
    INTOXICATING LIQUORS — EVIDENCE—-CRIMINAL LAW.
    [Lawrence (4th) Circuit Court,
    March 11, 1904.]
    Cherrington, Jones and Walters, JJ.
    
      Leo Ebert Brewing Co. et al. v. State of Ohio.
    1. CORPORATIONS NOT LIABLE CRIMINALLY FOR UNLAWFUL SALE OF INTOXICATING Liquors to Minor.
    In Ohio a corporation cannot he held criminally liable for, in its corporate capacity, unlawfully furnishing to a minor, to be drunk by such minor, intoxicating liquors in violation of Sec. 6943 Rev. Stat.
    2. Proof of Selling not Sufficient to Sustain Charge of .Furnishing.
    Proof of unlawfully selling intoxicating liquor to a minor, etc., in violation of Sec. 4364-21 Rev. Stat. does not sustain a charge of unlawfully furnishing intoxicating liquor to a minor.
    Error to tlie court of common pleas of Lawrence county.
    C. E. Belcher, for plaintiff in error.
    E. E. Corn, prosecuting attorney, for defendant in error:
    A corporation is subject to indictment under the laws of the state of Ohio for the offenses charged. Section 7231 Rev. Stat.; Hughes, Crim. Law Sec. 2738; 1 McLain, Cr. Law Í3ee. 180; 1 Bishop, Cr. Law Sec. 417 et seq.; 3 Greenleaf, Evidence Sec. 9 and note.
    The sections under consideration now do not use the word “person,” but says “whoever makes any such sales” (See. 4364-20 Rev. Stat.), and “whoever sells intoxicating liquors to a minor” (See. 4364-21 Rev. Stat.) ; and whoever furnishes to a minor any intoxicating liquors,” etc. (Sec. 6943 Rev. Stat.) ; and nowhere do the sections use the word “person.” Hence a corporation may be a “whoever,”, as meaning “anyone who.”
    A corporation may be guilty of a crime when the only intention required is an intention to do the prohibited act. United States v. John Kelso Co. 86 Fed. Rep. 304.
    The statute under consideration is a police regulation; it is a means devised by the legislature to preserve good order and public morals. Corporations are subject to the police power of the state the same as individuals. Black, Intox. Li'q. Secs. 28, 32, 84 and 127.
    Joint indictment was valid. 'Section 6804 Rev. Stat.
    Sections 4364-9 and 4364-16 Rev. Stat. do not exempt the manufacturer who sells at his manufactory, in quantities of one gallon or more, from the provisions of the statute relating to a violation of the Sunday laws.
    One section refers to one thing, namely, the Dow tax, and the other section refers to an entirely different thing, namely, the prohibition of the sale of liquors for one day in seven, upon penalty of the punishment prescribed therein in ease of a violation.
    Section 4364-9 Rev. Stat. does no more than to exempt the corporation indicted in this case from the payment of the Dow tax, if the sales consist of one gallon or more.
    All the decisions under this section relate to the question of taxation and to no other question. Senior v. Ratterman, 44 Ohio St. 661, 670 [11 N. E. Rep. 321].
    Section 4364-20 Rev. Stat. refers to an entirely different question; it not only says who shall be punished in case of a violation, and what acts shall be prohibited and what places shall be closed, but by express terms names all the exceptions and exemptions from the operation of the act.
    The brewing company is engaged in selling its product both to dealers and consumers; the sales referred to in the indictments were made to consumers, and under Kaufmann v. Hillsboro (Vil.), 45 Ohio St. 700, 701 [17 N. E. Rep. 557], would be a sale at retail.
    The construction contended for by plaintiffs in error would give a corporation a privilege denied to a natural person. Such an intention should not be imputed to the legislature unless its language will admit of no other interpretation. Senior v. Ratterman, 44 Ohio St. 661, Q77 [11 N. E. Rep. 321],
    
      
       Reversing State v. Brewing Co. 13 Dec. 139,.
    
   CHERRINGTON, J.

At the October term, 1903, of the common pleas court, this county, the defendants, plaintiffs in error here, were indicted jointly for violating Sec. 4364-21 and 6943 Rev. Stat.

