Gordon v. State

• Citation: 23 N.E. 63,46 Ohio St. 607
• Parties: GORDON v. STATE. SANTORO v. STATE.
• Decision Date: 10 December 1889
• Court: Ohio Supreme Court

23 N.E. 63

46 Ohio St. 607

GORDON v. STATE.

SANTORO v. STATE.

Supreme Court of Ohio.

December 10, 1889

Error to court of common pleas, Perry county.

Error to circuit court, Protage county.

The plaintiffs in error, Basil A. Gordon and Dominico Santoro were severally indicted under the act entitled ‘ An act to further provide against the evils resulting from the traffic in intoxicating liquors by local option in any township in the state of Ohio,’ passed March 3, 1888. That act provides as follows: ‘ Sec. 1. Be it enacted * * * that whenever one-fourth of the qualified electors of any township residing outside of any municipal incorporation shall petition the trustees therefor for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such township, and without the limits of any such municipal incorporation, such trustees shall order a special election for the purpose to be held at the usual place or places for holding township elections, and notice shall be given, and the election conducted, in all respects as provided by law for the election of township trustees, and only those electors shall be entitled to vote at such election who reside within the township, and without the limits of any such municipal incorporation. A record of the result of such election shall be kept by the township clerk in the record of the proceedings of township trustees; and in all trials for violation of this act, the original entry of said record, or a copy thereof certified by the township clerk, provided that it showns or states that a majority was against the sale shall be prima facie evidence that the selling, furnishing, giving away, or keeping a place, if it took place from and after thirty days from the day of the holding of said election, was then and there prohibited and unlawful. Sec. 2. Persons voting at any election held under the provisions of this act, who are opposed to the sale of intoxicating liquors as a beverage, shall have written or printed on their ballots, ‘ Against the sale; ’ and those who favor the sale of such liquors shall have written or printed on their ballots, ‘ For the sale; ’ and if a majority of the votes cast at such election shall be ‘ against the sale,’ then, from and after thirty days from the day of the holding of said election, it shall be unlawful for any person within the limits of such township, and without the limits of such municipal corporation, to sell, furnish, or give away any intoxicating liquors to be used as a beverage, or to keep a place where such liquors are kept for sale, given away, or furnished; and whoever sells, furnishes, or gives away any intoxicating liquors as a beverage, or keeps a place where such liquors are kept for sale, given away, or furnished, shall be fined not more than five hundred dollars, nor less than fifty dollars, and imprisoned in the county jail not exceeding six months; but nothing in this section shall be construed so as to prevent the manufacture and sale of cider, or sale of wine manufactured from the pure juice of the grape, cultivated in this state, nor to prevent [a] legally registered druggist from selling or furnishing pure wines or liquors for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes; but this provision shall not be construed to authorize the keeping of a place where wine, cider, or other intoxicating liquors are sold, kept for sale, furnished, or given away as a beverage. Sec. 3. In indictments for violations of this act it shall not be necessary to set forth the facts showing that the township has availed itself of the provisions of this act, but it shall be sufficient to plead simply that said selling, furnishing, giving away, or keeping a place was then and there prohibited and unlawful.' Section 4 provides for the return of a ratable proportion of the special liquor tax to the dealer, where the majority of the votes cast at such election shall be against the sale. Section 5 provides for biennial elections under the act. Section 6 prescribes what shall be deemed a sufficient entry and record of the result of an election under the act. Section 7 provides for the disposition of fines. ‘ Sec. 8. This act shall take effect and be in force from and after its passage.’ In the case of Gordon v. State the indictment charged that Basil A. Gordon, on the 22d day of December, 1888, in the township of Pleasant, in the county of Perry, unlawfully sold intoxicating liquors other than cider, or wine manufactured from the pure juice of the grape cultivated in this state, as a beverage, to divers persons whose names to the jurors were unknown, said selling being then and there prohibited and unlawful, and said selling not being for exclusively known medicinal, art, scientific, mechanical, or sacramental purposes. Gordon moved to quash the indictment for alleged defects in the form of the indictment, and in the manner in which the offense was charged, which motion being overruled, and the ruling excepted to, he demurred to the indictment, on the ground that the facts therein stated did not constitute an offense against the laws of the state, and that the above-entitled act of March 3, 1888, is unconstitutional. The demurrer was overruled, and exception taken,whereupon Gordon was put upon trial. The jury returned a verdict of guilty, and he was sentenced to pay a fine of $50 and costs of prosecution, and to be imprisoned for the term of 15 days. The petition in error filed in this court prays that the above-entitled act may be declared unconstitutional, and that the judgment of the court of common pleas may be reversed. In the case of Santoro v. State the indictment charged that Dominico Santoro, on or about the 13th day of December, 1888, within Mantua township, in the county of Portage, then and there not being a legally registered druggist, unlawfully sold certain intoxicating liquors, to-wit, whisky, to one Frank Kriser, which selling was then and there prohibited and unlawful. Santoro demurred to the indictment. The demurrer was overuled and exception noted. He was then put upon trial. The jury returned a verdict of guilty, and he was sentenced to pay a fine and to be imprisoned. The circuit court affirmed the judgment of the court of common pleas, and it is now sought to reverse the judgment of the circuit court, on the ground that the above-recited act of March 3, 1888, is in contravention of the constitution of this state, and therefore void.

