Opinion
No. 40337
Decided December 28, 1966.
Criminal procedure — Affidavit charging offense fatally defective — Amendment by completely rewriting and inserting by interlineation — Amendment not sworn to — Trial without objection — Objection to want of verification waived.
APPEAL from the Court of Appeals for Franklin County.
The defendant was tried before a jury in the Municipal Court for a violation of Section 4549.02, Revised Code. On the day of trial, immediately before the empaneling of the jury, objection was made to the affidavit charging the offense, which affidavit was defective. By agreement of counsel the affidavit was amended by completely rewriting and inserting by interlineation. The affidavit as amended was not sworn to. Counsel for defendant agreed to the method of amendment, made no objection to the amendment not being sworn to, continued his plea of not guilty, and proceeded to trial. The trial resulted in a verdict of guilty.
On appeal to the Court of Appeals, the only assignment of error raised by defendant, which brought the cause before the appellate court, related to the charge to the jury. The unsworn amended affidavit was not objected to either in the trial court or in the Court of Appeals. The Court of Appeals did not consider the assignment of error but concluded that the trial court was without authority to proceed to trial on the unsworn amended affidavit, reversed the judgment of the trial court and dismissed the proceedings.
The cause is in this court on a motion to certify the record.
Mr. John C. Young, city attorney, Mr. Gordon L. Stroufe, Mr. Jack D. Shumate and Mr. J. Larry Lacksen, for appellant.
Messrs. Bessey, Sexton Bessey, for appellee.
Defendant presents the question whether the original defective affidavit was amendable, and whether counsel may agree to the amendment of such affidavit, waive the reswearing and proceed to trial on schedule. He admits that "counsel should have objected * * * but did not do so at the time of trial through oversight, nor did he object to it upon review."
The defendant, by his counsel, specifically consenting to the method of amendment and continuing his plea of not guilty and proceeding with the trial, waived objection to the want of verification. See State v. Glaros (1960), 170 Ohio St. 471; State v. Park (1962), 174 Ohio St. 81; and City of Cleveland v. Ely (1963), 174 Ohio St. 403.
The motion to certify the record is allowed and the judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.