Weaver v. State

• Decision Date: 06 March 1906
• Docket Number: 8970
• Citation: 77 N.E. 273,74 Ohio St. 53
• Parties: Weaver v. The State Of Ohio.
• Court: Ohio Supreme Court

77 N.E. 273

74 Ohio St. 53

Weaver v. The State Of Ohio.

No. 8970

Supreme Court of Ohio

March 6, 1906

Keeping place where intoxicating liquors are sold - Sections 4364-20b and 6942, Revised Statutes - Charges under separate sections for one offense - Error to inflict punishment under two sections, when - Liquor laws.

1. Where the first count of an indictment charges the defendant with keeping a place where intoxicating liquors are "kept for sale, given away, or furnished for beverage purposes," in violation of section 4364-20b, Revised Statutes, and the second count charges him with keeping a place where intoxicating liquors are sold in violation of section 6942, Revised Statutes, each count covering the same period of time, and the evidence at the trial establishes the fact that during all such period, the defendant was the keeper of but one place where intoxicating liquors were sold there is but one offense, and it is error for the court, on a verdict of guilty under each count, to inflict the penalties prescribed by each of said sections.

2. Where on conviction of keeping a place where intoxicating liquors are sold in violation of section 6942, Revised Statutes, the court orders the place to be shut up and abated as a common nuisance, the keeper of such place is entitled under said section to the privilege of giving the bond provided for therein, for the purpose of avoiding the enforcement of the order of abatement.

At the May term of the court of common pleas of Knox county, held in 1903, the grand jury of that county indicted the plaintiff in error on two counts, which are:

"The jurors of the grand jury of the state of Ohio, within and for the body of the county of Knox, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Knox, in the name and by the authority of the state of Ohio, on their oaths find and present, that William B Weaver, late of said county, from the tenth day of April, in the year of our Lord one thousand, nine hundred and three until the eleventh day of May, one thousand, nine hundred and three, at the county of Knox aforesaid, in the municipal corporation of Mt. Vernon, in said county of Knox and state of Ohio; not being then and there a regular druggist, and not being then and there a manufacturer of intoxicating liquors from the raw material, did unlawfully keep a place where intoxicating liquors were then and there sold as a beverage which said keeping of said place for the purpose as aforesaid was then and there prohibited and unlawful, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.

Second Count. And the jurors of the grand jury aforesaid, on their oaths aforesaid, and charged to inquire of crimes and offenses committed within said county of Knox as aforesaid, in the name and by the authority of the state of Ohio, on their said oaths do further find and present that William B. Weaver, late of said county, on the tenth day of April, in the year of our Lord, one thousand, nine hundred and three, and from that day until the commencement of the proceedings herein, to-wit: on the eleventh day of May, one thousand, nine hundred and three, at the said county of Knox in the state of Ohio, and in the municipal corporation of Mt. Vernon was and has been unlawfully the keeper of a place located at South Main street in said municipal corporation of Mt. Vernon in said county of Knox and state of Ohio, where intoxicating liquors were and have been then and there sold by the said William B. Weaver in violation of the acts of the general assembly of the state of Ohio, in reference to the sale of intoxicating liquors in the state of Ohio, to the common nuisance of the citizens and people of the state of Ohio, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

"COLUMBUS EWALT,

"Prosecuting Attorney, Knox County, Ohio."

To this indictment the accused on being arraigned plead not guilty. The case came on to be tried at the same term of the court.

As a part of the case to be made for the state, the minutes of the council of the city of Mt. Vernon under date of March 11, 1903, purporting to be the record of the proceedings relating to a canvass of the poll-books and tally-sheets of a special election held in said city on the tenth day of March, 1903, under what is commonly called the Beal local option law, were offered in evidence. The record was admitted and the defendant excepted. Objections were made to other evidence offered and introduced by the state, and exceptions were saved.

After the close of the evidence, the case was argued by counsel, and thereupon the court charged the jury, who found the defendant "guilty as he stands charged in each count in the indictment."

A motion for new trial was overruled and the court pronounced the following sentence: "It is therefore considered and adjudged by the court on the first count in said indictment, that the said defendant, William Weaver, pay the fine of two hundred dollars and the costs of this prosecution, and that he stand committed to the workhouse of the city of Columbus, Ohio, until the amount of said fine and costs shall be paid or secured to be paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or otherwise legally discharged."

