
    Lemmon v. The State of Ohio. Beard v. The State of Ohio. Miller v. The State of Ohio.
    
      Valentine Anti-Trust law — Section 4427-1 to 4*127-12, Revised Statutes — When imprisonment is part of penalty — Sentence must be to county jail and not to workhouse■ — Criminal law.
    
    
      A defendant convicted in Lucas county of violating the provisions of the Valentine Anti-Trust law, Section 4427-1 to 4427-12, Revised Statutes, must, if imprisonment is part of the penalty imposed by the court, be sentenced to the county jail and not to the Toledo workhouse.
    (Nos. 10404, 10405, 10406
    Decided January 21, 1908).
    Error to the Circuit Court of Lucas County.
    The facts in the above cases, so far as pertinent to the present inquiry, are as follows: On May 18th, 1906, plaintiffs in error in the above entitled cases were, with others, jointly indicted by the grand jury of Lucas county, Ohio, for alleged conspiracy against trade, “in unlawfully increasing the price of, and preventing competition in the sale of, certain commodities intended for sale and consumption in the state of Ohio, to-wit: natural and artificial ice,” contrary to, and in violation of the provisions' of Chapter 19a, Revised Statutes, familiarly known as the “Valentine Anti-Trust law.” Each of the above named, having entered a plea of “not guilty” to said indictment, Joseph A. Miller demanded a separate trial, which was allowed by the court. Reuben C. Lemmon and Roland A. Beard elected to be tried together. Miller was the first of the accused to be put upon trial and a verdict of guilty was returned against him by the jury on June 7th, 1906. June 8th, 1906, Miller filed a motion for new trial and also his separate motion in arrest of judgment. The trial of Reuben C. Lemmon and Roland A. Beard was commenced on Saturday, June 9th, 1906, and a jury partly impanneled, but there not being present a sufficient number of regular jurors to complete the panel, the defendants, Lemmon and Beard, requested the court to issue a special venire which was accordingly done, and thereupon the trial was adjourned until Monday morning, June nth, 1906. On Monday, June nth, and before the impanneling of said jury had been completed, the defendants, Lemmon and Beard, by leave of court, withdrew their pleas of “not guilty,” and each severally entered his plea of “guilty” to said indictment. On June 21st, 1906, Joseph A. Miller withdrew both his motion for a new trial and his motion in arrest óf judgment, theretofore filed by him on June 8th, 1906. Thereafter on June 25th, 1906, said Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller were sentenced by the court of common pleas, “to be imprisoned in the Toledo workhouse at Toledo, Ohio, at labor for the term of one (1) year and pay a fine of five thousand ($5,000.00) dollars and the costs of prosecution, and that they and each of them stand committed to the said Toledo workhouse until the amount of said fine and costs respectively shall be paid or discharged according to law.” On June 28th, 1906, on the application of Lemmon, Beard and Miller, this sentence was modified as to each of said defendants and the following entry was made upon the journal of the court:
    “This day came on to be heard - applications of Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller, respectively, for a suspension of the execution of the sentence heretofore on the. 25th day of June, 1906, pronounced against them and each of them in this case. And the court being fully advised in the premises, does hereby suspend indefinitely the execution of one-half of said sentence in each case, to-wit, one-half of the sentence with respect to both fine and imprisonment, and it is hereby ordered that when said defendants respectively, shall have been imprisoned in the Toledo workhouse for a period of six months, and shall have paid the remaining one-half of the fine, to-wit: twenty-five hundred dollars respectively and the costs of prosecution respectively, the same shall be a full and complete satisfaction of the sentence imposed June 25th, 1906, against said defendants respectively as aforesaid. Approved.
    “R. R. Kinkade, Judge.”
    On June 29th,' 1906, Beard and Lemmon filed a motion asking for the vacation of the sentences pronounced against them respectively, and asking that they be permitted to -withdraw their pleas of “guilty” and be allowed to enter in their stead pleas of “not guilty.” Joseph A. Miller, on June 30th, 1906, filed a like motion asking the vacation of the sentence pronounced against him, and for an order reinstating his motion for new trial and his motion in arrest of judgment. In support of these motions it was, among other things, .alleged and claimed that the trial judge by words, promises and conduct misled the defendants, Reuben C. Lemmon and Roland A. Beard, into withdrawing their pleas of “not guilty” and entering pleas of “guilty,” by exciting in their minds the hope and expectation that bjr so doing they would each receive a light sentence, and that for like reason the defendant, Joseph A. Miller, was induced 'to withdraw' his motions for a new trial and in arrest of judgment. By order of the court each of these’ motions was stricken from the files for the alleged reason that the same was filed without leave of court, and that each contained “insulting, scurrilous, untrue and contemptuous matter fully known by the court to be untrue.” Thereafter, to-wit: on July 24th, 1906, the common pleas court, during- the same term of court at which the former orders had been made striking said motions from the files, caused to be made and spread upon the journal the following entry: r .
    “Whereas, Heretofore, on the 29th day of June, 1906, an order was entered in this case, striking from the files the motion of the defendants, Roland A. Beard and Reuben Compton Lemmon, to set aside the sentences and for leave to withdraw their pleas of guilty and to enter pleas of not guilty, on the ground that said motions contained insulting, scurrilous, contemptuous and false matter; and on the 2d day of July, 1906, a like order was made on the same grounds on a motion filed by the defendant, Joseph A. Miller, for leave to restore his motions for a new trial and in arrest of judgment, and there are now pending in the circuit court of this county, petitions in error to reverse the action of this court in striking said motions from the files; and
    “Whereas, On the 2d day of July, 1906, the attorneys for said defendants, to-wit: Thomas H. Tracy, Clarence Brown and Alexander L. Smith were adjudged guilty of contempt of filing, pressing for hearing and offering to maintain said motions in open court; and thereafter proceedings in error were had in said matter in the circuit court of Lucas county, Ohio, which court, on the 21st day of July, 1906, held that said motions should have been heard in this court. And it now being apparent to the court that upon the hearing of said error proceedings said circuit court will hold that said motions should not have been stricken from the files, but heard and said circuit court having, on July 23d, 1906, adjourned to the 17th day of September, 1906;
    
