State v. Winters, 38500
| Decision Date | 23 June 1965 |
| Docket Number | No. 38500,38500 |
| Citation | 209 N.E.2d 131,2 Ohio St.2d 325 |
| Parties | , 31 O.O.2d 581 The STATE of Ohio, Appellee, v. WINTERS, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Sections 2961.11 and 2961.12, Revised Code, of the Habitual Criminal Act, enumerate specific crimes that serve as a basis for an indictment and prosecution under that act.
2. Neither 'breaking ane entering in the night season' nor 'armed robbery' is a crime enumerated in the Habitual Criminal Act.
3. An indictment purporting to charge a violation of the Habitual Criminal Act must allege three or more convictions of crimes specifically enumerated in that act.
4. The record in a criminal prosecution under the Habitual Criminal Act must show that the previous convictions relied
upon under that act were separately prosecuted and tried.
5. The provisions of Section 2941.11, Revised Code, are mandatory and an allegation of a prior conviction in an indictment or information must show that 'the accused was, at a certain stated time, in a certain stated court, convicted of a certain stated offense, giving the name of the offense, or stating the substantial elements thereof.'
Harry F. Winters, appellant herein, was indicted by the Grand Jury of Champaign County, in the January term 1957, as an habitual criminal, pursuant to Section 2961.11, Revised Code. At arraignment, a plea of not guilty was entered, and counsel was appointed by the court. Thereafter, appellant orally waived the right to a jury trial in open court and consented to a trial before the court. Appellant was found guilty.
In April 1958, appellant filed a petition in habeas corpus in the Court of Appeals for Franklin County. The Court of Appeals held that appellant's trial in the Court of Common Pleas was a nullity for failure to obtain a written waiver of a jury trial as required by Section 2945.05, Revised Code. The Court of Appeals ordered that appellant be discharged from the Ohio Penitentiary and be returned to the Court of Common Pleas of Champaign County for further proceedings according to law.
Appellant was again arraigned on the habitual-criminal indictment, was assigned counsel, and was then tried before a jury which returned a verdict of guilty. Appellant appealed from his conviction to the Court of Appeals for Champaign County, in May 1958. In April 1961, the Court of Appeals affirmed the judgment of the Common Pleas Court. The Court of Appeals refused to consider two assignments of error of the appellant for failure to furnish a bill of exceptions, contrary to Sections 2321.05 and 2945.65, Revised Code. In June 1961, this court denied appellant's motion for leave to appeal. Subsequently appellant's petition for certiorari to the United States Supreme Court was granted. In June 1962, the United States Supreme Court (370 U.S. 721, 82 S.Ct. 1573, 8 L.Ed.2d 801) vacated the judgment of this court, upon the authority of Griffin v. Illinois (1955), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. In June 1963, this court (175 Ohio St. 47, 191 N.E.2d 539), proceeding on the basis that there was a mandatory duty to furnish appellant a bill of exceptions, remanded the cause to the Court of Appeals to procure a bill of exceptions and reexamine appellant's arguments in light thereof. In October 1963, the Court of Appeals, on reconsideration, affirmed the conviction. The cause is now before this court pursuant to the allowance of appellant's petition for leave to appeal.
Richard O. Harris, Pros. Atty., for appellee.
Henry Clay Scott, Columbus, for appellant.
Appellant assigns a number of errors in this appeal. He alleges that the indictment in this cause is insufficient under law to charge an offense, that he was denied a speedy trial, that the Court of Appeals for Franklin County erred in remanding appellant for a retrial, that he was denied the effective assistance of counsel, and that the trial court erred in informing the jury at the second trial of certain facts. Our disposition of this cause requires that only certain of the above errors be considered.
Appellant alleges that the indictment returned against him is insufficient under law to charge an offense. Appellant's motion challenging the sufficiency of the indictment was overruled by the trial court.
The indictment returned by the grand jury in this cause states as follows:
'The jurors of the grand jury * * * do find and present that Harry F. Winters late of said county [Champaign] was indicted in the October term of 1956 of this Court of Common Pleas of said Champaign County, Ohio, on the charges of armed robbery, robbery and breaking and entering in the night season, and in the same term on the 2nd day of January, 1957, pleaded guilty to the said charge of armed robbery;
'That on the 2nd day of January, 1957, in the Court of Common Pleas of Champaign County, Ohio, the said Harry F. Winters pleaded guilty to the said crime of robbery 'That on the 2nd day of January, 1957, in the Court of Common Pleas of Champaign County, Ohio, the said Harry F. Winters pleaded guilty to the said crime of breaking and entering in the night season;
'That the said Harry F. Winters on the 19th day of January, 1938, in the Court of Common Pleas of Logan County, Ohio, was convicted of the crime of robbery;
'Contrary to Section 2961.11 of the Revised Code, and against the peace and dignity of the state of Ohio.