"And on the second count in said indictment it is considered and adjudged by the court, that the said defendant, William B. Weaver, be imprisoned in the workhouse of the city of Columbus, Ohio, and kept at hard labor for the term of thirty days, that he pay a fine of one hundred dollars and the costs of this prosecution and stand committed to said workhouse until said fine and costs are paid or secured to be paid, or until he be discharged therefrom by allowing a credit of sixty cents per day on such fine and costs for each day of confinement in such workhouse, or be otherwise legally discharged."

"And it is further considered, adjudged and found by the court that the place where such intoxicating liquors were sold by defendant in violation of the laws of Ohio, is a common nuisance, and it is hereby decreed and ordered by the court that the defendant shut up and abate the same."

The defendant excepted to the judgment rendered, prepared and had allowed a bill of exceptions containing the evidence and proceedings on the trial, and filed the same with a petition in error in the circuit court. That court affirmed the judgment of the court of common pleas, and error is prosecuted in this court to reverse both judgments.

Mr. William M. Koons, for plaintiff in error, cited and commented upon the following authorities:

Webb v. State, 29 Ohio St. 351; Coble v. State, 31 Ohio St. 100; Endlich on Interpretation of Statutes, secs. 77, 80, 126, 128, 183, 241, 264, 341, 324 and 526; 1 Best's Principles of Evidence, sec. 12, p. 205; Pelham v. Steamboat Messenger, 16 La. An., 99; Harrison v. Leach, 4 W.Va. 383; Miller & Gibson v. State, 3 Ohio St. 476; Perry County v. Jefferson County, 94 Ill. 214; Harrington v. Trustees, 10 Wend., 547; State v. Pierce, 14 Ind. 302; State v. Horsey, 14 Ind. 185; Cincinnati v. Connor, 55 Ohio St. 82; Moore v. Given, 39 Ohio St. 662; Plank Road Co. v. Cotton, 12 Ohio St. 263; State v. Halliday, 63 Ohio St. 165; Kent's Commentaries, 463; United States v. Tynen, 11 Wall., 88; State v. Smith, 44 Tex. 443; Johns v. State, 78 Ind. 332; Beach on Intoxicating Liquors, sec. 116; Aultfather v. State, 4 Ohio St. 467; O'Keefe v. State, 24 Ohio St. 175; Hirn v. State, 1 Ohio St. 20; Pierce v. Board of Education, 8 Dec., 648; 1 N. P., 286; secs. 4364-20a, 4364-20b, 6942 and 7284, Rev. Stat.

Mr. L. C. Stillwell, prosecuting attorney, for defendant in error, submitted no brief.

PRICE J.

In the progress of the trial certain evidence in behalf of the state was objected to as incompetent, and included in this class is the record or minutes of the city council of the city of Mt. Vernon, purporting to show the results of an elec- tion held in said city under the provisions of section 4364-20b and section 4364-20c, Revised Statutes, commonly known as the Beal local option law. The ground of exception seems to be, that the minutes offered to prove the canvass of the votes, tally-sheets and poll-books, do not show when the election was held, and that such date is important in order to determine whether thirty days had elapsed between the election and the time the offense charged in the indictment had been committed.

The canvass was made on the eleventh day of March, 1903, as appears by the record of the same, and after stating the question voted upon, it is said that the vote was taken on the tenth day of March, 1903. An abstract of the vote follows showing the whole number of votes in favor of the sale of intoxicating liquors to have been 877, and the whole number of votes against such sale to have been 1126. There is no uncertainty in the results, and the only defect in the record of the proceeding which counsel points out, is that in the certificate of the mayor and clerk, the year in which the election was held is left blank. The month and day of the month do appear therein, and in the first part of the record of the canvass, the following statement is found: "March 11, 1903. This day the city clerk called to his assistance O. Poppleton, mayor of the city of Mt. Vernon, Ohio, and they proceeded to open, examine and canvass the poll-books and tally-sheets of a special election held in said city on the tenth day of March, 1903, under a law known as the Beal law, etc.

Taking the entire record of the canvass and the...