State v. Gossler

• Citation: 74 Ohio App. 486,57 N.E.2d 670
• Parties: STATE v. GOSSLER et al.
• Decision Date: 07 July 1943
• Court: Ohio Court of Appeals

57 N.E.2d 670

74 Ohio App. 486

STATE v. GOSSLER et al.

Court of Appeals of Ohio, Second District, Franklin.

July 7, 1943

Rehearing Denied July 27, 1943.

Luther Day, of Cleveland, and Eagleson & Laylin, of Columbus for defendants-appellants and for the motion.

Ralph J. Bartlett, Pros. Atty., and William C. Bryant, Asst. Pros. Atty., both of Columbus, for plaintiff-appellee and contra the motion.

HORNBECK Judge.

Submitted on motions of the defendants-appellees to dismiss the appeal herein for the reason that 'said appeal was not perfected within the time limited by law.'

The appeal in this case is being prosecuted by the State from a judgment of the Common Pleas Court quashing the indictments against the defendants named in the foregoing numbered cases, namely, 3570 to 3623, inclusive.

The narrow question presented is whether or not the procedure as to the time within which the notice of appeal from the Common Pleas to the Court of Appeals shall be given by the State of Ohio from an adverse appealable order or judgment is prescribed by Section 13459-4, G.C. If so, then the notice of appeal having been filed within thirty days after the judgment, but more than twenty days thereafter, the time fixed by G.C. 12223-7 is within time, and the motion should be overruled; otherwise it is filed too late and the motion must be sustained.

It is urged by the movants that Section 13459-4, G.C., may not be given application, but that G.C. § 12223-7 is the controlling section. It may be noted that, according to the condification under which our sections of the General Code are compiled, G.C. § 12223-7 is found under Part Third, Title V, with the general heading, 'Procedure on Appeal,' beginning with G.C. § 12223-1, and ending with G.C. § 12223-49. These sections, in so far as they are specific in terms, treat of civil procedure, although they are not so designated.

Sections 13459-1 to 13459-14, G.C., are found in Chapter 38 of Criminal Procedure, but Chapter 38 was merely made to conform to the New Appellate Practice Act of Jan. 1, 1936. That Act, 116 O.L. pp. 104 to 130, inclusive, was comprehensive in scope and included not only those sections which were enacted anew and carried into Title V, 'Procedure on Appeal,' but amended sections thereunder, and amended sections now carried in Chapter 38 under 'Criminal Procedure.' So that, the mere fact that a section of the Appellate Code is found in Title V, 'Procedure on Appeal,' does not preclude the application of the terms of such statutes to criminal procedure, if the language therein, in the light of the whole Appellate Act requires that such application be made.

As a matter of course, we start with the assumption that appellate procedure in criminal cases would be found under those sections compiled and codified under criminal procedure.

G.C. § 13459-1, the first section in Chapter 38 on appeals under Criminal Procedure, was not changed by the Appellate Procedure Act of January 1, 1936, but was a part of the Criminal Procedure Act passed April 1, 1929. This section is broad enough in purpose to include appeals to the Court of Appeals in criminal cases, either by a defendant who has been convicted and sentenced or by the State, if an appealable judgment or final order has been entered against it in the trial court. The statute provides:

'In a criminal case, including a conviction for the violation of an ordinance of a municipal corporation, * * * a judgment or final order of a court or officer inferior to the court of Appeals, may be reviewed in the court of Appeals; * * *.' (Emphasis ours.)

This section was in effect when Eastman v. State, 131 Ohio St. 1, 2, 1 N.E.2d 140, was decided which held that the Court of Appeals has jurisdictional power, which may not be delimited by statute, under Sec. 6, Art. IV, Ohio Constitution, to review not only civil judgments but criminal judgments except when the latter involves the element of former jeopardy, under Sec. 10, Art. I, Ohio Constitution. The State has the right to prosecute appeal from a judgment in a criminal case, as defined in the preceding sentence. The decision in the Eastman case is grounded upon the constitutional authority granted to the Court of Appeals to review judgments of lower courts and gives no consideration whatever to G.C. § 13459-1.

