State v. McCoy
| Decision Date | 05 March 1955 |
| Citation | 99 Ohio App. 161,131 N.E.2d 679 |
| Parties | , 58 O.O. 270 The STATE of Ohio, Appellant, v. McCOY, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. An attempted arrest of a person, on Sunday, for operating a motor vehicle with fictitious license plates is in violation of Section 2331.12, Revised Code, which provides that 'no person shall be arrested * * * on Sunday.'
2. The operation of a motor vehicle with ficitious license plates is not a breach of the peace so as to bring such operator within the exception contained in Section 2331.13, Revised Code, which provides, inter alia, that Section 2331.12, Revised Code, does not 'extend to cases of * * * breach of the peace.'
3. The conduct of a person who is arrested for resisting a police officer attempting to arrest another person on Sunday for operating a motor vehicle with fictitious license plates must be adjudicated on the facts appearing at the time of his arrest and not on those of a subsequent date; and the fact that such other person pleaded guilty to the charge against him does not show a waiver of the privilege of exemption from arrest on Sunday.
George R. Smith, Pros. Atty., Xenia, for appellant.
James F. Cox, Xenia, for appellee.
This case comes to this court on an appeal on questions of law from a judgment of the Common Pleas Court of Greene County sustaining the defendant's motion for a directed verdict at the close of the state's case. There appears to be no conflict in regard to the facts presented; hence, the question to be determined is one of law only. The facts pertinent to the issue disclose that Robert Kahr, a state highway patrolman, was issued a warrant out of the Mayor's Court of Spring Valley, Ohio, directing him to arrest Robert Melvin McCoy; that the warrant was issued upon an affidavit filed in the court charging McCoy with operating an automobile with fictitious license plates on or about July 30, 1954; and that on Sunday, August 1, 1954, an attempt was made by the highway patrolman to arrest McCoy, at which time he fled into his father's nearby grocery store. The father attempted to block the entrance doorway and prevent the officer from making the arrest. The father was informed of the warrant for the son's arrest, but he still persisted in resisting. Thereupon, the highway patrolman arrested the father, defendant Robert McCoy, appellee herein, and charged him with unlawfully interfering with and obstructing a state highway patrolman in the discharge of his official duties in violation of Section 2917.33, Revised Code. The motion for a directed verdict was based upon the following sections of the Revised Code:
Section 2331.12. 'No person shall be arrested during a sitting of the senate or house of representatives, within the hall where such session is being held, or in any court of justice, during the sitting of such court, or on Sunday, or on the fourth day of July.'
Section 2331.13. 'Sections 2331.11 to 2331.14, inclusive, of the Revised Code do not extend to cases of treason, felony, or breach of the peace * * *.'
The arrest of the defendant was made upon the authority of Section 2917.33, Revised Code, which provides, in part, as follows:
'No person shall abuse a judge or justice of the peace in the execution of his office, or knowingly and willfully resist, obstruct, or abuse a sheriff, or other officer in the execution of his office.'
The question, therefore, arising is whether the officer was lawfully exercising the duties of his office on the day the alleged offense was committed by the defendant. In other words, was the attempted arrest of the son on Sunday in violation of Section 2331.12, Revised Code? If it was, the officer was illegally attempting to make a forced entry upon the defendant's premises, and defendant might lawfully resist such entry.
It is urged by the appellant that the cited section has no application to criminal proceedings since it is found in that portion of the Code which relates to 'Execution against the Person', which is a civil proceeding, citing 17 Ohio Jurisprudence, 1003, 1007, Sections 521, 534. These citations refer to the Sunday code as having application to executions against the person, but they are silent as to any application in criminal proceedings. We can attach no important significance to this omission. We cannot concur with counsel for the appellant that the Sunday statute should have such a narrow application. In examining into the history of privileges from arrest we find that a somewhat similar provision is found in the Constitution of Ohio of 1802,...
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