Tesca v. State

• Decision Date: 19 June 1923
• Docket Number: No. 17815.,17815.
• Parties: TESCA v. STATE.
• Court: Ohio Supreme Court

108 Ohio St. 287
140 N.E. 629

TESCA
v.
STATE.

No. 17815.

Supreme Court of Ohio.

June 19, 1923.

Error to Court of Appeals, Licking County.

Steve Tesca was convicted of selling intoxicating liquors. The conviction was affirmed by the Court of Appeals, and defendant brings error. Reversed.-[By Editorial Staff.]

Syllabus by the Court

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. See Section 13581, General Code.

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.

[Ohio St. 287]Phil B. Smythe, of Newark, for plaintiff in error.

H. C. Ashcraft, Pros. Atty., of Newark, and J. A. White and Chas. M. Earhart, both of Columbus, for the State.

[Ohio St. 288]WANAMAKER, J.

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 a 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

[140 N.E. 630]

probably best understood from the state's 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...