Summary
In McStowe, the Supreme Court declined to rule on the constitutionality of the statute because it reversed the conviction on other grounds.
Summary of this case from State v. AntonellisOpinion
No. 75-614
Decided March 3, 1976.
Criminal procedure — Penal ordinances construed, how — Ordinance prohibiting being in place where narcotic drugs or hallucinogens "sold or used" — Conviction reversed, when — Proof of possession alone not sufficient — Constitutionality of ordinance not determined, when.
APPEAL from the Court of Appeals for Fayette County.
At approximately 1:00 a.m. on September 1, 1973, Washington Court House police officers executed a search warrant at the apartment of Robert M. George, 418 South Fayette Street. The officers seized an undetermined quantity of marijuana and other related paraphernalia, placed each of those individuals present, including appellant, Deborah M. McStowe, under arrest, and transported them to the police station. Appellant was charged with violating ordinance No. 45-72, which provides in relevant part:
"* * * [I]t shall be unlawful for any suspicious person to be in the city. The following shall be deemed suspicious persons:
"* * *
"(B) Any person who keeps, frequents, operates, lives in, loiters in or around, is found in, or around, or is employed in any home, place, room or establishment where narcotic drugs, hallucinogen, or similar drugs are sold or used, in violation of any ordinance or state or federal law. * * *"
Subsequently, appellant was tried and convicted in the Municipal Court. Upon appeal, her conviction was affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. James A. Kiger, prosecuting attorney, Mr. John H. Roszmann and Mr. Gary Smith, for appellee.
Messrs. Hapner Hapner and Mr. Jon C. Hapner, for appellant.
Due process of law protects an accused against conviction except upon "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship (1970), 397 U.S. 358, 364. A penal statute or ordinance, pursuant to which one is charged, must be interpreted and applied strictly against the accuser, and liberally in favor of the accused. Mentor v. Giordano (1967), 9 Ohio St.2d 140; State v. Conley (1947), 147 Ohio St. 351; State v. Meyers (1897), 56 Ohio St. 340.
This requirement is now embodied in R.C. 2901.04, which provides:
"Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
Ordinance No. 45-72 proscribes a person's being "found in" a "home, place, room or establishment" where narcotic drugs or hallucinogens are "sold or used." In explicit language, the ordinance requires proof of the sale or use of a narcotic drug or hallucinogen as an essential element of the crime. Proof of possession alone is not sufficient to support a conviction. Because the record herein discloses no evidence that narcotic drugs or hallucinogens were sold or used on the subject premises, appellant's conviction for violating ordinance No. 45-72 must be reversed.
Appellant asserts that ordinance No. 45-72 is unconstitutional, in that it "lacks ascertainable standards of guilt, does not require intent or guilty knowledge, and is so vague, imprecise, and indefinite that men of common intelligence must necessarily guess at the meaning and differ as to its application." We need not reach that issue to decide the present appeal. "It is well established that courts will refrain from declaring legislation unconstitutional unless the posture of the cause leaves no logical alternative thereto." Bedford Hts. v. Tallarico (1971), 25 Ohio St.2d 211, 212; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207; Strongsville v. McPhee (1944), 142 Ohio St. 534; Rucker v. State (1928), 119 Ohio St. 189.
The judgment of the Court of Appeals, affirming the judgment of the Municipal Court, is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.