's/s T. H. Eshman
'Rrosecuting Attorney.'
In the simplest terms, the indictment alleges that on January 2, 1957, appellant pleaded guilty to three criminal charges of armed robbery, robbery, and breaking and entering in the night season; and that on January 19, 1938, appellant was convicted of the crime of robbery.
The indictment purports to charge a violation of Section 2961.11, Revised Coce, which provides as follows:
In simplest terms, the above Code section provides that any person who has been previously convicted three times for certain named felonies shall be adjudged an habitual criminal, subject to two conditions: the convictions must be separately prosecuted and tried; and any of such convictions which result from or are connected with the same transaction or result from offenses committed at the same time shall be counted as one conviction.
Comparing the indictment in the instant case to the habitual-criminal statute, we think that the indictment is fatally defective in several respects.
An examination of the indictment reveals that it charges the crimes of 'breaking and entering in the night season' and 'armed robbery.' These crimes are not listed in the habitual-criminal statute.
It is at once apparent from an examination of the legislative history of the habitual-criminal statutes that the General Assembly intended to enumerate specific crimes only as being within the purview of the habitual-criminal statutes.
The original Habitual Criminal Act of May 4, 1885 (82 Ohio Laws 236, 237), did not enumerate specific crimes. Rather, an habitual criminal was defined as any person who had been previously convicted, sentenced and imprisoned for any three felonies. This act was repealed in 1902. See 95 Ohio Laws 410.
The present Habitual Criminal Act, enacted in 1929 (113 Ohio Laws 40), enumerates specific crimes. Only convictions for these crimes may serve as a basic in a habitual-criminal prosecution.
The high degree of specificity intended by the General Assembly is demonstrated by the amendments offered and accepted to the 1929 Habitual Criminal Bill. The bill, as originally offered, enumerated the crime of 'larceny.' It was amended to read, 'grand larceny,' only thereby excluding the crimes of petit larceny and larceny by trick. See Sections 2907.20 and 2907.21, Revised Code, 113 Ohio House Journal 184 (1929). Also the original bill did not enumerate any crimes involving homicides. It was amended to include the crime of 'murder of any degree' (113 Ohio House Journal 184 [1929]) and then was further amended to read, 'murder of the second degree' only (113 Ohio House Journal 404 [1929]), thereby excluding eight other types of homicides. See Sections 2901.01, 2901.02, 2901.03, 2901.04, 2901.06, 2901.07, 2901.09, 2901.10 and 2901.28, Revised Code.
We do not think that the allegation of 'breaking and entering' as found in the indictment is equivalent to an allegation of 'burglary' or 'burglary of an inhabited dwelling,' as enumerated in the habitual-criminal statute.
Moreover, we are unable to ascertain what section of the criminal code the prosecutor intended in alleging a 'breaking and entering in the night season.' All the following sections of the Revised Code contain the elements of 'breaking,' 'entering,' and 'night season.' Section 2907.09 (); Section 2907.10 (); Section 2907.16 ().
Nor do we believe that the General Assembly...
To continue reading
Request your trial
-
State v. Marcum
...to constitute a crime must be gathered wholly from statute and not aliunde. State v. Draggo, supra, citing State v. Winters (1965), 2 Ohio St.2d 325, 209 N.E.2d 131; State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416. {¶32} R.C. 2903.01 defines the crime of aggravated murder, "(A) N......
-
State v. Marcum
...to constitute a crime must be gathered wholly from statute and not aliunde. State v. Draggo, supra, citing State v. Winters (1965), 2 Ohio St.2d 325, 209 N.E.2d 131; State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416. {¶32} R.C. 2903.01 defines the crime of aggravated murder, "(A) N......
-
State v. Damron, 2005 Ohio 3923 (OH 7/28/2005)
...necessary to constitute a crime must be gathered wholly from statute and not aliunde. State v. Draggo, supra citing State v. Winters (1965), 2 Ohio St.2d 325, 209 N.E.2d 131; State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416. {¶26} "Where the indictment, information, or complaint c......
-
State v. Henderson
...lead us to the conclusion that a final judgment of conviction was intended in R.C. 2913.02(B). For example, in State v. Winters (1965), 2 Ohio St.2d 325, 209 N.E.2d 131, dealing with an analogous situation involving the former habitual criminal statute, we determined that a plea of guilty w......