State v. Dinsio
| Decision Date | 21 July 1964 |
| Citation | 4 Ohio App.2d 309,212 N.E.2d 606 |
| Parties | , 33 O.O.2d 353 STATE, Appellee, v. DINSIO, Appellant. |
| Court | Ohio Court of Appeals |
Earl W. Allison, Pros. Atty., for appellee.
Jack W. Nybell, Youngstown, for appellant.
Amil A. Dinsio, defendant below, has appealed on questions of law from the judgment of conviction and sentence under a two-count indictment charging that on September 6, 1963 (first count), Dinsio burglarized a building, contrary to Section 2907.10, Revised Code, and (second count), forced entrance into a depository box containing money, contrary to the provisions of Section 2907.12, Revised Code.
The indictment was filed on September 18, 1963, and served upon Dinsio the same date. He was arraigned on September 27, 1963, and pleaded not guilty, appearing with privately employed counsel, reserving the right to file a motion in seven days.
On October 4, 1963, Dinsio, pursuant to Section 2941.07, Revised Code, filed a motion for a bill of particulars as to each count in the indictment 'setting forth * * * the facts upon which the offenses * * * in the indictment are founded and * * * the manner in which it is claimed that the defendant is involved in the offenses.'
Thereafter, upon application jointly made by the defendant and the prosecution, the case was set over to the January 1964 term. Dinsio waived a jury, and the charges were tried to the court, beginning January 16, 1964. At the start of the case, counsel for Dinsio brought to the attention of the court that the prosecution had not responded to the motion for a bill of particulars filed on October 4, 1963.
The trial was recessed while a bill of particulars was prepared and filed. The trial court found the first bill of particulars to be inadequate and another recess was taken, at the end of which a second bill of particulars was filed.
The trial then proceeded, with both sides presenting witnesses, and after the submission of all of the evidence the court, acting as jury, returned a verdict of guilty. A motion for a new trial was filed and overruled, and Dinsio was sentenced to the Ohio Penitentiary on each count, the sentences to run concurrently.
The first error assigned is as follows:
The right of a defendant in a criminal case to a bill of particulars arises under Section 2941.07, Revised Code (formerly Section 13437-6, General Code). It was first enacted, effective in 1929, as a part of the Code of Criminal Procedure. Prior to 1929, the right of a defendant in a criminal case to a bill of particulars was not recognized in Ohio. State v. Boyatt (1926), 114 Ohio St. 397, 151 N.E. 468, and City of Cincinnati v. Schill (1932), 125 Ohio St. 57, 180 N.E. 545.
The brief of appellant cites only the case of State v. Petro (1947), 148 Ohio St. 473, 76 N.E.2d 355, 5 A.L.R.2d 425, in support of the claim that the requirement is mandatory. There were, of course, numerous other Supreme Court cases, some before and others since the Petro case, supra.
The Schill case, supra, declined to give effect to the law as to bills of particulars because this law became effective a few days too late to apply. Another early case was State v. Whitmore (1933), 126 Ohio St. 381, 185 N.E. 547, which, in paragraph two of the syllabus, upheld Section 13437-6. General Code, as 'reasonable,' and in paragraph nine held that '[a] high, technical degree of certainty in stating an offense in an indictment never was required in Ohio.' This case is cited with approval in State v. Lindway (1936), 131 Ohio St. 166, 183, 2 N.E.2d 490; State v. Hutton (1937), 132 Ohio St. 461, 463, 9 N.E.2d 295; and State v. Hahn (1938), 133 Ohio St. 440, 14 N.E.2d 354. See, also, State v. Collett (1945), 144 Ohio St. 639, 60 N.E.2d 170, as explained in the Petro case supra. In the Hahn case, supra, the complaint had been made, but was rejected, that the bill of particulars failed to disclose that the state would prove crimes other than the crime in the indictment, while in the Collett case, supra, there was a failure to furnish a bill of particulars, which the Court of Appeals held to be error, but a majority did not find it to be prejudicial error. The appeal to the Supreme Court in the Collett case was dismissed because no debatable constitutional question was involved.
In the Petro case, supra, paragraphs one through four of the syllabus read as follows:
'1. On the appeal of a criminal case, a judgment against the accused should be affirmed unless the reviewing court finds that it affirmatively appears from the record that the accused was prejudiced by error or prevented from having a fair trial.