      “Now, therefore, And in order that the hearing of said motions may be expedited and the same disposed of without further delay, it is hereby ordered and adjudged that said former orders of the court, striking said motions from the files be and they are hereby vacated and set aside, and said motions are hereby restored to the files of this court; and it is further ordered that said three motions so hereby restored to the files be and they are hereby set down for hearing in Court Room No. 1 at ten o’clock a. m. Thursday,- July 26th, 1906.
    “July 24, 1906. Approved:
    “R. R. Kinkade, Judge.” .
    ' On August 3d, 1906, said motions were heard, upon evidence, by the court of common pleas— Judge William A. Babcock presiding — and were each and all of them overruled. Thereupon a bill of exceptions was duly taken and error was prosecuted to the circuit court of Lucas county, where the proceedings, judgment and sentence of the court of common pleas was affirmed. To reverse this judgment of the circuit court, Reuben C. Lemmon, Roland A. Beard and Joseph A. Miller each prosecutes error to this court. The assignments and grounds of error alleged by each in his petition in error, are the same.
    
      Messrs. King & Tracy; Messrs. Brown, Geddes, Schmettau & Williams; Messrs. Smith & Beckzvith; Mr. Frank H. Geer and Mr. E; M. Beard, for plaintiffs in error.
    
      Mr. Henry W. Seney; Mr. Lyman W. Wachenheimer, prosecuting attorney, and Mr. Ralph Emery, assistant prosecuting attorney, for defendant in error.’
   Crew, J.

