Susi, In re

• Decision Date: 27 November 1973
• Citation: 38 Ohio App.2d 73,313 N.E.2d 422
• Parties: , 67 O.O.2d 338 In re SUSI et al.
• Court: Ohio Court of Appeals

Page 73

38 Ohio App.2d 73

313 N.E.2d 422, 67 O.O.2d 338

In re SUSI et al.

Court of Appeals of Ohio, Tenth District, Franklin County.

Nov. 27, 1973.

Syllabus by the Court

1. The act prohibited in R.C. 2915.01 (permitting a room to be used for gambling) is separate and distinct from that prohibited in R.C. 2915.111 (possessing a 'numbers game' ticket), and an indictment of an accused for the violation of one statute does not constitute double jeopardy because he was formerly tried for violating the other, even though both arose out of the same series of events.

2. The doctrine of collateral estoppel applies only where there has been a finding of not guilty in a trial upon one criminal offense in which the rationally conceivable issues in dispute, determined in favor of the defendant, are also issues in dispute in another separate and distinct criminal offense, arising out of the same circumstances, with which the same defendant is charged.

Tyack, Scott & Colley, Thomas M. Tyack, Columbus, for petitioners Rosenell Susi and Mae Diana.

George C. Smith, Pros. Atty., and Miles C. Durfey, Columbus, for respondent George C. Smith.

PER CURIAM.

This original action in habeas corpus is before this court upon the motion of respondent, George C. Smith, prosecuting attorney, to dismiss the complaint upon the grounds that it fails to state a cause of action in habeas corpus. Respondent also contends that he is not a proper party from whom the petitioners should seek relief.

Petitioners rely upon Owens v. Campbell (1971), 27 Ohio St.2d 264, 272 N.E.2d 116, in support of their contention that they have properly brought this action. The syllabus of that case reads as follows:

'The extraordinary original jurisdiction granted to an Ohio appellate court may be invoked to adjudicate the right of an accused to the benefit of the doctrine of collateral estoppel, made applicable to the state as being within the federal constitutional right against double jeopardy by Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.'

While Owens was brought in habeas corpus the Supreme Court made no reference thereto in the syllabus but, rather, referred to 'the extraordinary original jurisdiction' of the Court of Appeals. This is significant in light of the statement in the opinion by Justice Schneider, at page 267 of 27 Ohio St.2d, at page 119 of 272 N.E.2d, that:

'Rather than affirm the trial court on the ground of lack of a proper nominal party or for failure of appellant to label correctly his invocation of the Court of Appeals' proper original jurisdiction, we reverse the judgment entered by it * * *.' (Emphasis added.)

It is not clear which of the five original writs the Supreme Court felt was proper. It may well have been prohibition inasmuch as Justice Schneider also observed, at page 267 of 27 Ohio St.2d, at page 118 of 272 N.E.2d: '* * * we do not fear that any officer or judge would consider himself not bound by the adjudication by reason of his absence as a direct party hereto.'

As to prohibition, the Supreme Court held in the per curiam opinion in State, ex rel. Woodbury, v. Coller (1972), 31 Ohio St.2d 195, 196, 287 N.E.2d 802, 803:

'A writ of prohibition is sought to prevent appellee Daniel T. Spitler from proceeding with the prosecution of the appellants' criminal cases. Prohibition will not lie as to a prosecutor who is duty bound to proceed to prosecute pursuant to indictment. * * *' (Emphasis added.)

Since here, as in Owens, the basic relief sought by petitioners is the prevention of their prosecution upon an indictment returned charging them with a criminal offense, upon the grounds of collateral estoppel, it would appear that prohibition is the proper remedy (although it might be mandamus or procedendo) inasmuch as Justice Schneider stated at the conclusion of his opinion that both the Court of Common Pleas and the prosecuting attorney were bound to dismiss the indictments. See State ex rel. Russell v. Perkins (1973), 34 Ohio St.2d 48, 295 N.E.2d 661, wherein prohibition was used to raise the issue of collateral estoppel. Although, as indicated in the opinion in Owens, the prosecuting attorney is the proper counsel to defend the action, we do not feel he is a proper party, especially in view of Woodbury. Since he is the sole party respondent, there is no proper party. In Owens there was a proper party respondent named, although there were indications that further proper parties should have been named.

From the petition and attached memorandum, it appears that petitioners contend they were tried in Franklin County Municipal Court on March 6, 1972, on charges of keeping a house for gambling purposes in violation of R.C. 2915.01. They further contend that 'based upon the same identical transactions, occurrences or series of events' an indictment has been returned charging them with a second offense of 'possession of numbers.' While the statutory reference made by petitioners is R.C. 2915.11, we assume they intend R.C. 2915.111, which is the section prohibiting possession of tickets, orders, or devises representing an interest in a scheme of chance known as the 'numbers game.' R.C. 2915.11 prohibits the...