State v. Wozniak
| Decision Date | 20 December 1961 |
| Docket Number | No. 36983,36983 |
| Parties | , 18 O.O.2d 58 STATE of Ohio, Appellant, v. WOZNIAK et al., Appellees. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. Either 'the intent to steal property' of some value or 'intent to commit a felony' is an essential element of the crime specified in Section 2907.10, Revised Code; and an indictment which does not charge defendant with either such intent will not charge such defendant with the crime specified in that statute.
2. An indictment which does not charge defendant with an intent which is one of the essential elements of a crime cannot be amended so as to include a charge of such intent. (State v. Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416, followed.)
3. Where, during the course of a trial and before submission to the jury, defendant's objection to an amendment of an indictment to supply an essential element of the crime sought to be charged and his motion to dismiss the indictment as a charge of that crime are overruled and such amendment is authorized, a judgment of conviction for such crime must be reversed. (State v. Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416, followed.)
4. Section 2941.30, Revised Code, authorizes amendment of an indictment which indictment charges every essential element of a crime.
The two defendants were charged in an indictment that is claimed to have charged them in count one with attempted burglary as specified in Section 2907.10, Revised Code, and in count two with possession of burglar tools as specified in Section 2907.11, Revised Code.
Count one charged that the defendants on a certain day 'in the night season in Lucas County * * * unlawfully attempted to forcibly and maliciously break and enter the offices of the credit union belonging to the New York Central Railroad System.' Count two charged that the defendants on that day and in that county 'unlawfully did have in their possession certain implements, to wit, three (3) sets of lock picks, commonly used by burglars for breaking and entering houses, forcing doors, windows, locks of buildings * * * having the intention of using such tools or implements burglariously.'
Defendants did not question the form or sufficiency of this indictment by motion to quash or by a demurrer.
During the course of trial before a jury and after the testimony of several state witnesses, the prosecutor moved to amend the indictment by inserting in count one after the word 'system' the words 'employees, with intent to steal' and by inserting in count two after the word 'buildings' the words 'to wit, the lock of N. Y. C. Credit Union Building, where moneys of members of credit union are kept.'
Each defendant objected to these amendments, contended that each of the counts was insufficient to support a conviction, and moved for dismissal. The trial court overruled those motions for dismissal but advised each defendant that it would grant a motion of such defendant for discharge of the jury and a reasonable continuance of the cause if such defendant claimed that the proposed amendments would take him by surprise. Each defendant refused to make such a motion, and the court thereupon, purporting to act pursuant to Section 2941.30, Revised Code, granted the foregoing motion of the prosecution to amend the indictment.
Defendants were convicted on each count of the indictment.
On appeal to the Court of Appeals, the judgment of the Common Pleas, Court was reversed on authority of State v. Parker (1948), 150 Ohio St. 22, 80 N.E.2d 490, and State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416, and the cause was remanded to the Common Pleas Court for further action on the ground that 'both counts' of the indictment 'were defective as filed and insufficient in law to describe the offenses' against defendants.
The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to allowance of the state's motion for leave to appeal.
Harry Friberg, Pros. Atty., and Joseph J. Jan, Toledo, for appellant.
Harry R. Illman and Stanley A. Grzezinski, Toledo, for appellees.
So far as pertinent, Section 2907.10, Revised Code, reads:
'No person shall in the night season maliciously and forcibly break and enter, or attempt to break and enter an uninhabited dwelling house * * * or other building * * * with intent to steal property of any value, or with intent to commit a felony.' (Emphasis added.)
It is apparent from a reading of this statute that an essential element of the crime sought to be charged in count one of the indictment in the instant case is one of the 'intents' specified by the emphasized words quoted from that statute.
It is certain that, without the amendment made by the court on motion of the prosecution, the indictment did not (and possibly, because it still fails to include reference to 'property of any value' even after such amendment, does not) charge either defendant with the intent that is an essential element of the offense specified in Section 2907.10, Revised Code.
In State v. Cimpritz, supra (158 Ohio St. 490, 110 N.E.2d 416, 417), the syllabus reads in part:
'4. Sections 13437-28 and 13437-29, General Code [now Section 2941.29 and 2941.30, Revised Code], authorizing correction in the form or substance of an indictment, apply to an indictment which as drawn is sufficient to charge an offense, but they do not contemplate the making of a good indictment out of one which states no offense. There must be something effectual on which Sections 13437-28 and 13437-29, General Code, can operate to render them available.
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See also State v. Presler (1960), 112 Ohio App. 437, 176 N.E.2d 308.
Any other holding in a case such as this would be inconsistent with the provisions of Section 10 of Article I of the Constitution of Ohio providing that 'no person shall be held to answer for' a crime such as this 'unless on presentment or indictment of a grand jury.' To require defendants to answer for the crime sought to be charged in count one of this indictment after amendment of the indictment by addition thereto of a missing charge of an essential element of that crime would be to require defendants to answer for a crime other than on 'presentment or indictment of a grand jury.' In order to justify conviction of a defendant for such a crime, the grand jury and not the prosecutor, even with the approval of the court, must charge the defendant with each essential element of that crime.
As stated by Jones, J., in the opinion in Harris v. State (1932), 125 Ohio St. 257, 264, 181 N.E. 104, 106 'The material and essential facts constituting an offense are found by the presentment of the grand jury; and if one of the vital and material elements identifying and characterizing the crime has been omitted from the indictment such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.'
The state further relies upon that part of Section 2945.83, Revised Code, reading:
'No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of
'(A) An inaccuracy or imperfection in the indictment * * * provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him;
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'(E) Any other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial.'
These statutory provisions, standing alone, might have required affirmance of the judgment of conviction of defendants on the first count. However, to so hold in this case, where the indictment as drawn is not sufficient to charge an offense,...
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