Folliard v. State

22 Ohio C.C. Dec. 481

• Court: Ohio Circuit Courts
• Decided: July 1, 1911
• Status: Published

Opinion

PER CURIAM.

The motion of plaintiff in error to file a petition in error in this court is, for good cause, allowed, and said petition in error is accordingly filed. Thereupon said cause is submitted to the court upon the questions raised by said petition in error and the bill of exceptions taken in the trial of the case.

The first contention of the plaintiff in error is: That the court erred in permitting the state to introduce a certified copy of the record in the internal revenue department of the United States, showing that said defendant below had paid to the United States the special tax as a retail dealer in intoxicating liquors.

It is insisted that this is in violation of Sec. 10 of the bill of rights and particularly that part of the section which provides that the accused shall be entitled to meet the witnesses face to face. But, in the opinion of the court, this section has no application whatever. That applies to the parol testimony of a witness only, and not to the introduction of public records, or other instruments of writing, which may become competent evidence in the trial of a criminal case.

Gen. Code 6100 provides that the payment of suer special tax shall be held to be prima facie evidence that the person, or persons paying the same, are violating the law prohibiting the sale of intoxicating liquors as a beverage. This same question is raised in other cases submitted to this court at this, term, and what we have to say upon the subject will be stated in this opinion and not repeated in the opinions of the other cases. In some of the cases it- is insisted that this is made competent evidence in civil cases only. Those are the terms of Gen. Code 6092, but Gen. Code 6100 also expressly provides that' the payment of such tax is competent evidence in a prosecution for the violation of the liquor laws.

It is insisted, however, that the original record itself must be introduced in evidence and that a certified copy thereof is-not competent evidence. In answer to that contention it is-sufficient to say that the best evidence of which a case in its-nature is susceptible must be introduced: This rule applies to criminal as well as civil eases. In fact the general rule as-to competent evidence in criminal cases is not different from that in civil cases except as to the constitutional provision contained in Sec. 10 of the bill of rights and such other differences as are expressly provided for by statute. Otherwise evidence that is competent in civil cases is equally competent in criminal cases:

Under the rules and regulations of the internal revenue department of the United States these records are not permitted to be taken from the office of the collector and the state has -no-authority to control the policy of the general government in. that respect. Therefore, the best evidence that can be obtained touching the matters and things contained in this record is, of-necessity, an exemplification of that record.

By Gén. Code 11500, it is specially provided that copies of any books, maps, records, papers or documents on file or deposited in any of the executive departments of the United State® government, authenticated under the seal of such department, shall be competent evidence and have the same force' and effect as the originals would if produced. To the same effect i® Sec. 906 U. S. Stat.

Therefore, in view of this provision of the law and in view of the fact that this is not the parol evidence of a witness, that the accused is permitted face to face, the introduction of this certified copy of the record was and is authorized by the statute and is not in violation of the constitution of the state and the court was not in error in admitting it in evidence.

The next contention of the plaintiff in error is: That the evidence offered by the state does not sustain the conviction, or-that the finding of the court is against the manifest weight of the evidence.

It is true that there is a serious conflict of evidence in this case, but under the statute under which we have just called attention, the proof of the payment of this special tax makes a ;prima facie case, and coupled, with that is the positive evidence <of a witness who testifies that he bought intoxicating liquors rfrom the accused, at the time and place mentioned in the affi'davit. True, this witness is a detective and there are some things in connection with his cross-examination which affect his credibility, but, from the whole record this court cannot say that the finding of the trial court is so manifestly against the weight of the evidence as to require a reversal for that reason.

Therefore, the judgment of the common pleas court is affirmed and the same is remanded for execution.

Exceptions of the plaintiff in error are noted.