
    Schultz v. The State.
    1. Affidavits used on a motion for the continuance of a case, though copiedhy the clerk into the record, can not he regarded as part of the record, and considered on proceedings in error, unless they are made part of the record hy a bill of exceptions.
    2. A wife is not a competent witness for her husband in a criminal prosecution ; and her incompetency in such cases is not removed hy either the-criminal or civil codes of procedure.
    
      -15. The word “ keeper ” of a room or place of public resort, for the unlawful sale of intoxicating liquors, as used in section 4 of the act of May 1, 1854, to provide against the evils resulting from the sale of such liquors (S. & 0. 1431), does not exclusively mean the owner of the room, nor of the liquors sold ; but while such owner may be included, it also embraces any one who, though, not the owner, has the possession of both the room and the liquors, which, together with the unlawful business, are under his care and subject to his management and control.
    4. The order of the court to abate such room or place as a public nuisance, on conviction of the keeper thereof, as required by said act, is not to be directed to or executed by any officer; but must be an order to the person convicted, obedience to which may be enforced, if the nuisance be continued, by attachment for contempt of court.
    Error to the Court of Common Pleas of Guernsey county.
    At the April term, 1874, of the Court of Common Pleas of Guernsey county, Herman Schultz was indicted for keeping a room in violation of section 4 of the “ act to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” passed May 1, 1854. The case was continued to a special term, at which a motion was made by the defendant to continue the case, on the ground of the absence of a material witness for the defense. The motion was overruled.
    The defendant was tried and convicted, and was sentenced to pay a fine of $100, and imprisonment for fifty days. The court also ordered the sheriff to shut up and close the room kept by-the defendant as a liquor store, and to prohibit all access thereto for the purpose of selling intoxicating liquors therein, until the defendant should give bond not to sell liquors contrary to law.
    On the trial the defendant called his wife as a witness. The state objected, and the court sustained the objection.
    On the trial it was proved that the wife of the defendant leased the house in which they lived in her own name; that one room was used for a saloon, in which intoxicating liquors were sold; that the liquors were bought in her name; and that the defendant had the custody, care, and control of the room, and of the business transacted therein, which he advertised and conducted in his own name. Evidence was also given tending .to sustain the charge in the-indictment, and that the business was owned by the defendant. On the other hand, the defendant gave evidence-tending to prove that his wife owned the room, the liquors,, and business, and that the defendant was her agent in conducting the business.
    The defendant asked the court to charge the jury that,, if they should find the wife of the defendant was the lessee of the room, bought the liquors, and carried on the business, and that her husband sold liquors as her agent only, then the wife, and not the husband, would be the keeper of the room.
    This charge the court refused to give; but charged the jury that, if the defendant had the possession, care, and control of the room, and managed, conducted, and com trolled the business transacted therein, and sold liquor in-violation of law, then he was the keeper of the room, within-the meaning of the statute, whoever may have been the actual owner of the property. To all which the defendant excepted, and prosecutes this writ of error to reverse the-judgment of the common pleas.
    
      M. Skinner, for plaintiff in error :
    I. The reason of the rule of law, excluding husband or wife testifying where the other was a party, did not apply in this case.
    The wife was called to testify to facts within her own-knowledge, not derived from her husband, nor by means of her situation as wife, nor would her statements have been in violation of the confidence subsisting between husband and wife, nor would any principle of public policy have, been violated by her admission as such witness. Greenleaf Ev., §§ 334, 338, 254; State v. Neil, 6 Ala 685; Coffin v. Jones, 13 Pick. 445; Williams v. Baldwin, 7 Vt. 506; Wells v. Tucker, 3 Binney, 366; Strober’s Adm’r v. McCarter, 4 Ohio St. 513; and cases referred to in opinion.
    
      II. The order to shut up or abate the place or room was illegal. The order was directed to the sheriff, and was in fact executed by him, Mrs. Schultz, the owner of the property, being thus deprived of its possession and use. Such an order and proceeding were in violation of the law, and in conflict with the decisions of the supreme court of the state. Miller § Gibson v. The State, 3 Ohio St. 475.
    
      Isaiah Pillars, attorney-general, for the state:
    The court can not look at the affidavit filed as the showing for a continuance, unless it is made part of the record by a bill of exceptions.
    Mrs. Schultz was not a competent witness. See Steen v. The State, 20 Ohio St. 333.
   Day, J.

It is only necessary to notice the alleged errors which are relied upon in argument for a reversal of the judgment.

