ON MOTION FOR REHEARING
Decided May 24, 1934
By THE COURTThe above entitled cause is now being-determined on motion for rehearing filed by council for plaintiff in error. Voluminous brief accompanies the application.
We have examined the brief very carefully. We find nothing therein to warrant a modification of our former opinion.
Counsel in their brief set out in concrete form three reasons upon which they base their application for rehearing.
The first ground -is based on the claim that our original opinion was based on the supposition that statutes of Massachusetts, Maryland and New Hampshire were similar to ours. The only reference made to the statutes in other jurisdictions was the statement that Massachusetts apparently had statues Relative to arrest and procurement of warrant very similar to ours. Counsel in their brief seek to refute this observation by quoting verbatim the provisions of the Massachusetts statute relative to arrest for intoxication. This was not the section to which we referred, and our opinion clearly shows it.
In the second specification complaint is made that the opinion in effect reverses our own Supreme Court in Leger v Warren, 62 Oh St, 300, and also the provisions of §13432-3 GC.
Neither directly noi' by inference' can it properly be said that we expre.fsed any opposition to the principles announced by the Supreme Court in 62 Oh St, supra! The facts in the reported case and thé instant case are materially different. In thé'first syllabus of the reported case the- ‘ statement is made that “a person who ha's been arrested without a warrant cannot lawfully be held in custody lor any longer .period than is reasonably necessary to obtain a legal warrant for his detention.” In the reported case the accused was held for a period of five days. In the instant case the accused was incarcerated at midnight and released in the morning. It is our conclusion that he was not held an unreasonable time, and therefore our conclusions are in line with the reported case.
The mandatory provision of §13432-3 GC, that the accused, after arrest, must, without unnecessary delay, be taken before a court or magistrate having jurisdiction was not violated in the instant case. The words “without unnecessary delay” recognize that there must be a reasonable time within which to procure the warrant. As stated in our original opinion,-the accused was-released at the earliest possible time and while no warrant was procured it was due to the fact that he was released upon his promise to return and answer any charge that might be presented against him.
Specification No. 3 complains that plaintiff was deprived of the right to trial upon the issue presented. The answer to this specification is that if he had desii-ed a trial by jury, a verified reply should have filed to the answer through which issue would have been joined. The fact that no reply was filed compels us to accept all well pleaded facts as true.
The rule of law is well recognized that where the facts are admitted, it devolves upon the court to determine whether or not there is a defense stated.
The application for rehearing will be denied.
HORNBECK, PJ, and BARNES, J, concur.