State v. Latham

Ohio Court of Appeals

State v. Latham

201 N.E.2d 603, 120 Ohio App. 176, 28 Ohio Op. 2d 430, 1964 Ohio App. LEXIS 571

CourtOhio Court of Appeals

DecidedJanuary 21, 1964

Docket7436 and 7437

StatusPublished

Cited by8 cases

This text of 201 N.E.2d 603 (State v. Latham) 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

State v. Latham, 201 N.E.2d 603, 120 Ohio App. 176, 28 Ohio Op. 2d 430, 1964 Ohio App. LEXIS 571 (Ohio Ct. App. 1964).

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Opinions

Per Curiam.

This is an appeal from two convictions, in the Municipal Court of Columbus, of the crime of indecent exposure under Section 2905,30, ftpyised Code,

*177 The first assignment relates to the admission of a West Virginia birth certificate. The foundation for admission was clearly insufficient but the evidence was merely cumulative.

The second complaint is that in one case the witness testified only to seeing the defendant’s “private person.” We think that the testimony taken in context has a clear and definite meaning.

The third complaint relates to a cross-examination question on a detail of a previous conviction. The question was obviously improper, but, on the record as a whole, the error was not prejudicial.

The court also permitted a police officer to testify to the identification of the defendant by other persons in a police line-up. This was hearsay and inadmissible. However, it was on the record merely cumulative on a point abundantly well established by proper evidence.

The remaining assignments relate to the sufficiency of the affidavits. The affidavits allege that the accused “being over the age of fourteen,” did commit the offense. The statute applies only to a person eighteen or over. That minimum age is an essential element of the crime. See State v. Daniels (1959), 169 Ohio St., 87, and State v. De Camillo (1961), 86 Ohio Law Abs., 432. The affidavit does not state that the accused was eighteen or over, nor does it state facts from which this could be inferred. Cf. State v. Daniels, supra. The omission of an essential element is not amendable, and the curative and procedural provisions of Section 2941.30, Revised Code, do not apply to such a defect. State v. Cimpritz (1953), 158 Ohio St., 490. See, also, State v. Presler (1960), 112 Ohio App., 437. Since the omission is of an essential element, the case of City of Cleveland v. Ely (1963), 174 Ohio St., 403, is inapplicable. The objection here was made before conviction and was timely.

The judgments of the Municipal Court are reversed and vacated and the causes are remanded for dismissal of these particular affidavits.

Judgments reversed and causes remanded.

Bryant, Duffey and Troop, JJ., concur.

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Per Curiam.

This is an appeal from two convictions, in the Municipal Court of Columbus, of the crime of indecent exposure under Section 2905,30, ftpyised Code,

*177 The first assignment relates to the admission of a West Virginia birth certificate. The foundation for admission was clearly insufficient but the evidence was merely cumulative.

The second complaint is that in one case the witness testified only to seeing the defendant’s “private person.” We think that the testimony taken in context has a clear and definite meaning.

The third complaint relates to a cross-examination question on a detail of a previous conviction. The question was obviously improper, but, on the record as a whole, the error was not prejudicial.

The court also permitted a police officer to testify to the identification of the defendant by other persons in a police line-up. This was hearsay and inadmissible. However, it was on the record merely cumulative on a point abundantly well established by proper evidence.

The remaining assignments relate to the sufficiency of the affidavits. The affidavits allege that the accused “being over the age of fourteen,” did commit the offense. The statute applies only to a person eighteen or over. That minimum age is an essential element of the crime. See State v. Daniels (1959), 169 Ohio St., 87, and State v. De Camillo (1961), 86 Ohio Law Abs., 432. The affidavit does not state that the accused was eighteen or over, nor does it state facts from which this could be inferred. Cf. State v. Daniels, supra. The omission of an essential element is not amendable, and the curative and procedural provisions of Section 2941.30, Revised Code, do not apply to such a defect. State v. Cimpritz (1953), 158 Ohio St., 490. See, also, State v. Presler (1960), 112 Ohio App., 437. Since the omission is of an essential element, the case of City of Cleveland v. Ely (1963), 174 Ohio St., 403, is inapplicable. The objection here was made before conviction and was timely.

The judgments of the Municipal Court are reversed and vacated and the causes are remanded for dismissal of these particular affidavits.

Judgments reversed and causes remanded.

Bryant, Duffey and Troop, JJ., concur.

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201 N.E.2d 603, 120 Ohio App. 176, 28 Ohio Op. 2d 430, 1964 Ohio App. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-latham-ohioctapp-1964.

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