334 N.E.2d 538 | Ohio Ct. App. | 1975
On October 8, 1973, the defendant, the appellant herein, was stopped by a police officer for a traffic violation on a Cincinnati thoroughfare. The investigating officer observed a rifle barrel in plain view within defendant's automobile. On inspection, the weapon proved to be a .30-06 Mauser with five rounds in the magazine and one round in the chamber. After verification that defendant was a previously convicted felon, he was arrested by the investigating officer and subsequently tried for a violation of then R. C.
The statute under attack in the instant appeal provides for the removal of the disability through a petition and hearing procedure. R. C.
A comparison of the two laws involved, however, negates defendant's contention. The action made criminal in Ohio is that of possessing a firearm while under disability, not of possessing a firearm while failing to request removal of the disability. Compare R. C.
To decide this appeal primarily on the basis of the Lambert passive-active distinction is not, however, entirely satisfactory to us. Guilt or immunity ought not to depend *190 upon what could become a mechanistic characterization of conduct, an inquiry which may demand as much of verbal felicity as it does of legal understanding, and, therefore, an inquiry which is susceptible of inconsistent results in cases of this sort. In the interest of avoiding the potential hazards inherent in logical shortcuts, we choose instead to rule on the basis of what we deduce to be a more precise and expanded articulation of the legal theory underlying Lambert, thereby providing, it is hoped, a more useful rule for discerning the dividing line between those criminal statutes which violate due process unless notice is shown, and those where due process is satisfied without any showing of knowledge of the law.
Testing this analysis of the rule's first component against other cases in point, we find support for the proposition inUnited States v. Freed (1971),
Similarly, in United States v. Dotterweich (1943),
Finally, both in United States v. Crow (C. A. 9, 1971),
Accordingly, we hold that R. C.
The assignment of error is overruled and the judgment is affirmed.
Judgment affirmed.
HESS, P. J., and SHANNON, J., concur.
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