Opinion
No. 6672
Decided July 1, 1946.
Criminal law — Appeal — Appellate Procedure Act applies, when — Section 12223-1 et seq., General Code — Mandate, in case of reversal, to contain what — Section 12223-21, General Code, applicable.
1. Section 12223-1 et seq., General Code, apply to appeals in criminal cases, unless otherwise provided by law.
2. There being no provision in the chapter on appeals in the Code of Criminal Procedure as to what the mandate shall state in case of reversal and remand, the requirement contained in Section 12223-21, General Code, that the mandate state the error or errors found in the record upon which the judgment of reversal is founded, applies in a criminal case.
APPEAL: Court of Appeals for Hamilton county.
Mr. John D. Ellis, Mr. Robert J. Paul and Mr. Harry Meier, for appellant.
Messrs. Ragland, Dixon Murphy, for appellee.
The conviction of defendant, in a trial by jury in the Municipal Court of Cincinnati, was reversed and the cause remanded for new trial by the Common Pleas Court, the language of the judgment and mandate being as follows:
"This cause came on for hearing upon the appeal of appellant, the transcript, and the original papers and pleadings from the Municipal Court of the city of Cincinnati, Ohio, and was argued by counsel; on consideration whereof, the court finds that there is error apparent upon the face of the record to the prejudice of the appellant.
"It is therefore considered by the court that the judgment of the aforesaid Municipal Court of Cincinnati, Ohio, be reversed and held for naught.
"It is further ordered that the said appellant be granted a new trial.
"To all of which appellee excepts."
It is assigned as error here that the court failed to comply with Section 12223-21, General Code, requiring the reviewing court to state the error or errors found in the record upon which the judgment of reversal is founded.
It is argued that the above section of the Code does not apply in a criminal case. That is the question to be determined here.
In 116 Ohio Laws, 104, House Bill No. 42 is entitled:
"An act to establish a simplified method of appellate review; to enact Sections 12223-1 to 12223-49, inclusive; to amend Sections 11560, 11562, 11564, 11571, 11572, 11604, 13459-3, 13459-4, 13459-5, 13459-6, 13459-7, 13459-8, 13459-9, 13459-10, 13459-11, 13459-14 * * * of the General Code."
It is, therefore, apparent that the General Assembly intended the Appellate Procedure Act to be amendatory of and include within the scope of its application appeals in criminal cases, not otherwise specifically covered by the provisions on appeals in the Code of Criminal Procedure.
Section 12223-3, General Code, provides:
"Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided, unless otherwise provided by law * * *."
The chapter on appeals in the Code of Criminal Procedure does not "otherwise provide by law" for what the mandate shall contain in case of a reversal.
Section 12223-1, General Code, provides:
"1. The word `appeal' as used in this act shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission.
"2. The [words] `appeal on questions of law' shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all the proceedings heretofore and otherwise designated in the General Code as proceedings in error. * * *"
Section 13459-6, General Code, in the chapter on appeals in the Code of Criminal Procedure, setting forth what judgment may be rendered, is amendatory of Section 13459-6, General Code, as found in 113 Ohio Laws, 213, and, in the portion here involved, merely substitutes the term "appeal" for the term "petition in error." It, therefore, appears that Section 12223-1 et seq., General Code, apply also to appeals in criminal cases, unless otherwise provided in the chapter on appeals in the Code of Criminal Procedure.
That Section 12223-21, General Code, applies to criminal cases was held in State v. Brunswick, 69 Ohio App. 407, 413, 44 N.E.2d 116. In State v. Gossler, 74 Ohio App. 486, 57 N.E.2d 670, it was held that Section 12223-1 et seq., General Code, insofar as they are specific, treat of civil procedure, although they are not so designated; that their application to criminal procedure is not precluded if the language in the light of the whole appellate act so requires; but that the assumption is that appellate procedure in criminal cases will be found in those sections codified under criminal procedure, i.e., Section 13459-1 et seq., General Code.
In City of Akron v. Huber, 78 Ohio St. 372, 85 N.E. 583, Judge Shauck indicated, at page 374, that when the mandate fails to specify the grounds of reversal, as required, the judgment should be vacated and the cause remanded for the performance of that duty, if necessary on the state of the record.
Here, it is impossible for the Municipal Court to know from the mandate upon what errors the judgment of reversal is founded.
Section 12223-39, General Code, has been noted by the court and considered as merely cumulative.
The judgment of the Common Pleas Court is, therefore, vacated, and the cause remanded to that court for correction of the mandate to the Municipal Court by stating therein the grounds of reversal.
Judgment accordingly.
HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.