
    The State of Ohio v. Murray.
    
      Accused indicted for owning building — In which bucket-shop was permitted — Proof that owner himself conducted business — Variance between indictment and facts — ATo warrant for verdict for defendant — Claim of privilege by witness.
    
    1. Where on the trial of an indictment charging the accused as owner and occupier of a certain building, with having unlawfully and knowingly permitted to be kept therein a bucket-shop office and place wherein he permitted the pretended- buying and selling of stocks, grain, etc., on margins, the proof shows that the accused himself kept the place and personally conducted and carried on therein said unlawful business, there is no such variance between the allegations of the indictment and the facts proved as to warrant the court in directing a verdict for the defendant.
    2. When a witness refuses to answer a question propounded to him, on the ground that his answer will tend to criminate him, his claim of privilege is properly allowed by the court if from the circumstances of the particular case and the nature of the question asked, it appears there is reasonable ground to apprehend that his answer would have the effect claimed by him.
    (No. 12109
    Decided June 7, 1910.)
    Exceptions by prosecuting attorney to decision of the Court of Common Pleas of Coshocton county.
    This case comes into, this court under favor of Sections 7305 and 7306, Revised Statutes, on ex-' ceptions filed by the prosecuting attorney to the decision of the court of common pleas of Coshocton county. The facts so far as thev are material to the points presented are stated in the opinion of the court.
    
      
      Mr. Joseph L. McDowell, prosecuting attorney, and Mr. William S. Merrell, assistant prosecuting attorney, for the exceptions.
    The view the trial court seemed to take of testimony was that all the evidence introduced showed that the defendant was an active participant in all the transactions had in said place and that it did not matter whether he acted as agent for some other person or for himself he was nevertheless not guilty under Section 6934a-5, Revised Statutes; in other words, that a person, guilty of doing any ,of the acts prohibited by Section 6934a-l, Revised Statutes, could not be convicted under Section 6934a-5, Revised Statutes. This view of the court was clearly erroneous; for, if the court should hold that a person could not be convicted of permitting himself to do these acts in his own building, he could certainly be convicted if he permitted others to do the same acts in his building, and this the testimony tended to prove., The court seems to lose sight of the fact that Section 6934a-l is aimed at the act and Section 6934a-5 is aimed at the improper use of his property. This indictment not only charges that defendant knowingly permitted (a) the keeping of a bucket-shop but also (b) the pretended buying and selling in his building. If the evidence showed that he permitted either, he was properly indicted and was guilty under the evidence as given. Groves v. State, 51 S. E. Rep., 627.
    The words “permit,” “allow,” “suffer,” are synonymous in popular speech. Statutes should be construed with reference to convenience, and the object sought, rather than nice philological distinctions, which probably never entered the mind of the general assembly. Board v. Board, 10 C. C., 620, 54 Ohio St., 643; Thompson v. Ackerman, 21 C. C., 747; 9 Words & Phrases Judicially Defined, 5315; Gregory v. United States, 17 Blatch., 330.
    As to the refusal of Rex to answer certain questions the court said: “Mr. Rex, it is your right to refuse to answer any question tvhich in any way might tend to incriminate you in any manner. It is for you to determine for yourself whether the answer to the question in any manner would tend to incriminate you, and if you think it would you can refuse to answer.”
    Counsel for the state then insisted the court pass upon the question and determine whether his answer would tend to incriminate him and that the court had power to institute an inquiry into the matter, but the court refused.
    This case illustrates the danger to which such a rule of the court would lead. In cases of this kind where all the parties are in league against the enforcement of the law, all they would have to do would be to answer, “I refuse to answer. I will place it on the ground that it might tend to incriminate me,” and it would be impossible to procure a conviction. This court has touched upon this question before and if we construe the language of the court correctly, the trial court was certainly in error. McGorray v. Sutter, 80 Ohio St., 400.
    
      Mr. James Glen and Mr. J. C. Adams, against the exceptions.
    
