
    QUESTIONS ARISING ON TRIAL UNDER. THE BEAL LAW.
    [Greene County Common Pleas Court.]
    William Harlow v. The State of Ohio, and John Krebs v. The State of Ohio.
    Decided, October 19, 1903.
    
      Beal Law — Presumption as to Offense Being the First — Keeping Place Includes Selling — Affidavits Sufficient, When — Motion for a New Trial — In Arrest of Judgment — Bill of Exceptions.
    
    1. Where the affidavits upon which a Beal Law prosecution is based do not show that the offense charged 'was a third or subsequent offense, there is a presumption that it was the first offense, and it is therefore not error for the mayor to overrule a motion for trial before a jury.
    2. Nor is it error to overrule a motion to require the State to elect on which of the two charges it will go to trial, “the selling of intoxicating liquors,” or “the keeping of a place where intoxicating liquors are sold,” since the keeping of a place where intoxicating liquors are sold practically involves the selling of intoxicating liquors.
    3. Affidavits are not demurrable which allege that the acts complained of were then and there prohibited and unlawful.
    
      4. A mayor is without authority to grant a motion for a new trial in the case of one convicted under the liquor laws; a motion for arrest of judgment must be made before judgment is rendered; and after the rendition of judgment the mayor is without power to fix a time for preparing, or allowing or signing a bill of exceptions.
   Scroggy, J.

These two eases are before this court on a petition in error from the judgment of the mayor of the village of Jamestown. The question submitted for the determination is substantially the same in both, cases, so that a determination of one will dispose of the other.

The plaintiffs in error were each charged before said mayor with a violation of tire provisions of the liquor law, commonly known as the Beal Law.

In the Harlow case the affidavit charges that on or about the first day of September, 1902, in tire city of Xenia, Greene county, Ohio, one William Harlow, not being then and there a regular druggist, and not being them and there a manufacturer of intoxicating liquors, did then and there sell intoxicating liquors as a beverage, the sale of said intoxicating liquors as a beverage, as aforesaid, by the said William Harlow being then and there prohibited and unlawful and contrary to the form of the statute in such case made and provided. Said affidavit' contains a further, or second count, charging that on or about the 18th day of August, A. D. 1902, and from that day until the commencement of proceedings herein, bowit, on the 5th day of September, A. D. 1902, at the said county of Greene, in the state of Ohio, in the city of Xenia, one William Harlow was and has been unlawfully the keeper of a place where intoxicating liquors were and have 'been then and there sold by the said William Harlow in violation of the act of the General Assembly of the state of Ohio in reference to the sale of intoxicating liquors in the state of Ohio, passed by the General Assembly, April 3, 1902; that said intoxicating liquors were not then and there sold by a regular druggist, and that said intoxicating liquors were not then and there sold 'by a manufacturer of intoxicating liquors; that the keeping of said place, as aforesaid, by the said William Harlow was then and there prohibited 'and unlawful, 'and contrary to the form of the statute in such ease made and provided.

In the Krebs ease the affidavit charges that on or about tbe 3d day of January, A. D., 1903, in tbe city of Xenia, Greene county, Ohio, one John Krebs did then and there sell intoxicating liquors to be used as a beverage, said John Krebs not then and there being a regular druggist nor a manufacturer of intoxicating liquors from the raw material; said sale being prohibited and unlawful and contrary to the statute in such cases made and provided.

In the Harlow case there are seventeen assignments of error and in the Krebs ease thirteen, covering every ground for which a new trial is authorized to be granted in criminal cases in the court of common pleas, and including others not' specified.

In such case there was a motion to quash the affidavit, a plea in abatement, a demurrer, motion for a new trial, and motion in arrest of judgment.

There was also in each case a bill of exceptions taken, or what, on its face, purports to be a bill of exceptions, embodying all the evidence offered in the trial.

In the Krebs case the plea in abatement was filed after the filing and overruling of a demurrer to the affidavit. By filing a demurrer the right to file a plea in abatement was waived. Revised Statutes, Section 7253.

Before the commencement of the trial in each ease there was a motion made to allow the defendants below, plaintiffs in error, to have the charges against them, respectively, tried by jury, which was denied, and to which action of the mayor the defendants excepted.

The law under which these prosecutions were instituted (95 O. L., 88-89) provides that:

“Whoever violates the provisions of s'aid law shall be guilty of a misdemeanor, and on conviction thereof, be-fined not more th-an two hundred dollars nor less than fifty dollars for the first offense, and shall for the second offense be fined not more than five hundred dollars nor less than one hundred dollars, and for any subsequent offense be fined not' less than two hundred dollars and be imprisoned not more than sixty days and not less than ten days.”

