206 N.E.2d 234 | Ohio Ct. App. | 1964
Defendant was tried and convicted in Willoughby Municipal Court of "speeding (over limit): 50 m. p. h. in a 25 m. p. h. zone in violation of the ordinance in such case *37 made and provided." Prior to trial defendant orally demurred to the affidavit on the ground it failed to state an offense. The demurrer (or motion to dismiss) was overruled, plea of not guilty re-entered and trial had. After sentence, appeal was taken to the Common Pleas Court of Lake County on five assignments of error, and the conviction was there affirmed.
In this appeal we are limited to a single assignment of error, directed to the failure to sustain defendant's oral "demurrer" to the affidavit.
The case may be simply described as a "traffic ticket" case, in which the policeman, at the time of stopping a defendant for a violation, fills in, on the proper spaces on a preprinted form, data concerning the defendant and his car, the time and place of the alleged offense, then checks one of the twenty-four blocks purportedly describing offenses and certain other blocks showing road, traffic and other conditions, hands a copy to defendant, retains the original and at the close of his tour of duty swears to the charge before a deputy clerk of court and causes it to be filed as an affidavit to charge defendant with an offense.
Defendant's attack, made before trial and renewed by motion at the close of the city's case, is that since that affidavit nowhere charged that his speed was either greater or less than reasonable and proper, which is the standard set by Section
The prosecution argues that the provisions of Section 4511.21, Revised Code, and the ordinance in question require the affidavit to state, in addition to the time and place, the claimed actual speed of defendant and that established as prima facie lawful, and that this requirement is in substitution for what would otherwise be required in an affidavit. Since that section of the Revised Code does not appear in the chapter on criminal procedure, it would appear to impose additional, not substituted, requirements for stating an offense. For it will be noted that the introductory words of the statute are:
"No person shall operate a motor vehicle * * * at a speed greater or less than is reasonable or proper * * *."
This states the gist of any offense; all else in the section is embellishment occupied primarily with stating what may be *38
prima facie lawful as a matter of evidence. An affidavit which fails to charge that a speed is unreasonable simply fails to state an offense. There is nothing new or startling in this conclusion; it is as old as statements to that effect inState v. Blair (1927),
The prosecution also argues that since defendant understood what he was charged with and was in no respect misled, the affidavit was sufficient. This begs the question. Certainly defendant could understand that he was charged with driving fifty miles an hour in a twenty-five mile zone. We cannot agree that from this he was also apprised of the fact that such speed was considered unreasonably fast. Considered that the time of occurrence was between four and five a. m., that the evidence would (and did) disclose that there was little or no other traffic on the road, that Lake Shore Drive at this point is a through street (City of Cleveland Heights v. Woodle,
The difficulty lies, not in the general format of the ticket itself, for this is specifically authorized by Section
The idea of the traffic ticket is excellent; it carries the blessing of the Commissioners on Uniform State Laws (Model Rules Governing Procedure in Traffic Cases, 1957) and of the American Bar Association (House of Delegates Resolution, September 8, 1949) as well as of Section
Following the enactment of Section
At trial certain other language in the ticket was indirectly called into question. Complaint was made that the affidavit was not properly sworn to. We note that the jurat on the ticket recites:
"The undersigned further states that he has just and reasonable *40 grounds to believe and does believe, that the person named above committed the offense herein set forth, contrary to law."
The oath therefore is taken on "reasonable grounds to believe" as distinguished from the positive statement of fact required by the language of Sections
In 5 Ohio Jurisprudence 2d 26, the text states:
"An affidavit upon belief is insufficient, although such an affidavit will not, in the absence of a motion to quash, deprive the court of jurisdiction. * * *." Authorities cited in support of the statement are Pope v. Cincinnati, 3 C.C. 497, 2 C. D. 285, and United States v. Carter, 14 W. L. B. 191. It is the form of oath itself, rather than the lack of personal knowledge, which makes the oath bad. State v. Gutilla, 59 Ohio Law Abs. 289;Miller v. State, 2 Ohio Law Abs. 488.
While no motion to quash, as such, was filed in this case, an "oral demurrer" was interposed. Since there is no such thing as an oral demurrer, this must have been treated as the statutory oral motion to dismiss authorized by Section
The Court of Common Pleas erred to the prejudice of defendant in finding the affidavit sufficient in law to charge an offense and thus affirming the judgment of the Willoughby Municipal Court. The judgment is reversed and final judgment dismissing the affidavit and discharging the defendant is entered.
Judgment reversed.
BROWN, P.J., and JONES, J., concur. *41