State v. Huntsman

• Decision Date: 18 June 1969
• Docket Number: No. 68-547,68-547
• Citation: 18 Ohio St.2d 206,47 O.O.2d 440,249 N.E.2d 40
• Parties: , 47 O.O.2d 440 The STATE of Ohio, Appellee, v. HUNTSMAN, Appellant.
• Court: Ohio Supreme Court

Page 206

18 Ohio St.2d 206

249 N.E.2d 40, 47 O.O.2d 440

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

No. 68-547.

Supreme Court of Ohio.

June 18, 1969.

Syllabus by the Court

Section 2953.02 to 2953.14, inclusive, of the Reversed Code, do not provide for an appeal on behalf of the state from the action of a trial judge in granting a defendant's motion for a new trial.

Appellant was indicted in January 1967 for the rape of a female person under the age of 12 years, in violation of Section 2905.02, Reversed Code. On the day of the trial, February 7, 1967, just a few minutes before the beginning of the trial, appellee moved to amend the indictment to change the date of the alleged occurrence from November 22, 1966, to October 22, 1966. The amendment was allowed by the court, over objection by counsel for appellant.

A jury was then impaneled, and the cause proceeded to trial. The trial resulted in a jury verdict finding the appellant guilty as charged. However, evidence adduced at the trial demonstrated that the chief witness for the prosecution had had her twelfth birthday on October 26, 1966. Upon consideration of a motion for a new trial filed by appellant prior to entry of judgment, the trial court decided that: '* * * (the appellant) should have a new trial on the grounds that the amending of the original indictment immediately prior to trial had the effect of changing the nature of the offense charged * * * in that under the original indictment it would have been impossible to prove the charge of rape of a female person under twelve (12) for which the * * * (appellant) was eventually convicted.' Consequently, the trial court ordered a new trial on the original indictment as amended.

An appeal to the Court of Appeals was taken by the state and there it was determined that the trial court had abused its discretion in allowing a new trial, and the conviction of appellant was reinstated.

After the unfavorable decision by the Court of Appeals, a motion to vacate the judgment was filed by appellant in the Court of Appeals. The first branch of the motion alleged that: 'The Seventh District Court of Appeals had no jurisdiction under the Constitution and statutes of the state of Ohio to consider an appeal by the state of Ohio from the decision of the trial court.' The Court of Appeals overruled the motion to vacate, but determined that its conclusion that the appellee did have a right of appeal was in conflict with the judgments pronounced upon the same question by the Third District Court of Appeals in State v. Dodge, 10 Ohio App.2d 92, 226 N.E.2d 156 and by the Sixth District Court of Appeals in City of Toledo v. Crews, 117 Ohio App. 247, 192 N.E.2d 236. Consequently, the Court of Appeals certified the record to this court for final determination.

George E. Martin, Pros. Atty., and James E. Hogle Jr., Ravenna, for appellee.

Harry L. Griffith, Aurora, for appellant.

MATTHIAS, Judge.

This appeal presents the question whether the state may appeal in a criminal case pursuant to Sections 2953.02 to 2953.14, inclusive, of the Revised Code, from the action of a trial judge in granting a defendant's motion for a new trial. ¹

At the outset, it should be noted that this court has only recently been persuaded to the view that an order granting a new trial constitutes a final appealable order. Price v. McCoy Sales & Service, Inc., 2 Ohio St.2d 131, 207 N.E.2d 236.

That question, prior to the Price case had been presented to this court on numerous former occasions, but always within a civil, rather than a criminal context. See, Myres v. Myres, 6 Ohio St. 221, 222; Conord v. Runnels, 23 Ohio St. 601; Neuzel v. Village of College Hill, 81 Ohio St. 571, 91 N.E. 1135; Horseman v. Horseman, 85 Ohio St. 437, 98 N.E. 1127; Continental Trust & Savings Bank Co. v. Home Fuel & Supply Co., 99 Ohio St. 453, 126 N.E. 508; Wagner v. Long, 133 Ohio St. 11 N.E.2d 247; Ramsey v. Oyler, 133 Ohio St. 321, 13 N.E.2d 577; Hoffman v. Knollman, 135 Ohio St. 170, 20 N.E.2d 221; Petro v. Donner, 137 Ohio St. 168, 28 N.E.2d 503; Durbin v. Humphrey Co., 137 Ohio St. 177, 28 N.E.2d 563; Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855; Klever v. Reid Bros. Express, Inc., 154 Ohio St. 491, 96 N.E.2d 781; Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211 (overruled by Pice v. McCoy Sales & Service, Inc., supra); Schwer v. New York, Chicago & St. Louis Rd. Co., 156 Ohio St. 115, 100 N.E.2d 197; Johnson v. O'Hara, 156 Ohio St. 117, 100 N.E.2d 223; Mele v. Mason, 156 Ohio St. 118, 100 N.E.2d 224; Lawrence v. Moore, 156 Ohio St. 375, 102 N.E.2d 595; Schaible v. City of Cincinnati, 157 Ohio St. 512, 106 N.E.2d 81; Lehman v. Haynam, 164 Ohio St. 595, 602, 133 N.E.2d 97; DeTunno v. Shull, 166 Ohio St. 365, 143 N.E.2d 301; State ex rel. Blasko v. McGinnis, 167 Ohio St. 532, 150 N.E.2d 409; Poske v. Mergl, 169 Ohio St. 70, 157 N.E.2d 344; Thompson v. Titus, 169 Ohio St. 203, 158 N.E.2d 357; Berry v. Roy, 172 Ohio St. 422, 178 N.E.2d 37; Price v. McCoy Sales & Service, Inc., supra, 2 Ohio St.2d 131, 207 N.E.2d 236.

