State v. Driscoll, 138 N.E. 376 (Ohio 1922). · Go Syfert
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State v. Driscoll, 138 N.E. 376 (Ohio 1922). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …to exercise diligence and to aid the court, rather than by silence mislead the court into commission of error. at p. 39 ⚠ not in text
cited 2× by 2 distinct cases, last quoted 1978 · …would relieve counsel from any duty or responsibility to the court and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel which enjoins … ⚠ not in text
91 citation events (31 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. A.K. (ohioctapp, 2026-06-09)
Treatment trajectory · 1923 → 2026 · click a year to view as-of
1923 1974 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) State v. A.K.
Ohio Ct. App. · 2026 · confidence medium
“This contemporaneous- objection requirement imposes a duty on trial counsel ‘“to exercise diligence and to aid the court rather than by silence mislead the court into commission of error.”’” Wintermeyer, 2019-Ohio-5156, at ¶ 10 , quoting State v. Williams, 51 Ohio St.2d 112, 117 (1977), vacated in part on other grounds, 438 U.S. 911 (1978), quoting State v. Driscoll, 106 Ohio St. 33, 39 (1922).
discussed Cited as authority (rule) Montalbine v. Montalbine
Ohio Ct. App. · 2022 · confidence medium
“Any other rule would relieve counsel from any duty or responsibility to the court, and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel, which enjoins upon counsel the duty to exercise diligence and to aid * * * the court * * *.” State v. Driscoll, 106 Ohio St. 33, 39 , 138 N.E. 376, 378 (1922).
discussed Cited as authority (rule) State v. Morgan (Slip Opinion)
Ohio · 2017 · confidence medium
This approach also comports with the purpose behind the plain-error limitation; that is, it is a recognition of counsel’s duty “to exercise diligence and to aid the court, rather than by silence mislead the court into commission of error.” State v. Driscoll, 106 Ohio St. 33, 39, 138 N.E. 376 (1922). {¶ 60} But this is not a situation in which counsel’s (or Morgan’s) silence misled the court.
cited Cited as authority (rule) Rhoades v. Cleveland
Ohio Ct. App. · 1951 · confidence medium
Co. v. Ritter, 67 Oh St 53, 65 N. E. 613 ; State v. McCoy, 88 Oh St 447, 103 N. E. 136 and State v. Driscoll, 106 Oh St 33, 138 N. E. 376 .
discussed Cited as authority (rule) Fry v. Hildreth
Ohio Ct. App. · 1950 · confidence medium
The court discusses the rule followed in Columbus Railway Co. v. Ritter, 67 Oh St 53, 65 N. E. 613 ; State v. McCoy, 88 Oh St 447, 103 N. E. 136 , and State v. Driscoll, 106 Oh St 33, 138 N. E. 376 , which stresses the duty of counsel to aid the court by calling attention to omitted matters.
cited Cited as authority (rule) Simko v. Miller
unknown court · 1938 · confidence medium
Co. v. Ritter, 67 Ohio St., 53 , 65 N. E., 613 ; State v. McCoy, 88 Ohio St, 447, 103 N. E., 136 , and State v. Driscoll, 106 Ohio St, 33, 138 N. E., 376 .
discussed Cited as authority (rule) Glenny v. Wright
Ohio Ct. App. · 1936 · confidence medium
Co. v Ritter, 67 Oh St, 53, 65 NE, 613 ; State v McCoy, 88 Oh St, 447, 103 NE, 136 , and State v Driscoll, 106 Oh St, 33, 138 NE, 376 .” The language of the Supreme Court, above quoted, is entirely applicable to the situation in the case at bar.
cited Cited "see" State v. Weiss
Ohio Ct. App. · 2010 · signal: see · confidence high
See State v. Driscoll (1922), 106 Ohio St. 33, 40 (stating that “consent would be a complete defense to the included offenses of assault and battery and assault”).
cited Cited "see, e.g." State v. El-Berri, 89477 (7-17-2008)
Ohio Ct. App. · 2008 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33 , 40 ; Frey v. State (1907), 22 Ohio C.C.
discussed Cited "see, e.g." The Shelly Co. v. Indus. Comm., Unpublished Decision (10-4-2007) (2×)
Ohio Ct. App. · 2007 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33 , 38-39 * * * Id. at 81 . {¶ 61} In effect, relator is arguing here that it was the duty of the SHO to raise the issue of a first time failure of the safety device and to adjudicate that issue in the order in the absence of relator having raised the defense before the SHO.
discussed Cited "see, e.g." State Ex Rel. Berman Ind. v. Indus. Comm., Unpublished Decision (9-27-2005) (2×)
Ohio Ct. App. · 2005 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33 , 38-39 , 138 N.E. 376 , 378 .
discussed Cited "see, e.g." Wallace v. City of Rocky River, Unpublished Decision (8-1-2002) (2×)
Ohio Ct. App. · 2002 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33 , 38-39 , 138 N.E. 376 , 378 .
discussed Cited "see, e.g." State ex rel. Quarto Mining Co. v. Foreman (2×)
unknown court · 1997 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33, 38-39 , 138 N.E. 376, 378 . {¶ 14} The employer, however, essentially seeks a dispensation or relaxation of these rules in proceedings before the commission.
discussed Cited "see, e.g." State ex rel. Quarto Mining Co. v. Foreman (2×)
Ohio · 1997 · signal: see also · confidence low
See, also, State v. Driscoll (1922), 106 Ohio St. 33, 38-39 , 138 N.E. 376, 378 .
Retrieving the full opinion text from the archive…
STATE
v.
DRISCOLL
No. 17036.
Ohio Supreme Court.
Oct 10, 1922.
138 N.E. 376
1922 Ohio LEXIS 274
Attorneys — Chester A. Meek, Pros, for State; Edward J. Myers, for Driscoll.
Marshall.
Cited by 46 opinions  |  Published
MARSHALL, C. J.:

Epitomized Opinion

The prosecuting witness, Gladys Cosgrove, aged 17 years, procured a taxicab, at a public station, in Bucyrus, to take her to her home, about three-fourths of a mile distant. The defendant, an employe of the taxicab company, started to take her, but instead of going directly, drove into the country and criminally assaulted her, against her continued resistance. The defendant contradicted the girl’s' story and endeavored to make it a case of consent. He was found guilty, and the common pleas rendered judgment against him. .

The Court of Appeals reversed .the judgment for alleged error in the charge, and particularly refused to disturb it. on the weight of evidence. The 'Court of Common Pleas had failed to charge the.jury that rape included the lesser .offenses'Of . assault, and battery, and had omitted to enumerate as" elements necessary to a conviction, the fact that the person alleged to have been raped was a person other than the daughter or sister of the accused or female person under twelve years of age. These two points were assigned as error, but the Court of Appeals refused to reverse upon the first one, on the ground that no request had been made by the accused for such an instruction, but did reverse the judgment upon the second one. The Supreme Court in reversing the Appellate Court upon this point held:

1. Upon the trial of an indictment.for rape, where the defendant admits the act of intercourse, and defends upon the sole ground of consent, it is not error for the court to omit to instruct the jury that they may find the defendant not guilty of- rape but guilty of assault and battery or assault.

2. Upon an indictment of rape charging the defendant with carnal knowledge of a female person other than the daughter or sister of the accused, and not being a female under twelve years of age, where the uncontradicted evidence shows such female to be no relation to the 'accused and to be over twelve years of age, the omission by the trial judge to instruct the jury that they must find the subject of the rape was a female person other than the daughter or sister of the accused and not under twelve years of age, without any request on the part of counsel for the accused for such instruction, is not reversible error.