
    ELYRIA v. LAEMONOUCA ELYRIA v. HALLI
    Ohio Court of Appeals, Lorain County
    Nos. 225 and 226.
    Feb. 16, 1923
    This opinion has not been published except in Abstract.
    AFFIDAVIT FOR ARREST — (1) Essentials where a charge is one with selling, intoxicating liquors— (2) Accused may be convicted under the good part of affidavit, although remainder is defective — (3) Effect of failure to object to affidavit charging two crimes in same count.
    Attorneys — Baird, for cty of Elyria; Harding, for Leamonouca, and Wilford, for Halli.
   PARDEE, J.

Epitomized Opinion

These cases, while they have no relation to-each other, were considered and decided together in the-Court of Appeals, because the principal point in each is the same! Both Laemonouca.and Halli were arrested for. violating an ordinance of the city .of Elyria passed to prevent the possession and salé of intoxicating liquors. The affidavit upon which' the defendants were tried provided “did unlawfully possess and have in his possession for' sale and did sell to persons then and there being,” etc. Th.e defendants contended in the mayor’s court that .the affidavits were defective in that they did not state the name of the purchaser or that his name was unknown. Both were dully tried and found guilty and they each then prosecuted error to the'.Court of Common Pleas where -the judgment of the trial court was reversed. The city then prosecuted error. In sustaining the trial court and overruling the Court of Common Pleas, the Court of Appeals held:

1. An affidavit charging one for selling intoxicating liquors is defective if it does not set forth the name of the person to whom the liquor was sold or allege that his name was unknown. '

2. Where the same affidavit also charges the defendants with possessing intoxicating liquors, the defendants may be convicted under that portion of the affidavit although the> rest is defective.

3. Where the same affidavit charges two crimes, namely, one for the unlawful possession of liquor and one for the sale of liquor, the affidavit should contain two counts, but unless objection is raised by the defendant at the time of trial, the defendant waives his right to later complain that the affidavit is defective in not setting forth the offenses in separate counts'.  