State v. Cimpritz

• Decision Date: 28 January 1953
• Docket Number: No. 33162,33162
• Citation: 110 N.E.2d 416,158 Ohio St. 490
• Parties: , 49 O.O. 418 STATE v. CIMPRITZ.
• Court: Ohio Supreme Court

Page 490

158 Ohio St. 490

110 N.E.2d 416, 49 O.O. 418

STATE v. CIMPRITZ.

No. 33162.

Supreme Court of Ohio.

Jan. 28, 1953.

Syllabus by the Court.

1. In Ohio, all crimes are statutory.

2. The elements necessary to constitute a crime must be gathered wholly from the statute.

3. If any material element or ingredient of an offense, as defined by statute, is omitted from an indictment, such omission is fatal to the validity of the indictment.

4. Sections 13437-28 and 13437-29, General Code, authorizing correction in the form or substance of an indictment, apply to an indictment which as drawn is sufficient to charge an offense, but they do not contemplate the making of a good indictment out of one which states no offense. There must be something effectual on which Sections 13437-28 and 13437-29, General Code, can operate to render them available.

5. To constitute an offense under Section 12438, General Code, a breaking and entering or an attempt to break and enter in the night season an uninhabited dwelling or other described building must be 'maliciously and forcibly' done, and an indictment purportedly drawn under such section, which charges merely that the accused in the night season 'did unlawfully attempt to break and enter' a building containing a food store, states no offense, is fatally defective and cannot be remedied by the court.

6. A judgment of conviction based on an indictment which does not charge an offense is void for lack of jurisdiction of the subject matter and may be successfully attacked either on direct appeal to a reviewing court or by a collateral proceeding.

Defendant was tried, convicted and sentenced in the Court of Common Pleas of Seneca County for the crime of attempted burglary.

The Court of Appeals affirmed the judgment of conviction. The allowance by this court of defendant's motion for leave to appeal brings the cause here for decision on its merits.

It was the purpose of the state to indict defendant for the crime of attempted burglary as that offense is defined in Section 12438, General Code. The material parts of the indictment under which he was tried, convicted and sentenced read as follows:

'* * * that Frank Cimpritz on the 5th day of December, 1951, at the county of Seneca aforesaid, in the night season of the same day, into a certain building known as Al's Supermarket owned by Al Steindorf, located at the corner of Sandusky and Buckley streets in the city of Fostoria, Ohio, did unlawfully attempt to break and enter, with the intent then and there and thereby the personal property of the said Al Steindorf in the said building, then and there being, unlawfully to steal, take and carry away, contrary to the form of the statute in such case made and provided,' etc.

Counsel for defendant filed a motion to quash the indictment, which was overruled, and his motion for a directed verdict at the close of the state's case was likewise overruled.

Francis M. Marley, Fostoria, for appellant.

Webb D. Tomb, Pros. Atty., Tiffin, for appellee.

ZIMMERMAN, Judge.

Section 12438, General Code, recites:

'Whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter an uninhabited dwelling house, or a kitchen, smokehouse, shop, office, storehouse, warehouse, malthou, stillhouse, mill, pottery, factory, water craft, schoolhouse, church or meeting house, barn or stable, railroad car, car factory, station house, hall or other building, or attempts to break and enter an inhabited dwelling house with intent to steal property of any value, or with intent to commit a felony, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.'

In Ohio, all crimes are statutory. Municipal Court of Toledo v. State ex rel. Platter, 126 Ohio St. 103, 184 N.E. 1; Eastman v. State, 131 Ohio St. 1, 1 N.E.2d 140, appeal dismissed 299 U.S. 505, 57 S.Ct. 21, 81 L.Ed. 374; State v. Fremont Lodge, Loyal Order of Moose, 151 Ohio St. 19, 84 N.E.2d 498. The elements necessary to constitute the crime must be gathered wholly from the statute and the crime must be described within the terms of the statute. Davis v. State, 32 Ohio St. 24, 28. Moreover, no act is a crime except an act done in violation of the express provisions of a statute or ordinance legally enacted. Toledo Disposal Co. v. State, 89 Ohio St. 230, 106 N.E. 6, L.R.A.1915B, 1207.

It will be noted that the indictment herein charges merely that the defendant 'did unlawfully attempt to break and enter,' whereas the statute, Section 12438, General Code, specifically requires that to be guilty of the offense one must 'maliciously and forcibly' attempt to break and enter.

A majority of this court entertains the view that the indictment in issue is fatally defective in that it does not set forth the necessary and essential elements to charge an offense and hence is not subject to the curative provisions of Sections 13437-28 and 13437-29, General Code. Those sections authorize correction in the form or substance of an indictment which as drawn is sufficient to charge an offense but do not contemplate the making of a good indictment out of one which states no offense. There must be something effectual on which Sections 13437-28 and 13437-29, General Code, can operate to render them available.

Appropriate to this discussion is the language used by Welch, J., in the...