
    Bumbaugh v. The State of Ohio.
    (Decided March 29, 1930.)
    
      Mr. Clarence J. Crossland, for plaintiff in error.
    
      Mr. L. M. Soliday, for defendant in error.
   Lemert, P. J.

This cause comes into this court from the common pleas court of Muskingum county, Ohio, wherein the plaintiff in error, Carl C. Bumbaugh, was charged with a third offense of possessing intoxicating liquors. The indictment in this case, briefly stated, charged the defendant in the court below with a third offense of possessing intoxicating liquor: The first offense committed on June 8, 1927, with conviction October 22, 1927; the second offense committed October 8, 1927, with conviction October 22, 1927; and the third offense committed December 3, 1929.

The record discloses, and in fact it is conceded, that the defendant pleaded guilty to the charge of June 8,1927, on October 22,1927, which was journalized October 24, 1927; that he pleaded guilty to the charge of October 18, 1927, also on October 22,1927, which case was also journalized October 24, 1927; and that a plea of guilty was entered on both charges on the same date, to wit, October 22, 1927, and both were journalized on the same date, to wit, October 24, 1927.

There were a number of assignments of error set forth in the petition in error, but in oral argument and in written brief the plaintiff in error seems to stress particularly two assignments, the first of these being the question of variance between the allegations of the indictment and the proof, resting entirely upon the date of the prior conviction, and the second chief assignment particularly stressed being the right of the state to prosecute a third offense where the two prior convictions took place on the same date.

As to the question of variance we find that subject very ably treated in Underhill’s Criminal Evidence (3d Ed.), page 75, wherein the author used this language: “But though the general rule is that the crime which is laid in the indictment must be proven substantially as alleged, no variance will be material if the allegations of the indictment are separable and the substance of the crime is proved.”

The author further says that, in determining whether a variance is material, the question to be considered is, Does the matter so far fully and correctly inform the defendant of the criminal act with which he is charged; and, taking into consideration the proof which is introduced against him, that he be not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense?

In the indictment in the instant case it is noted that Carl C. Bumbaugh entered a plea of guilty to a charge of possessing intoxicating liquor on the 8th day of June, 1927, and the only variance complained of is as to the correct date on which the plea of guilty to that charge was entered.

We fail to see in what way the plaintiff in error could have been misled, because of the fact that his plea of guilty to an offense charged on a certain date was a fact which was within his own knowledge and was definite as to the date or time of his violation. The same argument would apply to the criminal variance in the second prosecution, that offense having been committed October 8, 1927.

The record in the case before us discloses that an affidavit was filed against Carl C. Bumbaugh charging him with an unlawful possession of intoxicating liquor on the 8th day of June, 1927, that a plea of not guilty was entered by him at that time, and that nothing further was done with that charge until October 22, 1927. In the meantime, on October 18, 1927, he was again arrested on an affidavit charging unlawful possession of intoxicating liquor on the 8th day of October, 1927; and on the 22d day of October, 1927, he came into court, changed his former plea of not guilty to one of guilty, and on both charges was sentenced by the court. The journal entry, however, in each case was not placed upon the journal on the 22d, which was Saturday, but was journalized on the following Monday, October 24, 1927.

The record also discloses that the fines imposed in these two cases were paid on the 22d day of October, 1927.

The question raised in this court by the plaintiff in error is whether or not the third offense charged could be predicated upon these two former offenses, there being no question that the two former offenses were completely adjudicated long before the time of the charge of this third offense, upon and for which the plaintiff in error was indicted; or, in other words, would the mere fact that these two former offenses, one actually committed on June 8,1927, and the other one on October 8, 1927, keeping in mind that they were both disposed of and finally adjudicated upon the same date, to wit, on the 22d day of October, 1927, bar the indicting and subsequent conviction of plaintiff in error for a third offense?

We believe that it is well settled by the law of this state, as well as other states, that, where two offenses have been finally and completely adjudicated, and, after such adjudication, another violation of the same statute is committed, this violation plainly comes within the meaning of a third offense.

In the case of Hawkins v. State, 27 Ohio App., 297, 161 N. E., 284, decided by the Court of Appeals of Logan county, January 7, 1928, in the opinion of the court, as found on page 304 of 27 Ohio App., 161 N. E., 284, 287, the court used this language in referring to Sections 6212-15 and 6212-17, General Code: “These sections, in order to carry out the provisions of the act, must be liberally construed * * * And, as we interpret them, they clearly provide for the prosecution, as for a felony, of any person who, prior to an alleged third violation, had been twice charged with and convicted of offenses under the act.”

The Court of Appeals of the Fifth Ohio district, in Licking county, in case of Sissea v. State, held that, where two or more convictions which have been finally adjudicated appear of record as against the defendant, that opens the way and makes it clear for the maintaining of and conviction for a third offense, it not being necessary to allege in an indictment for a third offense that there had been a first and a second offense committed; but if there have been two offenses or convictions, or two pleas of guilty, as in the instant case, fully completed and adjudicated of record, then an indictment can be maintained for a third offense.

The jury in the instant case found the defendant guilty of a violation as alleged to have been committed on December 3, 1929, to wit, a third offense, and returned a verdict of guilty for a third offense violation.

From the facts and from the evidence in the record before us, and under the law of this state, we hold that the plaintiff in error was properly charged with and convicted of a third offense, and we find no error prejudicial to the rights of plaintiff in error in the record before us; so it follows that the judgment of the court below will be, and the same is hereby, affirmed.

Judgment affirmed. ■

Sherick, J., and Roberts, J. (of the Seventh Appellate District), concur.  