State v. Saionz , 23 Ohio App. 2d 79 ( 1969 )

The affidavit charged that the defendant did unlawfully, publicly and contemptuously cast contempt upon the flag of the United States by publicly wearing same as a cape contrary to R. C. 2921.05. That section of law is captioned in the Code, "Desecrating flag of this state or the United States." After prohibiting certain specific acts of desecrating the flag, the section provides further that no person shall publicly "otherwise cast contempt upon such flag."

There is no dispute in the facts. A patriotic person observed the defendant wearing the flag as a cape in public, notified the police, and the defendant was thereupon apprehended. The flag is approximately 60 by 32 inches. In the center of the flag a slit about 12 inches long had been cut, through which slit, the defendant testified, he struck his head to wear the flag as a cape. The defendant testified further that there were two holes approximately 1 1/2 inches in diameter burned in the flag, one burning out a star and the other burning a hole in a white stripe. The defendant further testified that attached to the flag was a metal shield or design which he identified as a peace emblem. The arresting officer further identified the metal design as an emblem meaning, "Ban the Bomb." The defendant testified further that the reason he wore that flag as a cape was a form of protest against American policy in Vietnam, the American policy on civil rights and all the other things that are wrong with this country.

It is the firm conviction of this dissenting member that the affidavit fully and completely charged the defendant with a crime under the provisions of the statute and that the testimony of the defendant established his guilt beyond any doubt.

Desecration statutes are passed by the legislatures of the various states to prohibit the improper use of and disrespect for the flag, which acts are likely to produce a breach of the peace. It was the intent of the Ohio Legislature by enacting R. C. 2921.05 to prohibit every public desecration or insult of the flag. This intent is manifest by the general prohibition in the statute, "No person shall * * * publicly * * * otherwise cast contempt upon the flag." The majority opinion does not hold that R. C. 2921.05 is unconstitutional for the reason that the general prohibition quoted above is vague or indefinite. In effect, the majority opinion holds that the public wearing of that flag in its mutilated condition by the defendant as a cape for the purpose of protest against the policies of the United States is not an offense under R. C. 2921.05. The words of the statute, "otherwise cast contempt upon the flag," are clear, definite and unambiguous. The cardinal rule of construction of statutes by the courts requires that the words of the statute be constructed in their usual ordinary, well-understood meaning to fully effectuate the intention of the Legislature. Here the unquestionable intention of the Legislature was to prohibit and forbid any and all acts of desecration of and contempt for the flag, and the words of the statute quoted above definitely and concisely state that intention.

In the trial court the defendant was at all times represented by counsel well experienced in criminal law. At no time in the trial court, either before, during or after the trial, was there any oral or written objection or any motion made by the defendant attacking the sufficiency or validity of the affidavit. In the motion for a new trial in Municipal Court filed by the defendant there was no attack on the sufficiency or validity of the affidavit. The judgment of guilty was then appealed to this court, and there is no assignment of error by the defendant in this court attacking the sufficiency or validity of the affidavit. In the oral hearing in this court there was not one word by counsel for the defendant challenging or attacking the sufficiency or validity of the affidavit.

R. C. 2941.29, captioned, "Time for objecting to defect in indictment," reads as follows:

"No indictment or information shall be quashed, set aside, or dismissed, or motion to quash be sustained, or any motion for delay of sentence for the purpose of review be granted, norshall any conviction be set aside or reversed on account of anydefect in form or substance of the indictment or information,unless the objection to such indictment or information, specifically stating the defect claimed, is made prior to thecommencement of the trial, or at such time thereafter as thecourt permits." (Emphasis ours.)

Further, R. C. 2945.83 reads, in part, as follows:

"No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in anycourt because of:

"(A) An inaccuracy or imperfection in the indictment, information, or warrant, provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him;

"* * *

"(E) Any other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was preventedfrom having a fair trial." (Emphasis ours.)

Obviously, counsel representing the defendant was of the opinion that the affidavit sufficiently charged the defendant with a crime under R. C. 2921.05, as no attack was made on the affidavit either in the trial court or in this court. Further, there is no claim that because of the affidavit the defendant was prejudiced in any way or that the defendant was prevented in any way from having a fair trial.

The majority opinion cites State v. Wozniak, 172 Ohio St. 517, as the authority that an indictment or an affidavit which does not state an offense is void. This member concurs in that rule of law. However, in Wozniak the defendant had filed a motion to dismiss the indictment in the trial court, which motion the trial court overruled. Chief Justice Taft, inWozniak on page 523, precisely states the issue as follows:

"We are not confronted with a situation where a defendant, in the hope that he could secure a favorable verdict that would bar further prosecution for the crime sought to be charged, has notattacked the sufficiency of the indictment before submission of the cause to the jury; and we therefore express no opinion as towhether such defendant might be estopped from thereaftercontending that an unfavorable verdict against him should be setaside. Cf. State v. Glaros (1960), 170 Ohio St. 471, 475,166 N.E.2d 379, 382, 383." (Emphasis ours.)

Further in State v. Glaros, 170 Ohio St. 471, on the same issue, in the opinion by Chief Justice Taft on page 475, we quote as follows:

"* * * However, we do not believe that we should, without some good reason or unless required to do so by some applicable statute (see Patterson v. State, 96 Ohio St. 90, 104,117 N.E. 169, L.R.A. 1918A 583), approve a practice which would enablecounsel to place his client in a position where he would takeadvantage of a favorable verdict and, at the same time, avoid anunfavorable verdict merely because of an error of the trial judge that counsel made no effort to prevent when he could havemade such effort and when such error could have been avoided. Such a practice would enable counsel to obtain for his client more than the one fair trial to which he is entitled. See Stewart v. State, 15 Ohio St. 155, 161." (Emphasis ours.)

This member concludes that in this case the defendant waived any purported defects in the affidavit by failing to attack the affidavit in the trial court, and that the voluntary initiative reversal by the majority is contrary to law.