
    The State of Ohio v. Shimman et al.
    
      (No. 22187
    Decided June 18, 1930.)
    
    
      Mr. Edgar G. Martin, prosecuting attorney, and Mr. Don Young, for plaintiff in error.
    
      Mr. Scott Stahl, for defendants in error.
   Jones, J.

This case involves the continuous and uninterrupted transportation of the same intoxicating liquor from Huron county to the adjoining county of Sandusky. Having been indicted and sentenced for that offense in Sandusky county, the defendants, E. H. Shimman and Ralph Eldridge, were again indicted for the same offense in Huron county. A plea in bar was interposed setting forth those facts, claiming they were being placed twice in jeopardy for the same offense. The plea set forth that the transportation of the liquor was done in one continuous and uninterrupted transaction from Huron county into Sandusky county, Ohio. The trial judge sustained the plea, and held that, while they could be punished in either county, they could not again be prosecuted in the second county and thereby be placed twice in jeopardy for the same offense. In so holding, the learned judge is supported by reason and judicial authority.

The question: Does a continuous and uninterrupted transportation of the same liquor through several counties constitute a separate offense in each county?

Section 10, Article I of the Ohio Oonstitution, declares : “No person shall be twice put in jeopardy for the same offense.” Article V, of the Amendments to the United States Oonstitution, reads: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Where the facts are in exact similarity to those in the case at bar, we have high judicial authority sustaining the principle that a continuous transportation through several counties constitutes but a single offense, and that if a defendant be convicted in one county he cannot again be prosecuted in another without being placed twice in jeopardy for the same offense.

The state of Louisiana is divided into parishes, territorially corresponding to our Ohio counties. In the case of State v. Roberts, 152 La., 283, 93 So., 95, 24 A. L. R., 1122, the defendant was charged with possessing and transporting liquor in the parish of Bossier. He set up a plea in bar alleging that he had previously been tried, convicted, and sentenced in the parish of Red River for the same offense as that charged in the parish of Bossier. It was admitted that he was tried, convicted, and. sentenced in Red River for having and transporting the same liquor for which he was charged in the parish of Bossier. The Supreme Court held that the defendant could not thus, be placed twice in jeopardy, and, in its syllabus, stated the law as follows: ££ The possession and transportation of the same liquor on the same day in two different parishes, defendant having gone from one into the other, constituted but a single offense, and defendant having been convicted therefor in one parish could not be prosecuted in the other. ’ ’

The fact that continuous transportation through several states may be punishable in each state furnishes no persuasive argument that a like transportation through several counties is punishable as a distinct and separate offense in each county. The argument is fallacious and its. conclusion not legally tenable. Continuous transportation over the boundary of several states would be punishable in each state if the law of each state prohibits it; it is penalized because each state has made the same act unlawful and because each state has denounced the offense as one against its own peace and dignity. When an offense is committed against the law of the federal government, and is also violative of a state law, it has uniformly been held that prosecution and punishment under one sovereignty does not place the defendant in double jeopardy when prosecuted in the other. Such w:as the principle announced in the cited case of United States v. Lanza, 260 U. S., 377, 43 S. Ct., 141, 67 L. Ed., 314. Upon the same principle it is held that, when the same offense violates both a city ordinance and a state law, the act or offense may be prosecuted both by the state and the municipality without putting the defendant twice in jeopardy. Koch v. State, 53 Ohio St., 433, 41 N. E., 689. Territorially considered, although a defendant may be punished successively by the federal government, by a state, or by a municipality, if each has a separate law punishing the same offense, non sequitur that either can more than once punish the offender for the same offense when committed within its own territory without placing him twice in jeopardy. Here there is a violation of but one law, and defendants have already been sentenced for violating that law. The offense is one against the state, and not against the county — one of its subdivisions. Discussing this phase of the case, it is held in the Roberts case, supra: “The statute denounces the possession and transportation of intoxicating liquor for beverage purposes as a crime or misdemeanor, but the offense is against the state, and not against the various territorial jurisdictions or subdivisions of the state. * * * The only importance the parish line could have in the matter would be for the determination of the question of venue or jurisdiction.”

