
    QUESTIONS ARISING ON TRIAL UNDER. THE BEAL LAW.
    Common Pleas Court of Clinton County.
    Eli Gilliam v. State of Ohio.
    Decided, October 12, 1908.
    
      Liquor Laws — Appearance of Attorney Other than the Prosecuting Attorney — Representing the State in Prosecution under the Beal Law — Autrefois Acquit — Affidavit—Section 1273 and 9S O. L., 18 (Section 20). .
    
    1. An attorney other than the prosecuting attorney may appear for the prosecution for a violation of the Beal law and may file a reply to a plea in' bar.
    2. An affidavit charging the commission of two or more things in the disjunctive is bad for uncertainty, and the record of the dismissal of a case predicated upon such an affidavit is not a bar to a subsequent prosecution.
    
      Joseph M. Brant, for plaintiff.
    
      Melville Hayes and Eldon L. Hayes, contra.
    
      On the sixth day of September, 1908, an affidavit was filed before EL G. Bates, mayor of Blanchester, Clinton county, Ohio, charging among other things that the defendant “did on the 13th day of June, 1908, at the village of Blanchester, unlawfully furnish, sell or give away intoxicating liquor to be used as a beverage, to one G. R. Smith,” and that the same “was then and there prohibited and unlawful,” etc. Upon this-affidavit the defendant was arrested and, upon being arraigned, plead not guilty and ease set for trial September 9, at which time the following entry was- made by the mayor: “On application of attorneys for the prosecution, this ease is dismissed without prejudice and the defendant released.” The same day another affidavit was filed against the defendant charging'him with the commission of a crime in .the same language as in the original affidavit, except the acts charged.to have been committed were charged in the conjunctive instead of the disjunctive. .
    To this second affidavit the defendant interposed his plea in bar pleading the former discharge in bar of a prosecution on the second affidavit; to this plea a reply was filed, under oath, by Melville ITayes, as counsel for the state, controverting the facts set up in said plea in bar; then defendant moved to strike this plea in bar from the files for the reason that Mr. Hayes was not the prosecuting attorney of Clinton county, Ohio. Mr. Hayes admitted -that he was not the prosecuting attorney of said county, nor of any other county, but was employed by the village of Blanchester to appear for the State of Ohio in the prosecution of this ease. Thereupon the court overruled said motion and the defendant excepted.
    Thereupon the case came on for hearing on the issue arising on said plea in bar and the reply thereto, and the defendant offered in evidence a transcript of the former case, which, upon abjection by the State, was ruled -out, to which the defendant excepted. The plea in bar was determined adversely to the defendant. A trial was had resulting in the conviction of the defendant.
   West, J.

This catase comes before this coaart upon an application of the defendant for leave to file a petition in error. The first ground of error assigned is .the refusal of the court to strike from the files, the reply filed to the defendant’s plea in bar on the ground that such reply can only be filed by the prosecuting attorney o'f the proper county.

The general duties of a prosecuting attorney as prescribed by Section 1273, Revised Statutes, provides:

“The prosecuting attorney shall prosecute on behalf of the State, all complaints, suits and controversies in which the State is a party, and saach suits, matters and controversies as he is directed by law to prosecute within the county, in the probate court, cdmrnon pleas1 coaart and circuit coaart.”

Nowhere does the-statute require the prosecuting attorney to appear before and proseeaate actions in any other tribaanal and especially in magistrates’ courts.

The statute, as it now stands, is practically the same as it has been since the act found in 31 O. L., 13. This act came under review iai the case of Smith v. Commissioners of Portage County. Jaadge Wood, delivering .the opinion of the coaart, held:

“It thus appears that the duty of the county attorney is confined to the Soapreme Coaart and the common pleas court, and his appearance in an inferior coaart is a mere voloantary act.” 9 O. Rep., 25.

Since then courts of probate have been created by the Constitaation of 1851 and the circuit coaart created, but do not in any way affect the questions and the duties of the prosecuting attorney, which now extend to those courts1.'

The case of Smith v. Commissioners of Portage County has been followed and approved in the ease of Railroad Company v. Lee, 37 O. S., 480. Okey, Jaadge, delivering the opiaaion of the coaart, said: - . ’

“It is the duty of the prosecuting attorney to conduct the prosecaation of offenses in the coaart of common pleas; but in Smith v. Portage County, 9 O., 25, it is said that he is not boaand to appear before the justice of the peace or mayor in a criminal case. The law remains the sanie to the present, day. But, in fact, that officer, in many cases, appears voluntarily in an examining court and conducts the prosecution therein. He does the same thing sometimes at the request of the citizens without any expectation on his part to receive, or on the part of the citizens to pay, compensation for the services.”

