Huffrichter v. State

• Citation: 102 Ohio St. 65,130 N.E. 157
• Decision Date: 15 February 1921
• Docket Number: 16730
• Parties: Hoffrichter v. The State Of Ohio.
• Court: United States State Supreme Court of Ohio

130 N.E. 157

102 Ohio St. 65

Hoffrichter v. The State Of Ohio.

No. 16730

Supreme Court of Ohio

February 15, 1921

Criminal law - Intoxicating liquors - Keeping a place "in violation of law" - Section 13195, General Code - Legislation by constitutional amendment - Right of trial by jury.

1. The sovereign people have the inherent right under our form of government to declare, by their constitution, any act or acts unlawful.

2. Such act, so declared by the constitution to he unlawful, or prohibited, is included within the language "in violation of law," as found in Section 13195, General Code.

The facts are stated in the opinion.

Messrs Nolan & Paisley, for plaintiff in error.

Mr. Roy R. Carpenter, prosecuting attorney; Mr. J. A. White and Mr Charles M. Earhart, for defendant in error.

WANAMAKER J.The plaintiff in error, Abe Hoffrichter, was found guilty by the mayor of the village of New Alexandria, Jefferson county, Ohio, of keeping a place where intoxicating liquors were sold, furnished, or given away in violation of law pursuant to Section 13195, General Code.

The judgment of the mayor was affirmed by the court of common pleas of Jefferson county, which judgment was in turn affirmed by the court of appeals of Jefferson county. Section 13195 reads as follows:

"Whoever keeps a place where intoxicating liquors are sold, furnished or given away in violation of law, shall be fined not less than one hundred dollars nor more than five hundred dollars and, for each subsequent offense shall be fined not less than two hundred dollars nor more than five hundred dollars. The court, on conviction for a second or subsequent offense, shall order the place where such liquor is sold, furnished or given away in violation of law, to be abated as a nuisance, or shall order the person convicted for such offense to give bond payable to the state of Ohio in the sum of one thousand dollars, with sureties to the acceptance of the court, that such person will not sell, furnish or give away intoxicating liquor in violation of law, and will pay all fines, costs and damages assessed against him for violation of laws relating to the sale of intoxicating liquors. The giving away of intoxicating liquors, or other shift or device to evade the provisions of this section, shall be unlawful selling."

Two questions are raised under this section of the statute. The first is the right of trial by jury. It is conceded that this was the first offense of plaintiff in error and that such first offense does not provide for imprisonment, but only for a fine; and that only a fine was imposed in this case.

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. Inwood v. State, 42 Ohio St. 186; State, ex rel. Smith, v. Smith, 69 Ohio St. 196, and State v. Borham, 72 Ohio St. 358.

The other question is more novel, and is therefore given fundamental consideration. In brief, it is this: Does the language "in violation of law," as used in Section 13195, include a constitutional law, or must there be a special statute other than Section 13195 on which to...