      The indictment was drawn under favor of Section 6934a-5, Revised Statutes, which makes it an offense to permit a building to be used for a “bucket-shop.” That statute has no application to cases where the owner himself of the building is engaged in keeping a “bucket-shop” or buying and selling stocks and grains on margins, as such offenses are condemned by Section 6934a-1, Revised Statutes. That Sections 6934a-1 and 6934a-5 define different and distinct offenses is clearly manifest, as under each respectively the penalties vary in amount.
    If the defendant was actually engaged in operating a “bucket-shop” he should have been indicted for keeping a place, under Section 6934a-l, Revised Statutes.
    We maintain the court was right in not requiring Rex to answer certain questions put to him, because their answers would disclose incriminating evidence against himself.
    While we do not contend that the conclusion of the witness that his answer “might tend to incriminate him,” is in all cases conclusive upon the court; but it' is manifest in this case that inquiry by the court would invade the immunity of the witness. The ruling of the court in this case is not in conflict with the rule announced in McGorray v. Sutter, 80 Ohio St., 400.
   By ti-ie Court.

At the January term, 1909, of the court of common pleas of Coshocton county, the grand jury of said county returned against the defendant herein, John J. Murray, the following indictment:

“The jurors of the grand jury of the state of Ohio, within and for the body of the county of Coshocton, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Coshocton, in the name and by the authority of the state of Ohio, on their oaths do find and present that John J. Murray, late of said county, on the first day of November in the year of our Lord one thousand nine hundred and eight in said county of Coshocton and state of Ohio, and on divers other days and times between that day and the first day of February, A. D. 1909, in said county and state, unlawfully and knowingly did permit to be kept in a certain brick building and erection of his, the said John J. Murray, the same brick building being then and there in the care and possession of him, the said John J. Murray, a bucket-shop, office and place there situate, wherein he, the said John J. Murray, permitted and suffered the buying and selling of stock of divers railroad companies, the names of which are to the grand jurors unknown, and the •buying and selling of wheat, corn, oats and other produce on margins without any intention on the part of the buyer or seller of receiving or paying for the property so bought, or of delivering the property so sold; and wherein he, the said John J. Murray, permitted and suffered the pretended buying and selling of such property on margins; wherein divers persons whose names are to the •grand jurors aforesaid unknown, bought and sold such property, and offered to buy the same, but did not at the time intend to receive the said property so purchased, or to deliver the property so sold; and wherein the said John J. Murray permitted and suffered said divers persons to contract for option to buy and sell at a future time wheat, corn, oats and stocks of such divers railroad companies, wherein such persons intended at the time aforesaid, to-wit: at the time the contract for such option was entered into, to secure not the article contracted for in said option, but the right and privilege of receiving the difference in money between the contract price of such article or commodity as set forth in said option, and for which the option was contracted for, and the future market price of said article or commodity contemplated in said option, and wherein there was no intention upon the part of the buyer or seller of receiving or paying for the article or commodity or of delivering the article or commodity for which such option was bought or sold, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

