
    The State of Ohio v. O’Mara.
    
      Criminal law — Power to define felonies and prescribe punishment —Manslaughter defined and classified — Validity of ordinance of chartered city — Prescribing rules of road — Evidence—Ordinance' admissible to prove unlawful act, when.
    
    1. The power to define and classify and prescribe punishment for felonies committed within the state is lodged in the general assembly of the state, and when so defined, classified and prescribed, such laws must have uniform operation throughout the state.
    2. Manslaughter is one of the offenses which the general assembly has so defined and classified, and for which punishment has been prescribed, and this court in construing and interpreting that act has held one species of manslaughter to be the unintentional killing of another while the slayer is in the commission of an unlawful act. (Johnson v. State, 66 Ohio St., 59, approved and followed.)
    3. An ordinance of a charter city, general in nature, setting forth general and usual rules of the road, for a locality covered by its terms, passed in the valid exercise of the local police power, guaranteed under Section 3, Article XVIII of the Ohio Constitution, and not in conflict with general laws, must be given full force and effect as a law of the locality to which it applies.
    4. In a prosecution under an indictment for unintentional homicide, wherein a violation of Section 12603, General Code, providing that “whoever operates a motor vehicle * * * at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road * * * shall be fined,” etc., is relied upon as the “unlawful act” committed, and a valid ordinance defines the general and usual rules of the road in the locality where the killing occurred, the ordinance is competent to be introduced in evidence as proof of the general and usual rules of the road, or as an element of the proof that an unlawful act was committed. (State v. Born, 85 Ohio St., 430, disapproved and overruled.)
    (No. 16920
    Decided May 16, 1922.)
    
      Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.
    The facts are stated in the opinion.
    
      Mr. Louis H. Capelle, prosecuting attorney, and Mr. Charles H. Elston, assistant prosecuting attorney, for plaintiff in error.
    
      Mr. Edward M. Ballard, for defendant in error.
   Hough, J.

The case comes into this court on exceptions by the prosecuting attorney of Hamilton county to the ruling of the court of common pleas made during the trial of the cause in that court on an indictment for manslaughter.

The particular exception is based upon the refusal of the court to admit in evidence an ordinance of the city of Cincinnati providing that vehicles shall not pass street cars discharging or receiving passengers; that a vehicle overtaking another shall pass to the left; and that a vehicle shall pass a street car to the right. In addition thereto the ordinance defined the word “vehicle” and the “closely built up” portion of the city.

The precise question here for determination is whether or not such an ordinance, penal in its nature, is admissible in evidence as an aid in the establishment of the commission of the unlawful act, as an element of the crime charged. The ordinance was first admitted in evidence, and then, later, before the close of the trial, withdrawn by the court from the consideration of the jury, which action of withdrawal was duly excepted to by the state. Thus the question is squarely made by the record and stands as the sole question for determination in this court.

It is admitted that the prosecution for the involuntary or unintentional homicide was predicated on an unlawful act, made so by the statutes of the state, to-wit, Section 12603, General Code, which reads:

“Whoever operates a motor vehicle or motorcycle on the public roads or highways at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than twenty-five dollars, and for a second offense, shall be fined not less, than twenty-five dollars, nor more than one hundred dollars.
“A rate of speed greater than fifteen miles an hour in the business and closely built up portions of a municipality or more than twenty miles an hour in other portions thereof, or more than thirty miles an hour outside of a municipality, shall be presumptive evidence of a rate of speed greater than is reasonable or proper.”

The record also seems to concede that the ordinance is a valid enactment, and that it established “general and usual rules” covering the streets in the city of Cincinnati, a charter city, where the alleged crime was committed. But the defendant contends that the “general and usual rules” provided for in the ordinance are not the “general and usual rules” intended by the statute, and that that phrase,, used in the statute, must be construed to refer only to such rules as have general and uniform operation' throughout the state.

Section 12603 in its present state was passed in 1919 (108 O. L., pt. 1, 471), and was an amendment and consolidation of old sections 12603 and 12604. These sections before their consolidation and amendment read as follows:

“Sec. 12603. Whoever operates a motor vehicle on the public roads or highways at a speed greater than is reasonable or proper, having regard for the width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person, shall be fined not more than twenty-five dollars, and for a second offense shall be fined not less than twenty-five dollars nor more than fifty dollars.
“Sec. 12604. WThoever operates a motor cycle or motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality or more than fifteen miles an hour in other portions thereof or more than twenty miles an hour outside of a municipality, shall be fined not more than twenty-five dollars, and, for a second offense shall be fined not less than twenty-five dollars nor more than fifty dollars.”

By this amendment and consolidation it seems to have been the evident intention of the legislature to extend the provision that “whoever operates a motor vehicle on the public roads or highways at a speed greater than is reasonable and proper,” etc., to include the streets of municipalities. Under such an interpretation the newly-created section therefore deals with “the general and usual rules” of the road, and includes and applies to all the public roads or highways of the state, including the streets and public ways of the municipalities located within its boundaries, and represents one of the penal provisions of the legislature enacted in the interests of public safety.

Section 12608, General Code, provides that the provisions of Section 12603, General Code, shall not be diminished, restricted, or prohibited by ordinance. Section 3, Article XVIII of the Constitution of Ohio, provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police * * * regulations, as are not in conflict with general laws.”

This provision of the constitution has been in force since adoption of the amendments of 1912. The ordinance before us does not diminish, restrict or prohibit any provision of Section 12603. It is not in conflict with general laws. It is a measure passed by a city properly chartered, in the exercise of the local police power.

