Cochran v. State
| Decision Date | 05 July 1922 |
| Docket Number | 17371 to 17374 |
| Parties | Cochran v. The State Of Ohio; Cloran v. The State Of Ohio; Phillips v. The State Of Ohio; Anania v. The State Of Ohio |
| Court | Ohio Supreme Court |
Intoxicating liquors - Unlawful possession and selling - Section 6212-15 General Code - Right of trial by jury - Evidence - Competency - Liquors seized by officers - Sufficiency of affidavit for search warrant - Section 18485, General Code Probable cause supported by oath - Section 14, Article I, Ohio Constitution - Article IV, Amendments to U. S. Constitution - Necessity of search warrant - Liquor discovered after person arrested.
Messrs Zones, Hill & Davidson, for plaintiffs in error.
Mr. J A. White; Mr. Charles M. Earhart and Mr. J. L. Hilton, for defendant in error.
BY THE COURT. These cases were argued and submitted together. The prosecution in each case was instituted by an affidavit filed with a justice of the peace of Columbiana county. Cloran Anania and Phillips were each separately charged with unlawfully possessing intoxicating liquors, and Cochran with selling, furnishing and giving away intoxicating liquors, the charge in each case being based upon the provisions of Section 6212-15, General Code. The trial resulted in a conviction of each of the plaintiffs in error, and that judgment was affirmed by the court of common pleas and by the court of appeals. The primary question presented in these cases arises from the contention that the plaintiffs in error were entitled to a trial by jury, which each of them demanded.
It has been frequently announced in the decisions of this court, some of which are quite recent, that the right of trial by jury obtains only where, under the provisions of the statute claimed to have been violated, a sentence of imprisonment may be imposed as a part of the punishment for such violation. (Work v. State, 2 Ohio St. 296; Inwood v. State, 42 Ohio St. 186; State, ex rel. Smith, v. Smith, 69 Ohio St. 196; State v. Borham, 72 Ohio St. 358; Hoffrichter v. State, 102 Ohio St. 65, and Stiess v. State, 103 Ohio St. 33.) In the Hoffrichter case it gas stated by Wanamaker, J., at page 66: "It has long been the settled doctrine of this state, confirmed by repeated decisions of all our courts, that where the penalty imposed by criminal statute is merely a fine the right of trial by jury as guaranteed by the constitution does not apply." In the Stiess case, which involved an offense under Section 13195, General Code, it was reiterated by Marshall, C. J., as follows: "This question is no longer an open one in Ohio, unless it is determined to disregard a long line of the previous decisions of this court."
It is also contended on behalf of Cloran and Anania that during their trials liquors which were taken by officers by virtue of search warrants were used against them in evidence. It is claimed that such evidence was incompetent, and its admission erroneous by reason of the fact that the warrant for the search of their premises was issued upon an affi- davit alleging that the "affiant believes and has good cause to believe," etc. The affidavit employs the precise language of Section 13483, General Code, which is substantially the same language as has been in force in this state since 1837, and seems never to have been previously attacked. It is contended that such warrant was not issued upon probable cause, and that such affidavit was not the oath or affirmation which the constitution and statute contemplated shall support the issuing of a writ, and that the affidavit, not having set forth facts justifying the belief, is insufficient. Section 14, Article I of the Ohio Constitution, is substantially the same as the Fourth Amendment of the Federal Constitution. It provides as follows: "The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person and things to be seized." The question of the sufficiency of an affidavit based...
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