“Joseph L. McDowell,
“Prosecuting Attorney

Said indictment was found and presented under favor of an act of the general assembly passed February 7, 1889 (86 O. L., 12), entitled: “An act to suppress bucket-shops and gambling in stocks, bonds, petroleum, cotton, grain, provisions and other produce,” the whole of which act is now embraced in Sections 6934a-l to 6934a-5, Revised Statutes, inclusive. Section 6934a-1, so far as its provisions are here pertinent, provides: “That it shall be unlawful for any corporation, association, chamber of commerce, board of trade, copartnership or person to keep or cause to be kept within this state any bucket-shop, office or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions or. other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, or when the party buying any of such property, or offering to buy the same does not intend áctually to receive the same if purchased, or to deliver the same if sold, and the keeping of all such places and any such pretended buying or selling are hereby prohibited.” Section 6934a-5 enacts and provides that: “Whoever knowingly permits any of the illegal acts aforesaidv in his building, house, or in any outhouse, booth, arbor or any erection of which he has the care or possession, shall be fined not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1,000.00).” On the trial of this case in the court of common pleas the state, to maintain the issues on its part, introduced evidence tending to show that from November 1, 1908, to February 1, 1909, inclusive, the bucket-shop, office or place, which the indictment alleged was permitted by defendant to be kept in the building described in said indictment, was kept and operated by the defendant, John J. Murray himself, and that the prohibited and unlawful business which it was alleged and charged he permitted to be conducted and carried on in said building, to-wit: “the pretended buying and selling of the shares of stock of certain railroad corporations, and the pretended buying and selling of grain and provisions on margins,” etc., was conducted and carried on by the defendant in person. At the conclusion of the state’s evidence the court, on motion of the defendant’s counsel, instructed the jury to return a verdict of not guilty, for the reason, and on the sole ground, as we are informed in the briefs, and by counsel in oral argument, that, it having been shown by the evidence of the state that defendant himself owned and kept the building or place, and in person conducted and carried on therein the unlawful business of the pretended buying and selling of stocks on margins, etc., he, defendant, could not therefore rightfully be convicted under an indictment which charged him only with knowingly permitting such illegal acts in his said building. The fallacy of this position or claim lies in the fact that it necessarily rejects, and ignores the express provisions of the statute and the pertinent allegations of the indictment. ° It will be observed that Section 6934a-1 not only enacts that it shall be unlawful to keep a “bucket-shop,” but said section, in express terms, also prohibits and makes unlawful “the pretended buying or' selling of the shares of stocks or bonds of any corporation * * * either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold.” And Section 6934a-5, Revised Statutes, provides that: “Whoever knowingly' permits any 1 of the illegal acts aforesaid in his building,” etc., shall be punished as in said section provided. The unlawful acts mentioned and referred to in Section 6934a-5 embrace and include all and singular the acts that are prohibited and declared to be unlawful by Section 6934a-l. Hence, it having been shown by the evidence in this case that the defendant, John J. Murray, was the owner and keeper of a building and place wherein divers persons, his patrons and customers, were permitted and allowed to make pretended purchases, and pretended sales, of stocks, grain, etc., on margins, such buying and selling being prohibited and unlawful, it would seem to be a perversion of the law and a burlesque upon the due administration of justice to say and hold that because he himself was the keeper of such office or place, and personally participated in and conducted the unlawful transactions, that therefore, in law, he cannot be held to have knowingly permitted such illegal acts. The latter being one of the offenses embraced in the statute, and being the particular offense defined and charged against the defendant in the indictment in this case, and such being the evidence by which said charge was supported, it was error for the court to instruct the jury to return a verdict of not guilty, and the exception of the prosecuting attorney to the action of the court in that behalf will be sustained.

On the trial of this case one Harry Rex, a broker, was called as a witness on behalf of the state and this question was asked him: “I will ask you, sir, if you or your company send or transfer to anyone or to any company in this county any money or its equivalent to be used by John J. Murray for transactions with traders in his building in this city between the days of November 1, 1908, and February 1, 1909?” Thereupon, at the request of counsel, the court fully explained to the witness his privilege and rights touching the matter of his answering said question, after which the witness refused to answer, stating to the court that he based his refusal on the ground that his answer might tend to incriminate him. Whereupon the court without further inquiry or examination of the witness touching his refusal to answer said question, refused to require him to answer the same. This it is claimed was error. It would seem to us to be so apparent, from a consideration of the circumstances of the case and the nature of the interrogatory itself, that an affirmative answer thereto would tend to incriminate the witness by connecting him with said unlawful business, that we think the court did not err in giving final effect to the claim of the witness that his answer to said question would tend to incriminate him. Other interrog'atorie-$ similar in character were propounded to the witness all of which he declined to answer for like reason. The court in each instance refused to compel him to answer, and in this we think there was no error.

The exception to the action of the court in directing a verdict, sustained. The exception to the court’s refusal to require witness to answer certain questions, overruled.

Crew, Spear, Davis, Si-iauck and Price, JJ., concur.  