
    Koch v. The State of Ohio.
    1. That a person has subscribed funds for the purpose of legitimately suppressing crime, does not disqualify him from sitting on the grand jury; nor is it ground of disqualification that he has evinced a desire and purpose to enforce the laws.
    2. The fact that township trustees caused one of their number to be returned as grand juror, does not disqualify him from serving as such.
    3. In an indictment for selling intoxicating liquors in violation of law, the time of the alleged offense is immaterial, and proof of a number of sales about the time alleged in the indictment and prior to the finding thereof, is sufficient to warrant conviction.
    Error to the Court of Common Pleas of Clermont county.
    At the May term, 1874, defendant was indicted for selling intoxicating liquors to Charles Morgan, on the 20th of May, 1873, to be drank upon the premises and in the building where sold.
    To this indictment defendant put in a plea in abatement, assigning four causes why the indictment was not valid.
    1. That Samuel MeKown and John D. Perin, two of the grand jurors -who participated in finding the indictment, were not competent jurors and did not possess the required qualifications to sit as grand jurors, because they had each agreed to pay fifty dollars toward defraying the expenses of witnesses attending upon the grand jury, and to fee attorneys to assist in the prosecution of alleged violations of the Ohio liquor law, etc.
    2. That John Idlet was a member of the grand jury that found the bill of indictment against defendant, and was disqualified for two reasons: 1. Recause he said to a person not a grand juror, “ that they, said grand jury, had already found a great number of bills against the liquor sellers of this county, and that before they (the grand jury) got through they would find enough bills to break every liquor seller in Clermont county up.” 2. That in 1873 and 1874, Idlet was a trustee of Monroe township, in Clermont county, and as such trustee charged with the duty of selecting and returning persons for jurors, and he caused himself to be returned as one of the persons to the clerk, from whom jurors would be drawn.
    3. That Otis Dudly and Q-eorge McNutt were grand jurors who acted in finding the indictment against defendant; that they were, in 1873, trustees of Williamsburg township, in Clermont county, and as such charged with the duty of selecting and returning to the clerk of the court proper persons to be drawn and serve as jurors ; that they caused themselves to be returned as jurors, and being public officers were disqualified from serving as grand jurors.
    4. That he is not indicted by his true name. That his name is not John Cook, as he is indicted, but that his true name is John Koch. Having disclosed his true name it was accepted by the state and all subsequent proceedings conducted in his true name.
    The prosecuting attorney demurred to the second and third assignments, as causes for plea in abatement, because the said plea in these respects does not state facts sufficient in substance to constitute a plea in abatement. The demurrer was sustained, and defendant excepted. An issue was made on the plea in abatement as it stood after the demurrer was sustained. A jury was sworn to try the issue, and returned a verdict against the defendant. A motion was made for a new trial, and the motion being overruled, defendant took a bill of exceptions embodying all the testimony given on the trial of the plea in abatement.
    The plea in abatement having been disposed of, the cause proceeded to trial upon the plea of not guilty. The indictment contains a single count, charging the liquor to have been sold to be drank upon the premises where sold. The evidence did not identify a special sale, but showed a number of them, about the time alleged in the indictment, and prior to the finding of the bill. The indictment charged a sale to Chas. Morgan on the 20th May, 1873, and the court charged as follows:
    “ If you are satisfied by the proofs, beyond a reasonable doubt, that the defendant, in the month of May, 1873, sold intoxicating liquors to Chas. Morgan to be drank on the premises where sold (made a series of sales to him in that month of intoxicating liquors to be drank on the premises ■where sold), that will be sufficiently certain as to time and identity of the sale charged in this indictment, to warrant you in the question to find against the defendant.”
    And again, “ As to the question of time, I charge you that time is not an essential ingredient of the crime charged in this indictment.”
    And again, “ That the defendant sold the intoxicating liquor to Chas. Morgan to be drank upon the premises and in the building where sold, at a time prior to the finding of this indictment by the grand jury.”
    These charges are alleged to be erroneous.
    The defendant was convicted.
    
      Nichols & Davis, and A. T. Gowen, for plaintiff in error.
    
      T. A. Griffith, for defendant in error.
   Wright, J.

The demurrer to the plea in abatement was properly sustained. There is nothing in the statute forbidding trustees of townships from returning their own names to the clerk of the court in the list of jurors. The board is required annually.,to select good judicious persons having the qualifications of an elector, and not exempt by law, from serving as jurors. 70 Ohio L. 168, § 3. The reason why they should select persons not exempt by law, is that the persons drawn from the box shall be without excuse from serving, not that the persons exempt are disqualified. The board of trustees is composed of three persons, and two of the trustees may return their fellow on the list of selected persons, and the one selected be ignorant of what has been done. Rut whatever may have been the circumstances, the fact that he is a public officer does not disqualify. In Glossenger v. The State, 24 Ohio St. 206, if was hold: “ The provisions of the act relating to jurors (70 Ohio L. 173, § 21), exempting public officers and others from service on juries does not have the effect to disqualify the persons so exempted, but. merely extends to such persons a privilege, which may be waived by them.”

See also The State v. Easter, 30 Ohio St. 542, and cases cited therein.

In the second clause or assignment of the plea in abatement, it is alleged that one of the grand jurors had said “that they (said grand jury) had already found a great number of bills against the liquor sellers of this county, and that before they (the grand jury) got through, they would find enough bills to break every liquor seller in Clermont county up.”

"We can not herein see anything which would disqualify the party from serving on the grand jury, for notwithstanding having made such a statement, he may have been a “good and judicious” person. If liquor selling was an offense against the laws, a determination to put an end to it, does not show the party to have been incompetent to find indictments.

The same remarks will apply to the ground of objection that the grand jurors were incompetent, because they had subscribed $50 to pay the expenses,of prosecuting offenders. Zeal displayed in a purpose to put down a certain kind of offense, often repeated, is not a bias against any particular individual. A desire to enforce the laws is commendable rather than the reverse. It is to do this that the grand jury is organized, in order that they may discover and present these persons who have been guilty of crime.

They do not try and convict the offender. That is left for another body, with regard to whom, and against any feeling they may entertain, the accused is sufficiently protected.

But even if a supposed interest on the part of a grand juror were a disqualification, it has already been held by this court that the objection can not be taken by plea in abatement. The State v. Easter, 30 Ohio St. 542. If ground of challenge at all, it must be made before indictment found, or before the jury is sworn.

As to the charge of the court with reference to proving a specific sale and the time thereof. We understand the law to be as recognized in Stockwell v. The State, 27 Ohio St. 563, where it is said: “As the precise time laid in the indictment is immaterial, the plaintiff in error might well have been convicted, on proof that he committed the offense charged, at any of the times in regard to which evidence was offered by the state.”

In the ease before us, there was evidence tending to show sales “ about the time mentioned in the indictment.”

The time mentioned was the 20th May, aud there was evidence of sales in March, April, and May, all prior to the finding of the indictment. This was sufficient.

In Stockwelhs case, the defendant asked the court to require the state to elect and inform the defendant which specific sale, which it had given evidence tending to prove, the state relied on, to sustain the indictment. This was refused, and for this the judgment was reversed. The prosecutor should have made his election when asked. In the case before us, no such election was demanded.

Judgment affirmed.  