State v. Seta

• Decision Date: 03 September 1968
• Parties: , 45 O.O.2d 270 The STATE of Ohio, Appellant, v. SETA, Appellee.
• Court: Ohio Court of Appeals

Page 97

16 Ohio App.2d 97

242 N.E.2d 349, 45 O.O.2d 270

The STATE of Ohio, Appellant, v. SETA, Appellee.

Court of Appeals of Ohio, First District, Hamilton County.

Sept. 3, 1968.

Syllabus by the Court

1. A motion to dismiss an affidavit is the equivalent of a motion to quash, a plea in abatement or a demurrer and comes within the exception reserved by City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790.

2. A person who is not the holder of a valid Ohio 'H' liquor permit and who purchases intoxicating liquor in another state and thereafter transports such liquor within Ohio for delivery therein violates the prohibition of Section 4301.60, Revised Code, against the illegal transportation of liquors.

William A. McClain, Ralph E. Cors and Simon L. Leis, Jr., Cincinnati, for appellant.

Eugene, J. Stagnaro, Jr., Cincinnati, for appellee.

SHANNON, Judge.

This is an appeal on questions of law from the Hamilton County Municipal Court following the granting of defendant's oral motion to dismiss the charge set forth in the affidavit.

We hold that the solicitor is permitted to maintain this proceeding to review that judgment under authority of City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790, paragraph four of the syllabus:

'Sections 2945.67 to 2945.70, inclusive, Revised Code, are unconstitutional insofar as they permit the prosecutor in a criminal case to institute proceedings to review a judgment of the trial court, except where the judgment of such court decides 'a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' or the equivalent thereof.'

In the case at bar, defendant's motion was filed pursuant to Section 2937.04 of the Revised Code, which provides, in part:

'* * * accused * * * may then raise, by motion to dismiss the affidavit or complaint, any exception thereto which could be asserted against an indictment or information by motion to quash, plea in abatement, or demurrer. * * *'

We find the motion to dismiss the affidavit to be the equivalent of a motion to quash, a plea in abatement or a demurrer and comes within the exception reserved by City of Euclid v. Heaton, supra.

The essential facts are undisputed. On November 16, 1967, three Ohio state liquor control agents observed defendant drive to a liquor store in Newport, Kentucky, enter therein and thereafter have placed in the trunk of his car ten cases of whiskey.

Defendant drove from Kentucky into Ohio, followed by the agents, and parked his vehicle. Cincinnati police summoned by the liquor agents placed defendant under arrest for illegal transportation of liquor, and, in response to a request, defendant voluntarily opened the trunk of his car and the whiskey was found therein.

Subsequently, the affidavit was filed alleging a violation of Section 4301.60, Revised Code, to wit:

'George O'Reilley, being first duly cautioned and sworn, deposeth and says that one Alfred Seta, not being the holder of an 'H' permit issued by the department of liquor control on or about the 16th day of November, A.D.1967 at and in the city of Cincinnati, county of Hamilton and state of Ohio, did unlawfully transport intoxicating liquor contrary to and in violation of Section 4301.60 of the Revised Code and against the peace and dignity of the state of Ohio.'

Without entering a plea to the charge, defendant moved for dismissal on two grounds: first, that Section 4301.60 and Section 4303.25 conflict and that he should have been charged under Section 4303.25; and, secondly, that the search of his car was unlawful. Because of the ruling below that defendant was neither a common carrier nor a contract carrier for hire and that only a member of such class or classes can be charged with a violation of Section 4301.60, it is not necessary to consider defendant's claim of unlawful search and seizure.

It is defendant's contention that he was importing liquor rather than transporting it. He urges that the act of bringing alcohol from a point outside Ohio is an act of importing under Section 4603.25 and not transporting as prohibited under Section 4301.60, Revised Code.

Section 4303.25 states:

'No person by himself or by his clerk, agent, or employee shall manufacture, manufacture for sale, offer, keep, or possess for sale, furnish or sell, or solicit...