State v. Born , 85 Ohio St. (N.S.) 430 ( 1912 )

Davis, C. J.

On the trial of this case the state offered to prove, by an ordinance of the city of Cleveland, which was enacted by virtue of Section 12608, P. & A. Anno. G. C., and which declared that the locality where the automobile driven by defendant killed Cornelius, was a “business and closely built up portion” of the city, that the defendant was running his automobile at a greater rate of speed than was authorized by Section 12604, P. & A. Anno. G. C. The court ruled out the ordinance; and we think that the ruling was clearly correct. Whether the locality concerned was or was not a business and closely built up portion of the city, is a material fact to be determined upon the issue raised on the charge' in the indictment, that the defendant unlawfully killed the deceased. The defendant had the right to have that fact determined by the jury upon evidence, and not by the declaration by the city council, however lawfully enacted, nor however effective it might be for some purposes, that the place was within such a district as described in the statute.

Exceptions overruled.

Si-iauck, Price and Johnson, JJ., concur. Spear and Donahue, JJ., dissent.