While the offender may be punished for transporting in either county through which he transports, he cannot be placed in jeopardy in a second county for the same act of continuous transportation. The crossing of a county line creates no new offense; the line constitutes no part of the offense; nor does it possess a single element characterizing it as such. In the well-reasoned case of State v. Roberts, supra, it was said: “The gravamen or the essence of the offense against the state was the possession and transportation of the liquor. The line dividing the parishes, from which and into which defendant transported the liquor, formed no essential element of. the offense. * * * In the instant case there was not only substantial identity, but the identity of the possession and the transportation in the two parishes of the same liquor was absolute and conclusive. No more and no different evidence was required to support the charge in Bossier than was necessary to make out the case in Red River.”

The county is> recognized as a unit for the maintenance of law and order; but it is a unit for venue and for the purpose of jurisdiction; it is a unit not only for the prosecution of liquor offenses, but for all offenses against our state laws. If a separate offense is committed when an offender crosses the county line, then we have many misdemeanors in this state which this decision would affect. We have in Ohio many laws penalizing single continuous offenses of this character; making misdemeanors of offenses committed under the motor act, by owners and employees traversing our highways and crossing county lines; penalizing public chauffeurs using these highways for failing to comply with state laws; making a felon of one who drives or operates a motor vehicle without the consent of the owner. "We have for example laws penalizing assaults, fighting, hunting game in the closed season, hunting on Sunday. If a county line be crossed in a single continuous assault, where the first blow is delivered upon one side and a second delivered on the other side of the boundary line, or, if in his uninterrupted process of hunting, a hunter should cross a county line, a single, not separate, offense has been committed; and the testimony offered on a second prosecution of such offenses would be admissible on the first prosecution. No court has ever held, nor, by the utmost stretch of judicial reasoning, could a court convert these “continuous and uninterrupted” acts into separate offenses against the state, whereby the offender could be subjected to successive prosecutions for the /violation of but one law.

“No person shall be twice put in jeopardy for the same offense.” Article I, Section 10, Ohio Constitution.

Had these defendants carried on their continuous and uninterrupted transportation to the state line at Cincinnati, under the doctrine urged by the state, the defendants by the simple act of passing through the various successive counties could be prosecuted and convicted in each of the eight counties along their route, thereby subjecting them to half a dozen additional fines of $1,000 for each time they crossed a county boundary line.

Another case not cited by counsel on either side, but which is exactly in point, sustains the principle announced by the Supreme Court of Louisiana, viz., Holder v. St. Louis & S. F. Rd. Co., 155 Mo. App., 664, 135 S. W., 507, 508. The state of Missouri conferred upon its justices of the peace original jurisdiction in statutory misdemeanors in townships wherein the offense was committed. A disturbance constituting a serious breach of the peace occurred on a passenger train, and continued while the train passed through several townships. A conviction was had in one of the townships. The Missouri Appellate Court in its syllabus held: “Where a passenger on a train created a disturbance * * * while the train was passing through several townships, a conviction of such passenger in one of the townships was a bar to a prosecution in any of the other townships, as the offense must be regarded as a single and continuing one.”

Pursuing a course of reasoning relative to county line boundaries, in the course of his opinion the appellate judge said: “By standing on the line or crossing it at the time, one may commit such an offense as a disturbance of the peace by the same acts or conduct in two separate counties which adjoin, and lay himself liable to prosecution in either county, but not in both, for the identical offense. * * * It is entirely clear that, though plaintiff offended in the three townships mentioned, he was not liable to prosecution in each for the same offense, for such would impinge the rule as to former jeopardy.”

Section 6212-17, General Code, penalizes the transportation of intoxicating liquors by imposing a maximum fine of $1,000 for the first offense and $2,000 for the second offense; “and for a third and each subsequent offense” a defendant is liable to a fine of not less than $500 or more than $2,000, and to be imprisoned in the state penitentiary not less than one or more than five years.