See, also, Davis v. Turner, 69 Ohio St. 101, at page 115, 68 N.E. 819; Chris Holl Hardware Co. v. Logan Brick Supply Co., 84 Ohio St. 455, 95 N.E. 1144 (explained in Jacob Laub Baking Co. v. Middleton, 118 Ohio St. 106, at page 119, 160 N.E. 629); Hocking Valley Mining Co. v. Hunter, 130 Ohio St. 333, 199 N.E. 184; Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St. 334, 199 N.E. 178; Michigan-Ohio-Indiana Coal Assn. v. Nigh, 131 Ohio St. 405, 3 N.E.2d 355; Hubbuch v. City of Springfield, 131 Ohio St. 413, 3 N.E.2d 359; Murphy v. Pittsburgh Plate Glass Co., 132 Ohio St. 68, 4 N.E.2d 983; Durbin v. Humphrey Co., 133 Ohio St. 367, 14 N.E.2d 5; Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St. 70, 113 N.E.2d 489; Gray v. Youngstown Municipal Ry. Co., 160 Ohio St. 511, 117 N.E.2d 27; Richards v. Indus. Comm., 163 Ohio St. 439, 127 N.E.2d 402; Grieser v. Huntington Natl. Bank, 176 Ohio St. 291, 199 N.E.2d 556.

In the instant case, the proceedings are criminal in nature and the appeal presently before us has been taken pursuant to the appeals chapter of the criminal code (Chapter 2953 of the Revised Code) rather than the appeals chapter of the civil code (Chapter 2505 of the Revised Code). Thus, the first question for determination is whether an order granting a new trial is a final appealable order within the context of Section 2953.02, Revised Code (which provides for review of judgments or final orders in criminal cases), as well as within the context of Section 2505.03, Revised Code (which provides for review of judgments or final orders in civil cases).

The first paragraph of the syllabus of Price v. McCoy Sales & Service, Inc., supra, 2 Ohio St.2d 131, 207 N.E.2d 236, reads as follows:

'The granting of a motion for a new trial is a final appealable order as provided in Section 2505.02 f the Revised Code. (Green v. Acacia Mutual Life Ins. Co., 156 Ohio St. 1, 100 N.E.2d 211, overruled; Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St. 221, 70 N.E.2d 649, approved and followed.)'

This rule (except for its reference to the Youngstown case) was adopted by a unanimous court. Unfortunately, there are two theories which could support the holding as stated in paragraph one of the syllabus. Those theories are (1) that the General Assembly, by virtue of the authority given it by Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, had the power to make an interlocutory order appealable and had done so, or (2) that an order setting aside a judgment and granting a new trial was a 'final order' within the meaning of those words as used in Section 6 of Article IV of the Constitution as then constituted.

The theory followed by Judge Paul M. Herbert in his opinion, concurred in by three other members of the court, is not readily apparent. However, the theory followed by Chief Justice Taft in his opinion then concurred in by the remaining members of the court, which is now adopted by the majority of this court, is clearly stated at page 142 in the opinion, 207 N.E.2d at page 244:

'* * * I do not interpret our decision today as indicating that the General Assembly may make an interlocutory order appealable, by calling it a judgment or final order or by including it in the definition of a judgment or final order. As I see it, we are merely holding that an order setting aside a judgment and granting a new trial is a final order within the meaning of those words as used in existing Section 6 of Article IV of the Constitution.'

Section 3 of Article IV, as it existed as of the date of the decision in the Price case (May 5, 1965), was repealed by the voters of this state in the May 7, 1968, primary election when the Modern Courts Amendment was put into effect. City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790; State ex rel. Graves v. Brown, 18 Ohio St.2d 61, 247 N.E.2d 463.

However, the language of former Section 6 of Article IV, with regard to review of judgments and final orders by Courts of Appeals of courts of record inferior to the Courts of Appeals within the district, has been incorporated into Section 3 of Article IV of the Ohio Constitution with very litle change of wording.

Former Section 6 of Article IV, insofar as pertinent, read as follows:

'The Courts of Appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * * of courts of record inferior to the Court of Appeals within the district * * *.'

Present Section 3 of Article IV, subsection (B)(2), provides in pertinent part:

'Courts of Appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district * * *.'

This court is persuaded to the view that the words ...