
    The State of Ohio v. Boyatt.
    
      Criminal law—State cannot be required to file bill of particulars.
    
    Under the General Code the state cannot be required to file a bill of particulars in criminal cases.
    Indictments and Informations, 31 C. J. § 308.
    (No. 19472
    Decided March 30, 1926.)
    Exceptions .by the Prosecuting Attorney to the decision of the Court of Common Pleas of Lucas county.
    Lynn C. Boyatt, defendant below, was sanitary engineer of Lucas county, Ohio, previous to and upon April 3, 1925, and May 23, 1925. Upon April . 3, 1925, twelve indictments were returned against Boyatt for presentation of a false claim for payment out of the public treasury. Demurrers were filed to these indictments, and these demurrers were sustained. Subsequently, twelve new indictments were returned against Boyatt, different in substance, but based upon the same facts as those alleged in the first indictments, namely, that bills had been approved by Boyatt, to the county commissioners, for payment to two other individuals for rent due for the use by the sanitary engineer’s department of two cars in fact owned by Boyatt himself. The payments of these bills were ultimately made out of the county treasury and received by Boyatt. Six of the indictments covered the period from March, 1924, to August, 1924, inclusive, for the rental of one of these cars, and the remaining indictments covered the same period of time for the rental of the other car. After filing motions to quash these indictments, which motions were overruled, the defendant filed motions to require the plaintiff to file a bill of particulars in each case. The court granted these motions, and the state excepted to this ruling. Thereupon the state filed a bill of particulars, and the defendant filed a plea of abatement, which was sustained by the court and the prosecution was dismissed. Thereafter the prosecuting attorney obtained leave to file a bill of exceptions in this court for the purpose of determining the correctness of the decision of the trial court.
    
      Mr. Roy R. Stuart, prosecuting attorney, for the exceptions.
    
      Mr. George R. Effler, against the exceptions.
   Allen, J.

It is the proposition of Boyatt’s attorney that the trial court was justified in granting the motion for a bill of particulars. No Ohio statute exists providing for a bill of particulars in a criminal case, and no decision in this court is cited holding that such a right exists. The attorney for the defendant, however, claims that he is entitled to have the motion for the bill of particulars granted upon the ground that the defendant is entitled to be apprised of the nature of the charge against him. Under the decisions in this state, however, the defendant’s rights in that particular are amply protected by the holdings with regard to the requisites of the indictment. This court has decided that an indictment must contain a complete description of the offense charged, and. that it must state every circumstance of an intention, knowledge, or action that constitutes the crime. Lamberton v. State, 11 Ohio, 282; Anderson v. State, 7 Ohio, 250, pt. 2; Stoughton v. State, 2 Ohio St., 562.

If the indictment does not describe the offense charged, it is subject to motion to quash. Therefore the defendant, under Ohio law, due to the requisites of the indictment, is given all that he legitimately can ask as to being apprised of the nature of the crime. It is a matter of general knowledge that persons charged with crime in this state are amply protected by our criminal procedure. Why, then, multiply the technicalities by which a defendant may postpone the day of trial? In effect, this is what Boyatt’s attorney asks us to do in this case, for the bill of particulars requested did not make more definite and certain the indictment, which was already specific. It constituted a fishing expedition for the purpose of securing matter in defense.

There are decisions from other states which hold that the state in prosecutions can be required to file a bill of particulars. In this state, however, on the trial of criminal offenses, the courts have only such powers as are granted under the State Constitution and statutes. Section 4, Article IV, of the Constitution, provides that the jurisdiction of courts of common pleas and of the judges thereof shall be fixed by law. Hence, under our Constitution the Legislature has power to define and provide for criminal procedure. This power it has exercised without providing for bills of particulars in criminal prosecutions. It would be judicial legislation for this court to read such a provision into the criminal statutes.

Since the action of the trial court was taken without authority of law, the exceptions must be sustained.

Exceptions sustained.

Marshall, C. J., Jones, Matthias, Day, Kinkade and Robinson, JJ., concur.  