Fostoria, an Ohio city of more than 10,000 inhabitants, is comprised within the territorial limits of three counties. Under the claim of the prosecution Eichard Eoe, with a flask in his hip pocket, engaged in selling his legitimate wares about that city, would be liable to indictment and conviction each time he inadvertently crossed or recrossed the three county lines. And, if each crossing constituted a separate and punishable offense, by continuously carrying the flask over each of the county lines in Fostoria, under the remarkable doctrine now advanced by the prosecution he could be sentenced to heavy penalties for each crossing. Or should the same Eichard Eoe, resting at noontime, conclude to ride upon a “Merry-go-round,” located in Fostoria at the junction of the three counties, his conviction of the continuous and uninterrupted carriage of that flask would convert him into a criminal threefold with each revolution of that whirling carrousel. Ludicrous? Absurd? Yes; but no more so than the logic of the prosecution.

It is a well-known principle of law that an offense may not be split for the purpose of prosecution. Apropos this feature of the case, the learned judge of the Louisiana Supreme Court (152 La., 283, 93 So., 95, 97, 24 A. L. R., 1122) said: “It wfculd indeed create an anomaly in jurisprudence to hold that the mere act of crossing the parish line with the continuous and uninterrupted possession of the fruits of the crime constituted two separate and distinct offenses against the state, one punishable in Red River [parish] and the other in Bossier [parish]. Under the theory of the prosecution, if the defendant had left the city of New Orleans with his ‘gin and wine’ and traveled overland with Shreveport as his ultimate destination, he could have been prosecuted in each and every one of the parishes through which he had occasion to pass. In other words, the prosecutor could spin out the one single crime into a series of' prosecutions commensurate in number with the parishes through which the offender passed. We have not found any authority to support such a strange doctrine.”

No authority has been cited by the state, and, as applied to the facts here conceded, we are confident none can be found, sustaining the doctrine which the state now advances for the first time in our history. While this is a liquor case, the same rule would apply to every offense against our laws. Its adoption does violence to every principle of our jurisprudence; the county is but a unit for venue and the law of but one sovereignty has been violated; moreover its adoption deprives our citizens- of their constitutional safeguard against being twice put in jeopardy for the same offense. The learned trial judge properly decided the case, and the exceptions to his ruling will be overruled.

Exceptions overruled.

Robinson, Matthias and Allen, JJ., concur.

Marshall, C. J., Kinkade and Day, JJ., dissent from the conclusion reached in the majority opinion.

Matthias, J.,

concurring. I concur in the judgment for the reason that the state, and not the county, is the sovereign against which the accused offended. The continuous act constituted a single violation of the statute and in my opinion cannot be punished in separate proceedings upon both sides of the imaginary line separating subdivisions of the state. If there are several and separate acts of violation, several and separate prosecutions may be had, regardless of whether said separate and several acts of violation are in the same county or different counties.

Allen, J., concurs in above opinion of Judge Matthias.

Robinson, J.,

concurring. I concur in the judgment in this case for the reason that a violation, of the Crabbe Act (Sections 6212-13 to 6212-20, General Code), like the violation of any other penal statute, is an offense against the sovereignty of the state, and therefore county lines, except for the purpose of venue and jurisdiction, have no more significance in determining when an offense begins and ends than have private property lines, unless expressly made so by the statute itself.

The Legislature has not attempted to divide a single continuous offense against the Crabbe Act into as many separate offenses as there are counties that, by reason of venue, have jurisdiction of the offense. It alone has such power.

Marshall, C. J.,

dissenting. The majority of this court are of the opinion that the exceptions must be overruled, though there is some variety of opinion in support of the majority conclusion. The question is whether a continuous and uninterrupted transportation of intoxicating liquor through several counties of this state may be prosecuted and punished in each of said counties. Or it may be stated, where a prosecution has taken place in one' county, and another prosecution has been instituted in another county, may the first prosecution be pleaded in bar?

