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Opinion of the Court.
abstract meaning of words rarely affords decisive aid in determining the construction of a document or a statute. When attempting to arrive at the meaning and specific intent of a given phrase or sentence, we are generally obliged to consider words in their concrete use, having regard to the general purpose which the draftsman had in view, together with any other circumstances which may aid us in attaining his mental point of view.
Now in the study of this statute (99 0 L., 35-38), and especially of its title and Section 2, which is directly under review in this proceeding, it is very clear that it is aimed at the repression of “the evils resulting from the traffic in intoxicating liquors,” and the punishment of dealers conducting such traffic. The significant language of Section 2 is as follows: "Whoever
violates any of the provisions of this or in any manner directly
manner directly or indirectly, sells, furnishes, or gives away or otherwise deals in any intoxicating liquors as a beverage,” etc. The statute seeks to prohibit the traffic, or dealing, in intoxicating liquors in counties in which a majority of the electors have voted "in favor of prohibiting the sale of intoxicating liquors;" and therefore it provides that not only those who sell intoxicating liquors, but also those who furnish, give away, or otherwise deal in them in evasion of the law against the sale of liquors, shall likewise be guilty of a misdemeanor. This was the construction, and no more, which was given to the word "furnish” in State v. Munson, 25 Ohio St., 381; State v. Freeman, 27 Vt., 520;
Opinion of the Court.
and People v. Neumann, 85 Mich., 98, cited by the prosecuting attorney.
For the foregoing reasons we are unable to accept the construction of the statute, which is claimed, on the part of the state to justify its contention that the charge of the court in this case was erroneous; and we may add a few other considerations leading to the same conclusion.
Admittedly Bennett could have gone in person to another county where the traffic in intoxicating liquors was not prohibited, and there could have bought liquors for his own use in any quantity and could have transported them to the county of his residence, where the traffic was prohibited, and could have there consumed them. We frankly confess that we are entirely unable to understand why one may not lawfully do by the agency of another, that which he may lawfully do himself. The prosecuting attorney contends that
that the maxim, “Qui facit per alium, facit per se,” cannot apply in criminal law. Why not, in a case like this? There can be no aiders or abettors where there is no crime. When the liquor was purchased and paid for, in a place where the traffic was not prohibited, it thereupon became Bennett's property. The defendant did not, and could not, sell or give it to Bennett, for it was not his to sell or give away.
For the defendant to carry and deliver to Bennett his own, was not "furnishing" it to him. If it be conceded that the mere delivery to the purchaser under such circumstances constitutes “furnishing” within the meaning of the statute, then one who has in his house, in "dry” territory, liquor which he has lawfully
obtained, makes his servant or member of his family liable to indictment under this statute, whenever in obedience to his request some of it is brought to the owner. In the absence of a clear expression to that effect, we are not willing to adopt such an extreme construction.
Exceptions overruled. SUMMERS, C. J., Crew, SPEAR, SHAUCK and PRICE, JJ., concur.
STATE OF OH10 V. WIRICK.
Workhouse imprisonment-Bill of exceptions presents notice given
to opposite counsel, when—Objection to jurisdiction-Not entertained, when-Construction of act regulating traffic in intoxi
cants--99 Ohio Laws, 35. 1. The ruling in Lemmon v. State, 77 Ohio St., 427, does not apply
to counties which do not contain a workhouse. 2. A bill of exceptions certified to contain all of the evidence which
was offered and given on the trial, and found to be true and allowed and signed as a part of the record, by the trial judge, is in the record. The presumption is that notice was given to opposite counsel, and that all preliminary steps were com
plied with, although the record is silent as to those matters. 3. Objections which do not affect jurisdiction of the subject
matter, and which were not made in the intermediate court of
appellate jurisdiction, will not be entertained in this court. 4. The construction of the act entitled “An act further to provide
against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties” (99 0. L., 35), which was adopted in State v. Lynch, ante, 336, is followed in this case.
(No. 12218-Decided January 18, 1910.) ERROR to the Circuit Court of Logan county. The facts appear in the opinion.
Opinion of the Court.
Messrs. West & West, and Mr. Ernest Thompson, prosecuting attorney, for plaintiff in error.
Messrs. Howenstine & Huston, and Mr. W. S. Plum, for defendant in error.
Davis, J. This case, at the bottom, presents the same question which was considered in State v. Lynch, ante, 336; but it is reported separately on account of certain questions of practice, which follow. The case was submitted by both parties to be considered and decided with State v. Lynch, subject however to the consideration and decision of the objections to the record, made in behalf of the state. Such of these objections as we deem material to the rights of the state herein, we have fully considered and disposed of as indicated.
The case was begun in the probate court of Logan county, upon an affidavit by the prosecuting attorney charging the defendant with unlawfully selling intoxicating liquor to one B. E. Drake, to be used as a beverage, contrary to the statute (99 0. L., 35), and also charging defendant with unlawfully furnishing intoxicating liquors to one B. E. Drake, to be used as a beverage, contrary to the same statute. The case was tried in the probate court without the intervention of a jury, and the defendant was found guilty of furnishing intoxicating liquor as charged in the second count, and was sentenced to pay a fine of seventy-five dollars and the costs of prosecution, and, as a part of the sentence, there being no workhouse in Logan county, but the county having a contract with the authorities of the Columbus City Work
Opinion of the Court.
house, in Columbus, Franklin county, Ohio, the defendant was sentenced to be committed to the Columbus City Workhouse, and kept at hard labor until the fine and costs are paid or secured to be paid, or until he has discharged the same by a credit of sixty cents per day against the amount of said fine and costs for each and every day he is confined therein, or he is otherwise legally discharged from the payment of said fine and costs. The court suspended the execution of the sentence for a period of ten days for the preparation, allowance and filing of a bill of exceptions, which bill was allowed and signed by the judge of the probate court within the ten days.
The defendant prosecuted error in the court of common pleas; and that court reversed the judgment of the probate court, on the ground that the facts disclosed in the record did not constitute a crime under the statute. The state then prosecuted error in the circuit court, where the judgment of the court of common pleas was affirmed on the ground above stated and also because the judgment of the probate court was erroneous in that it was contrary to the ruling in Lemmon v. State, 77 Ohio St., 427. The state now prosecutes error in this court to reverse the judgments of the circuit court and the court of common pleas and to affirm the judgment of the probate court.
It is contended by the state that Lemmon v. State, ut supra, does not apply here. The ruling in that case is based on a construction of the statutes as applied to the facts of that case. The principal difference between that case and this is that Lucas county has within it a workhouse and