City of Berea v. Petcher

• Citation: 26 O.O.2d 383,188 N.E.2d 605,119 Ohio App. 165
• Parties: , 91 Ohio Law Abs. 459, 26 O.O.2d 383 The CITY OF BEREA, Ohio, Plaintiff-Appellee, v. Frances S. PETCHER, Defendant-Appellant.
• Decision Date: 07 March 1963
• Court: Ohio Court of Appeals

Page 165

119 Ohio App. 165

188 N.E.2d 605, 91 Ohio Law Abs. 459, 26 O.O.2d 383

The CITY OF BEREA, Ohio, Plaintiff-Appellee, v. Frances S. PETCHER, Defendant-Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 7, 1963.

John H. Bever, Berea, for defendant-appellant.

John D. Munkacsy, Prosecutor, City of Berea, for plaintiff-appellee.

PER CURIAM.

This is an appeal on questions of law from a judgment of and sentence imposed by the Municipal Court of Berea finding the defendant guilty of assault and battery upon the person of a six year old child.

The assignments of error by the appellant are three in number and are as follows:

'1. Abuse of discretion by the court in permitting testimony on behalf of the plaintiff contrary to law;

'2. The finding and judgment is not sustained by sufficient evidence and is contrary to law;

'3. Error of law--the court should have granted defendant-appellant's motion for finding and judgment of not guilty at the conclusion of plaintiff's case.'

This was a criminal action wherein defendant was charged with a violation of Ordinance No. 913.01 in that she did unlawfully assault and strike Charles Mehozonek, six (6) years of age, in Berea, County of Cuyahoga, Ohio, contrary to the ordinance. The case was tried to the court without a jury.

All witnesses, including the defendant, live on Kempton Drive, in Berea, Ohio. On August 6th, 1962, in the afternoon, several neighborhood children, including a child of the defendant, were playing. A scuffle ensued. Defendant came to the area where this occurred, 274 Kempton Drive, in search of Charles Mehozonek, who with her son, Ricky, had been scuffling. Apparently Charles Mehozonek, along with several other children ran to the rear of this address. Charles Mehozonek went into the garage. The defendant went to the garage seeking him. So did several neighbor children, including Jean Cieslinski, age 7, who lived at that address. Some words were exchanged and additional scuffling ensued. It is claimed that the defendant struck Charles Mehozonek and that he then ran out of the garage stating, 'Fran hit me.' The defendant then left the scene and returned to her home.

As noted above, this is a criminal case in which the duty devolved upon the city to prove the defendant guilty of the crime of assault and battery by evidence beyond a reasonable doubt. The plaintiff appellee, City of Berea, attempted to establish its case against the defendant appellant by the oral testimony of three witnesses, children, one of the age of eleven (11) years, one six (6) years of age, and one seven (7) years of age.

Section 2317.01 of the Revised Code states:

'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.'

From the record it is apparent that two of the three witnesses were children of tender years, ages 6 and 7. Nowhere in the record does it appear that the court made any attempt by way of voir dire to determine the competency of these infant witnesses before permitting such infants to testify to the merits of this cause. When the first of these two witnesses was permitted to testify, defendant's counsel entered a timely objection to further testimony of such witness and attempted to direct the court's attention to the provisions of Section 2317.01, Revised Code. The prosecutor interrupted at this point before defendant's counsel could complete his statement and without further ado was met by the court's ruling, 'The objection is overruled,' and witness was permitted to testify.

At the conclusion of the testimony of this witness counsel moved that the testimony of such witness be stricken, again directing the court's attention to Section 2317.01, Revised Code. Without hesitation, the court ruled, 'The objection is overruled. The motion is denied.'

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