State v. Zdovc

• Citation: 106 Ohio App. 481,151 N.E.2d 672
• Parties: , 79 Ohio Law Abs. 102, 7 O.O.2d 217 STATE of Ohio, Plaintiff-Appellant, v. Wilbert ZDOVC, Defendant-Appellee.
• Decision Date: 10 July 1958
• Court: United States Court of Appeals (Ohio)

Page 481

106 Ohio App. 481

151 N.E.2d 672, 79 Ohio Law Abs. 102, 7 O.O.2d 217

STATE of Ohio, Plaintiff-Appellant, v. Wilbert ZDOVC, Defendant-Appellee.

Court of Appeals of Ohio, Cuyahoga County.

July 10, 1958.

N. A. Brinsky, Cleveland, for plaintiff-appellant.

R. E. Reichert, Cleveland, for defendant-appellee.

KOVACHY, Judge.

The State of Ohio, the plaintiff in a criminal case, brings this appeal on questions of law from a judgment of the Parma Municipal Court wherein a motion made, sua sponte by the court to quash the citation, summons, affidavit and warrant was granted and the defendant discharged.

The record discloses that the defendant was arrested on January 7, 1958, by a police officer of the City of Parma, on view, for allegedly driving his automobile while under the influence of intoxicating liquor within the corporate limits of the City of Brooklyn. An 'arrest affidavit' with full details was filled out by the arresting officer, charging the defendant with violating Section 4511.19 of the Revised Code of Ohio, and filed with the Clerk of the Parma Municipal Court. No jurat appears thereon. Court appearance was set for January 21, 1958 at 9:00 a. m. Bond was set at $200.

The defendant made his appearance in court, without counsel, on January 21 and entered a plea of 'Not Guilty.' The trial commenced and the arresting officer, upon being duly sworn, took the witness stand and testified that he was patrolling Brookpart Road in Parma when he observed the defendant driving 'in a suspicious manner' on the Brooklyn side of said Brookpark Road, that he thereupon arrested the defendant and detained him until he could obtain a warrant from a court of competent jurisdiction. The court, at this point, interrupted the trial to raise the question of the legality of the arrest of the defendant in the City of Brooklyn by a police officer of the City of Parma and continued the case for further hearing to January 23. The record shows that on January 23, an affidavit, proper in form, was executed and filed with the Clerk of the Parma Municipal Court and a warrant issued thereon, charging the defendant with violating Section 4511.19 of the Revised Code 'in that he did operate a Chev. 2-door bearing license plates AM 6615 on Brookpark Road while being under the influence of alcohol.' The record also shows that the defendant appeared on January 23 for disposition of his case but that no witness took the stand at the hearing. Rather, the court made a statement, in open court, to the effect that it intended to discharge the defendant for the reason 'that a police officer of a municipal corporation has no power or authority to arrest or detain anyone found violating a state law, constituting a misdemeanor, outside of the corporated limits of the municipality which he serves.' The prosecutor, thereupon, asked for leave to file a brief, which was allowed and the case passed for such purpose. The entry on the journal reads: 'Court's own motion entered for dismissal. Prosecutor to file brief on or before January 30, 1958.' Another leave was given the prosecutor until February 4, 1958 on which date this entry appears on the journal:

'After full consideration of brief filed on behalf of the City of Parma the court on its motion hereby quashes the citation, summons, and affidavit and warrant and further orders that the defendant be discharged.'

The State of Ohio here contends that this ruling of the court was contrary to law and that the court erred in discharging the defendant. It maintains that police officers of a municipality are state officers, who derive their authority from the state, and are authorized under Section 2935.03 R.C. to 'arrest and detain a person found violating a law of this state', anywhere in the state. Counsel representing the trial court, on the other hand, maintains that a police officer of one municipal corporation has no authority to arrest or detain without a warrant 'a person found violating a law of this State, to wit: a misdemeanor, and more particularly a violation of a motor vehicle law, which violation occurred entirely within the corporate limits of another municipal corporation. * * *'

The Parma Municipal Court is a creature of the Legislature of the State of Ohio and its jurisdiction is consequently found in the statutes enacted in relation thereto. Its Territorial Jurisdiction is found in Section 1901.02 of the Revised Code, effective June 17, 1957, and reads as follows:

'The municipal courts, established by section 1901.01 of the Revised Code, have jurisdiction within the corporate limits of their respective municipal corporations and are courts of record. * * * The municipal courts also have jurisdiction as follows:

* * *

* * *

'The Parma municipal court has jurisdiction within the corporate limits of the municipalities of Parma Heights, Brooklyn, Lindale, North Royalton, Broadview Heights, Seven Hills, and Brooklyn Heights in Cuyahoga county.' (Emphasis ours.)

Its Criminal Jurisdiction is found in Section 1901.20 of the Revised Code 'The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory and of any misdemeanor committed within the limits of its territory. In all such prosecutions and cases, the court shall proceed to a final determination thereof. The court has jurisdiction to hear felony cases committed within its territory and to discharge, recognize, or commit the accused. The court also has jurisdiction within the limits of the county or counties in which its territory is situated of those crimes and offenses which are within the county wide jurisdiction of justices of the peace.'

These sections establish beyond question that the Parma Municipal Court has the jurisdiction to prosecute the violation of a misdemeanor, prohibited by state law, that occurs anywhere within its territorial jurisdiction, including the City of Brooklyn.

The law is that the prosecution of a criminal case in our courts commences with the finding of an indictment by a grand jury, the filing of an information by a prosecuting attorney, or the filing of an affidavit by a citizen or peace officer. It is not commenced by or with the arrest of the person. Such arrest may take place before or after the filing, with the court, of documents formally instituting the criminal prosecution, depending upon the circumstances of each case.

The syllabus in the case of Britton v. Granger, 13 Ohio Cir.Ct.R. 281, 17 Ohio Cir.Dec. 182, states the law as follows:

'Where an officer finds one violating a law or ordinance, and arrests him, and thereafter files affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit, and not with the arrest.'

The record shows that the 'arrest affidavit' filed with the clerk on the day of the arrest was not sworn to when signed by the arresting officer, and, therefore, it was not an affidavit. A proper affidavit was first filed with the clerk on January 23, 1958. In necessarily follows from this state of the record that the charge brought January 7 was of no legal effect, that the plea of'Not Guilty' was without substance in law, and that the partial hearing on January 21, was without sanction of law. All proceedings, as a consequence, prior to said January 23, were void ab initio and of no legal effect whatever, and the defendant was not lawfully within the orbit of the court's power and authority on the charge brought against him by the arresting officer until January 23 when a valid affidavit was first filed. The court's motion to quash and discharge defendant appears on the transcript as of January 23. A motion to quash is directed to a defect apparent upon the face of the record, including defects in the form of an indictment or affidavit, and in the manner in which an offense is charged. Section 2941.54, R.C. It is not the correct legal procedure and is clearly improper to question a matter extrinsic to the record, as here intended. Moreover, as the matter then stood, the defendant had entered a plea of 'Not Guilty.' This, likewise, made the...