
    State, Appellee, v. Kirchner, Appellant.
    [Cite as State v. Kirchner, 15 Ohio Misc. 154.]
    (No. 131412 —
    Decided April 23, 1968.)
    
      Common Pleas Court of Montgomery County.
    
      Mr. Arthur Eaton, for appellee.
   Brenton, J.

The defendant-appellant herein was charged and convicted in the Vandalia Municipal Court with leaving the scene of an accident in violation of Section 4549.021, Revised Code, as amended on November 5, 1965.

The evidence upon which the trial court convicted defendant-appellant has been by the parties agreed to be as follows:

1— On May 23, 1967, during the night season, defendant-appellant operated his automobile into a parked automobile on property other than a public road or highway causing minor damage to the parked vehicle.

2— That immediately thereafter he stopped and upon observing no occupant or person in attendance of the vehicle, no lights burning within the dwelling adjacent to the parked vehicle, and no person about the scene, he went to the nearby lighted dwelling of one Joseph J. Muto and identified himself as having collided with the parked vehicle and learned that the owner thereof was one Robert Goldschmidt. Muto agreed to inform Goldschmidt the next day.

3— On the next, May 24, 1967, less than twenty four (24) hours after the accident, defendant-appellant contacted Goldschmidt whereupon they conveyed the Goldschmidt vehicle to a body shop and secured an estimate for repairs.

4— Repairs were completed on June 3, 1967.

5— Defendant-appellant paid for the repairs on June 7, 1967.

6— On June 9, 1967, a deputy sheriff filed the charge the subject matter of this appeal.

The charge herein is commonly known as “hit and skip.” A like statute is Section 12606, General Code, and was so designated on May 5, 1933, in Hill v. State, 14 Ohio Law Abs. 610. Eleven years later the Ohio Supreme Court made the same pronouncement in Cleveland v. Jorski, 27 O. O. 464, page 465.

The significance of the designation essentially defines the purpose of such statutes. Although they are in great variety and differ essentially in various states they are enacted for the purpose of preventing negligent and wanton drivers from evading civil and criminal prosecution, by not stopping so that their identity could be established.

Section 4549.021, Bevised Code, reads as follows:

“In case of accident or collision resulting in injury or damage to persons or property upon any public or private property other than public roads or highways, due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, having knowledge of such accident or collision, shall stop, and, upon request of the person injured or damaged, or any other person, shall give such person his name and address, and if he is not the owner, the name and address of the owner of such motor vehicle, together with the registered number of such motor vehicle, and, if available, exhibit his operator’s or chauffeur’s license.
“If the owner or person in charge of such damaged property is not furnished such information, the driver of the motor vehicle involved in the accident or collision shall within twenty-four hours after such accident or collision, forward to the police department of the city or village in which such accident or collision occurred or if it occurred outside the corporate limits of a city or village to the sheriff of the county in which such accident or collision occur•od the same information required to be given to the own-f'r or person in control of such damaged property and give (he date, time, and location of the accident or collision.
“If such accident or collision is with an unoccupied or nuattended motor vehicle, the operator so colliding with ■uch motor vehicle shall securely attach the information '•emuired to be given in this section, in writing, to a con"’ouous nlace in or on said unoccupied or unattended mo- •or vehicle.”

The requirements of this statute contemplate that the person operating the vehicle at the time of the collision, having knowledge thereof, shall stop and remain at the scene a sufficient length of time to give a reasonable opportunity for others to demand of him the information required by the statute. Further, upon failure to furnish the owner or person in charge of the damaged property such information he shall within twenty-four hours forward same to the appropriate police department. And if the damaged property is an unoccupied or unattended motor vehicle he shall attach in writing thereto such information.

In construing the provisions of the section of the Code under consideration this court finds that before a driver of an automobile can be convicted thereunder it must be shown beyond a reasonable doubt that such driver having knowledge of the collision must have unlawfully and wilfully failed:

First, to stop, or

Second, having stopped, and, upon request of the person damaged, or any other person, to give such person his name and address, and, if he is not the owner, the name and address of the owner of such motor vehicle, together with the registration number of the vehicle, and, if available, exhibit his operator’s or chauffeur’s license, or

Third, having not furnished such information to the owner or person in charge of such damaged property before the expiration of twenty-four hours, to forward same, within that period of time, with date, time, and location of the collision to the appropriate police agency, or

Fourth, having collided with an unoccupied or unattended motor vehicle, to securely attach such information required, in writing, in or on such vehicle.

The part of the affidavit charging the commission of an offense reads as follows: “one James E. Kirehner unlawfully did operate a motor vehicle by failing to identify himself at the scene of an accident, nor leaving on or about the scene of said accident proper information . . . .”

The first apparent observation with respect to the charge is that unlawful operation of a motor vehicle is not an element of the crime defined by the statute. The inclusion of such tends to confuse, rather than inform, the nature and cause of the accusation against him. The offense denounced by the statute is not a collision.

