Kistler v. City of Warren

• Decision Date: 12 January 1938
• Docket Number: 4554.
• Citation: 16 N.E.2d 948,58 Ohio App. 531
• Parties: KISTLER v. CITY OF WARREN.
• Court: Ohio Court of Appeals

16 N.E.2d 948

58 Ohio App. 531

KISTLER v. CITY OF WARREN.

No. 4554.

Court of Appeals of Ohio, Seventh District, Trumbull.

January 12, 1938

Syllabus by the Court.

1. A municipal ordinance is not in conflict with general law so as to be unconstitutional under Section 3, Article XVIII of the Constitution, merely because it provides for a different penalty than that provided by a section of the General Code for the same offense.

2. A provision of a city ordinance which permits the Municipal Court to suspend a person, convicted of driving while intoxicated, from 'the right to operate a motor vehicle,' is operative only within the city limits and does not permit the suspension of the convicted person's driving license issued by the state.

3. A motion for a trial by jury in a Municipal Court, made after the witnesses are sworn and the examination of one witness is in progress, is not made 'Before the court has proceeded to inquire into the merits of the cause,' in accordance with Section 1579-1471, General Code, and, hence, it is discretionary with the court to deny such motion.

G H. Birrell, of Warren, for plaintiff in error.

George Buchwalter, of Warren, for defendant in error.

NICHOLS, Judge.

An affidavit was filed in the Municipal Court of Warren charging that on or about the twenty-first of February, 1935, at the county of Trumbull and in the city of Warren, one Dana Kistler did unlawfully violate City Ordinance No. 2394 Section 75, to wit: Did unlawfully operate a motor vehicle on the highway of the city of Warren while in a state of intoxication.

Section 75 of City Ordinance No. 2394 is as follows:

'Whoever operates a motor vehicle of any kind upon any public highway or street in the city of Warren while in a state of intoxication, or under the influence of alcohol, narcotics or opiates, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the city jail for not less than thirty days nor more than six months or both, and shall be suspended from the right to operate a motor vehicle for not less than six months nor more than one year; and whoever operates a motor vehicle upon any public highway or street in the city of Warren during the time he or she has been suspended from such operation under the provisions of this section, shall be guilty of a misdemeanor and shall be imprisoned in the city jail for not less than six months nor more than one year.

'For second or subsequent offense of driving while intoxicated shall be suspended from the right to operate a motor vehicle for not less than one year nor more than five years. No person shall be charged with a second or subsequent offense unless such fact is set forth in the affidavit charging the offense.'

The defendant waived reading of the affidavit and entered a plea of not guilty. The case coming on for trial, the court swore the witnesses, one of whom was called to the witness stand and a question propounded to him by counsel for the city of Warren. At this point counsel for the defendant first moved that the case be dismissed for lack of proper affidavit. Upon this motion being overruled, counsel for the accused made application for jury trial, which motion was overruled and exception noted, the court causing the record to show waiver of reading affidavit and witnesses sworn before motion was made. The trial proceeded, evidence being offered for and on behalf of the city as well as for and on behalf of the accused. The record does not show any motion on behalf of the accused at the conclusion of the evidence offered on behalf of the city. At the conclusion of all the evidence and argument of counsel, the court inquired of the accused if he had anything to say why sentence should not be pronounced. To this inquiry no answer is indicated in the record. Thereupon, the record shows the following:

'Court finds defendant guilty as charged in the affidavit. The sentence of the court is: Pay a fine of $100, driving license be suspended for period of one year, ninety days in the city jail, and pay the costs of prosecution; until otherwise discharged according to law.'

The above quoted language of the court setting forth the sentence of the court is taken from the bill of exceptions. The transcript of the criminal docket differs slightly in language and is as follows:

'It appears to the court that said defendant is guilty as charged in the complaint and does adjudge and sentence that said defendant pay a fine of $100, and the costs of prosecution, taxed at $21, driving suspended for one year, ninety days in city jail and that he be committed to and imprisoned in the jail of said city until such time is served and said fine and costs are paid, or he is otherwise legally discharged; he to receive credit upon such fine and costs at the rate of $1.50 per day for each day's imprisonment.'

