State v. Conley

• Decision Date: 23 August 1971
• Citation: 32 Ohio App.2d 54,61 O.O.2d 50,288 N.E.2d 296
• Parties: , 61 O.O.2d 50 The STATE of Ohio, Appellee, v. CONLEY, Appellant.
• Court: Ohio Court of Appeals

Page 54

32 Ohio App.2d 54

288 N.E.2d 296, 61 O.O.2d 50

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

Court of Appeals of Ohio, Third District, Marion County.

Aug. 23, 1971.

Syllabus by the Court

1. The exceptions listed in R.C. 3719.41 to R.C. 3719.44 are not part of the description of the crime created by R.C. 3719.44 and need not be disclaimed in an indictment as applying to the particular crime charged in such indictment.

2. R.C. 3719.44 does not require a finding of a specific intent to violate its prohibitions or knowledge that such statute was being violated before a violation is established. An indictment written in the words of the statute charges a crime.

3. A court is not required to grant a commission to take depositions under R.C. 2945.50, but may exercise its discretion in this area.

Dailey & Dailey, Marysville, for appellant.

B. Edward Roberts, Pros. Atty., for appellee.

COLE, Judge.

1. In his first assignment of error, the defendant, appellant herein contends that the indictment fails to charge an offense in that it contains no allegation of knowledge or intent. The charge is brought under R.C. 3719.44(D), making it a crime to:

'Sell, barter, exchange, or give away, or make offer therefor, any hallucinogen except in accordance with sections 3719.40 to 3719.49, inclusive, of the Revised Code.'

The indictment reads in part:

'* * * one Charles Eddie Conley unlawfully then and there did sell an hallucinogen, to-wit: LSD, said sale not being in accordance with Sections 3719.40 to 3719.49, inclusive, of the Ohio Revised Code, contrary to Section 3719.44, D of the Ohio Revised Code * * *.'

The indictment was thus substantially in the words of the statute. In R.C. 2941.05, as to the form of indictment, it is said the statement of the offense 'may be in the words of the section of the Revised Code describing the offense or declaring the matter charged to be a public offense,' and such is here done. Defendant argues, however, that knowledge or intent is a part of the offense as a matter of law and must be alleged even if not set forth in the statute creating the offense. He cites State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299 and State v. Saylor, 6 Ohio St.2d 139, 219 N.E.2d 622, both dealing with the judicial insertion into the crime of 'knowingly possessing obscene material' an intent to use, exhibit or sell. The essence of these holdings is that 'simple knowing possession' without the intent to use, exhibit or sell under this statute would not constitutionally constitute a crime. The court has so interpreted the statute as to make the specific intent a part of the crime and, since the statute does not explicitly state intent, an indictment in the words of the statute is insufficient.

We do not believe this result in the case of mere possession of obscene materials is applicable to an act of selling drugs. One concerns the passive holding of property without an intent to use it in any manner affecting the public; the other concerns an active doing of a prohibited act-the selling of a dangerous drug. There is no necessary inference that intent is a part of the crime created by the legislature. The legislature is fully empowered to make such a specific act a crime without respect to intent.

'It is, of course, within the power of the legislature to make an act criminal without regard for the element of intent, and there are many acts which are so destructive of the social order, or as to which the element of criminal intent is so extremely difficult, if not impossible, to prove, that in the interest of justice the legislature has provided that the doing of the act constitutes a crime, regardless of knowledge or criminal intent on the part of the defendant.' 15 Ohio Jurisprudence 2d 293, Criminal Law, Section 31.

It has been held by the Supreme Court in paragraph 2 of the syllabus in State v. Healy, 156 Ohio St. 229, 102 N.E.2d 233:

'A statute defining an offense, which is silent on the question of intent, thereby indicates the purpose of the General Assembly to make proof of a specific itent unnecessary, and, therefore, proof of a general intent to do the proscribed act is sufficient; there are no common-law crimes and no common-law criminal procedure in Ohio.'

In a case like the one here, where a dangerous drug with unpredictable and hazardous effects is concerned, where one under the influence of such a drug may constitute a menace to others, the legislature may be presumed, in the absence of words requiring specific intent or knowledge, to have intended the prohibition of the act of sale and the placing upon the individual of the responsibility of knowing what it is he sells.

