State v. Nickles

• Decision Date: 06 May 1953
• Docket Number: No. 33165,33165
• Citation: 112 N.E.2d 531,159 Ohio St. 353
• Parties: , 50 O.O. 322 STATE v. NICKLES.
• Court: Ohio Supreme Court

Page 353

159 Ohio St. 353

112 N.E.2d 531, 50 O.O. 322

STATE v. NICKLES.

No. 33165.

Supreme Court of Ohio.

May 6, 1953.

Syllabus by the Court.

1. In determining the intention of the General Assembly as to the meaning and operation of statutes, a court, if possible, should avoid absurd and grotesque results.

2. Sections 13445-1 and 13459-4, General Code, are in pari materia, and where, in a criminal case, the trial court overrules a motion for a new trial filed by a convicted accused, the journalization of such overruling must be contemporaneous with or subsequent to the journalization of the judgment of sentence of such accused; any other journalization of the overruling is a nullity.

3. Section 12223-4, General Code, is applicable to appeals in criminal cases.

4. In section 13459-1 et seq., General Code, the General Assembly has prescribed procedural requirements in criminal cases for perfecting appeals to the Court of Appeals from judgments of the Court of Common Pleas, and such procedural requirements as to filing a notice of appeal with the court rendering the judgment or order appealed from and filing a copy thereof in the appellate court, where leave to appeal must be obtained, are mandatory and jurisdictional. (Paragraph five of the syllabus in State v. Edwards, 157 Ohio St. 175, 105 N.E.2d 259, Modified.)

5. The provision in section 13459-3, General Code, that the brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in an appeal is directory as to the time of the filing of such brief, and an appellate court may, in the exercise of its discretion, grant additional time for the filing thereof.

In this cause, the state of Ohio, hereinafter designated the state, is appellee, and John Nickles, hereinafter designated defendant, is appellant.

On August 22, 1951, the grand jury of Stark county indicted defendant upon four counts for receiving and concealing stolen property. After a plea of not guilty, defendant was placed on trial and the jury found him not guilty on the first count in the indictment and guilty on the second, third and fourth counts.

On November 19, 1951, defendant filed a motion for a new trial, and on December 31, 1951, there was journalized an entry overruling the motion, without notice to defendant or his counsel.

On January 2, 1952, a notice of appeal and motion for stay of execution of sentence were signed by the trial judge and a journal entry was filed staying execution of sentence.

On January 8, 1952, an entry overruling the motion for a new trial was journalized, as was also the sentence of defendant. On the same date a notice of appeal was filed by defendant.

On February 7, 1952, a bill of exceptions was filed in the Common Pleas Court, and on February 19, 1952, such bill was filed in the Court of Appeals.

On February 27, 1952, the Court of Appeals granted defendant leave to file his brief within ten days.

On March 5, 1952, defendant's brief was filed in the Court of Appeals, and the cause was assigned for hearing and thereafter argued to that court.

On May 15, 1952, the Court of Appeals, with one judge dissenting, dismissed, sua sponte, defendant's appeal, the entry of dismissal being journalized on June 4, 1952.

The cause is before this court upon the allowance of a motion to certify the record.

James W. Huffman, Columbus, Hargreaves & Fanelly and D. W. Alexander, Akron, for appellant.

John Rossetti, Pros. Atty., and Samuel Krugliak, Canton, for appellee.

STEWART, Judge.

The questions presented in the present case relate entirely to matters of procedure and have nothing to do with the substantive merits of defendant's cause.

The Court of Appeals decided that, since a bill of exceptions was not filed in the Common Pleas Court until February 7, 1952, and since that date was more than 30 days after December 31, 1951, under which date appears the first journal entry overruling the motion for a new trial, such bill of exceptions was not filed in accordance with section 13445-1, General Code, and, therefore, could not be considered by the Court of Appeals. In such a situation, if the errors complained of by an appellant can not be disclosed except by examining a bill of exceptions, the only alternative for the Court of Appeals is to affirm the judgment of the Common Pleas Court. Luff v. State, 112 Ohio St. 102, 146 N.E. 892.

