1 Ohio App. 306 | Ohio Ct. App. | 1913
Plaintiffs in error, John A. Sanders, Jasper Post and August Pfaff, were each brought before and convicted by J. R. MacQuigg, mayor of East Cleveland, upon affidavits based upon Section 13195,. General Code, charging them with keeping a place in the adjoining city of Cleveland where intoxicating liquors were sold in violation of law. The convictions were each affirmed by the common pleas court, and proceedings in error are here instituted to reverse the judgment of the lower courts.
. The cases involve similar questions except that in the Pfaff case the- additional claim is made that
It is claimed in all three cases that the judgments below are against the evidence, in that the showing of a single sale could not be held to be a violation of the statute as to keeping, etc.; that the defendant, Sanders, was not shown to be the John A. Sanders who was on trial. The testimony refers to the defendant as “J- A. Sanders;” the internal revenue and state licenses were issued to “J. A. Sanders,” but it is insisted that this “J- A. Sanders” was not shown to be the John A. Sanders charged in the affidavit. .The record does not show that defendant made any issue of the fact on the trial, but reserved it for review only. The variance is not material. Courts will take judicial notice that Christian and surnames are abbreviated. If tried under indictment it would not appear to be prejudicial to the defendant under Section 13582, General Code. While the section is not made applicable, in terms, to procedure before magistrates, we think that no prejudice arose to the defendant which would necessitate reversal for that cause. Furthermore, no proper action was taken at the time by defendant objecting because of variance. What has been said as to Sander’s case applies as well to the Pfaff case.
Again, it is urged that proof of a single sale on a single day does not dignify the offense as one of keeping a place. Strictly speaking, that is true
While the sale in the foregoing case was in viotion of law, as being made in dry territory, the principle is analogous where the violation of law claimed is under Section 13050, General Code.
Plaintiffs in error urge that Section 13195, General Code, applies only to the keeping of places and the violation of law in dry territory. It is somewhat difficult to follow counsel in this phase of the case, for the reason that Section 13195, General Code, was substantially as it is now long before the local-option laws were effective in this state, and in its original form applied to the entire state.
The defendant below, August Pfaff, filed before the mayor of East Cleveland his plea in abatement, alleging former acquittal for the same offense before a justice of the city of Cleveland, and demanded a jury upon that issue. This the mayor refused and himself heard the entire case, including the issue of former acquittal. Plaintiff in error, Pfaff, relies for his right to a jury on Section 13630, General Code, found in title two, part four of criminal procedure. Section 13630, General Code, is made applicable to criminal proceedings upon indictment and is lodged in title two, part four.
Sections 10490 and 10491, General Code, do not apply the procedure of Section 13630, General Code, to justices’ and mayors’ procedure, as will be seen from an inspection of those sections.
Under Section 4528, General Code, the mayor has final jurisdiction in misdemeanor cases, unless the accused is, by the constitution, entitled to a jury trial. The offense charged under Section Í3195, General Code, against the defendant was punishable by fine only. The mayor had complete and full jurisdiction to hear and determine the offense, in
Upon a second conviction, the defendant’s place may be abated as a nuisance and the constitutional right to a jury trial would then accrue to him, which, therefore, need not now be discussed for the obvious reason that a second offense was not charged.
Upon an inspection of the record in the three cases we are constrained to hold that no prejudicial error has been committed, and the judgments of the mayor’s and common pleas courts will be affirmed.
Cause remanded to the mayor’s court for execution and for further proceedings according to law.
Judgment affirmed.