State v. Gossler , 74 Ohio App. 486 ( 1943 )

I find myself unable to concur with the majority of the court. This I regret. I shall set out the reasons for my dissent as briefly as possible. I shall not enter into any lengthy argument with the majority on those principles advanced in their opinion.

Briefly, the matter before the Common Pleas Court was a motion to quash the indictments against the defendants herein. The grand jury, in the first count, charged that the defendants, with intent to defraud the city of Columbus, made and presented to the auditor a false bill for certain sums for natural gas, which bill was false in that the city had not used the volume and value of the natural gas set forth in the bill; the defendants by means of adulterating the gas by the injection of certain quantities of inert gas, supplied to consumers and to the city, not the product of natural gas, but gas wholly lacking in heat units, and were thereby guilty of violation of the statute.

The second count of the indictment charges the defendants with receiving payment from the treasurer of the city upon the aforesaid false bill as set forth in the first count. The court, under date of February 8, 1943, decreed that the motions of the defendants to quash the indictments be sustained, and the indictments quashed, and ordered that the defendants be discharged and the proceedings dismissed as to them.

It is agreed by all parties that whatever order may have been made in reference to one defendant as appears in the docket and journal entry, relates to all other defendants involved in this matter.

On March 6, 1943, notice of appeal was filed by the prosecuting attorney as to all defendants and the matter now comes before this court upon a motion of the defendants to dismiss the appeal on the ground that the same was not filed within the time prescribed by statute.

The majority correctly states the factual matters in relation to said appeal, and asserts that the "narrow question presented is whether the procedure as to the time within which the notice of appeal shall be given by the state of Ohio is prescribed by Section 13459-4, General Code." The defendants assert that Section 13459-4 does not apply, but that Section 12223-7 is the controlling section.

Section 12223-7 is found under the title, "Procedure on Appeal," which treats of civil procedure, although not so designated. Section 13459-1 et seq. — found in the title relating to criminal procedure.

The entry providing that the indictments be quashed and the defendants dismissed is a final order under Section 12223-2, so that we are not now obliged to consider whether the order of the court is final.

We have had the question before us in this case as to whether a former appeal was from a final order.

Section 13459-4, which the prosecuting attorney urges is controlling in this matter, is as follows:

"Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment * * *."

Section 12223-7, in the general chapter upon procedure on appeal, provides:

"The period of time after the entry of the order, judgment, decree, or other matter for review within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

"1. In appeals to the Supreme Court, to Courts of Appeals, * * * within twenty (20) days * * *."

This is the section which defendants claim requires that the appeal be filed within twenty days, which was not done.

The majority of the court starts with the assumption that the appellate procedure in criminal cases will be under those sections codified under criminal procedure. The majority, after pointing to the fact that Section 13459-4 is the section prescribing the time within which the notice of appeal shall be filed and which must be controlling, if applicable, states:

"The language from which the difficulty arises on the instant appeal is `after sentence and judgment'."

"If this language be given strict construction, then it must be said that the order of judgment in the instant case will not be included within the words `sentence' and `judgment,' because in no conception of the words can the order here under consideration be designated as a sentence."

The court then cites the case of State v. Grisafulli, 135 Ohio St. 87, 19 N.E.2d 645, the first paragraph of the syllabus of which, reads:

"Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases."

In passing, we point to the fact that the only comment upon the matter involved in paragraph one of the syllabus, is the statement of Zimmerman, J.:

"In allowing the appellant's motion for leave to appeal and in overruling the motion of the state to dismiss the appeal as of right, this court reached the conclusion that Section 12223-7, General Code, does not apply to felony cases, and is still of the same opinion. Section 13459-7, General Code, a part of the Code of Criminal Procedure, is controlling."

Section 13459-7 relates exclusively to an appeal sought to be filed in the Supreme Court and has no specific reference to an appeal filed in the Court of Appeals. We concede that the same reasoning relating to an appeal to the Supreme Court would probably control appeals to the Court of Appeals.

