
    
      No. 229
    
    McCARTY v. STATE ex
    No. 19583.
    Supreme Court
    On motion to certify.
    Dock. Jan. 19, 1926;
    4 Abs. 72.
    333. CRIMINAL PROCEDURE — May a Common Pleas Court amend a transcript filed therein by the Municipal Court in a criminal proceeding?
    Attorneys — Leroy W. Hunt for McCarty; M. W. Bacome for State ex; both of Toledo.
   Rose Priedel filed an affidavit in the Toledo Municipal Court in which she charged that Edmond J. McCarty was the father of her unborn, illegitimate child. Pursuant to the issuance of a warrant McCarty was arrested. Later, but before the preliminary hearing, Priedel discovered a material defect in the affidavit and thereupon filed a second affidavit upon which warrant was issued and McCarty’s arrest effected.

After filing the second affidavit, Priedel caused it to be dismissed, but intending to dismiss the first affidavit, thereby leaving the first and defective affidavit on file. The judge had none of the pleadings or papers before him at the preliminary hearing, at which time McCarty was bound over to the Lucas Common Pleas. When the case came up for hearing the defective affidavit was discovered and thereupon a demurrer was interposed on the ground that the affidavit did not state facts to show a cause of action. The demurrer was overruled and the clerk of the Municipal Court was ordered to deliver the second affidavit, which had been dismissed, which the judge attached to the transcript of the Municipal Court and thereupon the ease went to trial over McCarty’s objection. The ruling was affirmed by the Court of Appeals.

McCarty, in the Supreme Court contends that the Common Pleas erred in amending the transcript, filed by the clerk of the Municipal Court, by attaching the second affidavit thereto lor the reason that he could not even have been tried in the Municipal Court at the time he was compelled to go to trial in the Common Pleas, since the affidavit to which he was compelled to answer was not even pending in the Police Court. i

It is submitted that McCarty has been deprived of his property and perhaps liberty without due process of law, in violation of his rights under the Federal and Ohio Constitutions.  