State v. Simpson
| Decision Date | 26 September 1969 |
| Citation | 254 N.E.2d 23,20 Ohio App.2d 336 |
| Parties | , 49 O.O.2d 458 The STATE of Ohio, Appellant, v. SIMPSON, Appellee. The STATE of Ohio, Appellant, v. PREVOE, a. k. a. Chaplin, Appellee. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
In order for the 'second offense' penalty of Section 2923.01, Revised Code, for conviction for carrying a concealed weapon, to be imposed on a defendant, it is necessary that the indictment charge a second offense and that a second offense be proved.
Lawrence S. Huffman, Pros. Atty., for appellant.
Anthony J. Bowers, Lima, for appellee Simpson.
Navarre, Rizor, DaPore & Pettit, Lima, for appellee Prevoe.
In each of the above cases the defendant was indicted for carrying a concealed weapon. The indictments contained the following additional charge. (Prevoe case)-'the said Jewel George Prevoe having previously pleaded guilty to the commission of carrying a concealed weapon, to wit: in case No. 12047 in the Common Pleas Court of Allen County, Ohio, on the 13th day of March, 1968.' (The other indictments carried similar charges.)
Upon motion by the defendants the Common Pleas Court ordered the additional charges stricken from the indictments from which decision the prosecuting attorney has brought these appeals.
Section 2923.01, Revised Code, prohibits the carrying of a concealed weapon and provides a relatively minor penalty for the offense. However, effective November 24, 1967 (132 Ohio Laws, Part I, 953), the Legislature added another paragraph to this section, which provides in pertinent parts as follows:
'Whoever violates this section, having previously been convicted of or pleaded guilty to the commission of carrying a concealed weapon * * * shall be imprisoned not less than three nor more than ten years.'
In Ohio every crime is defined by statute, and it is the province of the Legislature to decide what is a crime and to fix the penalty for a violation. By the amendment above set out the Legislature described another crime. Before the amendment the section established one crime-carrying a concealed weapon-and it made no difference whether it was a first offense or a subsequent offense. By the amendment the Legislature created another crime, that of conviction for a second or third offense of carrying concealed weapons. Before the amendment there was only one crime. Now there are two separate and distinct crimes in the entire section.
'Having previously been convicted' is now a necessary element of the new offense and must be proved beyond a reasonable doubt by the state. This includes the question of identity. It would not be sufficient for the state to prove that 'John Smith' was previously convicted in Cuyahoga County. It must now prove that the 'John Smith' previously convicted in Cuyahoga...
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State v. Gordon
...offense. Larney v. Cleveland (1878), 34 Ohio St. 599; Columbus v. Carson (1927), 23 Ohio App. 299, 155 N.E. 498; State v. Simpson (1969), 20 Ohio App.2d 336, 254 N.E.2d 23; State v. Gordon, supra 26 Ohio App.2d 270, 272, 271 N.E.2d While the instant case presents no challenge to that propos......
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State v. Walker
...was one and the same person as the 'John Smith' now on trial." Macalla, 8th Dist. Cuyahoga No. 88825, 2008-Ohio-569, at ¶ 46, quoting Simpson at 336. 21} To satisfy the identity requirement of R.C. 2945.75(B), the state typically uses witness testimony to prove that the defendant is the per......
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State v. Cichy, L-84-008
...The prior conviction, therefore, is not a necessary element of the offense with which appellant was charged. Cf. State v. Simpson (1969), 20 Ohio App.2d 336, 337, 254 N.E.2d 23 ; State v. Bowman (1962), 116 Ohio App. 285, 287, 187 N.E.2d 627. A former conviction is, however, a factor which ......
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