Summary
In Epperson, however, the trial court refused to give the special instructions and did not include the substance of the requested instruction in the general charge.
Summary of this case from State v. ShueOpinion
No. 68-297
Decided December 3, 1969.
Criminal procedure — Charge to jury — Requested special instruction — Duty to give — Person charged with violation of ordinance prohibiting carrying passengers without license — Defense compensation accepted for carrying packages only — Refusal of request to charge on such defense, error — Court's refusal to answer law question submitted by jury, prejudicial error.
1. In a criminal case, if requested special instructions to the jury are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge. ( State v. Barron, 170 Ohio St. 267, followed.)
2. Where a person is charged with violating a city ordinance prohibiting the carrying of passengers for compensation in a vehicle not licensed for such purpose under the city's ordinances, and the defense is that the compensation was accepted only for carrying packages and not passengers, and there is evidence supporting that defense, it is error for the trial court, upon request, to refuse to instruct the jury, at least in substance, that the delivery of packages for compensation is not prohibited and that there is no violation if compensation is received for that latter purpose only.
3. The failure by the trial court in a criminal case to answer a question of law relating to a defense presented, which is submitted to the court by the jury after they had retired to deliberate, is error prejudicial to defendant's substantial rights.
APPEAL from the Court of Appeals for Hamilton County.
Appellant, Virgil Epperson, was charged in Municipal Court with violating Section 407.97 of the Code of Ordinances of the City of Cincinnati, which reads:
"The acceptance of passengers or the offer to accept passengers for compensation by the operator of any vehicle other than a public vehicle duly licensed under and operating in accordance with the provisions of the Code of Ordinances of the city of Cincinnati or motor buses or trackless trolleys operating under proper authority is hereby prohibited."
Appellant was tried before a jury. At the trial, two city employees, one of whom was a police officer, testified that appellant transported them and their groceries from a grocery store to a residence for a change of 50 cents. The record discloses that, at the time of picking up the two persons, the appellant made the following statement to them: "I only charge for carrying packages. I do not operate a cab. I want you to understand that I do not charge for carrying passengers."
The jury found appellant guilty as charged and he was sentenced to 30 days in the workhouse and fined $100. In addition, appellant's automobile was confiscated and sold and he was ordered to pay court costs of $425.
The judgment of conviction was affirmed by the Court of Appeals.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Mr. William A. McClain, city solicitor, Mr. Ralph E. Cors and Mr. William B. Singer, for appellee.
Mr. Paul H. Tobias and Mr. Mitchell B. Goldberg, for appellant.
Two questions of law presented by appellant in this appeal command our attention.
In respect to the first question of law, appellant contends that the trial court had "a mandatory duty to give instructions to the jury with respect to defendant's theory of defense * * * and its failure to give such instructions when requested by the defendant * * * constitutes prejudicial error."
Two of the instructions requested read as follows:
(1) "There is nothing in the laws of the city of Cincinnati which forbids or prohibits a person from delivering packages for compensation as long as he possesses an ordinary driver's license. No taxicab license is necessary."
(2) "If you find that the agreement between Epperson and the police officer was that the compensation of 50c was to be paid solely for carrying packages, and that the money was accepted solely for the service of carrying packages, then you must acquit Epperson and return a verdict of not guilty."
The trial court refused to give either of these requested instructions and did not include the substance of either requested instruction in the general charge.
In State v. Barron, 170 Ohio St. 267, this court held:
"Under Section 2945.10 (E), Revised Code, it is not mandatory upon a trial court to give any instructions to the jury in a criminal case before argument, but, if requested special instructions, reduced to writing, are correct, pertinent and timely presented, they must be included, at least in substance, in the general charge."
See, also, State v. Corkran, 3 Ohio St.2d 125, 131.
The instructions requested were correct and pertinent to the defense, reflected by the record, of appellant's accepting compensation only for carrying packages — not passengers. The failure of the trial court to include, at least in substance, such instructions in the court's general charge was prejudicially erroneous to the substantial rights of appellant.
The second question of law is poised by the failure of the trial court to further inform the jury of the law of the case, upon the jury's request, under the provisions of Section 2315.06, Revised Code.
After the cause was submitted to the jury, that body interrupted its deliberations and asked instructions of the trial court as to "whether or not any special license was required by a person who delivers and carries packages for compensation and whether or not the law requires a special license in the event the driver charged solely for delivering packages and the owner of the package chooses to ride along." Those questions were not answered for the jury by the trial court.
Section 2315.06, Revised Code, reads:
"After the jurors retire to deliberate, if they disagree as to the testimony or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, and also, in the presence of or after notice to the parties or their counsel, the court may state its recollection of the testimony upon a disputed point."
Such failure, under the facts of this case, was also prejudicially erroneous to the substantial rights of appellant.
In view of our conclusion that prejudicial error in the trial as outlined above requires reversal, it is unnecessary to pass on appellant's third claim of error.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Municipal Court for a new trial.
Judgment reversed.
TAFT, C.J., MATTHIAS, HERBERT and DUNCAN, JJ., concur.
O'NEILL and SCHNEIDER, JJ., dissent.