City of Toledo v. Crews
| Decision Date | 06 March 1963 |
| Docket Number | No. 37546,37546 |
| Citation | 174 Ohio St. 253,188 N.E.2d 592 |
| Parties | , 22 O.O.2d 290 CITY OF TOLEDO, Appellant, v. CREWS, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
There is no right of appeal in a criminal case involving a charge of violation of a municipal ordinance except from a judgment of conviction.
This action was instituted by the filing in the Toledo Municipal Court of an affidavit charging defendant with driving under the influence of intoxicating liquor. Defendant demurred to the affidavit on the ground that the ordinance, pursuant to which he was charged, is unconstitutional because it conflicts with a state statute. The Municipal Court by its judgment sustained the demurrer and discharged defendant.
The city endeavored to appeal to the Court of Appeals from that judgment. The Court of Appeals by its judgment held that no such appeal was authorized but found that its judgment is in conflict with the judgment pronounced upon the same question by the Court of Appeals for Franklin County in State v. Dean (1958), 107 Ohio App. 219, 158 N.E.2d 217, and, pursuant to Section 6 of Article IV of the Constitution, certified the record to this court for review and final determination.
Louis R. Young, Director of Law, and Lewis W. Combest, Toledo, for appellant.
Max Britz and Gene W. Kricks, Toledo, for appellee.
The right to appeal from a judgment of a court must be conferred by constitution or by statute. In re Mahoning Valley Sanitary District (1954), 161 Ohio St. 259, 119 N.E.2d 61.
Section 6 of Article IV of the Constitution has, since 1945, provided for appeals to to the Courts of Appeals as follows:
'The court of appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * * of courts of record inferior to the court of appeals within the district * * *.' (Emphasis added.)
Paragraph one of the syllabus of Mick v. State (1905), 72 Ohio St. 388, 74 N.E. 284, reads:
'The right of the state of prosecute error in a criminal case exists only when such right is expressly conferred by statute.'
Inasmuch as no double jeopardy would be involved if an appeal were authorized from this judgment of the Municipal Court in the instant case, there is no question that the General Assembly could authorize such an appeal. The question is whether it has.
Under Section 1901.30, Revised Code, an appeal from the Municipal Court to the Court of Appeals in a criminal case can only be taken 'in accordance with sections * * * 2953.02 to 2953.14, inclusive, of the Revised Code.' Those sections provide for criminal appeals.
There is no language in those statutes which would support an inference of a legislative intention to give a right of appeal from the judgment of a trial court with respect to a charged violation of a municipal ordinance except one involving conviction for violation of such an ordinance. On the contrary, there are many words in those statutes which clearly indicate a legislative intention to withhold from the state any right to appeal from an adverse judgment of a trial court.
For example, Section 2953.02 reads:
'In a criminal case, including a conviction for the violation of an ordinance of a municipal corporation, the judgment or final order of a court or magistrate inferior to the court of common pleas, may be reviewed in the court of common pleas, and a judgment or final order of a court or officer inferior to the court of appeals may be reviewed in the court of appeals. * * *' (Emphasis added.)
The words of Section 2953.03 clearly indicate that Section 2953.02 is only to cover appeals 'by or on behalf of a defendant.' Section 2953.03 provides only for a 'defendant' applying for and getting what would be necessary to maintain any appeal, i. e., 'a * * * transcript of the record and docket entries and entries on the journal * * * with the original papers in the case.' Section 2953.04 refers to 'filing the notice of appeal' and 'the transcript and original papers as provided in section 2953.03.' Section 2953.05 limits the time for such appeal by referring to 'after judgment and sentence or from an order overruling a motion for a new trial or an order placing the defendant on probation and suspending the imposition of sentence,' all indicating the General Assembly was contemplating appeals by defendants and not by the state. Section 2953.06 provides for serving a copy of a 'notice of appeal' only upon 'the prosecuting attorney.' Sections 2953.07 to 2953.13, inclusive, also deal only with the rights of the defendant.
See also State v. Simmons (1892), 49 Ohio St. 305, 31 N.E. 34, dealing with similar statutory provisions.
Section 2953.14, Revised Code, is the only statute relating to criminal appeals which contemplates any kind of appeal by the...
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...a criminal action and not the state. As was discussed by Chief Justice Taft in his opinion in City of Toledo v. Crews, supra, 174 Ohio St. 253, at pages 255 and 256, 188 N.E.2d 592, at page 593: 'The words of Section 2953.03 clearly indicate that Section 2953.02 is only to cover appeals 'by......
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...the remaining sentence and so controls over the general grant of appeal embodied in R.C. 2945.67. In Toledo v. Crews (1963), 174 Ohio St. 253, 22 O.O.2d 290, 188 N.E.2d 592, syllabus, we held that "[t]here is no right of appeal in a criminal case involving a charge of violation of a municip......
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...appeals from a Municipal Court. These amendments were apparently made because of what was said in my opinion in City of Toledo v. Crews, 174 Ohio St. 253, at 255, 188 N.E.2d 592. In making these amendments, the General Assembly retained the provisions for a bill of exceptions to the Court o......
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