City of Toledo v. Kohlhofer , 96 Ohio App. 355 ( 1954 )

I concur in the affirmance of the judgment of the trial court. However, I wish to make a brief observation.

The issue raised on the record is the sufficiency of the affidavit to charge an offense. In the well-considered opinion of Judge Fess, it is pointed out that the affidavit states an offense under the ordinance. With this conclusion, I am not in accord. It is my opinion that in the light of the exceptions in the ordinance, giving the contraband article a lawful status, the affidavit must contain an averment that the act charged as constituting an offense was unlawful, or averments of the same import, from which the unlawfulness of the act condemned may be reasonably inferred.

In considering the sufficiency of the affidavit, my primary concern does not embrace what the proof may show as to the character of the surrounding facts and circumstances.

The Code of Criminal Procedure specifically provides that short forms of charging offenses may be used. Section 2941.07, Revised Code (Section 13437-6, General Code). Under the rule, the offense may be laid in the language of the statute. However, it appears from the statute above referred to, that in the several approved forms, in both felonies and misdemeanors, the act charged as being criminal is expressed in terms as being "unlawful," or the use of language, in describing the act, as imparting unlawfulness.

A criminal act contains two essentials, the act and the intent. While an averment of intent, or guilty knowledge, may be omitted from the charge laid against a defendant, the unlawful character of the act may not be omitted in stating the offense.

Criminal intent, whether specific or general, may be shown by the surrounding facts and circumstances. When an act is shown to have been done knowingly, and such act is unlawful, the law presumes a criminal intent from such unlawful act. State v.Huffman, 131 Ohio St. 27, 1 N.E.2d 313.

If the foregoing premise be correct, the conclusion is imperative that the affidavit does not state an offense under the ordinance.