6 Ohio Law. Abs. 703 | Ohio Ct. App. | 1928
Now the gravaman of this, lies in the fact that in receiving stolen property the question as to whether the offense be a penitentiary offense or just a misdemeanor depends upon the value of the property as found by the jury. That is one of the elements and one of the essentials that must not only appear in the indictment but still more essential that it must appear in the verdict. In other words, the indictment might allege that the property is worth $175.00. The jury might find it to be worth $25.00 which would make the offense a misdemeanor only and the judge would have no power to sentence to the penitentiary. In the instant case the jury did not find this automobile to be of any value nor did they find that the property stolen was an automobile in their verdict; so the sentence to the penitentiary was wholly and entirely illegal and invalid, under the indictment, and there is nothing else to do other than to reverse the judgment and to remand the cause to the Common Pleas Court where this defendant may be tried upon the indictment that was brought in against him; and then, in order to punish him, there must be a finding of the jury as to the value of the property, and if it be for less than $35.00 he could not be sent to the penitentiary, but if it be more than $35.00, why of course he might be sent to the penitentiary. After an indictment is framed under one statute, it cannot be switched over to another. At least the record in this case as it was finally left did not warrant any such action.
The judgment of the Common Pleas Court will, therefore, be reversed and the cause remanded to the Common" Pleas Court for a new trial.