The Court of Appeals decided further that section 13459-3, General Code, which requires an appellant to file his brief with the transcript, is a mandatory jurisdictional provision which requires a dismissal of an appeal by the Court of Appeals where the provision is not complied with; and that such court has no discretionary power to extend the time for filing the briefs.

We shall examine these two questions in order.

The entry overruling the motion for a new trial, dated December 31, 1951, was made before any judgment entry of the court sentencing defendant upon the jury's verdict of guilty.

Section 13459-4, General Code, provides:

'Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof.'

Section 13445-1, General Code, provides in part:

'The court shall fix the time within which such bill of exceptions or objections, shall be filed, which, in no case, shall be more than thirty days from the overruling of the motion for a new trial.'

It is apparent that if a court may overrule a motion for a new trial from which overruling no appeal can be taken, since it must be taken from the judgment of sentence, the court, by deferring sentence for more than 30 days after such overruling, can prevent a defendant from having the advantage of a bill of exceptions on an appeal unless he files with the court a bill of exceptions before a judgment against him and at a time when he does not know whether he will appeal.

To require the preparation and filing of a bill of exceptions before the entry of a judgment from which an appeal can be taken will not only give rise to an unjust and unfair situation but one that is absurd and grotesque. We do not believe the General Assembly had any such intention in the enactment of sections 13445-1 and 13459-4.

A reading of Article IV of the Constitution of Ohio is convincing that it is the spirit of our fundamental law that a litigant shall be entitled not only to a fair and impartial trial but shall have at least one review if he so desires. Naturally, in order to expedite justice, the General Assembly must legislate in order that an appellate review may be orderly and without delay, and the General Assembly has the authority to fix the terms upon which the review may be had. When, however, courts come to determine the meaning of the terms fixed by the legislative branch of the government, that meaning must, if possible, be consistent with justice and fair play and must avoid ridiculous and grotesque results. Since, as we have pointed out, such results may come about by the overruling of a motion for a new trial in a criminal case before sentencing a defendant, and since the time for filing a bill of exceptions dates from the overruling of the motion, whereas the time for filing a notice of appeal dates from the judgment of sentence, sections 13445-1 and 13459-4 must be considered in pari materia and a trial court is required in a criminal case, if it overrules a motion for a new trial, to journalize such overruling contemporaneously with or subsequently to the journalization of the judgment of sentence.

In the present case, the trial court must have construed sections 13445-1 and 13459-4 as we have just indicated, for otherwise there would have been no sense or logic in journalizing the overruling of defendant's motion for a new trial and journalizing the sentence of defendant on January 8, 1952, after the journalization of the overruling of the motion on December 31, 1951.

The trial court must have considered the December 31 entry as a mere nullity for the reasons we have stated, and we hold likewise. It follows that the 30-day period for filing the bill of exceptions dated from January 8, 1952, and since such bill was filed in the trial court on February 7, 1952, that filing was within time.

As to the other question presented, although the Court of Appeals granted defendant additional time to file his brief in that court and such brief with assignments of error was filed within the time allowed by the court, it, nevertheless, dismissed defendant's appeal because of the provision in section 13459-3, General Code, that 'The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal.'

In the majority opinion, the Court of Appeals said:

'On February 27, 1952, which was the fiftieth day after the filing of the notice of appeal, this court granted to counsel for defendant leave to file his brief within ten days. This leave was granted and signed by the writer, for the reason that prior to the time of my taking office, this court held that the matter of extension of time for filing briefs were discretionary with the court. This extension in law is a nullity.'

The Court of Appeals in dismissing defendant's appeal relied upon paragraph five of the syllabus in State v. Edwards, 157 Ohio St. 175, 105 N.E.2d 259, 260, which is as follows:

'In Section 13459-1 et seq., General Code, the General Assembly has prescribed procedural requirements for effecting review by Courts of Appeals of judgments of the Courts of Common Pleas in criminal cases, and such...