State v. Atkinson
| Decision Date | 10 November 1965 |
| Docket Number | No. 39255,39255 |
| Citation | 4 Ohio St.2d 19,211 N.E.2d 665 |
| Parties | , 33 O.O.2d 226 The STATE of Ohio, Appellee, v. ATKINSON, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Two or more different offenses may be charged in a single indictment if said offenses (1) are connected together in their commission; or (2) are set out in different statements of the same offense; or (3) are of the same class of crimes or offenses. (Section 2941.04 of the Revised Code construed.)
2. Where the indictment contains three counts, as follows: First count--forging a check; second count--uttering a forged instrument; and third count--carrying a concealed weapon, to wit, a blackjack; the third of said counts is not connected together with the other two counts in its commission and is in a different class of crimes or offenses from the first two counts; and the indictment is therefore violative of the provisions of Section 2941.04 of the Revised Code and is subject to the remedy provided in Section 2941.28 of the Revised Code.
In the April term of the Court of Common Pleas of Lorain County in 1963, the Grand Jury returned an indictment against the defendant, Lamont Atkinson, on three counts; the first count--making and forging of a certain check; the second count--uttering of said false and forged check; and the third count--carrying a concealed weapon. The indictment charges that the first two counts were in violation of Section 2913.01 and Section 2913.02 of the Revised Code, and that the third count was in violation of Section 2923.01 of the Revised Code.
The cause was set down for trial in the Court of Common Pleas on September 13, 1963. Defendant , prior to the beginning of the trial, objected to proceeding with the trial because of a misjoinder of counts, i. e., two counts charging forgery and uttering a forged instrument and another count charging the carrying of a concealed weapon.
The court overruled this motion. Thereupon the trial proceeded. No motion to suppress the evidence obtained by search and seizure was filed prior to the commencement of the trial.
The jury returned a verdict of guilty as to the second and third counts of the indictment, and the court pronounced sentence.
The Court of Appeals affirmed the proceedings had before the trial court and its judgment. The cause is now before this court for review pursuant to the allowance of a motion for leave to appeal.
Paul J. Mikus, Pros. Atty., and Joseph R. Grunda, Lorain, for appellee.
Robert J. Corts, Elyria, for appellant.
The question here is whether the indictment may withstand defendant's motion attacking its validity.
Section 2941.04 of the Revised Code, in part, sets out in clear and unambiguous language the limitations upon the charging of two or more different offenses in an indictment, as follows:
'An indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated.' (Emphasis added.)
The prosecuting attorney, speaking against the motion of the defendant questioning the joinder, said:
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'This is apparently part and parcel and a method of operation that this defendant engaged in.' (Emphasis added.)
The court overruled defendant's objection to the joinder of the three counts in the indictment.
This proposal or argument of the prosecuting attorney would create a new category or classification of offenses that may be joined in an indictment under the heading of 'Offenses Connected in their Discovery.' The statute does not make any such provision nor does the record itself show any connection between counts one and two and the third count in the acts or conduct of the defendant.
Section 2941.04 of the Revised Code codifies the common-law rule. See Bailey v. State (1854), 4 Ohio St. 440. Consequently, the joinder in the indictment...
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State v. Rosemond
...725, 88 L.Ed.2d 814. A violation of Crim.R. 8 will be reversed if the improper joinder resulted in prejudice. See State v. Atkinson , 4 Ohio St.2d 19, 22, 211 N.E.2d 665 (1965) ; State v. Clements , 98 Ohio App.2d 797, 799, 649 N.E.2d 912 (2d Dist.1994) ; Lane at 449, 106 S.Ct. 725. In asse......
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State v. Ford
...See State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 52.{¶ 111} Finally, Ford cites State v. Atkinson , 4 Ohio St.2d 19, 211 N.E.2d 665 (1965), in support of his argument that there was no overlap of evidence between the two counts and each count could have been tried ......
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Kennedy v. Coleman
...to sever the charges pursuant to Crim.R. 14 if their consolidation will prejudice his or her rights"); see alsoState v. Atkinson, 4 Ohio St.2d 19, 21-22, 211 N.E.2d 665 (1965) (applying R.C. 2941.04), limited in part on other grounds, State v. Minneker, 27 Ohio St.2d 155, 271 N.E.2d 821 (19......
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State v. Kennedy
...to sever the charges pursuant to Crim.R. 14 if their consolidation will prejudice his or her rights”); see also State v. Atkinson, 4 Ohio St.2d 19, 21–22, 211 N.E.2d 665 (1965) (applying R.C. 2941.04), limited in part on other grounds, State v. Minneker, 27 Ohio St.2d 155, 271 N.E.2d 821 (1......