Opinion
No. 39255
Decided November 10, 1965.
Criminal law — Different offenses may be charged in single indictment, when — Section 2941.04, Revised Code — Indictment charging forgery, uttering forged instrument and carrying concealed weapon, violative of Section 2941.04, Revised Code — Remedy available — Section 2941.28, Revised Code.
1. Two or more different offenses may be charged in a single indictment if said offenses (1) are connected together in their commission; or (2) are set out in different statements of the same offense; or (3) are of the same class of crimes or offenses. (Section 2941.04 of the Revised Code construed.)
2. Where the indictment contains three counts, as follows: First count — forging a check; second count — uttering a forged instrument; and third count — carrying a concealed weapon, to wit, a blackjack; the third of said counts is not connected together with the other two counts in its commission and is in a different class of crimes or offenses from the first two counts; and the indictment is therefore violative of the provisions of Section 2941.04 of the Revised Code and is subject to the remedy provided in Section 2941.28 of the Revised Code.
APPEAL from the Court of Appeals for Lorain County.
In the April term of the Court of Common Pleas of Lorain County in 1963, the Grand Jury returned an indictment against the defendant, Lamont Atkinson, on three counts; the first count — making and forging of a certain check; the second count — uttering of said false and forged check; and the third count — carrying a concealed weapon. The indictment charges that the first two counts were in violation of Section 2913.01 of the Revised Code, and that the third count was in violation of Section 2923.01 of the Revised Code.
The cause was set down for trial in the Court of Common Pleas on September 13, 1963. Defendant, prior to the beginning of the trial, objected to proceeding with the trial because of a misjoinder of counts, i. e., two counts charging forgery and uttering a forged instrument and another count charging the carrying of a concealed weapon.
The court overruled this motion. Thereupon the trial proceeded. No motion to suppress the evidence obtained by search and seizure was filed prior to the commencement of the trial.
The jury returned a verdict of guilty as to the second and third counts of the indictment, and the court pronounced sentence.
The Court of Appeals affirmed the proceedings had before the trial court and its judgment. The cause is now before this court for review pursuant to the allowance of a motion for leave to appeal.
Mr. Paul J. Mikus, prosecuting attorney, and Mr. Joseph R. Grunda, for appellee.
Mr. Robert J. Corts, for appellant.
The question here is whether the indictment may withstand defendant's motion attacking its validity.
Section 2941.04 of the Revised Code, in part, sets out in clear and unambiguous language the limitations upon the charging of two or more different offenses in an indictment, as follows:
"An indictment or information may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated." (Emphasis added.)
The prosecuting attorney, speaking against the motion of the defendant questioning the joinder, said:
"These counts are, in a way, related because count number three arose out of the investigation of counts one and two. When they brought this defendant, Lamont Atkinson, in on a minor charge of a traffic violation, they then proceeded out to his car and in the car found the checks and found this particular * * * [blackjack].
"* * *
"* * * That is set forth in count number three [concealed weapons]. So, without that explanation, they may seem unrelated, but they are related.
"This is apparently part and parcel and a method of operation that this defendant engaged in." (Emphasis added.)
The court overruled defendant's objection to the joinder of the three counts in the indictment.
This proposal or argument of the prosecuting attorney would create a new category or classification of offenses that may be joined in an indictment under the heading of "Offenses Connected in their Discovery." The statute does not make any such provision nor does the record itself show any connection between counts one and two and the third count in the acts or conduct of the defendant.
Section 2941.04 of the Revised Code codifies the common-law rule. See Bailey v. State (1854), 4 Ohio St. 440. Consequently, the joinder in the indictment at bar is repugnant to both the common law as well as the statutory law.
To clarify the joinder issue here presented, Section 2941.04 of the Revised Code may be broken down into three general areas of crimes that may be joined in a single indictment, to wit:
(1) Two or more different offenses connected together in their commission;
(2) Different statements of the same offense;
(3) Two or more different offenses of the same class of crimes or offenses.
It is conceded by the trial court and counsel that count No. one and count No. two involving the checks may be joined in one indictment. There is no proof or evidence of record of any connection between the check counts and the blackjack count in the commission of any offense.
The check counts and the concealed weapons count are of different classes. Section 2913.01 of the Revised Code is confined to forgery or counterfeiting. Carrying a concealed weapon is among the offenses against society. It is in no way connected with forgery. The use of a blackjack in the commission of a crime connotes violence, whereas the commission of the offense of forging a check or uttering a forced instrument negates violence but indicates conduct calculated to allay suspicion.
When a statute states specific areas of proper joinder, a joinder that fails to fall within such areas is improper. Commonwealth v. Phoenix Amusement Co., Inc. (1931), 241 Ky. 678, 683, 44 S.W.2d 830; 42 Corpus Juris Secundum 1111, Section 161.
It follows that the joinder in the indictment here of two counts charging forgery and uttering a forged instrument with another count charging the carrying of a concealed weapon is contrary to the provisions of Section 2941.04 of the Revised Code and is error prejudicial to the rights of the defendant.
Defendant claims also that the trial court committed error when it overruled defendant's motion to suppress the evidence allegedly obtained as a result of an unlawful search and seizure. The record does not indicate that this motion was filed or brought to the attention of the court before the trial commenced. The disposition of this claimed error under the present state of the record is not necessary as the judgment is reversed, and a new trial will result. At that time the defendant, if he so desires, may perfect his record in order to present the question of search and seizure. See State v. Davis (1964), 1 Ohio St.2d 28.
For the reasons set out herein, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.