The mayors of villages have final jurisdiction to hear and determine prosecutions under the Beal law. Now, if the prosecuting attorney is not required to attend upon these courts and prosecute this class of cases, can it be claimed for a moment that thereby offenders ought to go un.proseeuted, which would be the logical effect of the claim made by the defendant here? That such is not the law I think is clearly borne out by an examination of Section 20 of the act of February 23, 1906 (98 O. L., p. 18), which provides:

“Section 20. No petition in error shall be filed in any court to reverse any conviction for violation of any law prohibiting the sale of intoxicating liquors in any territory or district or to reverse any judgment affirming such conviction except after leave granted by the reviewing court and no such leave shall be granted except after good cause shown at a hearing of which counsel for the complainant in the original case shall have had actual and reasonable notice.-”

Now, it appears to this court that if the prosecuting attorney alone had the power to appear and prosecute, there would have been no necessity for the passage of the act in question. Why should notice be given to counsel for “complainant in the original ease” unless such counsel had the power to appear and prosecute.

I may indeed add that it lias been-almost the -universal practice throughout the state of Ohio for private counsel to appearimthe prosecution of cases before mayors and magistrates where those officers had final jurisdiction, as well as those - in which they acted only as examining ■ courts. It, therefore, logically follows that if counsel may be employed other than the prosecuting .attorney to prosecute this class of eases,-he has power to perform any act necessary in the prosecution of a case, which would include the filing of such pleadings and taking such action as is necessary to dispose- of the plea in bar.

The next error assigned is the refusal of the court to admit in evidence -the transcript of the former case. The record shows that in the first case the affidavit charged the offense in this language, that the defendant furnished, sold or gave away the intoxicating liquor in question. Now, the question naturally arises — -did’this affidavit charge the defendant with the commission of either of said acts? The pleader in the first case evidently followed the rule that it is generally sufficient to charge the crime in the language of the statute, but he overlooked the fact that charging the commission of several acts- in the disjunctive does not charge the defendant with the commission of either of them. Black, in his work on “Intoxicating Liquor,” at Section 439 says, “or is a dangerous word to use in an indictment. ’ ’

The reason is that it is extremely liable to make the statement of the offense uncertain. When its effect is to render it doubtful which of the two or more acts, articles or agencies is intended to be -alleged, its use is fatal to the indictment. There is but one case in which i-t is safe to copy the disjunctive from the statute, and that is where or is in the statute in the sense of “to-wi.t,” that is, where that which follows is merely descriptive or explanatory of that which precedes, so that the two are identical or equivalent. If the two things separated by this word are different things, the pleader must allege only one of them or use the conjunctive “and.” Now, coming to the affidavit in question, thes-e other several acts charged to have been committed by the defendant are charged in the disjunctive. Therefore, that affidavit was bad. These principles aré amply illustrated by decisions dealing with our particular subject-matter. Thus, an indictment which alleges an unlawful sale of * ‘ spiritüous or intoxicating liquor, ’ ’ or of ardent or intoxicating liquor, or of “.ale,, beer or wine/’ following the language .of the. statute, is bad for uncertainty. State v. Moran, 40 Me., 129; State v. Fairgrieve, 29 Mo. App., 641; Raisler v. State, 55 Ala., 64.

Now, if the affidavit here was bad for uncertainty, advantage could have been taken even after a conviction, by a motion in arrest of judgment. Therefore, it seems to me that under the first affidavit the defendant was never in jeopardy because no conviction could be sustained upon that affidavit. It therefore necessarily follows that the mayor did not err in ruling out the r.eeord of the first case.

Let us now recur again to Section 20 of the act of February 23, 1906, defining the duties of the courts in cases like this. That statute expressly provides that no petition in error can be filed except upon application and upon good cause shown at a hearing. This statute is not merely directory, as I take it, but is mandatory to the extent that good cause must be shown before the court would be authorized to grant the leave.

I imagine that the reason for the passage of this statute is to prevent encumbering the records of the courts with cases without merit, but by far the greater and higher reason for the passage of .that statute was to prevent the delays that usually follow in this class of eases whereby justice is practically defeated.

Therefore, looking over the whole record, I am unable to find that there exists good cause for the allowance of this application to file a petition in error. The application will, therefore, be denied.  