State v. Schubert

• Decision Date: 06 January 1947
• Citation: 80 Ohio App. 132,75 N.E.2d 216
• Parties: STATE v. SCHUBERT (two cases).
• Court: Ohio Court of Appeals

75 N.E.2d 216

80 Ohio App. 132

STATE v. SCHUBERT (two cases).

Court of Appeals of Ohio, First District, Hamilton.

January 6, 1947

Benj. P. Pink, of Cincinnati, for appellant.

John D. Ellis, Robert J. Paul, and Harry Meier, all of Cincinnati for appellee.

PER CURIAM.

These appeals upon questions of law from convictions in the Municipal Court of Cincinnati, affirmed by the Common Pleas Court or Hamilton County, raise a number of questions.

(1) It is claimed that the affidavits which were grounded on violations of Section 13059, General Code, did not state offenses thereunder.

It appears from the evidence that a police officer gave the defendant two dollars as a wager upon a certain horse race and two dollars upon another horse race. The theory of the defendant is that although the officer made a wager the defendant merely accepted a wager. This theory cannot be sustained. The defendant made a wager just as fully as the officer. In effect, the officer bet the horse selected by him would win, the defendant that it would not. Although statutes providing for punishment of crime must be strictly construed they are to be given a fair and reasonable construction. Such construction destroys this theory of the defendant.

(2) An ancillary contention to this first theory is, that the proper section upon which to ground the affidavits would be Section 13062, General Code.

State of Ohio v. Pearlman, 136 Ohio St. 36, 23 N.E.2d 499, relied upon by defendant does not preclude a conviction under Section 13059, General Code, when the facts are as shown in the evidence here presented. No rule of law prevents a conviction under one statute merely because the same evidence might sustain a conviction under another statute.

This Court is in accord with the decision of Judges Skeel, Morgan and Doyle, sitting by designation for the First District, in State v. Amman, 78 Ohio App. 10, 68 N.E.2d 816, in which conclusions similar to those here expressed were reached by those Judges.

(3) It is asserted by the defendant that he is entitled to the benefit of a charge of entrapment. This Court has heretofore expressed its conclusions upon such a defense in State v. Foster, (State v. Hansen) 75 N.E.2d 214 on the docket of this Court.

There appears no evidence that the defendant was induced to do anything he would not have done had the person who tendered the money on the wager not been a police officer. In other words, there is no evidence that the defendant was overpersuaded into considering a crime. It is apparent that he violated the law because he was in the habit of doing so, with ordinary persons, and there is direct evidence to this effect.

(4) It is further claimed the Court committed error in permitting certain...