Our state Constitution provides: “No person shall be twice put in jeopardy for the same offense.” Article I, Section 10. The question is therefore whether it is the same offense. It is not disputed, or at least it may be assumed for the purposes of this case, that the transaction in Sandusky county where the former prosecution took place is of the same kind and character as the transaction which took place in Huron county and which became the subject-matter of the second prosecution; that is to say, that the offense was one of transportation, and the transportation was conducted in an automobile, and, so far as the record discloses, without the truck being halted in any way at the county line. One of the majority opinions cites the case of State v. Roberts, 152 La., 283, 93 So., 95, 21 A. L. R., 1122. We will assume that the facts of the Louisiana case were exactly the same as the facts in this case. We will not assume that the parishes in the state of Louisiana are of the same character as the counties in Ohio. If they are the same, it still inay be doubted whether the interpretations of the civil law, which governs in Louisiana, are identical with the interpretations of the common law, which prevails in Ohio. If all these are the same, then that case is a definite authority for overruling the exceptions. Even so, that authority stands alone among the courts of last resort. A case decided by one of the appellate courts of the state of Missouri seems to be of the same tenor, as shown by one of the majority opinions. It seems, however, that it is not harmonious with the case, of State v. Bacon, 170 Mo., 161, 70 S. W., 473, decided by the Supreme Court of Missouri. In that case there was a charge of embezzlement in one of the counties in Missouri, in which the venue was laid in Douglass county, but it was held that the crime was not complete in Douglass county, and the accused was therefore acquitted. Later the same transaction was the basis of an indictment in Wright county and the former acquittal was pleaded in bar. It was held, however, that the former acquittal Was not a bar to the conviction in Wright county. The law is universal that former jeopardy only applies where there is actual identity between the transactions which formed the basis of the several indictments. Venue is an essential part of the charge of any indictment in this state. A conviction in one county can therefore never be. pleaded in bar to a subsequent prosecution in another county. This principle has been established in the following cases. Crowder v. State, 69 Ark., 330, 63 S. W., 669; State v. Whaley, 2 Har. (Del.), 532; Campbell v. People, 109 Ill., 565, 50 Am. Rep., 621; Welty v. Ward, 164 Ind., 457, 73 N. E., 889, 3 Ann. Cas., 556; State v. Bacon, 170 Mo., 161, 70 S. W., 473.

In 16 Corpus Juris, 263, we find the following: ‘ ‘ The prohibition of the common law and of the constitutions is against a second jeopardy for the same ‘offense,’ that is, for the identical act and crime; or, as expressed in a number of eases, to entitle a defendant to plead successfully former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. ’ ’ In support of this proposition a very large number of cases are cited.

It is apparent that the act in Huron county is not identical with the act in Sandusky county and that the proof of the offense in one county cannot be identical with the proof in the other. It is too well established to admit of debate that a failure to prove venue is fatal to any prosecution for crime. Surely the best test as to whether the transaction is punishable in each of two counties is whether a complete offense under the statute can be shown to have been committed in each of the counties. It is not clear whether the several majority opinions proceed upon the theory that the transaction was complete in Huron county, or whether it required a transportation in Sandusky county to complete it. If the transportation was complete in Huron county, there was no apparent reason for continuing the transportation into Sandusky county, and defendant’s subsequent course into Sandusky county was therefore another complete transaction, though not physically separable from that portion of it which took place in Huron county. There must always be a reason for a transgressor of the law carrying his operations into and through several counties. It is quite evident that his purpose is better served by the larger field of operation than it would be by the narrower range. It is equally certain that each of the counties is interested in preventing the transgressions of the law within its territory. It is conceivable that, if the operations were limited to a single county, they would not only be less profitable to the transgressor, but might even be rendered wholly without profit to him. It is so well known that the courts may judicially notice the fact that Pittsburgh, Pennsylvania, and Detroit, Michigan, are abundant sources of supply of contraband liquor. Every county in Ohio is a potential market for such goods. Only a few of the counties could be reached except by crossing other counties. Transportation of liquor is not for the mere sake of transportation, but is only a means to an end. The real purpose is to facilitate purchases and sales. If the supply and the demand were located in the same county in all instances, our present problem would not trouble us. The fact is that the supply is frequently far removed from the demand and requires that the transportation cover from two to twenty counties. The argument that the mere fact that the transportation is continuous makes it a single transaction becomes a fallacy. A continuous act of transportation only facilitates the ultimate purpose of the transgressor and therefore tends to defeat the ultimate purpose of the law itself. In the instant case it is evident that the supply was in Huron county, but the demand was in Sandusky county. To hold that the continuity of the transaction makes it a single offense is a distinct aid to the transgressor and a distinct detriment to law enforcement.

