State v. Fremont Lodge of Loyal Order of Moose

• Decision Date: 16 February 1949
• Docket Number: 31499.
• Parties: STATE v. FREMONT LODGE OF LOYAL ORDER OF MOOSE.
• Court: Ohio Supreme Court

84 N.E.2d 498

151 Ohio St. 19

STATE v. FREMONT LODGE OF LOYAL ORDER OF MOOSE.

No. 31499.

Supreme Court of Ohio

February 16, 1949

Syllabus by the Court.

1. The criminal law of Ohio is statutory.

2. Penal statutes are strictly construed. Where a statute defining an offense designates one class of persons as subject to its penalty, all other persons are deemed to be exempted therefrom. (State v. Associates Investment Co., 136 Ohio St. 456, 26 N.E.2d 457, 129 A.L.R. 1074 approved and followed.)

3. There is no provision in the criminal laws of this state for the prosecution of on unincorporated voluntary group or association as an entity.

4. An unincorporated group or association does not come within the definition of 'whoever' in Section 13067, General Code, or Section 12371, General Code.

5. An information which charges an unincorporated group or association with an offense is demurrable.

6. The purpose of Section 13437-8, General Code, is the identification of a corporation or any group or association of persons not incorporated and does not authorize a prosecution of any kind.

7. Where a defendant files a motion to quash in which objection is made not only to the court's jurisdiction over his person but to the merits of the case, his entry of appearance is thereby accomplished.

8. The object of a warrant is to bring the party before the court and if he voluntarily comes and files a motion or plea objecting to the jurisdiction of the court over his person and also challenging the merits of the prosecution, he thereby enters his appearance.

9. Section 13067, General Code, is not in pari materia with Sections 13063 and 13064, General Code, or either of them. The rule in pari materia is applicable only when the terms of the statute to be construed are ambiguous or its significance is doubtful. It is not to be applied to effect a construction contrary to the clearly manifested intent of the legislature.

10. The amendment by implication of a criminal statute is not favored.

Appeal from Court of Appeals, Sandusky County.

The Sandusky county prosecuting attorney filed an information against the Fremont Lodge of the Loyal Order of Moose 'consisting of John Horn and W. C. Young et al. as members.' The information charged that such lodge and members did 'unlawfully give publicity to a certain scheme of chance by then and there erecting an advertising sign on the premises * * * which said sign published the fact that a scheme of chance would take place on Thanksgiving night, November 27, 1947, and contained a statement of the time when and the place where said scheme of chance would be drawn and the prize therein, the price of the tickets thereof and the place where the tickets to the same might be obtained and which said published sign then and there so made contained among other things the words and figures following:

"The 4-door sedan given away November 27th by this lodge Thanksgiving day. Get your tickets here $1. You're invited to dance in our ballroom and witness the drawing at 10 p. m. Admission free."

The information was brought under Section 13067, General Code, quoted below.

The defendant lodge is an unincorporated association.

Purported service was had upon 'W. C. Young, secretary of Lodge L. O. O. M. No. 1286.' Appellant's motion to quash was overruled as was its plea in abatement and a demurrer to the information. The record shows 'defendant arraigned and waived reading of indictment in open court and elected not to make any plea to said indictments. Plea of 'not guilty' entered by court on defendant's behalf and trial date fixed for February 5, 1948 at 9:30 a. m.'

At the trial it was stipulated that the facts stated in the information were true. There was no other evidence. The attorney for defendant moved the court for a directed verdict of not guilty on the ground that the evidence did not disclose the commission of any crime. This motion was overruled.

The court found 'the defendant' guilty and assessed a fine of $500 and costs.

Throughout the record the only defendant considered was the lodge. Motions in arrest of judgment and for new trial were overruled.

Upon appeal to the Court of Appeals the judgment of the trial court was affirmed. The case is here following the allowance of a motion to certify the record.

Leo W. Kenny, of Fremont, for appellant.

Alexander L. Hyzer, Pros. Atty., of Fremont, for appellee.

TURNER Judge.

The decision in this case rests upon whether under the criminal laws of this state appellant may be treated as an entity.

If appellant is an entity then its appearance was entered by its motion to quash in which not only the jurisdiction of the court over the person was challenged but the merits of the case were also challenged. It is elementary that where one comes into court for the purpose of objecting to jurisdiction of his person the motion or pleading must be strictly limited to the question of jurisdiction.

Attention is called to the first paragraph of the syllabus in the cases reported under Rogers v. State, 87 Ohio St. 308, 101 N.E. 143, as follows: 'Jurisdiction of the subject-matter is always fixed and determined by law, while jurisdiction of the person may be fixed and determined by consent of parties, failure to timely and properly object, and the like.'

If appellant is to be treated as an entity then the various rulings were correct. The only question which does not involve the status of appellant is the claim by appellant that Section 13067, General Code, is limited or amended by Sections 13063 and 13064, General Code, on the ground that Section 13067, General Code, is in pari materia with the former sections.

We have no common-law offenses in Ohio, our criminal law being statutory. However, if the common law of crimes and offenses were applicable in Ohio it is clear that a voluntary association could not be prosecuted as an entity. A search of the criminal laws of this state fails to disclose that any provision has been made for treating a voluntary unincorporated association as an entity except for the purpose of identification. We are not here dealing with any action under the civil code and, therefore, such Sections as 9462, 10060 and 10061-1, General Code, are inapplicable. Inapplicable also is the decision of the United States Circuit Court of Appeals for the Sixth Circuit in the case of Scanlon v. Duffield, 103 F.2d 572, where it was held in substance in a civil case that a subordinate council of a non-profit fraternal corporation operating under a lodge system is a legal entity separate from its members and they are not personally liably on its debenture bonds.

In the case of Koogler et al., Trustees v. Koogler, 127 Ohio St. 57, 186 N.E. 725, it was held:

'1. An unincorporated subordinate lodge of the Independent Order of Odd Fellows is a voluntary association, and its members are engaged in a joint enterprise.

'2. One who is a member of such lodge in good standing at the time of injury cannot recover damages from the lodge for personal injury, as there is no liability.'

It has been urged that Section 13437-8, General Code, has the effect of giving appellant the status of an entity. This section provides: 'In any indictment or information it is sufficient for the purpose of identifying any group or association of persons, not incorporated, to state the proper name of such group or association (if such there be), to state any name or designation by which the group or association has been or is known, to state the names of all persons in such group or association or of one or more of them, or to state the name or names of one or more persons in such group or association referring to the other or others an 'another', or 'others.' It is sufficient for the purpose of identifying a corporation to state the corporate name of such corporation, or any name or designation by which such corporation has been or is known.'

This section falls far short of providing that such unincorporated group or association may be prosecuted as such under the name or designation by which such group or association has been or is known. The criminal code contains no provision for service on an unincorporated group or association similar to Section 13438-12, General Code, providing for summons on indictments against corporations. The purpose of Section 13437-8, General Code, is clearly stated therein to be the identification of a corporation, a group or association in an indictment or information. With this statute in force it would be necessary only to refer to the property stolen from a corporation or such an association by the name of the corporation or such group or association, as owner. This would greatly shorten the indictment or information and greatly facilitate prosecution.

While there is no provision for service upon a voluntary unincorporated association, that question in this case would become immaterial if there were a provision in the criminal code authorizing the prosecution of such an association as an entity.

As stated in 12 Ohio Jurisprudence, 103, Section 60: 'The object of the warrant is to bring the party before the court, and if he voluntarily comes, and gives bail, and submits to a trial, without the issue or service of a warrant, this is all that is necessary.'

If appellant can be held to be an entity under our criminal law it was properly before the...