On behalf of the plaintiffs in error it is claimed that for an offense against this law imprisonment is made a part of the punishment, and, therefore, the plaintiffs in error aré entitled to trial by jury. But' imprisonment is not a part of the prescribed punishment for either the first or second offense. It is only where a party has been guilty of a third or subsequent offense that imprisonment is made a part of the punishment. So far as the affidavits in these cases are concerned, there is nothing to show that the offense charged was a third or subsequent offense. Presumably, it was the first offense. There was, therefore, no error in overruling the motion of said plaintiffs in error to allow such case to be tried by jury. This question is thoroughly discussed in the ease of Ward v. The State of Ohio, by Judge Coultrap, reported in the 5 Nisi Prius, 81 and 82.

In the Harlow case there was a motion made to require the State to elect on which of two 'charges or counts in the affidavit it would rely — the one for selling intoxicating liquors, or the one for keeping a place where intoxicating liquors are sold.

In the ease of State v. Bailey, 50 O. S., Bradbury, C. J., in the opinion, on page 641, after reviewing the authorities on tire doctrine of the election in such cases, says:

“The law permits this multiplication of the counts in an indictment, where each states, however with variations of detail, the same offense, to prevent that' failure of justice which might follow, if the prosecution should 'be confined to a single count, and the proof should vary from the allegations of that count in some essential particular. Upon the same principle it would seem that where two similar, and-closely allied offenses arise from the same transactions, and each must be established, if at all, by substantially the same evidence, each should be permitted t'o -be set forth, iu separate counts in the same indictment.”

The case of Stockwell v. State, 27 O. S., 563, is not in conflict with the principle of the case in 50 O. S.

In the case of Bailey v. State, 4 O. S., 441, it was held that:

“Several distinct offenses may be joined in different counts of the same indictment, os a general -rule, either where they arise out of, and are connected with, the same transaction, or where they are connected by the same subject matter.”

To convict the plaintiff in error with being a keeper of a place where intoxicating liquors are sold necessarily involves practically al-1 the charge contained in the first count of the affidavit, viz., that .intoxicating liquors were unlawfully sold. There was, therefore, no error in 'overruling the motion to require the State to elect upon which of said •charges it would proceed. But even if the mayor had erred in this respect, there would be no prejudicial error against Harlow, because the mayor found him to be not 'guilty of the charge contained in the first count of the affidavit.

Without referring in detail to the several grounds set forth in the motion to quash the indictment, it is sufficient to say that they have eadh received the careful consideration of the court, and I find no error to the prejudice of the plaintiffs in error by the action of the mayor in overruling said motions. Nor was there any error in tire ruling of the mayor in sustaining the demurrer to the plea in abatement in the Krebs case.

It is claimed that the mayor erred in overruling 'the demurrers to the affidavits in each of said cases. Neither of said affidavits set forth the facts showing that the required number of electors in the municipal corporation petitioned for an election; that the election was held, or that a majority voted in favor of prohibiting the sale, as provided for in the Beal Law. But Section 4364-206 provides that:

“Ini indictments, affidavits, or informations for violations of said act it shall not be necessary to set forth the facts showing that the required number of electors in the municipal corporation petitioned for an election; that the election was held, or that the majority voted in favor of prohibiting the sale; but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful.”

In the cases at bar the affidavit in each alleges that the act complained of was prohibited and unlawful. There was, therefore, no error in overruling the demurrer to said affidavits.

It is 'also claimed that the mayor erred in overruling the motions for new -trials. If there is any authority given to- mayors of cities and villages to grant a motion for a new trial in misdemeanor cases for a violation of the liquor laws, where imprisonment is not a part of the prescribed punishment, I have been unable to' find it. For the violation of certain statutes, power is expressly -given to mayors and justices of the peace to grant new trials, which -they would not have but for the express provisions granting the same. Mayors and justices are courts of limited jurisdiction!, possessing such powers, atad only such, as are expressly conferred by statute. In the cities having a police court, power is granted to the police judge to grant motions for a new trial, but such power is confined to police courts and does not include mayors or justices of the peace.

It is also claimed that the mayor erred in overruling the motion for a new trial on the ground that the judgment and- finding of the mayor was against and unsupported by the evidence. If it is to be conceded'that the mayor has power to grant motions for a new trial in cases of violation of the liquor -laws, this court would not be authorized to reverse the judgment of the mayor on the ground that said judgment was against or unsupported by the evidence unless all of the evidence should be presented to this court by a bill of exceptions taken at the time and in the manner provided by law; and the question is, whether the bills of’ exceptions, or what purports to be such, in, the causes now under consideration, were taken.

