
    CRIMINAL FRAUD IN SALE OF WOOL.
    [Guernsey (7th) Circuit Court,
    April Term, 1902.]
    Burrows, Laubie and Cook, JJ.
    John Hogue v. State of Ohio.
    1. Requisites op an Indictment for Fraudulent Sale op Wool.
    An indictment under Sec. 7069-3, Rev. Stat., to prevent fraud in the sale of wool, must state that the wool was washed wool; it must describe the objectionable substances complained of contained in the wool, and aver that the fleece or fleeces were so arranged as to be calculated to defraud the purchaser.
    2. Effect op Plea op Guilty to anTnsufficient Indictment.
    A plea of guilty to an indictment which does not contain facts sufficient to constitute a crime, and the payment of the fine and costs adjudged by the court upon such plea, will not prevent a prosecution in error by the accused to have such judgment reversed.
    Bowers & Buchanan and Fred L. Rosemond, for Hogue,
    cited.
    The statute leaves something yet to the care of the purchaser. He is not to have the power to subject his neighbor to a fine, or imprisonment if he has seen fit to buy with his eyes shut. Lamberton v. State, 11 Ohio, 282; Poage v. State, 3 Ohio St. 229, 234; 3 Ohio Comp. Dig. Col. 740.
    The record of a conviction for crime must show that the defendant was arraigned on the indictment. Hanson v. State (4th Syl.), 43 Ohio St. 376; 3 Ohio Complete Digest, Tit. Arraignment.
    
      But it is not contemplated by this section, nor by Secs. 7260-1 that the accused may either appear only by attorney to plead, or that, he being present, his attorney may plead guilty for him.
    Nor at common law was this permissible except in misdemeanors partaking “of the nature of civil process.” 3 Wharton’s Crim. Daw, Secs. 2992-3; see also Ibid, Sec. 3155, last paragraph; Parkinson v, People (Ill.), 10 P. R. A. 91 and note.
    
    likewise the accused must be present in court when sentence is passed. Ibid, Sec. 3364.
    Both the arraignment and the plea having been made by attorney, the plea could be no waiver of the arraignment, even were it capable of .waiver. The recital of “ defendant having nothing to say why the judgment of the court shall not be pronounced ” is immaterial, because this has no place except in case of a verdict of guilty. Section 7318, Rev. Stat.; Carper v. State, 27 Ohio St. 572; State v. Hoyt, 36 Am. Rep. 89.
    There is no limitation within which a proceeding in error in a criminal case shall be commenced. Nickel v. State, 6 C. C. 601; 3 O. C. D. 605.
    Neither does a plea of guilty cure an indictment which charges no offense. See Davis v. State, 19 Ohio St. 270.
    A. L. Stevens, prosecuting attorney, contra.
   COOK, J.

John Hogue was indicted for the fraudulent sale of wool. His attorney waived arraignment and entered a plea of guilty for himhe being present in court at the time. He was adjudged to pay a fine and the costs of suit and now prosecutes this proceeding in error to reverse the judgment of the common pleas court.

The indictment was found under Sec. 7069-3, Rev. Stat. This section provides : “ That it shall be unlawful for any person or persons to sell any wool washed on sheep’s back or otherwise containing any unwashed tag-locks or any unwashed wool of any kind, or black wool or part of buck fleeces, or other substance foreign to the fleece or fleeces, which is calculated and intended to defraud the purchaser thereof.”

• The charging part of the indictment sets forth, “ That John Hogue, late of said, county, on June 14, 1901, unlawfully sold wool containing unwashed wool and parts of buck’s fleeces and other substances foreign to the fleeces of said wool to one John Davidson with intent then and there, and thereby him, the said John Davidson, to defraud.”

The selling of unwashed wool as unwashed wool, would certainly be no offense; .and the same might be said of the sale of fleeces of black wool or parts of buck’s fleeces. The intent of the legislature was to provide that a party should not fraudulently wrap up in a fleece of wool sold as washed wool, and supposed to be cleansed from all worthless or inferior substances, the very substances from which it is expected to be free.