Section 12223-7, relating to the time for perfecting an appeal, provides that appeals to the Court of Appeals shall be perfected within twenty days.

Section 13459-4, found in the chapter on appeals in criminal procedure, provides that the appeal may be filed within thirty days after sentence and judgment. In the case at bar there has been no sentence, the only judgment being that sustaining the motion to quash the indictments and dismissing the defendants. If it be true that the appeal in a criminal case may be taken within thirty days after sentence and judgment, we are forced to seek some reason for permitting an appeal where there has been no sentence. The majority of the court advances the ingenious theory, which in proper cases has judicial support, that the word "and" may be read "or." This would permit the reading of Section 13459-4, as follows: "Such appeal may be filed as a matter of right within thirty days after sentence or judgment."

It is broadly asserted by the majority that otherwise in many cases there could be no appeal by the state on important questions for the reason that no "sentence" had been imposed, and this case is urged as an illustration of a failure to preserve to the state its right to an appeal unless the word "and" may be used interchangeably with the word "or."

We know of no reason why in criminal procedure any right other than that provided by the statute should be given to the state to perfect an appeal affecting the rights of a defendant. It is proper, of course, that the defendant have a right to appeal from all final orders adversely affecting his interest, but there is no rule by which the same favor may be granted to the state. It is true that in the case of Eastman v. State, 131 Ohio St. 1,1 N.E.2d 140, it is held that under the provisions of Article IV of the Constitution of Ohio, the Court of Appeals has appellate jurisdiction to review judgments of the Court of Common Pleas, and that these jurisdictional provisions are equally applicable to civil and criminal cases with the exception named.

Weygandt, C.J., delivering the opinion of the court, in speaking of the constitutional provision controlling appeals, said:

"This language contains no intimation of a distinction between civil and criminal cases, and is so simple, unambiguous and comprehensive as to require no construction."

We might well apply the Chief Justice's comment upon the fact that the constitutional provision is so simple as to require no construction, to the provision of Section 13459-4 that "such appeal * * * may be filed as a matter of right within thirty daysafter sentence and judgment." (Italics mine.) Certainly there could be no plainer language than the statement that the appeal may be made as of right within thirty days after sentence and judgment. We can profitably consider the sections found in the chapter in reference to sentence and proceedings thereunder, to ascertain what is meant by the phrase "sentence and judgment." Those sections are Section 13451-1 et seq. The first section provides that before sentence is pronounced the defendant must be informed by the court of the verdict of the jury and asked whether he has anything to say why judgment should not be pronounced against him.

Section 13451-4 provides:

"If the defendant does not show sufficient cause why judgment should not be pronounced, the court shall pronounce the judgment provided by law."

Of course no sentence can be imposed unless there is prior conviction.

I recognize the strength of the opinion of the majority, but cannot bring myself to concede that in a criminal case there is any obligation upon the part of a court to so interpret a statute as to permit the state to secure an appeal where the same is not clearly indicated. The very theory of the criminal law is that the defendant should not be unnecessarily harassed and, of course, should not be put twice in jeopardy. We all know that it frequently occurs that justice is outraged by an acquittal of a defendant who should have been convicted, but the state has no recourse in such a case to appeal or to secure a new trial. So in a case such as is involved in the present controversy, where the defendant has not been sentenced, the state has no right to appeal. It may be possible that the Legislature had overlooked this situation, but it was equally possible that the Legislature was of the opinion that until there had been a conviction there should be no appeal by the state to a higher court. It may be said that the thirty day provision for an appeal, applying as it does to the right of the state to appeal, can be of no efficacy unless there has been a sentence. That is true, but what of it? It simply amounts to stating that if the defendant has been acquitted he shall not be further harassed. If the state has failed to convict, the defendant shall not be harassed by a proceeding on appeal. This seems to be a very logical position for the Legislature to have assumed.

ON APPLICATION for rehearing.