State v. Aspell

• Decision Date: 29 March 1967
• Docket Number: 40195,Nos. 40194,s. 40194
• Citation: 10 Ohio St.2d 1,225 N.E.2d 226
• Parties: , 39 O.O.2d 1 The STATE of Ohio, Appellant, v. ASPELL, Appellee. The STATE of Ohio, Appellant, v. KUNS, Appellee.
• Court: Ohio Supreme Court

Page 1

10 Ohio St.2d 1

225 N.E.2d 226, 39 O.O.2d 1

The STATE of Ohio, Appellant, v. ASPELL, Appellee.

The STATE of Ohio, Appellant, v. KUNS, Appellee.

Nos. 40194, 40195.

Supreme Court of Ohio.

March 29, 1967.

Syllabus by the Court

1. Where an indictment is drawn and returned against a defendant under a specific criminal statute, and the evidence upon trial discloses the commission of no offense within the provisions of the statute, a judgment of conviction must be reversed.

2. Under the rule of ejusdem generis, where in a statute terms are first used which are confined to a particular class of objects having well-known and definite features and characteristics, and then afterwards a term having perhaps a broader signification is conjoined, such latter term is, as indicative of legislative intent, to be considered as embracing only things of a similar character as those comprehended by the preceding limited and confined terms.

3. The term, 'depository box,' conjoined with the words, 'safe' and 'vault,' as used in Section 2907.12, Revised Code, does no include a cigarette vending machine and an open receptacle therein containing coins which have been deposited there for the purchase of packages of cigarettes.

The Grand Jury of Franklin County returned a one-count joint indictment, framed under Section 2907.12, Revised Code, against Warren F. Kuns and Ervin R. Aspell, defendants in the Court of Common Pleas and the appellees herein, charging in part that they 'on or about the 16th day of November * * * (1964) within the county of Franklin aforesaid, did maliciously and forcibly, by and with the aid of hand tools, force an entrance into a depository box containing money, belonging to the Ace Vending Company * * *.'

Section 2907.12, Revised Code, under which the indictment was drawn, reads:

'No person, by day or night, maliciously and forcibly, with the aid and use of any instrument, device, or explosive, shall blow or attempt to blow, force or attempt to force, an entrance into a safe, vault, or depository box wherein is contained any money or thing of value.

'Whoever violates this section shall be imprisoned not less than one nor more than twenty years.'

Upon a jury trial, both Kuns and Aspell were found guilty, and the court sentenced them to serve terms in the Ohio Penitentiary for the time provided by law.

Appeals on questions of law were taken to the Court of Appeals, where by a two-to-one vote of the judges the judgments below were reversed and vacated.

The two closing paragraphs of the majority opinion of the Court of Appeals in the Aspell case are as follows:

'In our opinion, the evidence of record is insufficient to establish an essential element of the felony charged in the indictment, i. e., forcible entry with the aid of an instrument or device. The court, therefore, erred in failing to enter a directed verdict.

'The jugment of the Common Pleas Court will be reversed and vacated. A final entry of dismissal may be submitted to this court.'

Such opinion and the dissenting opinion are reported in 5 Ohio App.2d 44, 213 N.E.2d 748.

The causes are now in this court for decision on their merits pursuant to the allowance of motions for leave to appeal and appeals on constitutional grounds.

C. Howard Johnson, Pros. Atty., and James A. Pearson, Columbus, for appellant.

Joseph H. Hans, Columbus, for appellees.

ZIMMERMAN, Judge.

It is disclosed by the evidence that the 'depository box' mentioned in the indictment was a metal cigarette vending machine of a familiar type, owned and serviced by the Ace Vending Company and located in the rear of Sandy's Drive-In at the Northern Lights Shopping Center in Franklin County. There was a slot in the upper section for the insertion of coins for cigarette purchases, and the receptacle for the coins inside the machine consisted of a ten-pack cigarette paper carton with its top removed.

Immediately engaging our attention is the question whether a 'depository box' is involved here within the contemplation of Section 2907.12, Revised Code. First referred to in that section are 'safe' and 'vault.' Those words, considered together, strongly suggest iron or steel containers ordinarily found in banking institutions or in business...