State v. Steel

199 N.E.2d 24, 93 Ohio Law. Abs. 419, 30 Ohio Op. 2d 41, 1964 Ohio App. LEXIS 629

• Court: Ohio Court of Appeals
• Decided: February 3, 1964
• Docket: No. 493
• Status: Published

Opinions

Collier, P. J.

Edward N. Steel, the defendant-appellant, herein designated the defendant, was indicted by the Grand Jury of Ross County for unlawfully and maliciously stabbing John H. Graves in violation of Section 2901.23, Revised Code. After entering a plea of not guilty, on April 26, 1963, the defendant was found guilty of the lesser offense of assault and battery. No motion for a new trial was filed and on May 11, 1963, sentence was imposed on the defendant to pay a fine of $150.00 and costs, which, on the same date he paid. On May 29, 1963, a praecipe for a transcript of docket and journal entries, notice of appeal and request for a bill of exceptions were filed. Tbe bill of exceptions was not filed until July 3, 1963, for the reason tbe court reporter did not complete tbe bill until that date. On July 10, 1963, another notice of appeal and a motion for leave to appeal were filed in this court. On July 30, 1963, tbe State filed a motion to dismiss tbe appeal for failure to comply with tbe statutes providing for an appeal.

Tbe first question raised is whether tbe defendant waived bis right to appeal by immediately paying tbe fine and costs imposed on May 11, 1963. Tbe general rule supported by tbe weight of authority is that a voluntary payment of a fine is a waiver of tbe right to secure a review of a conviction. Village of Addyson v. Liddle, 54 Ohio App., 323, 6 N. E. (2d), 877, 18 A. L. R., 867 and 74 A. L. R., 638. In the case of Village of Avon v. Popa, 90 Ohio App., 147, 121 N. E. (2d), 254, this rule was recognized and approved but tbe court held that where there is some evidence from which an inference may be drawn that a fine was paid with tbe intent not to waive tbe right of appeal, an appeal otherwise properly effected should not be dismissed on the ground that tbe fine was paid; that where a fine is paid during appeal an inference may be drawn that tbe defendant paid tbe fine to preserve bis liberty and not because be admits tbe justice of the conviction or acquiesces in it, or abandons bis right to review.

Whether or not tbe attempt to appeal in tbe instant case was an after-thought, which may be inferred by failure to file a motion for a new trial, we do not know. In view of tbe fact that tbe notice of appeal was filed within tbe prescribed 30-day period, tbe defendant is entitled to tbe benefit of tbe doubt and we must conclude that tbe defendant paid tbe fine to preserve bis liberty with no intent to acquiesce in tbe conviction or abandon bis right to appeal.

Tbe next question presented is whether tbe defendant should be granted leave to appeal, since be did not perfect bis appeal as a matter of right by filing a bill of exceptions within tbe 30-day period after sentence and judgment as prescribed by Section 2953.05, Revised Code. In passing on a motion for leave to appeal, a Court of Appeals is required to exercise its sound discretion in tbe interest of Justice. City of Toledo v. Reasonover, 115 Ohio App., 434 and State v. McGahan, 86 Ohio App., 283, 88 N. E. (2d), 613. It has always been the policy of the Courts of Appeals of Ohio to grant leave to appeal only where a refusal of such leave might result in a miscarriage of justice. Under Section 2953.05, Revised Code, leave to appeal will not be granted without a showing that because of unavoidable circumstances a party has been precluded from filing an appeal within the time prescribed by law and upon a prima facie showing that prejudicial error has been committed in the trial court.

The motion to dismiss the appeal, the motion for leave to appeal and the case on its merits were submitted to this Court at the same time. The only error claimed by the defendant is that the defendant should have been found guilty of the offense of stabbing with intent to wound or acquitted; that the evidence does not support the lesser offense of assault and battery and such lesser offense should not have been included in the Court’s general instructions to the jury.

The altercation between the defendant and prosecuting witness, John H. Graves, arose when Graves attempted to pass over what he claimed was a roadway through defendant’s land. The defendant claimed no road existed and denied Graves the right to use the land as a means of ingress and egrees to his adjoining property. When Graves climbed over a fence on to what the defendant called his land, the defendant stabbed Graves twice with a pitchfork, once in the hand and once in the shoulder, inflicting minor wounds.

The defendant interposed the defense of self defense. Obviously, the jury found against the defendant on this plea, found the defendant not guilty of the offense charged, but did find him guilty of the included offense of assault and battery, as provided in Section 2945.74, Revised Code.

The law on this question has been held in this district to be: “Verdict will not be disturbed because it is not logical. Fact that accused was convicted of manslaughter when he might have been convicted of murder in the second degree, not sufficient ground for reversal.” Ludden v. State, 7 Ohio Law Abs., 426. (An Athens County case.)

Defendant admits he stabbed Graves with the pitchfork, but claims he acted in self defense. Finding the defense of self defense not sustained by the evidence, the only other question for the jury to decide was the degree of the crime. The court’s instructions were full and complete and the factual situation, in our opinion, required the court to instruct the jury on the lesser included offense. In State v. Patterson, 172 Ohio St., 319, 175 N. E. (2d), 741, it was held: “(1) The factual situation in each criminal case determines the necessity of instructing the jury on lesser included offenses rather than the fact that certain offenses are literally included in the crime formally charged in the indictment.” The court properly submitted to the jury the question whether the stabbing was committed with intent to wound or whether wrongful physical violence was inflicted on Graves by the defendant.

We find no error prejudicial to the rights of the defendant. Whether we rule on the motion for leave to appeal or consider the cause on its merits the result is the same, the judgment must be affirmed.

Judgment affirmed.

Brown, J., concurs. Carlisle, J., dissents.