It is urged against the validity of the judgment and sentence in each of the above cases, that the statute under which plaintiffs in error' were indicted and sentenced, commonly known as the Valentine Anti-Trust law, is unconstitutional. Inasmuch as the constitutionality of this statute, in so far as upon this record its provisions, are involved in the present cases, was upon full and careful consideration thereof, affirmed by this court in State, ex rel. Monnett, v. The Buckeye Pipe Line Company, 61 Ohio St., 520, and State v. Gage, 72 Ohio St., 210, we deem it unnecessary in this opinion to reopen and reargue that question; or to say more, at this time, touching the constitutionality of this statute than that we are all agreed, the question of its constitutionality was correctly determined by this court in the above cases, and we adhere to the conclusions there reached. It is further urged by counsel for plaintiffs in error, that the court of common pleas erred in overruling the motions of Lemmon and Beard asking for a vacation of the sentence pronounced against each of them, and for leave to withdraw their pleas of guilty and to enter pleas of not guilty; and erred in overruling the motion of defendant Miller asking an order vacating the sentence' against him, and for the reinstatement of the motions for new trial and in arrest of judgment, which he had theretofore filed but which, subsequently and before sentence he withdrew. The grounds alleged in these several motions were substantially the same, and of such a nature as required that they should be supported and established by evidence. Upon the ■ hearing of said motions, affidavits and oral testimony in support thereof were introduced on behalf of the defendants, plaintiffs in error here, and evidence tending to disprove the truth of the matters in said motions alleged, was introduced on behalf of the state. Upon consideration of this evidence the court of common pleas found and adjudged that the grounds alleged in said motions were not sustained by the evidence, and thereupon overruled the same. Thereafter, the circuit court upon consideration of the same evidence, embodied in a bill of exceptions presented to that court on proceedings in error, affirmed the finding and judgment of the court of common pleas. This judgment of the circuit court, involving as it necessarily did a weighing of the evidence, is final and conclusive; that court in criminal, as well as civil cases, being the court of last resort, for the determination of questions as to the weight or probative force of evidence, Section 7356, Revised Statutes. Hence, the judgments of the courts below upon these motions will not be reviewed by this court. The further contention is here made that the sentence of the court in the above cases, in so far as it directs and requires the imprisonment of the plaintiffs in error in the Toledo workhouse was and is, unauthorized and illegal. This specific objection was not made in the courts below, but is now presented in this case for the first time in this court. However, if the point is well taken, and the court of common pleas was wholly without authority in law, to impose such sentence, the objection is not too late. Without undertaking to review in detail the various statutes and legislation authorizing the establishment and maintenance of municipal workhouses or corporation prisons, county workhouses, joint county and municipal workhouses,- and district workhouses, and providing who may be sentenced to, and confined therein, it may be said, that if the right exists in the above cases, to sentence to the Toledo workhouse, persons convicted in Lucas county of violating the provisions of the so-called Valentine Anti-Trust law, such right is not to be found in the terms of that law itself, but must be parsed out of the provisions of Section 1536-369, Revised Statutes, which section reads as follows: “When a person over sixteen years of age is convicted of an offense, under the law of the state or an ordinance of a municipal corporation, and the tribunal before which the conviction is had is directed by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, shall sentence'the offender to the workhouse, if there is such house in the county.” It will be observed from the language of this section, that it does not purport to authorize or require a workhouse sentence except in cases where, “the tribunal before which the conviction is had is directed by law to commit the offender to the county jail or corporation prison.” No such direction is anywhere to be found in the provisions of the Valentine law. Section 4 of that law, which is the section that prescribes the penalty for a violation of said act, while it permits, neither enjoins nor directs imprisonment, as a necessary part of the penalty for such violation, nor does it designate the place of imprisonment in the event imprisonment shall be imposed as part of the sentence. The section provides that for “Any violation of either or all of the provisions of this act * * * (the offender) shall be punished by a fine of not less than fifty ($50) dollars nor more than five thousand ($5,000) dollars, or be imprisoned not less than'six months nor more than one year, or by both such fine and imprisonment.” Turning to Section 6794 of Part Fourth, Revised Statutes, we find it there provided that: “the word ‘imprisoned’, when the context does not otherwise require, shall be construed to mean imprisoned in the county jail.” Inasmuch, then, as Section 4 of the Valentine law does not direct and require imprisonment as a part of the penalty for a violation of said law, no warrant can be found, in the language or provisions of Section 1536-369 for the claim that the latter section either requires or permits imprisonment in the workhouse as part of the punishment for a violation of said law. Counsel for defendant in error cites, as supporting their claim that the sentences in the present cases were authorized by Section 1536-369, the case of Kimbleawecs v. State, 51 Ohio St., 228, in which case said section was construed by this court. That was a case in which K., the plaintiff in error, was convicted for keeping a saloon open on Sunday, and upon conviction was sentenced to the Cleveland workhouse. The statute under which the conviction was had, provided,' in express terms, that for such offense the accused upon conviction, “shall be fined in any sum not exceeding one hundred dollars, and not less than twenty-five dollars, and be imprisoned in the county jail or city prison not less than ten days and not exceeding thirty days.” Thus it will be seen that by the express terms of the statute itself, the court was enjoined and directed by lazv to imprison the accused in the county jail or city prison; hence the provisions of Section 1536-369 became and were expressly applicable in that case, and not only permitted but required, that defendant be sentenced to the workhouse, and the court very properly- held in that case that such sentence was authorized. But b}^ the statute here under consideration, while the court is permitted to imprison, it is not directed by lazv so to do, and the provisions of Section 1536-369 are not therefore applicable. There were at the time of the enactment of this section, and now are, many statutes upon our statute books which in terms require and direct imprisonment as a part of the sentence, but leave to the discretion of the court whether that imprisonment shall- be in the jail or workhouse, and it is to such cases that the provisions of Section 1536-369 apply. To adopt the interpretation of this section contended for by counsel for .defendant in error, would not only require that we ignore the plain language of the statute itself, but that by construction we so extend and enlarge its provisions that they shall include all cases of conviction for a misdemeanor that may be punished by imprisonment, even though imprisonment be not directed by law as an essential part of the penalty to be imposed. Such certainly is not the language of the section, nor do we think such was the purpose or intent of the legislature. But, however this may be, the language employed in the act-being plain and unambiguous, as said by this court in Slingluff et al. v. Weaver et al., 66 Ohio St., 621: “The question is not what did the general assembly intend, to enact, but what is the meaning of that which it did enact. That body should be. held to mean what it has plainly expressed, and hence no room is left for construction.” We are unanimously of the opinion that the sentences imposed in the above cases, in so far as they direct and require the imprisonment of plaintiffs in error in the Toledo workhouse, were and are, to that extent, unauthorized and illeg'al, and should be set aside. Other assignments of error were urged and all were fully considered, but we find no other prejudicial error in this record.

The judgments of the circuit court and the court of common pleas, as to the sentence pronounced in each of 'the above cases reversed, and cases remanded to the court of common pleas for resentence; in all other particulars said judgments are affirmed.

Shauck, C. J., Price, Summers and Davis, JJ., concur.  