Motion for new trial being filed and overruled, the accused filed his petition in error in the Common Pleas Court of Trumbull county wherein the judgment of the Municipal Court was affirmed. The cause is now in this Court of Appeals on petition in error filed by Dana V. Kistler praying reversal of the judgments below. Seven grounds of error are alleged in the petition in error, but in brief filed in this court plaintiff in error relies upon three propositions, to wit:

(1) The judgment of the Municipal court is against the weight of the evidence;

(2) The ordinance of the city of Warren is unconstitutional in that it provides a punishment in excess of the powers of the municipality to provide;

(3) The trial court erred in admitting evidence and rendering a judgment under the provisions of the ordinance of the city.

The brief of counsel for plaintiff in error does not call our attention to the admission of any incompetent testimony, and from our examination of the evidence contained in the bill of exceptions we are unable to find that any prejudicial error was committed by the trial court in the admission of evidence.

The petition in error alleges a further ground for reversal of the judgment of the lower court, to wit: That the trial court erred in overruling the motion of the accused for a jury trial. It will be observed from what we have already stated that the application of the accused for a jury trial was not made until after the witnesses were sworn and the examination of one witness on behalf of the city was in progress.

Section 1579-1471, General Code, provides:

'All causes in the municipal court, both civil and criminal, shall be tried by the court unless a jury trial be demanded by a party entitled to the same. * * * In all criminal cases, in which the accused is entitled to a jury trial, a demand for a jury trial must be made by the accused before the court has proceeded to inquire into the merits of the cause; otherwise, a jury shall be deemed to be waived and the cause shall be tried by the court. * * *'

The demand for a jury trial in this case not having been made by the accused before the court proceeded to inquire into the merits of the cause, it was within the sound discretion of the trial court to refuse the demand made for jury trial and we find no abuse of such discretion.

The claim of the plaintiff in error that the judgment of the trial court is not sustained by the evidence is based upon the proposition that the evidence is insufficient to show beyond a reasonable doubt that Dana Kistler was operating a motor vehicle in the city of Warren upon the day and at the time in question.

It is conceded that Dana Kistler was at the time alleged in the affidavit in his own automobile which had immediately theretofore been operated upon a public street in the city of Warren, and that he was found in his automobile in a state of intoxication immediately after the automobile had collided with another car and had proceeded over the curb onto the sidewalk. That Dana Kistler was intoxicated at the time was admitted by him and testified to by every witness in the case. When arrested and taken to the city jail immediately after being found in his automobile in a state of intoxication, Dana Kistler told the police officer that he was alone in the car and that he was the operator thereof at the time it collided with the other vehicle. Certain witnesses offered on behalf of the city testified that they saw another person in the automobile when the officers first arrived upon the scene; and one of the police officers identified this other person as George Fenton. The testimony offered on behalf of the accused tended to show that he and certain of his friends, including George Fenton and his wife, had been at Stone's Grill in Warren a short time preceding the arrest; that Kistler became so drunk that he could not operate his car, and that George Fenton undertook to take the accused home and that he, George Fenton, was driving the car at the time of the collision. George Fenton did not testify in the case, although it appears from the record that he was present in the court room at the time of the trial. The accused testified that he was too drunk to drive the car and that he did not know who was operating it at the time of the collision. The testimony is conflicting but the trial court, sitting as a jury, would undoubtedly give great weight to the admission of the accused, made immediately following his arrest, that he was the sole occupant of the car and that he was the operator thereof at the time in question. This court is unable to unanimously agree that the finding of the trial court was insufficient to show the guilt of the accused beyond a reasonable doubt and we can not reverse the judgment of the trial court on the weight of the evidence.

The most serious...