1. It is claimed the court erred in overruling a motion to continue the case to the next term. Aside from the consideration that nothing appears in the case, as claimed to be made, to warrant a reversal of the judgment on that ground, it is a sufficient answer to the objection that the record does not show that the overruling of the motion was excepted to. The record merely shows that the motion was filed and overruled. It is true there is copied with the record an affidavit for a continuance of the case; but whether the affidavit, or any proof whatever, was presented to the court on the hearing of the motion, does not appear. No allusion to the motion or affidavit is made in the bill of exceptions. The overruling of the motion could be brought in review only by placing upon the record all the evidence produced to the court upon which it was called to act. Evidence given in a case, though copied as part of the l’ecord by the clerk, can not be regarded as part of, or matter of record, unless it is made such by bill of exceptions, oris embraced in the entry of the court. Goldsmith v. The State, 30 Ohio St. 208; Garner v. White, 23 Ohio St. 192.

2. On the trial the defendant offered his wife as a witness, and the state objected. The court held that she was not a competent witness, and sustained the objection. This ruling is claimed to be erroneous. Steen v. The State, 20 Ohio St. 333, touching this point, may be safely regarded as conclusive. It was expressly held in that case, that, on the trial of a criminal prosecution, the wife of the accused is not a competent witness for him, and that her incompetency in criminal cases was not removed by the provisions of either the criminal or civil codes of procedure.

3. The next point presents a question of less easy solution, viz.: who may be l’egarded as the “ keeper ” of a room for the unlawful sale of intoxicating liquors, within the meaning of the section under which the defendant was indicted ?

The question arises upon the charge of the court to the jury, which was given with reference to the facts developed on the trial. This, as well as the meaning and object of the statute, must be kept in view, in considering whether the charge was erroneous.

The defendant-was indicted under section 4 of the act of May 1, 1854 (S. & C. 1431), which declares that all places where intoxicating liquors are sold, in violation of the act, shall be held to be common nuisances, and that the room or other place of public resort, where such liquors are so sold, shall be shut up and abated as a public nuisance upon the conviction of the “ keeper ” thereof, who is to be punished, as provided in another section, by fine and imprisonment, or both.

It is the clear purpose of the statute to abate such nuisances, and to prevent their occurrence, by punishing the keepers thereof. To this end, a broad and generic word is used, in describing the person amenable to its penalties. It does not necessarily mean the owner of the room, nor the owner of the liquors unlawfully sold. Both may belong to another person, and yet the room may be kept and the business conducted by one who has sole control of both the room and the business, and who is alone responsible for the nuisance, which may cease or continue -•at his will. It would not be difficult to give instances. Such a person would clearly come within the mischief aimed at by the statute. The descriptive words of the statute are broad enough to include him. The word “ keeper ” is defined to be one who has the care, custody, or superintendence of anything; as the keeper of a park, a pound, a gate, a prison, and (in the English law) keeper of a forest, great seal, and privy seal. The word, therefore, does not necessarily mean ownership; but, while it may include an owner, it also embraces one who has the possession and control of a place, thing, or business. The statute, then, is broad enough to include one who, though not the owner of the room or the liquors unlawfully sold, has the possession of both, which, together with the business, are iu his care and subject to his control. Otherwise, a person, as agent of one living in a foreign state or county, might keep, with impunity, a place of public resort in this state wdiich the law declares to be a public nuisance. In view of the mischief aimed at, the comprehensive word “ keeper ” is not used in the statute in such restricted sense. While it may not include a mere clerk or servant of one carrying on the unlawful business, it clearly embraces any one who has the custody, care, control, and management of the place and unlawful business.

The charge of the court was in accordance with this view of the law, and directly applicable to the case before it, in which it appeared that the liquors and the place where they were sold were held in the name of the defend.ant’s wife; that the whole were in his custody, and that the business of selling intoxicating liquors at the place was .advertised and carried on in his own name, and under his own control. There was, then, no error in the charge.

4. In respect to the order of the court, which was directed to the sheriff of the county to shut up and close the defendant’s place of business, it is only necessary to say that it was not in accordance with the statute as construed in Miller and Gibson v. The State, 3 Ohio St. 475.

The order is not to be directed to or executed by any officer; but must be an order to the person convicted, obedience to which may be enforced, if the nuisance be continued, by attachment for contempt of court.

'It follows that the judgment must be affirmed in all respects, except as to the order directing the sheriff to close the defendant’s place of business, which order must be reversed, and the cause remanded for such proceedings, in regard to the abatement of the nuisance, if continued, as are authorized by law.

Judgment accordingly.  