Tesca v. State

Decision Date19 June 1923
Docket Number17815
PartiesTesca v. The State Of Ohio.
CourtOhio Supreme Court

Criminal law-Exact date and time of offense immaterial-Section 13581 General Code-Evidence-Proof of time of criminal acts-Unlawful sale of intoxicating liquors.

1. In a criminal charge the exact date and time are Immaterial unless in the nature of the offense exactness of time is essential. It is sufficient to prove the alleged offense at or about the time charged. Gee Section 13581, General Code.

2. It Is the right of the state to prove the alleged criminal acts on or about the time and date formally charged; the defendant, in the presentation of his defense, has at least an equal right to depart from the exact time and date charged by the affidavit, information, or indictment, or the testimony offered in support thereof.

The facts are stated in the opinion.

Mr Phil B. Smythe, for plaintiff in error. Mr. H. C. Ashaft prosecuting attorney; Mr. J.A. White, and Mr. Chas. M Earhart, for the defendant in error.


Affidavit was filed in the probate court of Licking county, charging that Steve Tesca, on or about the 5th day of January, 1922 in the county of Licking, state of Ohio, "did then and there sell and deliver intoxicating liquors to one Tom Boychan," etc. To that affidavit the defendant entered & plea of not guilty. Upon trial of the cause before the probate judge the defendant was found guilty. A motion for new trial Was duly made and overruled, and error Was then prosecuted in the court of common pleas. The court of common pleas affirmed the judgment beloW, and thereupon, upon leave first granted, proceedings in error were filed in the Court of Appeals. Upon hearing had in that court the judgment of the courts below was affirmed, and exception taken. Leave was duly granted in the Supreme Court to file petition in error. The judgment below is now here for review.

The one error claimed in this case relates to certain testimony offered touching the truth of the alleged sale of liquor set forth in the affidavit. The nature of this testimony and the ruling of the court thereon can be probably best understood from the states brief:

"Dyar, Moeller, and Boychan testified positively that this transaction occurred on January 5th. Tesca admits that Boychan Was at his place, but claims that he Was there on the 6th day of January. He says that Boychan asked him for a half pint, but that he told Boychan that he did not have any whisky. The testimony of two other witnesses to the same effect as Tesca's testimony was stricken out."

If such testimony was competent it is obvious that its exclusion was prejudicial error, it appearing that the witness Boychan was in Tesca's place on January 5 or January 6, but on only one of those dates. Surely it was competent for the defense to show a different date for Boychan's presence in the place than the one named by the state. Suppose the shoe were on the other foot, and the date charged in the affidavit wa.s January S, but the state's proof showed that it was January 6, would the same claim on such simple reason be made upon motion of the defense to dismiss the charge because of a failure or variance of proof? It would be idle to make such claim.


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