Columbus v. Carson , 23 Ohio App. 299 ( 1927 )

The defendant in error was charged in the municipal court with the illegal possession of intoxicating liquor under the following affidavit:

"Henry H. Howell, being first duly cautioned and sworn, deposeth and saith, that one Oliver Carson on or about the 18th of October, A.D. 1925, at the city of Columbus and county of Franklin and state of Ohio did unlawfully possess certain intoxicating liquor, to wit, whisky for beverage purposes, making the third offense, contrary to the ordinance of said city in such cases made and provided, and further deponent saith not."

The ordinance under which the prosecution was had provided for different penalties in cases of first, second, and third offenses. Upon a trial in the municipal court, the defendant in error was convicted, as charged in the affidavit, and was sentenced to imprisonment in the workhouse for a period of six months and to pay a fine of $500 and costs. This was in excess of any penalty authorized for a first or second offense and was justified only by the provision of the ordinance for a third offense.

The defendant in error filed a motion to quash the affidavit, particularly in respect to the third offense. This motion was overruled. In the court of common pleas the conviction was sustained, but the sentence was held to be illegal and the cause was remanded to the municipal court for resentence as for a first offense. The city of Columbus prosecutes error.

The question is whether the affidavit in question is good as to a charge for a third offense as against a motion to quash the affidavit.

In the case of Blackburn v. State, 50 Ohio St. 428, 436,36 N.E. 18, 21, which was a felony charge under the Habitual Criminal Act, the court held that the indictment "should set forth the two prior convictions, and the sentence and commitment of the prisoner to some penal institution on account thereof." The prosecution in the Blackburn case was in harmony with the Habitual Criminal Act and may not be fully applicable to the case under consideration. The present case is a prosecution under the municipal ordinance which provides for certain penalties for unlawful possession of intoxicating liquors for first, second, and third offenses. The affidavit, it is true, is in the language of the ordinance. Under the authority of Carey v. State, 70 Ohio St. 121,125, 70 N.E. 955, 956, it was held "that the term `second offense' means second conviction." So that in reading this ordinance, as well as the statutes upon the same subject, the words "second offense" or "third offense" mean second conviction or third conviction, as the case may be.

This brings us to the case of Larney v. City of Cleveland,34 Ohio St. 599, in which it was held that where the ordinance provides a different penalty for a second or subsequent offense, the affidavit or information in order to justify the higher penalty must expressly charge a second or subsequent offense. In the opinion in the Larney case, it was said:

"Under the ordinance, six months' imprisonment can be imposed only upon conviction of the third, or subsequent, violation of the ordinance, and in order to support such sentence, the information should show that at least two previous violations of the ordinance had been committed by the defendant. The rule, and the principle upon which it is founded, are well stated by Mr. Bishop: `Where the offense is the first, or is prosecuted as such, the indictment need not charge it to be the first, for this is presumed. But if it be the second or third, and the sentence is to be heavier by reason of its being such, the fact thus relied on must be averred in the indictment; because, by the rules of criminal pleading, the indictment must always contain an averment of every fact essential to the punishment to be inflicted.' See 1 Bish. Cr. L., (6th Ed.), Section 961, and cases there cited. The same rule applies to an information."

Taking into consideration the fact that the word "offenses" used in the ordinance means "convictions," we think it is a reasonable requirement that the affidavit in question, in order to be good against a motion to quash, should at least show the previous convictions, the approximate dates thereof, the court or courts where the convictions were had — if more than one court has jurisdiction — and the identity of the offenses in general terms.

In addition to the Ohio cases, we think the following from other states have a bearing:

In Kinney v. State, 47 Tex. Cr. R., 496, 84 S.W. 590, it was held that a charge, in the language of the statute, that defendant has been previously convicted of the same offense and an offense of the same nature as the one herein charged against him, is insufficient to charge a second offense.

In People v. Buck, 109 Mich. 687, 67 N.W. 982, it was held that "an information for a third offense under the act in relation to disorderly persons (3 How. Stat., Section 1997a, etseq.), must allege that convictions were had for such previous offenses, and, properly, it should also state the date and the occasion of such convictions."

The information in the above case, in addition to charging the principal offenses, stated "said offense being, and is hereby charged as, a third offense." This was held insufficient to charge a third offense.

In State of Maine v. Wyman, 80 Me. 117, 13 A. 47, the indictment was for the sale of intoxicating liquor. There was a further charge of second offense, based upon the averment that "Wyman was duly convicted by the Supreme Judicial Court, at a term thereof holden at Belfast, within and for the county of Waldo, on the first Tuesday of January, A.D. 1886, of selling a quantity of intoxicating liquor." This indictment was held good as a charge for second offense.

In State v. Zimmerman, 83 Iowa 118, 49 N.W. 71, the indictment charged the crime of nuisance, and as a basis for second offense charged that defendant "was, on the twenty-sixth day of September, 1888, convicted of the crime of nuisance," and the district court of Marshall county, Iowa, held the charge of second offense was valid.

The court of common pleas in our judgment properly vacated the sentence of the municipal court and remanded the case to the latter court for resentencing as a first offense.

Judgment affirmed.

ALLREAD, P.J., and KUNKLE, J., concur.