The right of the State to an appeal both by statute and by the constitution is recognized, and it is conceded by the appellees. We examine the section of the Code succeeding G.C. § 13459-1 to determine what provision has been set up to implement the State's right of appeal. If the method of effectuating the State's right of appeal from an appealable order in a criminal case is not set up by statute, then there is no way by which the right may be assured.

G.C. § 13459-2 contains no subject matter which could have application to an appeal by the State of Ohio.

G.C. § 13459-3 provides:

'The proceedings to review such judgment or final order, shall be by appeal which shall be instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained, * * *.' (Emphasis ours.)

The quoted portion of this section, and all that follows thereafter, which we have not quoted, is broad enough to include an appeal from a judgment against the State of Ohio.

G.C. § 13459-4 is the section which fixes the time within which the notice of appeal shall be filed and which must be controlling as to the appeal here, if it can by any of its terms be given application. It provides:

' Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment * * *.' (Emphasis ours.)

The judicial act which causes the statute to run is the sentence and judgment. The term, 'such appeal,' refers to a judgment or final order, made in a criminal case (Sec. 13459-1, G.C.), of a court or officer inferior to the Court of Appeals and, thus far, could be construed to evince a purpose to include an appealable judgment or final order against the State of Ohio. 'Unless otherwise provided', may be given application in the instant case only, if G.C. § 13459-4 does not control, and, if so found, an appeal will be assured to the State only, if there is a provision for notice of appeal in a criminal case under G.C. § 12223-7. The defendants insist that the latter section so provides and is controlling here. We, of course, need only to determine if G. C. § 13459-4 may be given application in this case.

The language from which much of the difficulty arises on the instant appeal is 'after sentence and judgment', as employed in G.C. § 13459-4. If this language be given strict construction, then it must be said that the order in the instant case will not be included, because in no conception of the words can the order be designated as a sentence, although an appealable judgment.

At this juncture, we are met with the case of the State of Ohio v. Grisafulli, 135 Ohio St. 87, 19 N.E.2d 645, and, particularly, the first syllabus thereof:

'Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases.'

This language of the syllabus is taken verbatim from the first paragraph of Judge Zimmerman's opinion. If then, this pronouncement be given inferential application to this case, if the State cannot, under G.C. § 13459-4, perfect its appeal upon the notice there provided, there is no provision in the General Code whereby the State may be assured of the right of appeal recognized in Eastman v. State, supra. Reading the syllabus in the light of the facts, it is authority only for the proposition, that where a defendant seeks to appeal to the Supreme Court from the affirmance of his conviction the procedure is controlled by G.C. § 13459-7. The attention of the Court in State v. Grisafulli was focused upon Grisafulli's rights which were challenged by the motion of the State to dismiss his appeal as of right, and it may be that the Court, inadvertently, used general language without giving any specific attention to the situation which would arise, if the State sought to perfect an appeal to the Court of Appeals from a judgment against it in the Common Pleas Court. We cannot dismiss lightly the two observations of Judge Zimmerman, one of which is carried into the syllabus, namely, that G.C. § 12223-7 does not apply to felony cases, and the other, that G.C. § 13459-7, a part of the Code of Criminal Procedure, is controlling in appeals to the Supreme Court in felony cases. The Grisafulli case, in and of itself, is not such authority as would enable us to hold that the State in this case is protected in its procedure by G.C. § 13459-4, if we are remanded to strict construction of the terms 'sentence' and 'judgment,' as found in the section.

Words & Phrases, Perm. Ed., vol. 38, p. 601, refers to and cites many cases wherein it has been held, that a sentence is the judgment of a court and that 'judgment' is synonymous with the word 'sentence' and that final judgment in a criminal case is the sentence. These definitions all relate to cases where there was a sentence, which would not pertain to a case wherein the State failed, although the order in such situation might be final and appealable.

In this connection Shelley v. State, 123 Ohio St. 28, 173 N.E. 730, is interesting. Shelley was convicted and sentenced, which action was journalized; thereafter filed a motion for new trial which was overruled and judgment then entered for fine and costs. Shelley prosecuted appeal within time after the last entry but too late if he entry pronouncing sentence controlled. The Court...