PROSECUTION FOR KEEPING A PLACE WHERE INTOXICATING LIQUORS ARE UNLAWFULLY SOLD.

Court of Appeals for Williams County.

#### Ernest P. Mignery v. The State of Ohio.

Decided November 5, 1917.

*Criminal Law*— Irregularities *in Issue of the Warrant of*Arrest— *Waived by a Plea of Not Guilty■*— Complaint *does not Lie to Failure to Make Preliminary Examination, When*— Evidence *of a Single Sale to a Minor Justifies a Conviction, When.*

1. In a criminal prosecution before a mayor, neither the omission of the mayor’s official seal on the affidavit and warrant, nor the absence of a file mark thereon, nor the insertion of the original affidavit in the warrant instead of a copy or a statement of the substance thereof, affects the validity of the proceedings, and such irregularities are waived by a plea of not guilty.

2. A liquor licensee, prosecuted under Section 13196, G. C., for keeping a place where intoxicating liquors are unlawfully sold, can not complain that no preliminary examination has been had under 103 O. L., 239, Section 54, where he made no demand therefor, nor any claim of a previous conviction, nor that a conviction would operate to revoke his license, and where he went to trial on the merits before the magistrate without demanding a jury.

3. Proof that the defendant had given directions in good faith to his ‘ barkeepers not to make unlawful sales of intoxicating liquor is no defense in a prosecution under Section 13196, G. C., for keeping a place where intoxicating liquors are' sold contrary to law.

4. Evidence of a single sale of intoxicating liquor to a minor, in a . room equipped with bar fixtures and conducted as a saloon, justifies a conviction under Section 13195, G. C., for keeping a place where intoxicating liquors are unlawfully sold.

*John E. Schrider*and *F. S.*c& *J. M. Earn,*for plaintiff in error.

*D. A.*Webster, Prosecuting Attorney, contra.

*535Richards, J.

ITeard on error.

Mignery was convicted before the mayor of the village of Stryker, in this county, of keeping a place where intoxicating liquors were unlawfully sol'd in violation of General Code, Section 13195, and was sentenced to pay a fine of $500. The judgment was affirmed in the court of common pleas, and this proceeding in error is brought to reverse these judgments.

Very -many reasons are urged why the judgments should be reversed. It is insisted that no affidavit was filed; that the paper which was filed as an affidavit is void for uncertainty and is not certified under the seal of the mayor; that no sufficient warrant was issued; that no preliminary inquiry was had pursuant to 103 O. L., 239, Section 54; that the court erred in the admission and rejection of evidence; and that the judgment of conviction is against the weight of the evidence.

An affidavit, which appears to be in due form of law, was made and filed with the mayor by W. M. Bonebrake, who made oath before the mayor that the statements contained in the affidavit were true. This original affidavit was pasted in a blank space in a warrant instead of writing into the blank space a copy of the affidavit or the substance thereof, and the warrant was thereupon signed and issued by the mayor. While it was somewhat irregular to use the original affidavit in this way, yet the validity of it was in nowise affected by such use; nor was the sufficiency of the warrant lessened by the fact that it contained the original affidavit instead of a copy thereof. The validity of the proceedings is not affected by the fact that the mayor omitted to attach his official seal to the affidavit or to the warrant. It was at most an irregularity which would not invalidate the proceedings. The state having done all that it was required to do by causing an affidavit in proper form to be made out and verified and filed with the mayor, it is not material that the affidavit does not bear a file-mark nor contain the official seal of the mayor of the municipality.

The defendant on being arraigned plead not guilty and on his application the hearing was continued to a later date. All *536objections of the character mentioned are waived by the filing of a plea of not guilty, *Riflemaker*v. *State,*25 O. S., 395.

