Opinion
No. 40628
Decided April 19, 1967.
Criminal law — Affidavit charging offense — Sufficiency of — Charging offense in words of ordinance — Sufficiency of affidavit to be raised, when.
APPEAL from the Court of Appeals for Allen County.
The defendant, Ward, was tried in the Lima Municipal Court for the violation of city ordinance No. 969.07, on an affidavit charging "that on or about the 5th day of February, 1966, at the County of Allen, aforesaid and in the City of Lima, one Tommie Alva Ward did knowingly and wilfully resist Ellis Vandemark, an officer of the Lima Police Department, Lima, Ohio, in the execution of his office, contrary to an ordinance of said city in such cases made and provided." A jury found him guilty as charged in the affidavit, and judgment was entered on the verdict.
The Court of Appeals ( 8 Ohio App.2d 177) reversed the judgment of the trial court on the ground that the affidavit does not charge an offense.
The cause is before this court on a motion to certify the record.
Mr. James L. Kill, Mr. Quentin M. Derryberry and Mr. Robert F. Folland, for appellant.
Mr. William Guyton, Jr., and Mr. Gordon Sears, for appellee.
Lima ordinance No. 969.07 provides in its entirety that "it shall be unlawful for any person to knowingly and willfully resist, obstruct, threaten, menace or abuse any officer in the execution of his office."
The affidavit, drawn in the words of the ordinance, is not void for indefiniteness. The question of the sufficiency of the affidavit should have been raised by motion to quash before issue joined. Cincinnati v. Schill, 125 Ohio St. 57.
The motion to certify the record is allowed, and the judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.