Larney v. City of Cleveland

34 Ohio St. (N.S.) 599

• Court: Ohio Supreme Court
• Decided: December 15, 1878
• Status: Published

Opinion

By the Court.

The judgment below must be reversed.

1-. Under the ordinance, six months’ imprisonment can be imposed only upon conviction of the third, or subsequent, violation of the ordinance, and in order to support such sentence, the information should show that, at least two previous violations of the ordinance had been committed by the defendant. The rule, and the principle upon which it is founded, are well stated by Mr. Bishop : “ "Where the offense is the first, or is prosecuted as such, the indictment need not charge it to be the first, for this is presumed. But if it be the second or third, and the sentence is to be heavier by reason of its being such, the fact thus relied oh must be averred in the indictment; because, by the rules of criminal pleading, the indictment must always contain an averment of every fact essential to the punishment to be inflicted.” See 1 Bish. Cr. L., 6th ed., § 961, and eases there cited. The same rule applies to an information.

2. The terms of the sentence were too uncertain and indefinite. Williams v. The State, 18 Ohio St. 47; Picket v. The State, 22 Ohio St. 405.

Judgment reversed, and cause remanded to police court.