State v. Gaddy

184 N.E.2d 689, 89 Ohio Law. Abs. 513, 1962 Ohio Misc. LEXIS 259
CourtPaulding County Court of Common Pleas
DecidedJune 5, 1962
DocketNo. 2733
StatusPublished
Cited by5 cases

This text of 184 N.E.2d 689 (State v. Gaddy) is published on Counsel Stack Legal Research, covering Paulding County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gaddy, 184 N.E.2d 689, 89 Ohio Law. Abs. 513, 1962 Ohio Misc. LEXIS 259 (Ohio Super. Ct. 1962).

Opinion

Hitchcock, J.

Defendant was on June 4 and 5, 1962, tried by a jury for the offense of “. . . wilfully and knowingly resisting a police officer in the execution of his office ...” in violation of Section 2917.33, Revised Code. Although defendant was acquitted by the jury and the jury’s verdict was entered on the journal June 8, 1962, a “Request for Opinion” ivas filed herein on August 2, 1962, reading:

“Comes now the Prosecuting Attorney on behalf of the State of Ohio and respectfully represents to the Court that, although the defendant in this cause was acquitted, there was in the Court’s charge to the jury certain statements of law that are in conflict with Attorney General’s opinion No. 3070 (1962); and for future guidance, the undersigned respectfully moves and requests the Court for an opinion in this case.”

Opinion No. 3070, rendered on June 15, 1962, by the Attorney General of Ohio holds:

“Under Sections 5503.01 and 5503.02, Revised Code, members of the State Highway Patrol are not authorized to arrest persons riding in automobiles, but not driving said automobiles, [515]*515on the charge of intoxication; and are not authorized to arrest such persons walking on the highways merely because said persons are allegedly intoxicated. (Opinion No. 870, Opinions of the Attorney General for 1939, page 1172, followed.) ”

The evidence introduced at the trial was to the effect that an Ohio State Highway Patrolman found defendant occupying an automobile parked along U. S. Route 30 in the southwest corner of this county, said automobile being in the highway right-of-way and one corner thereof within five feet of the south edge of the pavement; and that defendant was occupying the front seat under the steering wheel. There was some testimony indicating the automobile might have been entirely south of the south boundary of the right-of-way.

The Patrolman testified that he attempted to arrest defendant without a warrant for the offense of being found in a state of intoxication but did not inform defendant of the cause of his arrest; that defendant was in a state of intoxication; that he resisted the patrolman and fled into a nearby field; that he was captured some thirty or forty minutes later; and after a severe struggle with several patrolmen, was eventually handcuffed and jailed.

The defendant testified he was awakened from sleep by the officer’s flashlight at about 8:45 o ’clock P. M. on May 4,1962, and that although he had consumed ‘ ‘ 6 beers ’ ’ between 1:00 o ’clock and 7:00 o’clock P. M. of that date he was far from being found in a state of intoxication when arrested. Incidentally, defendant, subsequent to his acquittal for resisting arrest, entered a plea of “guilty” to the charge of being found in a state of intoxication and was fined.

In the pertinent part the Court charged the jury:

“. . . The things necessary to constitute the offense charged here are—
“a. The officer, Patrolman S. K. Scott, must have been in the execution of his office.
“b. The defendant must have resisted said officer, and,
“c. The defendant must have done so knowingly and willfully.
“Patrolmen of the Ohio State Highway Patrol are officers within the meaning of this section of the code. Every such [516]*516patrolman may arrest without a warrant any person found in a state of intoxication in an automobile upon a highway in this state.
“If you find from the evidence, beyond a reasonable doubt, that Patrolman Scott found defendant in an automobile on the highway right-of-way, or any part thereof, apparently in a state of intoxication, and attempted to place him under arrest you may conclude that Patrolman Scott was in the execution of his office. ...”

In preparing this charge the Court read Sections 5503.01 and 5503.02, Eevised Code, and the sections therein mentioned, with care and concluded that the quoted portion of the charge stated the Ohio law by reason of these words from the statutes:

“. . . patrolmen shall be vested with the authority of peace officers for the purpose of enforcing the laws of the state which it is the duty of the patrol to enforce, and may arrest, without warrant, any person who, in the presence of . . . any patrolman, is engaged in the violation of any such laws. ...” Section 5503.01, Eevised Code.
“The state highway patrol shall . . . enforce, on all roads and highways, notwithstanding Section 4513.39, Eevised Code, the laws relating to the . . . use of vehicles on the highways; . . .” Section 5503.02, Eevised Code.
“No person shall be found in a state of intoxication. . . .” Section 3773.22, Eevised Code.

The correctness of the court’s charge rests upon the determination of whether or not an offense under Section 3373.22, Eevised Code, if occurring on any portion of the right-of-way of any public road or highway in this state is one “. . . relating to the . . . use of vehicles on the highways. ...” Although the .statute here includes “operation” with “use” no consideration was given to the word “operation” as we have a statute which proscribes “operation” of vehicles by persons while under the influence of “intoxicating liquor,” and the further reason that the word “use” embraces a wider field of activity.

In preparing the charge in this case the Court noted O. A. G. 870, 1939, which was, ten days later, followed and approved in O. A. G. 3070, 1962. It also observed that no annotation showed any Court ruling determining the same issue. Believing [517]*517that it is “emphatically the province and duty of the judicial department to say what the law is,” the Court thereupon explored the question as one of first impression. Incidentally, counsel for the defense took exception to this portion of the charge, but as the jury returned a verdict of “not guilty” no appeal has been taken.

For light on the meaning of the words ‘ ‘ relating to the . . . use of vehicles on the highways,” the Court began with current Volume 36A, Words & Phrases, Permanent Edition, but no case was found where this precise phrase had been defined and construed. Five cases, each having an Ohio situs, were found which the Court finds helpful, to-wit: State v. Forney, 108 Ohio St., 463, 141 N. E., 16 (1923); Bowles v. Ohio Fuel Gas Co., D. C. Ohio, N. D.-E. D., 65 F. Supp., 426 (1946); N. L. R. B. v. Goodyear Tire & Rubber Co., D. C. Ohio, N. D.-E. D., 36 F. Supp., 413 (1940); City of Akron v. Willingham, 166 Ohio St., 337, 142 N. E. (2d), 653 (1957); and City of Washington v. Looker, 73 Ohio Law Abs., 36, 136 N. E. (2d), 140 (1955).

In Forney

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Cite This Page — Counsel Stack

Bluebook (online)
184 N.E.2d 689, 89 Ohio Law. Abs. 513, 1962 Ohio Misc. LEXIS 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gaddy-ohctcomplpauldi-1962.