Diebler v. State

Plaintiff in error, John L. Diebler, was convicted in the municipal court of the city of Mansfield, Ohio, for nonsupport of minor children, and the conviction being affirmed by the common pleas court of Richland county, Ohio, error is prosecuted to this court.

There are a number of assignments of error, but in only one of them do we find any merit, and only that one will be discussed or considered by the court.

The original affidavit was sworn to by the mother of the children of the plaintiff in error; the affidavit being made before one of the officers of the municipal court. After the arrest of the plaintiff in error, and upon the day set for hearing, but prior to any hearing, the language of the affidavit was changed by interlineation by the city solicitor. The affidavit as changed was not again verified, and over objection of the plaintiff in error, he was compelled to go to trial upon the amended affidavit.

It is conceded by counsel on both sides that the affidavit as originally drawn and sworn to charged a felony, but that the affidavit in the form in which it stood when trial was had charged a misdemeanor, and the plaintiff in error was convicted upon the misdemeanor charge and sentenced accordingly.

It is contended by the prosecution that the municipal court was authorized to make this change, or to permit its change by the solicitor, under the provisions of Sections 13433-2 and 13433-3, which are as follows:

"Upon examination of the charge, the court or magistrate shall have the power to amend the warrant or information to conform to the facts and the evidence, provided the amendment shall not change the nature of the charge."

"The court or magistrate shall change the charge from felony to misdemeanor, or from misdemeanor to felony, in accordance with the facts and the evidence, and proceed in such case according to law.

"The court or magistrate shall enter on the docket or minutes, the reason for changing such charge."

With the contention of the prosecution we do not agree. These statutes are to be construed strictly. Power is given to amend the warrant or information and to change the charge to meet the evidence. The statute does not give the magistrate or prosecutor the authority to change the affidavit upon which the warrant is issued. The reason for the distinction is apparent. Information is filed by an officer of the court. A warrant is issued by an officer of the court. Information and warrant are public documents. An affidavit is the act of an individual, for the signing of which such individual is and holds himself or herself out to be responsible. No court or public officer has authority to force an individual to say something different from what that individual actually did say or express a willingness to say. The makers of the statute carefully refrained from including affidavits in the list of documents which might be amended.

It follows, therefore, that the municipal court of the city of Mansfield, Ohio, was without authority to change the language in the affidavit or to permit its change without the authority of the person making the affidavit, and was without authority to proceed with the hearing, in the absence of an oath administered to the affiant after the change. The judgment of conviction by the municipal court of the city of Mansfield, Ohio, and the judgment of the court of common pleas of Richland county, Ohio, affirming that conviction, are reversed. Plaintiff in error is discharged.

Judgment reversed.

SHERICK, P.J., and LEMERT, J., concur.