State v. Ikner , 44 Ohio St. 2d 132 ( 1975 )

CoRRIgan, J.

In the syllabus to its opinion, incorporated by reference and made a part of its journal entry in this ease, the Court of Appeals held:

“1. Trial in a Common Pleas Court on a felony charge based on the same acts as a prior conviction for violation of a municipal ordinance does not constitute double jeopardy, if the crime described in the municipal ordinance is not a lesser included offense of the felony.

“2. The penal philosophy of the doctrine of merger which precludes separate sentences for a violation of R. C. 4945.04(A) [sic] (auto theft), and R. C. 2907.30 (receiving or concealing stolen property), also precludes separate sentences for a violation of a municipal ordinance similar to R. C. 4549.04(B) and (D) (operating without consent), and R. 0. 4549.04(E) (concealing a stolen motor vehicle), when conviction for the latter two crimes is based upon the same acts and involves the same automobile.”

I.

The first principle pronounced by the Court of Appeals is correct. Obviously, this is a case of two separate offenses, one of which is not included in the other. The first offense, disposed of by the East Cleveland Municipal Court, was for operating a motor vehicle without the owner’s consent. There is no requirement of knowledge that the vehicle was stolen in order to convict under the East Cleveland ordinance. Contrariwise, the indictment in the Court of Common Pleas charged that the defendant concealed a motor vehicle knowing or having reasonable cause to believe it was stolen. Clearly, the evidence required to support a conviction on the first charge would not suffice to support a conviction on the second. Duvall v. State (1924), 111 Ohio St 657.

As was stated in paragraph three of the syllabus in State v. Best (1975), 42 Ohio St. 2d 530:

“The applicable rule under the Fifth Amendment is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. A single act may be an offense against two statutes, and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. ’ ’

The rule is identical where the same act constitutes a violation of a statute and of a city ordinance. Ikner’s conviction under the ordinance does not serve to put him in jeopardy as far as the indictment for concealing the motor vehicle is concerned.

ZZ.

In connection with paragraph two of its syllabus, the Court of Appeals expatiates on “the penal philosophy of the doctrine of merger * * *.” Thereby is pointed up the need for clarification concerning the doctrine of merger in the law of Ohio.

This doctrine was based on the ancient maxim of “nemo bis punitur pro eodem delicto” (no one is twice punished for the same offense). It was established by the common-law courts to alleviate hardships resulting from successive prosecutions where the crime committed had within its terms two or more crimes of different magnitude. The doctrine merged the crime of lesser magnitude into the crime of greater magnitude when the latter was charged against the defendant. Whereupon, if defendant was found not guilty of the crime charged, he could not then be tried for any of the lesser crimes included within the terms of the crime charged

The doctrine of merger was not recognized and was never in force in Ohio. See Mitchell v. State (1884), 42 Ohio St. 383.

However, R. C. 2945.74 provides that, if a defendant is charged with a crime which includes different degrees or lesser included offenses, or where an attempt is an offense, the jury may find the defendant not guilty of the offense charged but guilty of a different degree, or lesser included offense, or an attempt (if defined as a crime) as shown by the evidence.

Such was the state of the law in this area until July 14, 1971, when this court rendered a decision in State v. Botta, 27 Ohio St. 2d 196.

Whiat Botta actually did was to hold, as to the principal offender who steals a motor vehicle, that the acts of receiving or concealing the same motor vehicle knowing it to have been stolen are “considéred merged” in the auto theft crime so as to preclude separate sentences for the several crimes. Botta is not dispositive of the instant case.

The judgment of the Court of Appeals is reversed, and the judgment of the Court of Common Pleas is ordered to be reinstated.

Judgment reversed.

O’Neill, C. J., Herbert and W. Brown, JJ., concur. Steen, Celebrezze and P. Beown, JJ., dissent.