The several majority opinions are not grounded upon identical reasoning, and this dissenting opinion is therefore placed at a disadvantage. Ordinarily a •dissent should only be required to controvert reasons which are common to at least a majority of the court. We are, however, willing to undertake to answer any reason urged by a single judge. Two of the judges are of the opinion that the county line is only imaginary. It may be admitted that it is only imaginary in the sense that it is invisible, and not marked by monuments or bounded by barriers. An imaginary thing is something which has no existence except in the imagination. It is in this sense that it is declared to be only imaginary; or it may be that it requires an exercise of the imagination to escape its vivid reality. It becomes a very real line in the trial of every criminal case by reason of the necessity of proving venue. It becomes very real in the service of process, or the demands of jury service, or the right of suffrage, or in a score of other governmental functions. The reality of the line in criminal prosecutions was first made apparent in the Ohio Constitution in Section 10, Article I, which enjoins “a speedy public trial by an-impartial jury of the county in which the offense is alleged to have been committed.” The line becomes more and more plainly marked by numerous statutes which have fixed the counties as the units of the general governmental subdivisions of the state. But it is said that the state is sovereign, that only the state can enact penal laws, and that the counties are mere enforcement units. It seems to us that this begs the question and becomes its own refutation. If county courts in criminal prosecutions are limited to county territorial jurisdiction, it follows that each county becomes responsible for the peaceful and orderly government within its territory. To say that an offense in all respects complete committed in one county is. barred by the conviction of another offense committed in another county, which offense is identical in its general aspects with such first named offense, on the sole ground that both offenses were committed the same day, though at different hours of the day, by the same agencies, and without interruption, is to make the one county mentor of law enforcement in the other. Public opinion enters largely into the character of law enforcement. The practical value of a penal statute is found in the quality of its enforcement by the executive and judicial agencies of county units. It is divulging no secret to state that the issue in our elections frequently relates to policies of strict and liberal enforcement of law. Lax enforcement has become such an acute issue throughout the length and breadth of the land that a national commission has been appointed to study the problem. The responsibility of a single county cannot be adequately met if it is dominated and controlled by another or other counties. Violators of the liquor laws regularly cross our state from border to border, transporting cargoes of liquor in high-powered autos at frightful speed, without interruption, and to the menace of our citizens. If a nominal fine imposed in a single county must be accepted as a just punishment for such flagrant offenses committed in twenty counties, the situation is nothing short of calamitous.

One of the majority opinions expressly so concedes, and it is believed that every member of this court concurs in the soundness of the decisions in United States v. Lanza, 260 U. S., 377, 43 S. Ct., 141, 67 L. Ed., 314; Koch v. State, 53 Ohio St., 433, 41 N. E., 689, and other cases decided by this court, which declare that, when the same transaction violates a city ordinance, a state law1, and a federal law, the act may be prosecuted and punished by each of those jurisdictions. It is argued from this well-settled principle that they must be three separate and distinct sovereignties. This does not by any means follow. As between the state and the nation the dual sovereignty is definitely established. As between the state and its municipalities, the contrary is established. The question whether cities in Ohio, under the home rule provisions, become “imperium in imperio” was the issue in the case of City of Cleveland v. Public Utilities Commission, 100 Ohio St., 121, 125 N. E., 864. In that case, Judge Wanamaker dissented from the majority opinion on the sole ground that the city under the home rule provisions of the Constitution of 1912 constitutes a separate sovereignty. That this was the issue between him and the other members of the court is clearly stated at the bottom of page 137 of 100 Ohio State, 125 N. E., 864, 868, of the opinion, and in the discussion which followed through several pages. All the other judges except one took the contrary view. A municipality in Ohio does have the right to adopt penal ordinances to govern the conduct of its citizens within the territorial limits of the city, but it does not follow that the city has a separate sovereignty on that ground. It has that power partly because it has been delegated to it by the general assembly and partly because of the provisions of the Constitution of 1912. Even the constitutional amendment of 1912 which confers that power expressly limits the power by providing that its ordinances must not be in conflict with general laws. This principle has been declared several times by this court since 1912 in interpreting the constitutional provision. The nature of the authority of cities in adopting penal ordinances and enforcing them becomes extremely important in the discussion of this case, because it throws light upon the application of the theory of the imaginary line between counties. There is no imaginary line between cities, neither is it an imaginary line between cities and the county line, or between counties having other counties located between them. A high-powered motor car can run from Lucas county to Belmont county, in making the trip between Detroit and Pittsburgh, in only a few hours, and it requires a wide stretch of the imagination to see no difference between Lucas county and Belmont county and to hold therefore that a prosecution for transportation in Lucas county is a bar to a prosecution for transportation in Belmont county.

