City of Cincinnati v. Lindsay

Ohio Court of Appeals

City of Cincinnati v. Lindsay

97 N.E.2d 693, 88 Ohio App. 117, 44 Ohio Op. 103, 1950 Ohio App. LEXIS 631

CourtOhio Court of Appeals

DecidedMay 15, 1950

Docket7257

StatusPublished

Cited by1 cases

This text of 97 N.E.2d 693 (City of Cincinnati v. Lindsay) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Cincinnati v. Lindsay, 97 N.E.2d 693, 88 Ohio App. 117, 44 Ohio Op. 103, 1950 Ohio App. LEXIS 631 (Ohio Ct. App. 1950).

Pincite

Opinion

Per Curiam.

This is an appeal on questions of law from a judgment of conviction in the Municipal Court of Cincinnati.

The appellant advances two principal assignments of error: (1) The judgment is against the weight of the evidence, and (2) the ordinance under which the defendant was convicted is unconstitutional.

As to the first assignment of error, the court finds no justification for the claim that the judgment is against the weight of the evidence.

The record discloses that the second assignment of error involves a question for the first time raised in this court, to wit, the constitutionality of the ordinance. The trial court, the Court of Common Pleas and this court had jurisdiction to determine such constitutionality. A reviewing court is not required to determine such constitutionality where the defendant has not raised such affirmative defense in the trial and appellate courts. 2 Ohio Jurisprudence, 299, 869, Sections 150, 502. See, also, Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251; Cuthbertson v. State, 106 Ohio St., 658, 140 N. E., 941.

It is difficult to see how this court could reverse a judgment of the Court of Common Pleas, which court affirmed the judgment of the Municipal Court, for er *118 rors in ruling upon a 'question which was never presented to either court. The unconstitutionality of a statute is an affirmative defense, and must be asserted in order to be considered even in a criminal case.

It is claimed also that Section 13448-4, General Code, requires a reversal. Again, the record shows that the rights, if any, of the defendant under such statute were never presented to the trial court or the Court of Common Pleas.

Under such circumstances, the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.

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Per Curiam.

This is an appeal on questions of law from a judgment of conviction in the Municipal Court of Cincinnati.

The appellant advances two principal assignments of error: (1) The judgment is against the weight of the evidence, and (2) the ordinance under which the defendant was convicted is unconstitutional.

As to the first assignment of error, the court finds no justification for the claim that the judgment is against the weight of the evidence.

The record discloses that the second assignment of error involves a question for the first time raised in this court, to wit, the constitutionality of the ordinance. The trial court, the Court of Common Pleas and this court had jurisdiction to determine such constitutionality. A reviewing court is not required to determine such constitutionality where the defendant has not raised such affirmative defense in the trial and appellate courts. 2 Ohio Jurisprudence, 299, 869, Sections 150, 502. See, also, Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251; Cuthbertson v. State, 106 Ohio St., 658, 140 N. E., 941.

It is difficult to see how this court could reverse a judgment of the Court of Common Pleas, which court affirmed the judgment of the Municipal Court, for er *118 rors in ruling upon a 'question which was never presented to either court. The unconstitutionality of a statute is an affirmative defense, and must be asserted in order to be considered even in a criminal case.

It is claimed also that Section 13448-4, General Code, requires a reversal. Again, the record shows that the rights, if any, of the defendant under such statute were never presented to the trial court or the Court of Common Pleas.

Under such circumstances, the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.

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Bluebook (online)

97 N.E.2d 693, 88 Ohio App. 117, 44 Ohio Op. 103, 1950 Ohio App. LEXIS 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cincinnati-v-lindsay-ohioctapp-1950.

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