GIST OF THE OFFENSE WHERE SALES ARE MADE CONTRARY TO THE PURE FOOD LAW.

Court of Appeals for Shelby County.

#### Charles J. Yunker v. State of Ohio.

Decided, December 15, 1917.

*Pure Pood Law*— Prosecution *for Violation of*— Granting *of Application to Take Depositions Within Discretion of the Court*— Illegal *Sale, Not Identity of Purchaser, Constitutes the Offense.*

1. Discretion to grant a commission to take depositions in a criminal prosecution, is reposed in the trial court, and unless it clearly appears of record that the trial court abused its discretion in refusing an application for such commission a reviewing court will not reverse the order below.

2. An application for a commission to take depositions in criminal prosecutions is limited by Section 13668, G. C., to issues of fact joined upon indictment, and a justice of the peace in a prosecution for violation of the pure food laws, and not instituted upon indictment, properly overrules such application.

3. The gist of the offense in a prosecution for selling improperly labeled imitation extracts is the illegal sale, -and the identity of the purchaser is not an essential element of the offense.

*Charles C. Hall,*for plaintiff in error.

*Joseph McGhee,*Attorney-General of Ohio, and *S. L. Connors,*contra.

Kunkle, J.

Plaintiff in error was charged, tried and convicted before C. R. Hess, justice of the peace of Clinton township, Shelby county, Ohio, with selling to Stanley. Bryan- a certain quantity of an imitation vanilla extract for which no standard exists, and which was not labeled “artificial” or “imitation” and the formula printed in the manner provided for the labeling of “compounds” or “mixtures” and their formula, in this, to-wit: The word “ artificial ” and the formula were not printed upon the package as required by law.

*346Error was prosecuted from the judgment of said justice of the peace to the court of common pleas and the judgment of the justice of the peace was affirmed.

Error is now prosecuted to this court from the judgment of the court of common pleas affirming the judgment of the justice of the peace.

Various errors are assigned in the petition- in error but the ones which are chiefly relied upon are:

■ (1). That the trial court erred in refusing to issue a commission upon the application of plaintiff in error, to take the testimony of Joseph O. Dea in the state of New York.

Section 10, Article I, of the Constitution in brief specifies that provision may- be made by law for the taking of the deposition by the accused or by the state, to be -used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused the means and opportunity to be present in person and with counsel at the taking of such depositions.

The above constitutional provision merely authorizes the Legislature to make provision for the taking of a deposition.

' It' is optional with the Legislature to make such provision.

By virtue of this provision the Legislature of this state adopted Section 13668 of the General Code. This section provides that .when an issue of fact is joined upon an indictment and a material witness for the defendant or for the state resides out of ■the state or, residing within the state, is sick or infirm or about to leave the state or is confined in prison, such defendant, or-the prosecuting attorney may apply, in writing, to the court or a .judge thereof in vacation, for a commission to take the deposition of such witness or witnesses. The court or judge may grant such commission and make an order stating in what manner and .for what length of. time notice shall be given to the prosecuting witness or to the defendant, before such witness or- witnesses shall be examined,-

■ It appears from a reading of this section that even when an issue of fact is joined upon an indictment a discretion is re*347posed in the trial court as to whether such application should or should not be granted.

A reviewing court would therefore not be justified in reversing the ruling of the trial court thereon unless it clearly appeared from the record that the trial court had abused its discretion in refusing such request.

The record in this case does not disclose such a state of facts.

It being optional with the Legislature to make provision for the taking of such depositions the trial court could grant such application only in the cases specified by the Legislature. •

The Legislature by Section 13668 limited the court’s authority to grant such application in cases,wherein an issue of fact'was joined upon an indictment.

No indictment was returned in this case. No indictment could be returned before a justice of the peace.

The issue of fact was joined upon an affidavit, not an indictment, and we are of Opinion that the juátice of the peace for this reason did not err in overruling the application for the commission.

(2) . It is also claimed by counsel for plaintiff in error that the affidavit in question should have charged that the sale was made to the Venus Chocolate Company, instead of to Stanley Bryan, the agent and employee of the Venus Chocolate Company.

From an examination of the Ohio authorities cited in the brief of counsel for defendant in error we are clearly of opinion that the offense in question consisted of making the illegal sale.

The identity of the purehasér is therefore not an essential element of the offense and we do not think a material variance exists as claimed by counsel for plaintiff in error.

(3) .' It is further claimed that the article in question was sold to the Venus Chocolate Company as imitation vanilla;-that said company knew exactly what they were securing; that the record fails to show that the proper label was not on this package when the same arrived in Sidney, .and that therefore .the judgment in this case is clearly against the weight of the evidence/ "

*348We have carefully read, the record in this case insofar as it relates to the grounds of error urged by counsel for plaintiff in error.

We shall not undertake to discuss the testimony in detail, as counsel are familiár with the same, but from an examination of the record we would not feel justified in finding that the judgment is against the manifest weight of the evidence.

After a careful consideration of the record and authorities, we find no error in the record which we consider prejudicial to plaintiff in error and the judgment of the court of common pleas will be affirmed and cause remanded for execution.

Allread, J., and Ferneding, J., concur.