valid arrest does not constitute an unreasonable and illegal search. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.

Defendant was arrested, without a warrant, for what an arresting officer believed and had probable cause to believe was the commission of a felony (Section 2915.111, Revised Code). In the circumstances, then, was such arrest valid? Section 2935.04, Revised Code, describes when an arrest may be made without a warrant and reads as follows:

'When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the...

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