In the Harlow case the transcript of the mayor shows that the trial was had September 15, 1902, and that on that day the defendant was found -guilty in manner and form as charged in the second count of the affidavit, and not guilty as charged in the first count of the affidavit; and that thereupon the defendant was ordered and adjudged to pay a fine of two hundred dollars and the costs of the prosecution, and that he' stand' committed to the work house of the city of Xenia, Ohio, until the amount of said fines and costs be paid. Thereafter, and' on the same day, the plaintiff in error filed his motion for a new trial, and on the 17th day of September the same' was overruled. On the 17th day of September the defendant filed a- motion in arrest of judgment and the same was overruled, and that thereupon and upon defendant’s application, execution of sentence was suspended for ten days to allow the defendant to prepare and present a bill of exceptions, which time, in the language of the transcript, “is allowed for that purpose.” On the 24hh day of September Harlow presented to the court his said bill of exceptions, which was then allowed, signed and sealed, and ordered to 'be filed with the papers and pleadings in this cause.

In the Krebs case the trial was had on the 17th day of February, 1903', and on the testimony and affidavit che defendant' was found guilty as charged in the affidavit, and ordered and adjudged to pay a fine of two hundred dollars and the costs of prosecution, and stand committed to the work house of the city of Xenia, Ohio, until said fine and costs should be paid. Thereafter, and on the same day, defendant filed his motion for a new trial, and on that day the same was overruled. Thereafter the defendant filed his motion in arrest of judgment, and the same was overruled. And thereupon, upon defendant’s application, execution of sentence was suspended for a period of ten days to allow the defendant to prepare and present a bill of exceptions, and on the 25th day of February, 1903, the defendant presented his bill of exeqations, when the same was allowed, signed and sealed, and ordered to be filed with idle pleadings and other papers in the canse herein, amid to be made a part of tbe record.

To bring upon, tbe records, grounds for motions in arrest of judgment, and the action of the mayor in disposing of such motioms, it was not' necessary to have a bill of exceptions, as these are matters proper t'o be regarded and which are shown outside of the bill.

Before determining whether the mayor did or did not err in overruling the motions in arrest of judgment, it is necessary to determine whether such motions were presented within the time authorized by law.

In the case of Young v. State, 6 O. S., 435, it was held that final judgment' pronounced without special disposition of a motion in arrest of judgment was not error.

Section 7354, R, S., provides that—

“No judgment shall be arrested for a defect in form, nor shall any motion in arrest of judgment be made after three days after the verdict is rendered.”

In 1 Chitty’s Criminal Law, 665, it is said:

“In the absence of statute, motion in arrest of judgment should be made, if at all, before the expiration of the term at which the trial was had, and before sentence.”

Walker, on his work on American Law, Section 773, says:

“The motion in arrest of judgment must be founded on some substantial error apparent on the record,” and, “should be made before sentence is pronounced.”

Bishop, in his work on Criminal Procedure, Section 852, says:

“The defendant may move at any time in arrest of judgment, before the sentence is actually pronounced, * * * but if the sentence is once pronounced, though before the actual entry of t'he judgment, the courts are not bound to 'attend at all to a motion of this nature, even though a formal error should be discovered, sufficient to reverse the proceedings, but 'the defendant is left to his writ of error.”

And on page 855, a form for a morion in arrest is given.

In the case of State v. O'Neil, 66 Vt., 356, the court says:

“A motion in arrest of judgment must necessarily be filed before judgment.”

And in the case of Perry et al. v. The People, 14 Ill., 497, it was held that a motion in arrest comes too late after sentence. And in the opinion, on page 499, Scates, J., says:

.“A motion in arrest comes too late after sentence; nor would it lie after being given, or prevent the rendition of an illegal or erroneous sentence or judgment. It is an appeal to the law, upon the record of facts, upon which the court is- asked to pass s-entence or pronounce judgment. The motion is in the nature of a demurrer to the facts of the whole case and pleadings presented by the record, for want of some essential without which a sentence- or judgment thereon becomes erroneous. But it does not reach the sentence or judgment' itself. If that be erroneous, it is objected to- by an assignment -of errors.”

In the Ency. of Pl. and Pr., Vol. 2, page 817, it is said:

“In order to save any question by -a motion in arrest it' must always be made before judgpnent is rendered.”

And in a note cites numerous cases in support of the text.

That a motion in arrest of judgment must be made before judgment is rendered is too well settled to require the citation of further authorities. They are numerous -and all to the same effect.

