State v. Potts

Ohio Supreme Court

State v. Potts

243 N.E.2d 91, 16 Ohio St. 2d 111, 45 Ohio Op. 2d 460, 1968 Ohio LEXIS 353

CourtOhio Supreme Court

DecidedDecember 31, 1968

DocketNos. 68-209, 68-217 and 68-223

StatusPublished

Cited by4 cases

This text of 243 N.E.2d 91 (State v. Potts) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Potts, 243 N.E.2d 91, 16 Ohio St. 2d 111, 45 Ohio Op. 2d 460, 1968 Ohio LEXIS 353 (Ohio 1968).

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Opinions

Per Curiam.

The syllabus in State v. Ross, 12 Ohio St. 2d 37, requires an indictment, which charges a violation of Section 2905.34, Revised Code, to go beyond the language of the statute and state the criminal element of intent to use, exhibit or sell the offending obscene material.

The indictment in the instant cases is identical in all material respects to that in Ross, and it therefore contains the same defect. This insufficiency was recognized by the Court of Appeals which predicated its reversal of the King conviction upon error in the failure of the Court of Common Pleas to sustain defendant’s demurrer to the indictment. Section 2505.21, Revised Code. Although this demurrer was formally filed in the name of King, that defendant was jointly indicted and jointly tried with Stone and Potts. The defect in the indictment, even as relating to Potts and Stone, was thus in effect called to the attention of the Common Pleas Court. In our opinion, it would be unreasonable to hold that a single indictment, which on appeal is found legally insufficient as to one defendant, may provide the basis for conviction of another defendant who is in the identical position and questions the sufficiency of that indictment on an appeal from his conviction thereunder.

It should be observed that on motion of the prosecuting attorney, the trial court struck the bill of exceptions from the record as being filed beyond the statutory rule and the correctness of that ruling was not presented to us. Therefore, we are prevented from determining that the defendants were not prejudiced by the defects in the indictment. See State v. Jacobellis, 173 Ohio St. 22.

The decision of the Court of Appeals reversing the [113]*113judgment of conviction of Polly King is affirmed, and the decision affirming the judgments of conviction of George Potts and John Stone are reversed.

Judgment reversed in eases Nos. 68-209 and 68-223. Judgment affirmed in case No. 68-217.

Taft, C. J., Zimmerman, Matthias, 0 ’Neill, Schneider and Brown, JJ., concur.

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Per Curiam.

The syllabus in State v. Ross, 12 Ohio St. 2d 37, requires an indictment, which charges a violation of Section 2905.34, Revised Code, to go beyond the language of the statute and state the criminal element of intent to use, exhibit or sell the offending obscene material.

The indictment in the instant cases is identical in all material respects to that in Ross, and it therefore contains the same defect. This insufficiency was recognized by the Court of Appeals which predicated its reversal of the King conviction upon error in the failure of the Court of Common Pleas to sustain defendant’s demurrer to the indictment. Section 2505.21, Revised Code. Although this demurrer was formally filed in the name of King, that defendant was jointly indicted and jointly tried with Stone and Potts. The defect in the indictment, even as relating to Potts and Stone, was thus in effect called to the attention of the Common Pleas Court. In our opinion, it would be unreasonable to hold that a single indictment, which on appeal is found legally insufficient as to one defendant, may provide the basis for conviction of another defendant who is in the identical position and questions the sufficiency of that indictment on an appeal from his conviction thereunder.

It should be observed that on motion of the prosecuting attorney, the trial court struck the bill of exceptions from the record as being filed beyond the statutory rule and the correctness of that ruling was not presented to us. Therefore, we are prevented from determining that the defendants were not prejudiced by the defects in the indictment. See State v. Jacobellis, 173 Ohio St. 22.

The decision of the Court of Appeals reversing the [113]*113judgment of conviction of Polly King is affirmed, and the decision affirming the judgments of conviction of George Potts and John Stone are reversed.

Judgment reversed in eases Nos. 68-209 and 68-223. Judgment affirmed in case No. 68-217.

Taft, C. J., Zimmerman, Matthias, 0 ’Neill, Schneider and Brown, JJ., concur.

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Bluebook (online)

243 N.E.2d 91, 16 Ohio St. 2d 111, 45 Ohio Op. 2d 460, 1968 Ohio LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-potts-ohio-1968.

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