The indictment contained two counts, the first charging them witn unlawfully selling intoxicating liquor to one Yint Lynd, a minor, knowing him to be such, etc.; the second, with unlawfully furnishing intoxicating liquor to Vint Lynd, a minor.

Each of the defendants filed a demurrer to the indictment for general cause, both of which were overruled by the court, whereupon the case went to trial by the court, a jury having been waived, resulting in a finding and judgment of acquittal as to both defendants on the first count and a finding and judgment of guilty on the second.

This proceeding in error is here asking for a reversal of the finding and judgment on the second count, assigning as errors the overruling of the demurrers to the indictment and that the finding of guilty on the second count was against the manifest weight of the evidence.

The first assignment presents a very important question and one upon which this cc*Srt has not before been called to decide, viz., as to whether in Ohio a corporation can be held criminally liable for the unlawful sale of intoxicating liquors in its corporate capacity.

The prosecuting attorney insisting upon the liability of the brewing company, presents an array of authorities among which are Hughes, Cr. Law Sec. 2738; 1 McClain, Cr. Law Sec. 417 et seq.; 1 Bishop, Cr. Law Sec. 417 et seq.; 3 Greenleaf, Evidence Sec. 9 and note; United States v. Kelso Co. 86 Fed. Rep. 304, which seem to establish the principle that where a corporation in the transaction of its ordinary business performs an act which if done by a natural person would make such person guilty of a misdemeanor, it is likewise liable, and I think I may say with confidence that if there be an answer to this principle and the authorities cited, it is simply and only in the fact that there is no statute in Ohio making a corporation so liable.

“'Whoever” and “person” are the words almost, if not invariably employed in our statutes to designate the one on whom a penalty is imposed for their violation; they are synonymous in meaning and refer to natural persons, and where an artificial person is intended it is so designated in the statute, an example of which is found in See. 6949 Rev. Stat., under the head of “Nuisances” in which and following sections corporations are made expressly indictable. ■ Section 7231 Rev. ■ Stat., provides a mode of procedure against a corporation when indicted, ■ meaning undoubtedly where properly indicted. To say that corporations should be held criminally liable for violation of statutes in the conduct of their usual business as are natural persons would probably be argument in favor of what might be good policy, but certainly not as to the state of the law. Corporations act through their agents who are amenable to the law for its violation just as Otto Ebert in this case who is secretary of the brewing company as disclosed by the record.

State v. Fertilizer Co. 24 Ohio St. 611, 614, I think decisive of the question. The fertilizer company was indicted for erecting and keeping up. a nuisance in Cincinnati. The common pleas sustained a demurrer. to the petition. On final disposition in the Supreme Court Judge Welch says:

“We think the court below was right. Criminal laws are to be construed strictly in favor of the accused. In its primary sense, the word ‘person’ means a natural person only. I know of no criminal statute in Ohio where the word has been held to apply to a corporation; nor do I know of any case where an attempt has before been made in this state to indict a corporation. We have no common law crimes in Ohio, and the whole • theory and machinery of our administration of criminal law seem adapted only to the prosecution and punishment of natural persons. There is no provision of law for bringing an indicted party into court by summons, or otherwise than by actual arrest of his person; under such a state of legislation and practice, the legislature could not have intended, in the use of the word ‘person’ which is found in almost every criminal law of the state, to authorize an indictment against a corporation for this particular offense, without any special or further provision as to the liability of corporations, or the mode of proceeding against them.”

We are constrained to hold that the brewing company is not liable to indictment for the violation of the sections of the statute involved, and the court erred in not sustaining its demurrer to the indictment, but did not err in overruling demurrer of Otto Ebert.

Is the finding of the court on the second count against the manifest weight of the evidence, which is indisputable and all one way and shows a straight out sale for cash! The penalty for selling is both fine and imprisonment, while the penalty for furnishing is fine or imprisonment, or both, thus seeming to recognize different grades of offense.. We think that furnishing in the section under consideration, means any mode of providing the minor with the liquor other than by sale. The proof does not support the allegations of the second count. The judgment will be reversed. The brewing copipany will be discharged and the same remanded as to Otto Ebert, to be proceeded with according to law.  