Carey v. State
| Decision Date | 12 April 1904 |
| Docket Number | 4902 |
| Parties | Carey v. The State Of Ohio. |
| Court | Ohio Supreme Court |
Petition for an election on saloon question - Section 4364-20a - Applies to hamlets existing prior to municipal code of October 22, 1902 - "Offense" means conviction, when - Affidavit charging separate sales is charge of first offense only, when - Jury trial - Three hundred dollars an excessive fine, when.
1. Sections 4364-20a and -20b, Revised Statutes, which provide for an election in any municipality to determine whether or not the sale of intoxicating liquors as a beverage within the limits of such municipality shall be prohibited, and prescribes punishment for violations of said act where such sales are so prohibited, apply to hamlets as the same existed in this state prior to the adoption of the municipal code October 22, 1902.
2. The term "offense," as used in the last-named section is the equivalent of conviction. Hence an affidavit for prosecution under said act which charges three separate sales to different persons on the same day, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is not entitled to be tried by a jury.
3. The maximum fine provided by the act for the first offense being two hundred dollars only, a fine of three hundred dollars is in such case excessive and erroneous.
The plaintiff in error was tried before the mayor of the village of Bedford, in Cuyahoga county, upon a charge of violating section 4364-20b, popularly known as the Beal law. The affidavit on which the prosecution was founded embraced three counts, each charging an unlawful sale of intoxicating liquor to be used as a beverage on July 22, 1903, to three separate purchasers. The sales were averred to have occurred at the village of Lakewood, Cuyahoga county. It appeared in evidence that Lakewood, prior to May 4, 1903, was a municipality known as a hamlet, and that on November 24, 1902, upon a vote of the qualified electors of the hamlet held under the statute referred to, a majority of said electors voted against the sale in the municipality of intoxicating liquor as a beverage. On the appearance of the accused he interposed a motion to dismiss on the grounds of want of jurisdiction of the person and of the subjectmatter, and of the insufficiency in law of the affidavit. Also a certificate of prejudice. This motion being overruled and the affidavit ignored accused demanded that the action be tried to a jury. This demand was overruled and the trial proceeded. Record proof of the election in the hamlet of Lakewood was offered by the state and admitted over the objection and exception of defendant. The state offered testimony as to the sales; the defendant offered testimony in contradiction, the state gave rebuttal evidence, and the cause was submitted on briefs by counsel. At the conclusion of the state's testimony a motion was interposed to dismiss the case, which was overruled. After consideration the court found the defendant guilty as charged and sentenced him to pay a fine of three hundred dollars, being one hundred dollars on each count, and to pay costs of prosecution, and to stand committed to the workhouse of the city of Cleveland until fine and costs should be paid.
Error being prosecuted to the court of common pleas the judgment of the mayor was affirmed and that judgment being affirmed by the circuit court, the defendant below brings error to this court.
Mr Vernon H. Burke and Mr. Clifford B. Haskins, for plaintiff in error.
Mr. G N. Shaver; Mr. Charles A. Niman and Mr. W. B. Wheeler, for defendant in error.
BY THE COURT. A number of grounds of error are urged which will be considered seriatim.
1. As to the mayor's jurisdiction. It is insisted that the mayor of the village of Bedford could have no jurisdiction over an offense committed in the village of Lakewood, and if the claim of jurisdiction is believed to be based on section 1536-876, then that section is in conflict with article 4, section 10 of the constitution. The clause referred to provides that "the judges other than those provided in this constitution shall be elected by the electors of the judicial district for which they may be created." The point is not well taken. Section 18 of the same article provides that "the several judges of the supreme court * * * and of such other courts as may be created, shall respectively have and exercise such power and jurisdiction, at chambers or otherwise, as may be directed by law." It is apparent that the provision of section 10 applies to the district for election purposes, and does not affect the matter of jurisdiction, power to provide which is specifically given to the general assembly by section 18. Steamboat Northern Indiana v. Milliken, 7 Ohio St. 383; The State v. Peters, 67 Ohio St. 494.
2. The affidavit of prejudice. This proposition of error is based on section 550, Revised Statutes. This section applies to judges of the court of common pleas. It has no application whatever to mayors; nor is there, so far as we are aware, any provision of like character which affects mayors. The affidavit of prejudice was properly ignored.
3. Joinder of counts. The law in Ohio is well settled. There was no error in overruling the motion to require the state to elect. Bailey v. The State, 4 Ohio St. 440; Eldredge v. The State, 37 Ohio St. 191; State v. Bailey, ...
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