All members of this court held that the county line was quite real in two cases recently decided: State v. Jerkovich, and State v. Chalikes, ante, 35, 170 N. E., 653.

The merry-go-round illustration in one of the majority opinions is not convincing. A person riding on the merry-go-round intends to travel in a circle and arrive at the starting place without stopping. It is wholly different with the liquor violator in a high-powered automobile carrying a large cargo of liquor intended for distribution in a far distant county or counties. The majority opinions when reduced to their last analysis raise a question of legislative policy more than a question of judicial principles. One of the majority opinions states : “While this is a liquor case, the same rule would apply to every offense against our laws. ” We agree that this is true, and desire to give a few illustrations of the dangers of the majority opinions. Being found in a state of intoxication is punishable by' Section 13194, General Code. If a person already inebriated should be transported swiftly from Fremont, in Sandusky county, to Norwalk, in Huron county, no one doubts that he would be subject to punishment in both places. Having possession of burglar’s tools Is punishable by Section 12439, General Code, and an offender is no less guilty because the possession in two cities in adjoining counties relates to the same burglar’s tools. Having counterfeit money in possession is punishable by Section 13100, General Code, and counterfeit money is certainly as dangerous an instrumentality in one county as in the other.

Let us suppose that a desperate criminal who has escaped from the penitentiary drives his auto at a perfectly lawful rate of speed, and in every respect in a lawful manner, through two or more counties, all the while carrying a concealed weapon. Let ns suppose that in each county through which he passes the authorities have wanted to arrest him, but have made no effort to do so because of knowledge of his carrying the weapon. Would it be said that he is only punishable in one county?

The automobile has acquired a speed record of 231 miles an hour. Manifestly such a speed, or even 150 miles per hour, is inherently dangerous to any one who may happen to be on the highway while a speedster is traveling at that rate. Let us suppose that such a speedster crosses two or three counties without stopping and without interruption all the while maintaining a speed of 150 miles an hour. Will not the majority judgment in this case forbid prosecution in more than one county?

It is freely conceded that the whole state of Ohio constitutes a single, sovereignty and that it requires all of the political subdivisions of the state to make up that single sovereignty. Each and every county constitutes a portion of that sovereignty, and it was planned in the Constitution and throughout all legislation in criminal processes that the county should constitute the enforcement unit, each county being responsible for the good conduct of all persons while within the territorial jurisdiction of such county, and that no other county should be held responsible for or permitted to interfere with that right.

If a continuous act, however long continued, constitutes only a single offense, it follows that the offender may continue his operations indefinitely, thereby violating the peace and quiet of every community in the state and still be subject to a single punishment.

The indictment in Huron county alleged the transportation of liquor between termini both of which were within the territory of that county. It was necessary to prove at the trial that the transportation was within that county. Failure to prove venue, that is to say, that the transportation was within the county, would have been fatal.

The indictment in Sandusky county likewise alleged and proved a transportation within Sandusky county. Every member of this court concedes that the grand jury of each of those counties had the unquestioned right to return the indictments. The grand juries were not bound to inquire whether on the same day similar or even continuous transactions had occurred. The fact that the grand juries had a right to return the several indictments is proof which seems to us conclusive that offenses must have been committed in each of the counties. Venue being an essential element of the crime under our Constitution, so recognized by the Legislature and by the decisions of all the courts of Ohio for more than one hundred years, the crimes cannot be the same, and therefore a former conviction or acquittal cannot be pleaded in bar.

The effect of the majority decision is to permit a transportation once begun to continue indefinitely throughout the state, and the resultant effect from that principle is that a crime once committed justifies the culprit in continuing his criminal processes indefinitely so long as there is no interruption. A further resultant is that a verdict of guilt may become a license to indefinite continuous pursuit of the same criminal course.  