All this being true, the conclusion can not be escaped that it is a law applying to the locality covered by its terms, just as effectually and with the same binding force as any other law, state or federal, of either constitutional or legislative origin. It becomes a part of the laws of the city of Cincinnati, and creates the general and usual rules of the road for the locality in which the alleged offense occurred.

The defendant was charged with unintentional or involuntary homicide. In an offense of this character it is incumbent upon the state to prove as an element of the offense that the killing happened while the. slayer was in the commission of an unlawful act, and, under the Ohio rule, that the act was one prohibited by law. Johnson v. State, 66. Ohio St., 59;

In order to show that the act was in fact unlawful,, or, in other words, was prohibited by law, the fundamental basic fact that would necessarily have to appear would be what that law is — the law claimed to have been violated, which furnished the basis or foundation for the “unlawful act” upon which the indictment for manslaughter was. predicated. . To determine whether the law had been transgressed, whether the defendant at the time at which the indictment was laid was in the commission of an unlawful act, it would be necessary to apprise the court and jury of the law, its provisions and effect, before the jury under proper instructions would be able to ascertain whether “an unlawful act” had been committed.

As is well known, the courts of the state take judicial notice of the laws of the state legislature; and it is equally well known that the state courts do not take judicial notice of municipal ordinances. The law as it exists by ordinance, when pertinent to the issue in the law suit, must be proven.

As a predicate or basis for the proof of the commission of the unlawful act, then, the law to which the defendant was at the time amenable was material and necessary. The state statute, Section 12603, General Code, was before the court, but the additional “general and usual rules” of the road provided in the ordinance were not before the court until the ordinance was offered in evidence, and it is the opinion of the majority of this court that the ordinance ivas competent for such purpose and that the court below erred in excluding it. The case of State v. Born, 85 Ohio St., 430, in so far as it conflicts with the views herein announced, is disapproved and overruled.

Exceptions sustained.

Marshall, C. J., Johnson and Wanamaker, JJ., concur.

Robinson, J.,

dissenting. Whatever other elements may have entered into the act of O’Mara to constitute the crime with which he was charged, the exception brings but one question to this court, and that is: Can the crime of manslaughter be predicated upon an unintentional killing while in the violation of a municipal ordinance? And for the purpose of the question here presented such unintentional killing but for the existence of the ordinance would not have constituted the crime of manslaughter.

The answer to above question depends upon whether the power to define felonies and prescribe punishment therefor is lodged exclusively in the general assembly, or whether it is lodged jointly in the general assembly and in the legislative bodies of the various municipalities of the state.

The legislature defines manslaughter as “Whoever unlawfully kills another, except in the manner prescribed in the next four preceding sections, is guilty of manslaughter.”

For the purposes of the question before this court O’Mara violated only a portion of this statute, to-wit, he killed another; but before he could be convicted of the crime of manslaughter it was necessary that the state should do more than prove that he killed another. It should prove that he killed another unlawfully.

The state sought to supply the necessary element of unlawful killing by the introduction of an ordinance of the city of Cincinnati and proof that he was at the time of the killing acting in violation of that ordinance. To constitute the crime of manslaughter, then, the ordinance and its violation became an essential part of the crime, just as essential as the killing, and the enactment of the legislative body of the city of Cincinnati became as essential in defining a necessary element of the crime of manslaughter as was the enactment of the general assembly of Ohio in defining the other necessary element; and the crime, therefore, was defined not by the general assembly of the state of Ohio but by the general assembly of the state of Ohio plus the legislative body of the city of Cincinnati.

The Constitution of Ohio, Section 1, Article II, provides that “The legislative power of the state shall be vested in a general assembly consisting of a senate and house of representatives.”

This court has repeatedly and consistently held that the legislative power of the state being vested by the constitution in the general assembly cannot be delegated by that body.

As I understand the reasoning of the majority of this court it is that the legislature by the use of the words “Whoever unlmvfully kills another” comprehended all laws, including municipal ordinances. From which it necessarily follows that the legislature adopted as a part of the definition of the crime, not only existing ordinances within the limits of the municipality enacting them, but future ordinances within the same limits, which was necessarily a delegation of legislative power.

It is rather startling in view of the provision of Section 1, Article II of the Constitution, and in view of the consistent holdings of this court to the contrary, that this court should now declare in effect that the legislature has power to delegate legislative power to a municipality to define felonies and to legislate upon subjects affecting the morals, safety and lives of the people of the whole state.

The other reason assigned by the majority of this court for the sustaining of the exception is in effect that Section 3, Article XVIII of the Constitution, authorizes municipalities “to adopt and enforce within their limits such local police * * * regulations as are not in conflict with general laws,” and that by virtue of this provision of the constitution, within the limits of the municipality, the legislative body of each municipality may add to general laws, defining felonies and providing punishment therefor, such additional provisions to operate within the boundaries of the municipality, as the wisdom of the legislative body of each municipality may dictate.

If Section 3, Article XVIII, may be construed as conferring power upon the legislative bodies of municipalities to enlarge the scope of the definition of the crime of manslaughter, within the boundaries of such municipalities, then it must necessarily follow that it confers upon the legislative bodies of municipalities power to enlarge the scope of the definition of every felony which the general assembly has defined, or may hereafter define; and if the legislative definition of the crime of manslaughter, and the various other felonies defined by the general assembly for the preservation of morals and the protection of the lives, the persons and the property of the people of the whole state, can be construed to come within the provision as to “local police * * * regulations,” why cannot all laws enacted under the police power of the state, which by construction has become all comprehensive, be likewise construed to come within that provision when the venue happens to fall within the limits of a municipality?

For these reasons I overrule the exception, sustain the trial court, and dissent from the judgment of this court.

Jones and Matthias, JJ., concur in this dissenting opinion.  