Opinion
No. 29679
Decided February 16, 1944.
Criminal law — Penal statutes and ordinances strictly construed — Punishment provision not to be extended to cases beyond terms — Municipal ordinance regulating conduct of motor vehicle operators after accident — Operator not required to identify himself unless requested.
1. Penal statutes and ordinances are strictly construed and may not be extended by implication to cases not falling within their terms.
2. A provision of a penal ordinance that "In case of accident to or collision with persons or property upon any of the public roads or highways due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, and having knowledge of such accident or collision, shall stop, and upon request of the person injured or any person, give such person his name and address and in addition thereto, if not the owner, the name and address of the owner of such motor vehicle together with the registered number of such motor vehicle," does not constitute a requirement that the person so driving or operating the motor vehicle give such information or identify himself if no request therefor is made.
APPEAL from the Court of Appeals of Cuyahoga county.
John Jorski, defendant, appellant herein, was arrested, tried and convicted in the Municipal Court of Cleveland, Ohio, on a charge as set forth by affidavit that on or about the 24th of January, 1943, "being then and there the driver or operator of a certain vehicle, to wit: An automobile on Fleet avenue, a public road or highway in said city, did then and there, while so driving or operating said motor vehicle, cause an accident to or collision with a person, John Okarake, and having knowledge of such accident or collision unlawfully left the scene and failed to stop; or, upon request of a person did unlawfully fail to give such person his name and address. * * *"
The offense charged was the violation of a city ordinance providing as follows:
"In case of accident to or collision with persons or property upon any of the public roads or highways due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, and having knowledge of such accident or collision, shall stop, and upon request of the person injured or any person, give such person his name and address and in addition thereto, if not the owner, the name and address of the owner of such motor vehicle together with the registered number of such motor vehicle."
Upon trial by the municipal judge, a jury having been waived, the defendant was found guilty and sentenced to pay a fine of $100 and serve a sentence of 60 days in the workhouse, probation being expressly refused, and his driving license was suspended for a year.
Upon appeal on questions of law to the Court of Appeals, the judgment was, by a divided court, affirmed.
The case is in this court for review following the allowance of a motion for certification.
Mr. Thomas A. Burke, Jr., director of law, Mr. Anthony A. Rutkowski, Mr. David E. Clarke and Mr. Myron Stanford, for appellee.
Mr. John A. Fetterman and Mr. Irwin B. Fried, for appellant.
There is no issue in this case as to the validity of the provisions of the ordinance upon which the charge against the defendant was based. It contains substantially the same provisions as are embodied in Section 12606, General Code, in force and effect since 1908. The application of long established and well settled principles of construction of penal provisions to the undisputed facts disclosed by the record is all that is required to determine the only question of law presented.
The trial judge, a jury having been waived, announced his findings at the close of the trial, wherein he stated that the "facts are not in issue at all"; and also that the defendant did stop; that the testimony is uncontradicted; that everyone so testified; that there is no question that the man staggered into the path of the car; and that the three occupants of the car, "the wife, his friend and himself, got out."
It is conceded that there was no request by the person injured or any person that the defendant "give such person his name and address;" and yet the defendant was convicted only of the violation of that clause of the ordinance. The trial court, in his findings, so stated, and then emphasized the same by stating that "Had he identified himself there would have been nothing to this case."
The trial court construed the provisions of the ordinance requiring the giving of the name and address upon request as a mandatory requirement that the defendant "shall identify himself" and, after having found that the defendant had met every other requirement of the ordinance, the trial judge stated: "They fail to identify themselves as he being the driver that hit this man."
The court thus, by judicial construction, amended the ordinance by eliminating the provision that "upon request of the person injured or any person" and also by inserting the additional requirement that "he shall identify himself," and then proceeded to find the defendant guilty of a violation of the ordinance as thus amended. The function of courts is to construe and apply, not to enact, amend or repeal, laws.
The principle, of statutory construction involved here is stated in 12 Ohio Jurisprudence, 55, Section 12, with a citation of supporting decisions, as follows:
"* * * A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute. Nor can a penal statute be extended by implication to cases not falling within its terms. Persons cannot be made subject to a statute by implication. Only those transactions are included which are within both its spirit and letter; and all doubts in the interpretation of a statute are to be resolved in favor of the accused. An act, to be punishable as a crime in Ohio, must be specifically embraced within the terms of some statute. Where a statute defining an offense designates one class of persons as subject to its penalty all other persons are deemed to be exempted therefrom." State v. Associates Investment Co., 136 Ohio St. 456, 26 N.E.2d 457, 129 A.L.R., 1074.
The same principle is stated in apt language, with citation of numerous supporting authorities, in 14 American Jurisprudence, 773, Section 19:
"The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. * * * The courts are not at liberty to supply the deficiency or undertake to make the statute definite and certain. * * * It is axiomatic that statutes creating and defining crimes cannot be extended by intendment. Purely statutory offenses cannot be established by implication. There can be no constructive offenses."
The so-called hit-skip statutes of various states are in great variety and differ essentially. Some have the positive requirement that the automobile driver involved in a collision shall identify himself or make himself known, and some go so far as to require the rendition of assistance in the event of injury by such collision. See cases cited in 101 A. L. R., 911. However, the decisions of courts of last resort considering and applying such provisions are of little assistance in the consideration of the question presented here.
Giving proper consideration to the finding of the trial judge, requires the conclusion that there was no violation of the provisions of the ordinance as it reads. Defendant's only offense, according to the finding of the trial judge, was in failing to identify himself. That, under the provisions of the ordinance, would have been accomplished by giving his name and address. We can readily agree that he should have done that and more. But the giving of such information is required by the ordinance only "upon request of the person injured or any person." Such is the duty imposed by the ordinance, for the failure to perform which, punishment is prescribed.
So far as we are able to ascertain, the only decision of a court of last resort which involved the consideration of a penal provision similar to the one in question here is found in McDonald v. State, 54 Okla. Cr. 122, 15 P.2d 149. It is said in that opinion:
"The offense denounced by the statute is not a collision, but is, first, the failure to stop; or, second, the failure to give information on request after stopping. Since the defendant did stop, he is not guilty unless he failed or refused to give requested information, and it is admitted that no such request was made. The fact that defendant left the scene without giving information is not a crime. It is a crime only in the event request for the information was made."
The court thereupon declared that "It is a fundamental principle of criminal law that there can be no constructive offenses, and statutes are not to be enlarged by construction or extended by inference to cover acts not clearly within both the letter and the spirit of a penal statute. Measured by this test, the evidence is insufficient to sustain the judgment."
The judgment of the Court of Appeals is reversed and final judgment rendered for appellant.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.