It would appear that the words “by failing to identify himself at the scene of an accident” is an attempt to state an offense under the second denunciation of the statute as hereinabove delineated. Inasmuch as it is admitted that defendant-appellant did stop, he is not guilty under that clause of the statute unless he failed or refused to give requested information, and according to the agreed statement of facts, no such request was made. Hill v. State, supra and Cleveland v. Jorski, supra.

It would further appear that the words “nor leaving on or about the scene of said accident proper information” is an attempt to state an offense under the fourth denunciation of the statute as hereinabove delineated.

The Code provides that laws as to the sufficiency of indictments apply to affidavits charging crimes. Section 2941.35. Revised Code. Accordingly offenses should be charged as nearly as possible in the words of the pertinent statute or ordinance. Burke v. State, 104 Ohio St. 220. The facts alleged in a criminal charge must be laid positively. Nothing can be left to implication, intendment, or inference which it is necessary to prove in order to make out the crime. Knight v. State, 54 Ohio St. 365. Equivalent words or language may be employed but such must be precise. State v. Cimpritz, 158 Ohio St. 490; Lerch v. Sandusky, 23 Ohio App. 109. The degree of certainty which is necessary in charging an offense has never been determined with exactness. The numerous ways in which it has been expressed are set forth in 28 Ohio Jurisprudence 2d 427, Sec. 27.

Certainly, it may fairly be stated that the statute in question does not make it a crime “to fail to leave on or about the scene of an accident proper information.” Further it may not be fairly stated that such words so used are equivalent to charging defendant-appellant with failure to, in writing, securely attach the required information in or upon an unoccupied or unattended motor vehicle.

The record is clear that the conviction was based solely upon the failure, within twenty four hours, to forward the required information to the appropriate police agency and the failure to attach any information on the damaged unattended motor vehicle. It is clear from the affidavit that the defendant-appellant was not charged with such offenses in the words of the statute nor by any equivalent words reasonably calculated to apprise him thereof. There has been a total failure to allege or plead in the affidavit matters of substance, the facts material to the commission of the offense. Permitting material omissions in the description of an offense to be supplied by mere intendment or the simple statement of a legal result in an affidavit charging crime, tends to induce arbitrary exercise of judicial discretion and the constitutional requirements of presenting the “nature and cause of an accusation,” Ohio Constitution Article I, Section 10, may well be frittered away by judicial construction.

The affidavit upon this record is defective because it fails to follow the language of the statute in any of its clauses denouncing an offense. Further, it fails to use words which are the precise equivalent of those employed in the statute, or use language which plainly and necessarily includes the language of the statute.

Moreover, this court finds that even if proper charges had been laid a conviction upon the facts presented would be contrary to law. The record is void of the degree of proof to establish a wilfull violation of any portion of the statute under consideration.

It is a well established rule, recognized by statute, that penal laws must be strictly construed. Section 1.11, Revised Code. This means such laws be interpreted strictly against the state and liberally in favor of the accused. The criminal act complained of must be within both the spirit and letter of the statute.

A thorough analysis of the statute indicates that its primary objective is to prevent the escape of civil liability. The only requirement to report to a police agency is set forth in the third denunciation of the statute and then only before the expiration of twenty-four hours if there has been a failure to inform the owner or person in charge of the damaged property.

This court adheres to the proposition that a fair con.'liuetion is to be given to a criminal statute according to the legislative intent, provided that intent can be determined with reasonable certainty.

Thus, where the driver of a motor vehicle, after colliding with an unoccupied and unattended vehicle in the night season, upon private property, stops and without any request reports the facts and his identity to a person residing in close proximity and thereby learns the identity and residence of the owner of such damaged vehicle, and thereafter, during the next succeeding daylight hours contacts such owner and arranges for repairs, such driver has, under such facts and circumstances, complied with the spirit and the letter of Section 4549.021, Revised Code.

Explanatory of the conclusion, it fairly appears that a driver of a motor vehicle who stops under the facts and circumstances under consideration in this case, is not obligated to comply with the third denunciation of the statute so long as he has reported the required information to the owner of the damaged property.

Further, the court finds that the fourth denunciation of the statute means failing all else, renders strict compliance therewith mandatory. To further illustrate supposing Kirchner had approached Goldschmidt’s dwelling, aroused him, reported he had collided with his car, that he would return the next day to take care of it, and with or without a request, supplied the information required to be given by the statute: can it fairly be determined that the Legislature intended to make it a crime for failing to post the information on the parked unoccupied or unattended vehicle under such facts and circumstances? This court thinks that it may not be so determined.

And lastly, it affirmatively appears that the conduct and actions of the accused in following through as he did brought the matter to the attention of the police. It should have been obvious that the accused did not hit and skip. He was taking care of the damages while being investigated. He did not skip to avoid criminal prosecution for any crime that may have been alleged to have been committed in the operation of his vehicle. He was always available to have been so charged.

The judgment of the Vandalia Municipal Court is reversed and the state of Ohio is directed to pay all the costs of the proceedings here and in the court below in the manner provided by law.

Judgment reversed.  