Syllabus by the Court

The act entitled ‘ An act to further provide against the evils resulting from the traffic in intoxicating liquors by local option in any township in the state of Ohio,’ passed March 3, 1888, is not in conflict with the constitution, and is a valid law.

Ferguson & Johnston, James D. Retallic , and Matthews & Greve , for plaintiff in error Gordon.

I. T. Siddall , for plaintiff in error Santoro.

David K. Watson , Atty. Gen., Maurice A. Donahue and E. W. Maxson , Pros. Attys., and R. Butler , for the State.

DICKMAN, J.

In the case of Gordon v. State there was a motion to quash the indictment, on the ground that it did not set forth the name or names of any person or persons to whom the sale of intoxicating liquors was made, and that it was objectionable for duplicity. The indictment alleged that the accused unlawfully sold intoxicating liquors as a beverage to divers persons whose names to the jurors were unknown. This we deem sufficient. In those cases in which the names of third persons cannot be ascertained, they may be thus designated in the usual form, as ‘ persons whose names are to the jurors unknown.’ Thus, an indictment for harboring thieves unknown is sufficient from the necessity of the case, upon the fair presumption that the names cannot be discovered; and in indictments for assault, for felonious homicides, and the like, the person injured or killed may be mentioned as unknown, if such is the fact. 1 Chit. Crim. Law, 211, 212; 2 Hawk. P. C. 231; Com. v. Hitchings, 5 Gray, 482; Blodget v. State, 3 Ind. 403; People v. Adams, 17 Wend. 475; Reed v. State, 16 Ark. 499; Reg. v. Campbell, 1 Car. & K. 82; Reg. v. Stroud, 2 Moody, Cr. Cas. 270. The indictment was not bad for duplicity because it charged that on the 22d day of December, 1888, the accused sold intoxicating liquors to divers persons whose names to the jurors were unknown. For aught that appears upon the record, the offense charged in the indictment may be deemed a single transaction, occurring at the time and place set forth, and a conviction may be had upon proof of sale to one person. Upon the subject of duplicity, WAITE, J., in Barnes v. State, 20 Conn. 232, observed: ‘ No matters, however multifarious, will operate to make a declaration or information double, provided that all taken together constitute but one connected charge, or one transaction.’ A man may accordingly be indicted for the battery of two or more persons in the same count, or for a libel upon two or more persons, when the publication is one single act, or for selling liquor to two or more persons, without rendering the count bad for duplicity. State v. Anderson, 3 Rich. Law, 172; Rex v. Benfield, 2 Burrows, 980, 984; Rex v. Jenour, 7 Mod. 400. In Rex v. Benfield the question was asked: ‘ Cannot the king call a man to account for a breach of the peace because he broke two heads instead of one? How many informations have been for libels upon the king and his ministers?’

But the further objection is raised that the statute upon which the indictment was founded is so defective in its provisions that it cannot be properly executed, and therefore has no validity as a law. The grounds of objection are that the acts does not provide...