City of Troy v. Cummins

• Decision Date: 18 March 1958
• Citation: 159 N.E.2d 239,107 Ohio App. 318
• Parties: , 8 O.O.2d 240 CITY OF TROY, Appellee, v. CUMMINS, Appellant.
• Court: Ohio Court of Appeals

Page 318

107 Ohio App. 318

159 N.E.2d 239, 8 O.O.2d 240

CITY OF TROY, Appellee, v. CUMMINS, Appellant.

Court of Appeals of Ohio, Miami County.

March 18, 1958.

Syllabus by the Court

1. The offense of operating a motor vehicle while under the influence of intoxicating liquor is a 'breach of the peace' and comes within the provision of Section 2331.13, Revised Code, which constitutes an exception to the privilege-from-arrest statutes and excepts therefrom an arrest on Sunday for a 'breach of the peace.'

2. A verdict styled 'driving while under the influence of intoxicating alcohol' and in which the jury finds the defendant guilty 'of the offense charged in the complaint,' which complaint charges the operation of a motor vehicle 'while under the influence of intoxicating liquor,' is a finding that defendant is guilty of the offense charged in the complaint; and the variance (the use of the word, 'alcohol,' in the style and the use of the word, 'liquor,' in the complaint) is not fatal.

3. In the trial of a person for operating a motor vehicle while under the infulence of intoxicating liquor, it is improper to ask the defendant, on cross-examination, 'have you ever been arrested before?'; a prior conviction for operating a motor vehicle while under the influence of intoxicating liquor does not affect the credibility of such person as a witness; and the admission into evidence of the record of a prior conviction of defendant of the offense of operating a motor vehicle while under the influence of intoxicating liquor is prejudicial error.

Forrest L. Blankenship, Troy, for appellant.

William M. Dixon, City Sol., Troy, for appellee.

PER CURIAM.

Defendant, appellant herein, appeals from a judgment of the Common Pleas Court affirming the sentence of the defendant on conviction of the offense of driving an automobile while under the influence of intoxicating liquor, in violation of an ordinance of the city of Troy, Ohio.

The defendant assigns the following errors, which are discussed and commented upon at length in his brief:

'1. The trial court erred in over-ruling the motion of the defendant filed on August 4, 1956, before the jury was impaneled and sworn, and renewed at the conclusion of the plaintiff's case and at the conclusion of all the evidence in the case for the dismissal of the defendant from custody and from all further proceedings in said case for the reason that the undisputed facts and testimony shows the defendant was forcibly arrested and taken into custody by police officers of the city of Troy, Ohio, without a warrant, on Sunday, July 8, 1956, for an alleged violation of an ordinance of the city of Troy, Ohio, and was not charged thereafter with a violation of any offense constituting treason, felony or breach of the peace, within the purview and effect of Section 2331.12, Ohio Revised Code, and in violation of the privilege and immunity of the defendant from arrest at said time, pursuant to said provision of law.

'2. That the trial court erred in overruling objections of the defendant, and in admitting into evidence, testimony of alleged acts and conduct of the defendant in interrogation of witnesses for the plaintiff by plaintiff's counsel and admitting into evidence improper and unsupported matters, suggestions and opinions as evidence against the defendant; and that the court further erred in admitting into evidence the alleged acts and conduct of defendant, as evidence, in no way relevant to the issues.

'3. That the verdict of the jury resulted from passion and prejudice resulting from the improper rulings and charge of the court.

'4. That said verdict is not sustained by the weight of the evidence, and is contrary to law.

'5. That the trial court in its rulings and orders during the trial, and in its charge, abused its discretion in the commission of the errors hereinbefore set forth, and as further exemplified by the record, as a matter of law, and to the substantial prejudice of the defendant-appellant.

'6. That the court abused its discretion, and committed error, as a matter of law, in submitting an improper form of verdict for the use of the jury, by reason of which the jury was confused and misled, to the prejudice of the defendant, and for further error, over objections of defendant's counsel, in receiving and entering the verdict, all of which was duly excepted to by the defendant.

