State v. Jennings
| Decision Date | 31 October 1959 |
| Citation | 112 Ohio App. 455,176 N.E.2d 304 |
| Parties | , 16 O.O.2d 346 STATE of Ohio, Appellee, v. JENNINGS, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. A Municipal Court is without authority to amend an affidavit filed in a criminal action pending before it.
2. A 'substitute' affidavit, filed in a criminal action in the Municipal Court, is not an amended affidavit but a new affidavit; and the defendant must be arraigned upon such new affidavit and be given an opportunity to enter a plea thereto. Without such arraignment and opportunity to plead the court has no jurisdiction to proceed to trial.
3. A charge to the jury that, 'under the influence of intoxicating liquor means exactly what it says, and that some intoxicating liquor must have been drunk by the person, the amount being immaterial, but the effect of which causes some influence on that person,' is incomplete and prejudicially erroneous.
4. The operation of an automobile on a public highway while under the influence of intoxicating liquor constitutes a breach of the peace, which offense, under Section 2331.13, Revised Code, is excepted from the privilege-from-arrest provisions of Section 2331.12, Revised Code.
Durbin, Navarre, Rizor, & DaPore, Lima, and Russell C. Price, Upper Sandusky, for appellant.
William J. Hunter, Upper Sandusky, for appellee.
This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming a judgment, and sentence of the defendant, by the Municipal Court of Upper Sandusky. On June 2, 1958, an affidavit of complaint was filed in the Municipal Court of Upper Sandusky charging the defendant with operating a vehicle while intoxicated upon a public highway, namely U. S. Route No. 30 North. The transcript filed in the case does not disclose any arraignment of or plea by the defendant to this affidavit. However, he gave bond for his appearance, and upon his request the trial was continued on several occasions. He also filed with the court a request for trial by jury. Upon the day of trial, on August 4, 1958, and prior to the voir dire examination of prospective jurors, the prosecuting attorney offered a so-called 'substitute' affidavit. The court permitted the filing of the 'substitute' affidavit, to which order the defendant entered a general objection. A copy of the substitute affidavit was forthwith served upon the defendant in court. The substitute affidavit, omitting the formal parts, charged 'one Lockwood Jennings, an adult person forty-five years of age while under the influence of intoxicating liquor did operate a 1957 Oldsmobile automobile bearing license number 2220 YY upon a public highway, namely, U. S. Route No. 30, at approximately eight miles east of the village of Upper Sandusky in Wyandot County, contrary to Section * * * 4511.19 of the Revised Code of Ohio.'
Trial proceeded before a jury upon the substitute affidavit and resulted in a verdict of guilty. Motion for new trial was filed and overruled, and the defendant was thereafter sentenced. Notice of appeal to the Court of Common Pleas of Wyandot County was given, and upon hearing the court affirmed the judgment of the Municipal Court. From this judgment of the Court of Common Pleas, appeal is prosecuted to this court. In the Court of Common Pleas a separate assignment of errors was filed by the appellant. In this court, no separate assignment of errors was filed; however, in the defendant's brief, the same claims of error were urged as set forth in the assignment of errors filed in the Court of Common Pleas. In his assignment of errors, the defendant claims, among others, error in the proceedings and judgment of the court, in that the defendant was not served with an affidavit charging the offense until the day of trial, and that he was not given an opportunity to plead to such affidavit. Defendant was placed on trial upon the substitute affidavit. It is the contention of the state that the substitute affidavit was an amendment of the original affidavit and authorized by the provisions of Section 2941.30, Revised Code, which read in part:
'The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.'
That section permits the amendment of indictments, informations, or bills of particulars. There is no authority given to the court in that section to amend an affidavit
...
To continue reading
Request your trial
-
State v. McAteer
...See State v. Hart, 669 N.E.2d 762 (Ind.Ct.App.1996); State v. Rue, 72 N.M. 212, 382 P.2d 697 (N.M.1963); State v. Jennings, 112 Ohio App. 455, 176 N.E.2d 304 (Ohio Ct.App.1959); Romo v. State, 577 S.W2d 251 (Tex.Crim.App.1979); see also 11 C.J.S. Breach of the Peace § 5 at 265 (1995) ("Whil......
-
State ex rel. Appleby v. Recht
...other states support our conclusion that driving while intoxicated is a dangerous and violent act....") (citing State v. Jennings, 112 Ohio App. 455, 176 N.E.2d 304 (1959); City of Troy v. Cummins, 107 Ohio App. 318, 159 N.E.2d 239 (1958); Romo v. State, 577 S.W.2d 251 (Texas Crim.App.1979)......
-
Krauter v. Maxwell
...N.S., 351. Without an arraignment and a plea, a trial court is without jurisdiction to proceed to trial. See State v. Jennings, 112 Ohio App. 455, 457, 176 N.E.2d 304; Snyder v. State ex rel. McCoy, 53 Ohio App. 370, 4 N.E.2d 993. Also, failure of the record to show affirmatively an arraign......
-
State v. Saionz
...state's affidavit did not charge an offense. An affidavit filed in a criminal case is not subject to amendment. See State v. Jennings, 112 Ohio App. 455, 176 N.E.2d 304; Toledo v. Harris, 56 Ohio App. 251, 10 N.E.2d 454. An affidavit is the product of the affiant, but even as to an indictme......