Council for plaintiffs- in error claim that -tire mayor erred in passing judgment and sentences immediately after the close of the trial, and without giving them, or either of them, an opportunity to say anything o-r to show the court why judgment should- not be pronounced against them.

In the case of Carper v. The State, 27 O. S., 573, it was held, quoting from the fourth paragraph of the syllabus:

“When the record does not show that after a plea of guilty and before sentence the court asked him if he had anything to say why judgment should not be pronounced against him, as required by Section 169 of the Criminal Code, this -court in the absence of a bill of exceptions showing the contrary, will presume that the question was asked.”

And in the case of Bartlett v. The State, 28 O. S. 679, it was held, quoting from the fifth paragraph of the syllabus:

“When it is objected on the verdict -of the jury, and 'asking them Whether they had anything to say why judgment should not be pronounced, that record must show -affirmatively that -the court omitted this duty. If the bill of exceptions is silent upon -this subject, it will be presumed that the -court did what the law directs it should do.”

In the case of Bond v. The State, 23 O. S., 350, it was held that where the record shows that the court before passing sentence upon the defendant, informed him of the fact that a verdict of guilty had been found against him, as required by the Criminal Code (66 O. L., 313, Sec. 169), in the absence of the bill of exceptions showing the contrary, the fact that such information was so given will be presumed. There is nothing in the record in this case to negative the idea that the mayor performed Ms duty in this respect.

Were the bills of exceptions in those cases taken in the manner and witMn the time provided by law?

Section 6565, R. .S., as 'amended April 10, 1902 (O. L., Yol. 95, page 121), regulating the manner of taking bills of exceptions before justices of the peace, mayors, and police judges, provides that—

“The party excepting to the decision must except at the time the decision is made, and time shall be given to reduce the exception tb writing, but not more than ten days nor less 'than five days * * * from the date on which the decision of the mayor is rendered.”

A transcript of the record falls to show that any bill of exceptions was taken to any decision of the mayor at the time the same was made, or at 'any other time during the trial of the case. The only exeeptioni shown by the transcript was to the mayor’s judgment and finding of the cause on its merits.

There is no authority for this court to review, or reverse, the judgment of tire mayor on the ground that it is against the weight of-the evidence. It is only where there is no evidence tending to support the judgment that this court can reverse such judgment, and the only way to bring before this court the rulings and decision of the mayor on questions of law is by a bill of exceptions taken in the manner provided by Section 6565, R. S. No bill of exceptions was taken, as appears from the transcript of the mayor, during the progress of the trial, to the decisions of the mayor, nor was any request then made for time in wMch to prepare the bill of exceptions.

The decision in the case of Kline v. Wynne et al, 10 O. S., 223, relates to a court' of general jurisdiction.

The request for time in which to prepare the bill, shown by the record in the case at bar, was made after the mayor had rendered his judgment. When the mayor rendered his decision — his judgment —on the merits, his power to act judicially ended. The only power he possessed thereafter was to perform such ministerial acts only as the law authorized Mm to perform.

In the case of Fairchild v. Keith, 29 O. S., 56, it was held that the judicial action of a justice of the peace was complete when he had considered and determined upon the judgment to be rendered. The case of Dunlap v. Robinson, Administrator, 12 O. S., is also in point. The act of fixing a time within which the bill of exceptions should be reduced to writing, sealed and signed, is a judicial and not a ministerial act, because it is left to the judgment and discretion of the justice, within certain limits, to determine when the bill shall be redluced to writing, sealed, allowed and signed. (Place v. Taylor et al, 22 O. S., 322; Truman v. Walton, 59 O. S., 517).

H. C. Armstrong and Sprigg & Fitzgerald, for plaintiffs in error.

M. R. Snodgrass and C. F. Howard, Prosecuting Attorney, for the State.

By the' express provision of Section 6565, ft. S., the time within which 'a party shall reduce his bill of exceptions to writing, and have the same presented for allowance, signing, etc., is left, within certain limits, to' the judgment and discretion of the mayor, and his act in fixing such time was, therefore, judicial, and his power in that respect ended when the judgment on the merits of the case was rendered.

From these authorities it is dear that the bills of exceptions were not presented within the proper time; that after the rendition of the judgment of the mayor he had no power to fix a time for preparing nor for allowing and signing the same.

There are other assignments of error, all of whidh. have been carefully considered, but upon the whole record — that is, the record which this court is 'authorized to consider — I find no prejudicial error. The judgment of the mayor in each of said cases is, therefore, affirmed.  