When the case came on for hearing objections were made to the sufficiency of the affidavit and warrant and, on consideration, those objections were overruled. After the hearing had proceeded to the extent that the objections to the affidavit.and warrant were overruled, a witness was called and the examination commenced, whereupon counsel for the defendant objected to further proceeding with the trial for the reason that no preliminary examination or investigation had been made as provided by 103 O. L., 239, Section 54. In order for a defendant to take advantage of the provisions of that section it is necessary for him to make due application to the magistrate for the preliminary hearing therein mentioned, and this application should be made before the parties have begun the trial of the case on its merits. In the case at bar the defendant made no application for a preliminary hearing under the section cited, but merely objected to proceeding to trial, and he failed to make even this objection until after the commencement of the trial upon its merits. While the defendant is the holder of a liquor license, nowhere does it appear in the record that he has been heretofore convicted of a previous offense under the liquor laws or ordinances; nor did he at any time make such contention; nor did he claim that a conviction in the pending case would work a revocation of the liquor license which had been granted to him by the state. The record does not disclose that the defendant at any time asked for a trial by jury. Under these circumstances the court committed no error in proceeding with the trial of the case upon its merits without theretofore having had the preliminary examination provided for in Section 54 above cited.

While the defendant was prosecuted in this case for keeping a place where intoxicating liquors were sold in violation of law, reliance was placed on certain sales to various minors claimed to have been made by bartenders in the defendant’s employment. Three boys varying in ages from sixteen years and ten months to nineteen years testify to having bought liquors at various times *537of bartenders in the defendant’s employment in a saloon which was kept and conducted by him. It appears from the evidence-offered by the defendant that one of these boys was required to sign a written statement with reference to his age, and that thereupon he did sign one, not, however, writing his own name but writing the name Ralph Jones. This statement reads that the signer was twenty-one years old on the 15th day of March, 1893. Possibly the parties intended to set forth that the signer of the statement was born on the date given, but the writing does not so read and no explanation of the fact is made in the evidence. After these facts had appeared the defendant offered the writing in evidence and the court excluded the same. We see no prejudicial error in excluding this writing. Certainly the defendant could not be' protected by a written statement so palpably false and signed under an assumed name.

Evidence was introduced on behalf of the defendant showing that he had on various occasions given his bartenders directions not to sell liquor to minors. If the prosecution were for unlawfully selling intoxicating liquor, it would be competent for the defendant to prove that he had given in good faith directions to his bartenders forbidding sales to minors as was held in *Anderson*v. *State,*22 O. S., 305. The charge in this case, however, was not that the defendant had unlawfully sold intoxicating liquor, but that he was the keeper of a place where intoxicating liquor was sold in violation of law, an entirely distinct offense. The General Assembly has by General Code, Section 13195, prohibited the keeping of a place where intoxicating liquors are sold, furnished or given away in violation of law, and in order to sustain a conviction under that act it is only necessary for the state to prove that the defendant is the keeper of the place and that intoxicating liquors have been unlawfully sold therein. In such a prosecution, order or directions given to the bartender are not material; nor is actual knowledge of the keeper of the premises that intoxicating liquors are unlawfully sold therein important. The question of agency of the bartender has nothing to do with a prosecution -under this section. *State of Ohio*v. *Fuller,*13 C.C.(N.S.), 405.

*538Some evidence was excluded tending to show that on particular occasions, other than those claimed by the state, the defendant, through his bartenders, refused to sell liquor to minors. The court committed no error in so holding for, as has been well said, evidence that one has violated the statute in one instance can not be rebutted by testimony that he did not violate it every time he had the opportunity. *State*v. *Lindner,*76 O. S., 463.

As the statutes of Ohio now read, we have no hesitancy in reaching the conclusion that in a prosecution for keeping a place where intoxicating liquors are unlawfully sold, furnished or given away, proof of one unlawful sale in a room conducted as a saloon is sufficient to sustain a conviction. *Sanders*v. *State,*1 Ohio App. Rep., 306; same case, 20 C.C.(N.S.), 395; *Lynch*v. *State,*12 C.C.(N.S.), 330.

The .evidence has at least the usual conflict found in cases of this character. The witnesses were before the mayor and he had better opportunity to judge of their truthfulness than this court. There was ample evidence introduced which, if believed by the lower court, would justify a finding that.the defendant was guilty and, indeed, that sales had been made to minors on various occasions by persons in his employment. We have read all of this evidence and are not able to say that the judgment of conviction is so manifestly against the evidence as to justify a reversal.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.

*

Motion for leave to file a petition in error overruled by the Supreme Court, February 19. 1918.