This indictment is again defective for the reason that it does not plead the important fact that the wool so sold was put up in a manner calculated to defraud the purchaser.' The indictment does aver that the wool was sold with the intent to defraud, but that is not enough; it must not only be sold with the intent to defraud but it must be put up in such a manner that the fleece or fleeces, containing these inferior qualities and worthless substances, would be calculated to defraud the purchaser. However much a fraud was intended, il the sale was not made in a manner calculated to defraud, no crime was committed. As suggested by counsel, if the unwashed wool, tag-locks or parts ot buck’s fleeces were wrapped upon the outside of the fleece or fleeces and the washed wool was within, no one would be deceived and no offense committed. The gravamen of the offense is in the wrapping up of the fleece or fleeces in a manner calculated to defraud. The indictment is wholly silent in this important particular.

Again the indictment charged the accused with selling wool “ containing unwashed wool and parts of buck’s fleeces and other substances foreign to the fleeces of said wool.” What other substances foreign to the fleeces? The indictment should be definite and certain. The accused had a right to be informed as to the character of the substances alleged to be secretly placed among the wool sold. It is not always good pleading to make the averment in the language of the statute. If the language of the statute is of such a character as to inform the accused fully and distinctly of the facts, upon which the state relies, then it is sufficient; if it is not, then it is insufficient. Sutcliffe v. State, 18 Ohio 469 [51 Am. Dec. 459] ; Sharp v. State, 19 Ohio 379; Lougee v. State, 11 Ohio, 68, 69 ; Damberton v. State, 11 Ohio, 282 ; Poage v. State, 8 Ohio St. 229; Dillingham v. State, 5 Ohio St. 280.

This language is not surplusage. The accused might be convicted of placing unwashed wool, parts of buck fleeces or “ other substances foreign to the fleeces of said wool.” Proof of placing any one of the objectionable substances in the fleeces would be sufficient to sustain the indictment if properly pleaded. The indictment is insufficient in all. three of the particulars referred to.

The next question is, what is the legal effect of the plea of guilty by the counsel of the accused and the payment of the fine and costs. If the accused had been convicted by a jury the verdict would have been of no avail although the accused had submitted voluntarily to a trial without interposing any objection to the indictment. A motion in arrest of judgment must have been sustained; and, even if no motion in arrest of judgment had been made, advantage could be taken of the defect in the indictment upon a petition in error.

We think a motion in arrest of judgment must have been sustained after the plea of guilty. The indictment being wholly insufficient there was nothing to base the action upon. The accused did not plead guilty to any crime, but to an indictment that charged no crime. He could not plead the judgment in bar of another prosecution and perhaps might have been released from imprisonment by a writ of habeas corpus had he been imprisoned for failure to pay the fine and costs. The fact of the accused paying the fine and costs could not validate the judgment. Such payment would of necessity be involuntary as made under duress to prevent imprisonment.

In 17 Am. and Eng. Enc. Daw (2 ed.) 588, under the head of “Jeopardy,” it is said: “ So where the indictment or information is so defective in form or substance that it will not support a valid judgment, it cannot form the basis of proceedings which will put the defendant in jeopardy, and bar another prosecution.” A large number of authorities are cited to sustain the text.

In Davis v. State, 19 Ohio St. 270, the defendants were indicted for violating the law against gaming. The indictment contained two counts —one for keeping a room to be occupied -for gambling, etc.; and the second for keeping and exhibiting gaming devices, etc. The accused pleaded not guilty to the first count and guilty to the second count of the indictment and judgment was entered upon the plea of guilty. Thereupon the court entered a nolle prosequi to the first count of the indictment. Upon petition in error filed in the Supreme Court, the error assigned was the insufficiency of the indictment. The Supreme Court held the indictment insufficient to charge a crime, reversed the judgment and discharged the accused. The question as to the effect of the plea of guilty, was not raised or decided; it being assumed no doubt that it had no different effect than that of the verdict of a jury.

The conclusion to which we have come makes it unnecessary to consider the question as to whether or not an attorney has authority to enter a plea of guilty to an indictment with the consent of the accused.

The judgment of the common pleas court is reversed at the cost of the state and the plaintiff in error is discharged.  