'7. For all other errors of law, prejudicial to the defendant, and except to by him, apparent on the transcript of docket and journal entries or the bill of exceptions herein, and not specifically set forth or assigned herein, by reason of which the defendant was prejudiced and prevented from having been afforded a fair trial.'

The appellee elects to file no brief. This is unfortunate because the questions raised are of such moment as to merit briefs from both parties.

The first error assigned challenges the right of the officers of the plaintiff to arrest the defendant on the charge specified, contending the arrest was in violation of Section 2331.12, Revised Code. Without extended comment upon this claim, we hold that the charge in this case, driving an automobile while intoxicated, if true, comes within the exception of Section 2331.13, Revised Code, in that it is a breach of the peace. 5 Words and Phrases, Breach of the Peace, pp. 763-768; 7 Ohio Jurisprudence (2d), 689, Section 1 et seq.; Ex parte Carroll, 12 Wkly.Law Bul. 9, 9 Ohio Dec. Reprint 261.

The second assignment is directed to the ruling of the trial judge in the admission and rejection of evidence during the progress of the trial. We have examined the record and, with the exception of the testimony respecting former arrest of defendant and the reception of the record of his arrest and conviction of a former charge of driving an automobile while under the influence of intoxicating liquor, no prejudicial error appears.

We later discuss this aspect of the evidence.

The third, fourth and fifth assignments, that the verdict resulted from passion and prejudice, is not sustained by the weight of the evidence and is contrary to law, and abuse of discretion by the trial judge in rulings and orders during the trial to the prejudice of the defendant, are not sustained.

The sixth assignment is that the court erred in receiving the form of verdict returned by the jury.

The affidavit in this case charged that 'Arthur W. Cummins unlawfully did, then and there, operate a motor vehicle in and upon the public roads and highways of the state of Ohio, and the streets and ways of the city of Troy, Ohio, while under the influence of intoxicating liquor, contrary to and in violation of Ordinance Number 731.01 of the city of Troy, Ohio.'

The verdict returned, which carries the style of the action, reads:

'Offense: Driving while under the influence of intoxicating alcohol. We, the jury in this case, find the defendant, Arthur W. Cummins, guilty of the offense charged in the complaint.'

Appellant insists that there is no offense in Ohio of driving while under the influence of 'intoxicating alcohol' and that the verdict does not respond with sufficient clarity to the complaint.

We are not in agreement with the contention of appellant. The verdict is a finding that the defendant is guilty of the offense charged in the complaint, which was specific and correct under the statute. The variance is not fatal.

The ordinance under which the evidence against defendant was filed in this case is patterned after Section 4511.19, Revised Code, which defines the offense as operating any vehicle while under the influence of intoxicating liquor. However, former Section 4507.37, Revised Code (repealed 125 Ohio Laws, 461, 462), defined the offense of operating a motor vehicle on a public highway while under the influence of alcohol. It is commonly recognized that the intoxicating element in liquor is alcohol. The variation here left no doubt as to the meaning of the verdict.

The substantial question in this case is presented by the ruling of the trial judge on the cross-examination of defendant and by the admission in evidence of the record from the Municipal Court of Piqua, Ohio, Criminal Division, on a case of the State v. Cummins (the defendant herein), wherein he was charged, convicted and sentenced for the offense of operating a motor vehicle on a street in the city of Piqua while under the influence of intoxicating liquor, contrary to the statute.

The question was put to the defendant:

'Q. All right. Now, Mr. Cummins, have you ever been arrested before? A. No sir, I have not.

'Q. Mr. Cummins, were you ever arrested in 1940?

'Objection. That is not a proper question.' (Emphasis added.)

The court ruled: 'The only reason is the credibility of the witness, and can be asked and can be answered. That is purely...