'2. The proviso contained in Section 13437-6, General Code, 'that the prosecuting attorney, if seasonably requested by the defendant, or upon order of the court, shall furnish a bill of particulars setting up specifically the nature of the offense charged,' is a mandatory provision and the overruling of defendant's motion seasonably made to order the prosecuting attorney to furnish such bill of particulars constitutes error.
'3. Whether the failure of the court to order the prosecuting attorney to furnish a bill of particular setting up specifically the nature of the offense charged is prejudicial error requiring reversal by a reviewing court, depends upon the facts of the particular case.
In course of the opinion by Turner, J., in the Petro case, there appears the following, 148 Ohio St., at page 482, 76 N.E.2d at page 361:
'In the per curiam opinion in the case of State v. DeRighter, 145 Ohio St., 552, 556, 62 N.E.2d 332, 335, it was held:
"Hence, it is clear that the purpose of a bill of particulars is not to disclose the state's evidence but simply to state specifically the nature of the offense charged."
Where there is vagueness or uncertainty or where the charge is in the alternative, alleging two, three or more offenses, it is error to refuse upon proper demand to furnish a bill of particulars. See State v. Fowler (1963), 174 Ohio St. 362, 189 N.E.2d 133.
It does not appear from the record either that a formal demand ever was made upon the prosecuting attorney, and there likewise is no indication that the motion which was filed by one of the several attorneys who represented Dinsio was served or otherwise brought to the specific attention of counsel for the state.
The fact is that immediately upon this matter being brought to the attention of the trial court, the judge stopped the trial and the prosecutor prepared and filed a bill of particulars. This did not meet the approval of the trial judge who again stopped the trial and required a more detailed bill of particulars to be furnished.
The motion in this case asked for 'the facts upon which the offenses * * * in the indictment are founded and * * * the manner in which it is claimed that the defendant is involved in the offenses.'
Under Section 2941.07, supra, a bill of particulars, if needed, is for the purpose of 'setting up specifically the nature of the offense charged.' (Emphasis added.)
As stated in the DeRrighter case, supra, the purpose of the bill of particulars 'is not to [reveal] the state's evidence but simply to state specifically the nature of the offense charged.' (Emphasis added.)
We have been unable to find from the record any indication that the defendant asked for a continuance, made any objection to proceeding at the time or in fact made any objection to the sufficiency of the second bill of particulars.
Even in the brief in this court, no actual prejudice is claimed. This is understandable for the reasons that the theory of the defense...
To continue reading
Request your trial
-
State v. Gingell
...alleged to constitute the charged offense. E.g., State v. Halleck (1970), 24 Ohio App.2d 74, 263 N.E.2d 917 ; State v. Dinsio (1964), 4 Ohio App.2d 309, 212 N.E.2d 606 ; State v. Coterel (1953), 97 Ohio App. 48, 123 N.E.2d 438 . Like an indictment, however, a bill of particulars is not desi......
-
State v. Paul Baisden
... ... A bill of ... particulars has a limited purpose which is to clarify or ... spell out the conduct of the accused which is alleged to ... constitute the offense charged. See, State v ... Halleck (1970), 24 Ohio App. 2d 74; State ... v. Dinsio (1964), 4 Ohio App. 2d 309. A bill of ... particulars is not to be used to provide the accused with ... specifications of evidence or to serve as a substitute for ... authorized discovery, State v. Wilson ... (1972), 29 Ohio St. 303. Thus, "* * * [O]rdinarily, ... ...
-
State v. Culp
...affidavit, it can and should be dispelled by the use of a request for a bill of particulars timely made. (See also State v. Dinsio (1964), 4 Ohio App.2d 309, 212 N.E.2d 606.) Appellant's assignments of error are not well stated. For the reasons advanced, the judgment of the trial court shou......
-
State v. Joseph Williams
...conduct of the accused alleged to constitute the charged offense. See, e.g., State v. Halleck (1970), 24 Ohio App.2d 74 ; State v. Dinsio (1964), 4 Ohio App.2d 309 . A bill of particulars is not designed to provide accused with specifications of evidence or to serve as a substitute for disc......