247 N.E.2d 770 | Ohio Ct. App. | 1969
In a trial to the court without a jury, defendant was found guilty in the Franklin County Municipal Court of assault and battery and of resisting arrest, and sentences were imposed.
In his appeal to this court, defendant assigns three errors: (1) that the trial court "erred in not giving the defendant a chance to make a statement before the decision and judgment of the court was rendered," (2) that the judgment is contrary to law and (3) that the judgment is not supported by evidence beyond a reasonable doubt.
An examination of the bill of exceptions reveals that the judgments of conviction are fully supported by the evidence. The question of credibility, as it relates to the conflicts of testimony between that given by the defendant on the one hand and that given by his wife (the object of the assault and battery) and the policeman on the other *151 hand, is a matter for determination by the trial court, as the trier of the fact. The third assignment of error, therefore, is overruled.
The assertion, in the second assignment of error, that the "judgment is contrary to law" appears to be limited to the judgment of conviction for resisting arrest. In the first brief filed by counsel for defendant in this court, it was claimed that under the provisions of Section
Prior to December 13, 1967, Section
"A sheriff, deputy sheriff, marshal, deputy marshal, watchman, or police officer shall arrest and detain a person found violating the law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained."
Effective December 13, 1967, such statute was amended and now provides:
"A sheriff, deputy sheriff, marshal, deputy marshal, or police officer shall arrest and detain a person found violating the law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.
"When there has been a violation or there is reasonable ground to believe that there has been a violation of Section
Under the facts in this case it would appear that the police officers had "reasonable cause" to believe defendant guilty of assault and battery. Such "reasonable cause" is supported not only by the story which the wife told to the police upon their arrival, but also by the physical evidence, including the appearance of the wife.
Thus it is clear that under the provisions of Section
In his reply brief and in oral argument, counsel for defendant asserts that, to the extent that the amendment of Section
Under the common law a conservator of the peace only had authority to make an arrest without a warrant for a misdemeanor in cases where such was not only committed in his presence but also involved a "breach of the peace." As to a felony, however, he had authority to make an arrest when he believed on reasonable grounds that the person arrested had commtted such felony. 5 American Jurisprudence 2d 715, 717; 6 Corpus Juris Secundum 587, 589.
Later, the common law was modified by statute in most states, including Ohio, to authorize the arrest for a misdemeanor committed in the officer's presence, independently of whether it involved a "breach of the peace." This was the status of the Ohio law on this subject matter prior to the amendment of Section
We know of no constitutional inhibition against the further modification of the common-law rule by legislative enactment. So long as such a statute contains a requirement of "probable cause," there is no constitutional requirement that a distinction be made between the power to arrest by a peace officer in misdemeanors as distinguished from felonies. SeeRickards v. State (1950),
As a matter of constitutional law, the only applicable provisions are those of Section
From an examination of the bill of exceptions herein, it appears that the trial judge, after announcing his decision of guilt, inquired only of the prosecutor as to any prior record of the defendant, and did not at any time follow the requirements of Section
The requirements of Section
For the reasons stated assignments of error numbers two and three are overruled and the judgments of conviction are affirmed. Assignment of error number one is sustained and for this reason the cause is remanded to the Franklin County Municipal Court for resentencing after compliance with the requirements of Section
Judgment accordingly.
TROOP and STRAUSBAUGH, JJ., concur. *155