We would hold that there is no specific intent or knowledge required by the statute as elements of the offense, and that it was the intent of the legislature to prohibit the act of selling an hallucinogen and to place on the one engaged in the selling the responsibility for ascertaining that it did not come in the prohibited class. No allegations of specific intent or guilty knowledge is required, and the indictment in the words of the statute is adequate.

See also Solomon v. Liquor Control Comm., 4 Ohio St.2d 31, 212 N.E.2d 595; Point Cate, Inc. v. Board of Liquor Control, Ohio App., 168 N.E.2d 157, 83 Ohio Law Abs. 225; Hanewald v. Board of Liquor Control, 101 Ohio App. 375, 136 N.E.2d 77; Battles v. Ohio State Racing Comm., 12 Ohio App.2d 52, 230 N.E.2d 662; State v. Lisbon Sales Book Co., 176 Ohio St. 482, 200 N.E.2d 590; State v. Turpin, 19 Ohio App.2d 116, 250 N.E.2d 94.

The assignment of error is not well taken.

2. Defendant assigns as error that the arrest and subsequent search of his vehicle were without probable cause and hence invalid. However, no item taken from the auto was introduced as evidence, and the arrest of defendant has been superceded by arrest pursuant to indictment. Exhibit 3, being certain money, was not taken from defendant's car, but was found on the ground in plain sight and was not obtained by virtue of a search of such car.

3. The defendant assigns as error the admission of certain statements made by the defendant to a police officer.

The evidence taken on voir dire examination is clear that the police officer read to the defendant the statements required by the Supreme Court of the United States in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The defendant, about an hour later at the jail, asked a police officer why he was being held, stating the police had nothing on him. The officer said he had been in a car 35 feet from the transaction in the parking lot and watched it. The defendant then volunteered the statement: 'Well, I guess you got me.' Later, he said there were other crimes in Marion of which he knew, and could help solve if they would make a deal. He also said he could tell where 675 LSD pills that he had brought back from Canada were located. The court on preliminary hearing overruled a motion to suppress and, later, an objection to testimony to this effect by the officer.

The defendant denied making the statements, and that he had talked to the officer, and contended he had asked for a lawyer. The evidence was in basic conflict. The trial court followed the procedure approved and recommended in State v. Perry, 14 Ohio St.2d 256 at 266, 237 N.E.2d 891 at 897:

'However, as to the future cases, this court prefers the orthodox rule under which the judge himself solely and finally determines the voluntariness of the alleged confession of the accused and the question is not submitted to the jury. * * *.'

The court, if it believed the testimony of the police officer, was justified in finding beyond a reasonable doubt that the defendant received the appropriate Miranda warnings and that he volunteered information and in doing so waived those rights. The statements as reported by the police officer were in the nature of volunteered information and were not in response to questioning. The nature of the statements (which were not direct admissions or confessions) and the circumstances under which they were made (if the police officer is to be believed) were such as to justify a finding by the court, beyond a reasonable doubt that the statements were freely and voluntarily given by one fully aware of his rights.

The assignment of error is not well taken.

4. The defendant assigns as error the overruling of certain discovery motions. While a suppression of evidence favorable to the accused constitutes a violation of the right to due process under the decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, there is no allegation or evidence here of any such evidence being suppressed. As far as the record reveals, there was no evidence favorable to the defendant which was in any way suppressed, and there is no suggestion by defendant that such evidence in fact exists.

The defendant asked for a list of all prosecuting witnesses and copies of any statement given by any such witness. He further moved for a commission to take a deposition under R.C. 2945.50. These requests were denied.

A. The court is not required to grant a commission to take depositions under the Revised Code of Ohio, but may exercise its discretion in this area. State v. Hill, 12 Ohio St.2d 88, 232 N.E.2d 394; State v. Laskey, 21 Ohio St.2d 187, 257 N.E.2d 65. There is, here, no plain abuse of that discretion. Both officers whose depositions were requested testified at the trial and were subject to extensive cross-examination.

B. 'In the absence of a provision so requiring, the state is not bound to furnish the defendant with the names of its witnesses. * * *.' 21 American Jurisprudence 2d 355, Criminal Law, Section 32B. There is no statutory requirement currently existing in Ohio to which we have been cited requiring the state to furnish such a list. Therefore, the matter was entirely within the discretion of the trial court, and...