
    Halper v. The State of Ohio.
    
      (Decided April 14, 1930.)
    
      Mr. Francis J. Horvath, for plaintiff in error.
    
      Mr. Gilbert Bettmcm, attorney general, and Mr. Wm. R. Walsh, for defendant in error.
   Sullivan, J.

This cause is here on error from the criminal branch of the municipal court of the city of Cleveland, and it is here sought to set aside the conviction of Sam Halper, plaintiff in error, who was sentenced to pay a fine of $3,000, under an affidavit which reads as follows: “Before me, F. J. Reilly, Deputy Cleric of the Municipal Court of Cleveland, personally came Kay K. Douglas, who being first duly sworn according to law, deposes and says that at the said city and county, which Sam Halper being then and there a dealer, doing business in the State of Ohio, between the 6th day of September, 1929, to September 17, 1929, as defined in General Code Section 5526, and being engaged in the importation into the State of Ohio of certain motor fuel, to-wit: Gasoline for use or sale and delivery in Ohio, did unlawfully fail to file with the Tax Commission of Ohio, a certificate and bond, stating the name under which the aforesaid dealer was transacting business within the State of Ohio and the location of its principal office or place of business within the state, and further deponent saith not.”

It is urged by plaintiff in error that the affidavit is not sufficient in law to constitute an offense under the section of the statute named, or any other criminal law, and it is further urged that the sentence of the court was irregular and unlawful in that the fine included separate offenses, committed on separate days, as defined by the statute, which provides that each day shall constitute a separate offense.

Section 5536, General Code, reads as follows, in part: “Any * * * firm * * * who shall engage in business as a dealer as defined in this act, without having filed with the tax commission of Ohio the certificate provided for by Section 5528 * * * together with a bond in the amount and form prescribed by Section 5528-1, or after the cancellation of his or its certificate by said commission, shall upon conviction thereof be fined not less than one hundred dollars, nor more than one thousand dollars. Each day or part thereof * * * shall constitute a separate offense.”

Thus it will be seen that the offense is the engaging in business as defined in the act, without having filed with the tax commission the certificate provided for in Section 5528, together with a bond in form and amount prescribed by Section 5528-1.

Now, when we refer to the affidavit, we find the defendant charged with being a dealer doing business in the state of Ohio between September 6, 1929, and September 17, 1929, as defined in Section 5526, General Code, and being engaged in the importation in the state of Ohio of certain motor fuel, to wit, gasoline, for use or sale and delivery in Ohio. Up to this point we find that the language is merely descriptive; that the dates above mentioned do not have any application to anything except to a dealer under Section 5526, General Code, and it in no way establishes the date of the commission of the offense which is attempted to be charged.

Now, when we follow the affidavit from this point, which relates to description only, we find the language: “Did unlawfully fail to file with the Tax Commission of Ohio, a certificate and bond, stating the name under which the aforesaid dealer was transacting business within the State of Ohio and the location of principal office or place of business within the State.”

Thus it is obvious on the face of the affidavit, as to the language concerning the commission of the crime, that there is absolutely absent therefrom any date respecting the commission of the act, as has been noted. The dates mentioned in the affidavit apply only to the time when the defendant was a dealer, but there is no language which imports the commission of an offense, with the dates inserted in the affidavit.

The language absent is vital and material because the charge of “unlawfully dealing” must have a date, and there is no connection between the dates applying to the dealer and the act which is charged to be unlawful. Therefore our conclusion is that upon this point under discussion there is an utter failure to charge the time of the commission of the offense charged against the plaintiff in error.

Again, if we will examine the affidavit as to its sufficiency we find that, notwithstanding the offense named in the statute applies to a dealer engaging in the business prohibited, yet the affidavit, instead of charging the offense named in the statute, alleges an unlawful failure to file a certificate and bond with tbe tax commission of Ohio.

From a reading of the statute .it is plain that tbe commission of tbe offense is not tbe failure to file tbe certificate. It is tbe engaging in tbe business denominated as unlawful by tbe statute. Tbe only connection wbicb tbe failure to file tbe tax bas with tbe engaging in business is that tbe business shall not be engaged in by tbe dealer unless be bas filed with tbe tax commission tbe certificate, as provided by Section 5528, General Code.

Thus, tbe charge in tbe affidavit does not apply to the offense as defined by tbe Legislature, but only to that qualifying clause or condition wbicb relates to tbe filing of tbe certificate mentioned in the statute. Thus upon this point also we bold that tbe affidavit is insufficient in law, because tbe offense itself is not charged, but merely that portion of tbe offense wbicb is a qualifying clause or condition wbicb determines whether tbe law bas been complied with or violated.

Upon tbe question whether tbe court committed error by adding up tbe fines of each day, and assessing tbe total, we are of tbe opinion that there is no warrant in law for tbe grouping of tbe offenses under one general sentence, where tbe law, as in this case, distinctly and directly prescribes that each day shall constitute a separate offense. If tbe separate offenses bad been charged separately, under one af.fidavit, there would not be so much ground for tbe assertion of error, but, inasmuch as each offense was added to tbe others and a sentence made upon tbe total, it is clear that there is no authority for such a procedure.

Different offenses of tbe same character may be charged under one indictment, but they must be separately and distinctly numbered and stated, and not presented in mass formation, so to speak.

Holding these views, it is our judgment that no offense has been charged in the affidavit under the section of the statute named, and that therefore the conviction is unlawful, and, inasmuch as the cause of reversal is based upon this reason, the plaintiff in error is not immune from answering to the law when proper charges are made under the provisions of the statute herein discussed.

The judgment of the lower court is therefore reversed, and the plaintiff in error discharged.

Judgment reversed.

Vickery, P. J., and Levine, J., concur.  