Fogarty v. State

Court of Common Pleas of Ohio, Hamilton County

Fogarty v. State

6 Ohio N.P. 248

CourtCourt of Common Pleas of Ohio, Hamilton County

DecidedJuly 1, 1897

StatusPublished

This text of 6 Ohio N.P. 248 (Fogarty v. State) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Hamilton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fogarty v. State, 6 Ohio N.P. 248 (Ohio Super. Ct. 1897).

Pincite

Opinion

S. W. Smith, J.

The offense charged against the plaintiff in error is shooting or hunting on lands of another without permission under section 6966, R. S., and plaintiff in error claims that the evi[249]*249deuce does not show that the party upon whose land it is charged that he was shooting was the owner of such lands, the term owner being used in the affidavit, and therefore he should have been dismissed.

C. W. Hoffman, for Plaintiff in Error. E P. Bradstreet, contra.

The evidence, however, shows that Newton was in possession of the land and had lived on it for fourteen years; therefore for the purpose of this statute it made no difference what his estate in the land might be, as the term “owner” is applicable not only to a fee simple estate, but to any lesser tenancy in lauds, and in this case Newton was a lessee cf the lands. There was no error in admitting parol evidence of the existence of the lease; it was not the contents of the lease that was sought to be proved, but. the fact of having a lease, and to this fact Newtcn could testify.

2d. It is claimed the lands were not described sufficiently. Where a statute simply provides punishment for an unlawful entry upon lands of another, without making any provision for the restoration of the land to the rightful owner or occupant, and where locality or place is not an essential ingredient of the offense, no particular description is necessary. A charge in the language of the statute is sufficient. If the proceeding is to be had against the property in rem, then there should be sufficient description to point it out with reasonable certainty. The case of State v. French. 120 Ind., 229, cited by counsel, is net in point, as in the case of Winlock v. the State, 121 Ind., 531-533, the former is explained and not followed, the distinction being put upon the term” premises” used in the affidavit and not the term “lands.”

There was no error in the proceedings and judgment will be affirmed.

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S. W. Smith, J.

The offense charged against the plaintiff in error is shooting or hunting on lands of another without permission under section 6966, R. S., and plaintiff in error claims that the evi[249]*249deuce does not show that the party upon whose land it is charged that he was shooting was the owner of such lands, the term owner being used in the affidavit, and therefore he should have been dismissed.

C. W. Hoffman, for Plaintiff in Error. E P. Bradstreet, contra.

The evidence, however, shows that Newton was in possession of the land and had lived on it for fourteen years; therefore for the purpose of this statute it made no difference what his estate in the land might be, as the term “owner” is applicable not only to a fee simple estate, but to any lesser tenancy in lauds, and in this case Newton was a lessee cf the lands. There was no error in admitting parol evidence of the existence of the lease; it was not the contents of the lease that was sought to be proved, but. the fact of having a lease, and to this fact Newtcn could testify.

2d. It is claimed the lands were not described sufficiently. Where a statute simply provides punishment for an unlawful entry upon lands of another, without making any provision for the restoration of the land to the rightful owner or occupant, and where locality or place is not an essential ingredient of the offense, no particular description is necessary. A charge in the language of the statute is sufficient. If the proceeding is to be had against the property in rem, then there should be sufficient description to point it out with reasonable certainty. The case of State v. French. 120 Ind., 229, cited by counsel, is net in point, as in the case of Winlock v. the State, 121 Ind., 531-533, the former is explained and not followed, the distinction being put upon the term” premises” used in the affidavit and not the term “lands.”

There was no error in the proceedings and judgment will be affirmed.

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Bluebook (online)

6 Ohio N.P. 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogarty-v-state-ohctcomplhamilt-1897.

Opinion

S. W. Smith, J.

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