196 N.E.2d 112 | Ohio Ct. App. | 1962
The defendant, James Thompson, appellant herein, was tried without a jury and convicted in the Sidney Municipal Court for a violation of Section
Upon appeal to this court, six errors have been assigned, which, epitomized, raise but three questions for determination:
1. Is the ordinance under which the defendant was tried and convicted invalid and unconstitutional?
2. Was the defendant unlawfully deprived of a jury trial?
3. Is the verdict and judgment of the trial court contrary to law or against the weight of the evidence?
The ordinance under consideration provides as follows:
"No person who is under the influence of intoxicating liquor or narcotic drugs or opiates shall operate or be in actual physical control of any vehicle within the city * * *."
In discussing the first question, the defendant attacks the ordinance on the ground that it includes the language "or be in actual physical control," whereas the state statute (Section
Municipalities undoubtedly have the authority to adopt and enforce police regulations which are not in conflict with the general laws. Section
The test to be applied here therefore is whether the city ordinance is in conflict with the state statute, in its present form, and this brings to mind the oft-cited case of Village ofStruthers v. Sokol,
"A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the ordinance but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the municipal ordinance." *514
See, also, City of Columbus v. Barr,
But with specific reference to the offense charged herein, attention is directed to the case of City of Toledo v. Best,
In attempting to sustain his position with reference to the second question before us, the defendant relies on Section
Upon further examination of the record, the third question presented herein must also be answered in the negative. The trial court specifically concluded that the defendant was under the influence of intoxicating liquor; that the defendant was in actual physical control of his vehicle within the city; and that under the undisputed facts and conclusions of law, defendant is guilty as charged. In our opinion, the evidence is of sufficient probative force to sustain the conclusions of the trial court by the requisite degree of proof. The judgment is affirmed.
Judgment affirmed.
CRAWFORD, P. J., and SHERER, J., concur. *515