State v. Orby

PER CURIAM.

Epitomized Opinion

Published Only in Ohio Law Abstract

An affidavit was filed in the court of Mayor Hill of Lakwood, O., and a warrant sworn out for defendant Louis Orby charging him With the offense of having liquor in his possession. The affidavit was sworn to by Police .Lieutenant Lang and was certified by Mayor Hill as being sworn to by Lang. After a motion to quash and a demurrer had been overruled, Orby pleaded not guilty. Lang testified on the wfitnessstand that he did not hold up his hand and swear before Mayor Hill before signing the affidavit. The Mayor went forward with the case, heard the! testimony, found Orby guilty and fined him $500. Orby prosecuted error to the Common Pleas, which reversed the ease because the police -Sfficer had not been properly sworn. The State prosecuted error to the Court of Appeals, which held:

The testimony1 of the police officer that he was not properly sworn is not sufficient to cause a reversal of the case. If so it would bring into the case a collateral issue. The statute provides a penalty for certifying to an affidavit when the formalities of the law have not been fully complied with. That does not nullify the affidavit if it is regular on its face. Judgment of the Common Pleas reversed and judgment of the Mayor’s Court affirmed.