187 N.E.2d 627 | Ohio Ct. App. | 1962
Defendant, appellant herein, was charged in the Municipal Court of the city of Miamisburg with a second offense under Section
He was found guilty by a jury and sentenced to serve ten days in the workhouse and to pay a fine of $75. Upon appeal, the Court of Common Pleas affirmed the judgment.
The prosecution was based only upon an affidavit of one G. Joseph Strickler, made and filed on August 7, 1961.
The first assignment of error is the failure to sustain appellant's motion to dismiss the affidavit filed against him for the *286
reason that the state cannot proceed against him under Section
Section
"* * * In prosecutions under this section complaints shall be made within ten days after a violation."
Section
"In all cases not provided by Sections
The attorneys who represent the state of Ohio, plaintiff, appellee herein, were designated for that purpose by the prosecuting attorney for the Municipal Court of the city of Miamisburg under the provisions of Section
Section
Counsel for appellee urge that these last two sections of the Revised Code did not become effective until January 1, 1960, and therefore cannot affect the provisions of the specific statute, Section
They cite the case of State v. Ritzler (1923),
Neither of these cases decides our present question. When statutory language is ambiguous or lacks precision it must, of *287 course, be interpreted or construed. But when the Legislature defines and clarifies the language it has used in previous enactments, such clarification renders obsolete such prior judicial interpretation and construction. See 50 American Jurisprudence, 328, Statutes, Section 337; 82 Corpus Juris Secundum, 419, Statutes, Section 252.
The language of Section
We believe this leaves no further question as to what is meant by the requirement of Section
The second assignment of error is the failure of the court to sustain appellant's motion to dismiss the affidavit because it alleges a prior offense and conviction. A necessary element of the charge is that appellant has committed a second offense. There can be no second offense without a first offense. Hence, it is essential to the statement of the charge to recite the earlier conviction. Indeed, without such recital appellant could not have been entitled to a jury. Larney v. City of Cleveland
(1878),
The third assignment of error is the admission into evidence *288
of the prior conviction recited in the charge. The prior conviction, being a necessary element of the charge, must, of course, be established by the evidence. Byler v. State, supra
(
The second and third assignments of error are not well made. The first assignment is well made, and by reason thereof the judgment must be, and hereby is, reversed.
Judgment reversed.
KERNS and SHERER, JJ., concur.