Tesca v. State

140 N.E. 629, 1 Ohio Law. Abs. 877, 108 Ohio St. 287, 1923 Ohio LEXIS 217

Opinion

WANAMAKER, J.

Epitomized Opinion

An affidavit was filed in the Probate Court of Licking county charging Steve Tesca with selling intoxicating liquor on Jan. 5, 1922. To this affidavit the defendant entered a plea of not guilty. The state’s witnesses testified that one Boychan purchased the liquor on Jan. 5, 1922. The defendant offered testimony to show a different date for Boy-tlgfc’s presence in the place from the one named by ■HfState, and offered to show what transpired on the latter date. This evidence was excluded. As Tesca was convicted, he prosecuted error. The judgment was affirmed by both the Common Pleas and Court of Appeals. In reversing the judgment of the lower courts, the Supreme Court held, in Official Syllabus, as follows:

1. In a criminal charge the exact date and time aie immaterial unless in the nature of the offense exactness of time is essential. It is sufficient to prove the alleged offense at or about the time charged. See Section 13581, General Code.

2. It is the right of the State to prove the alleged criminal acts on or about the time and date formally charged; the defendant, in the presentation of his defense, has at least an equal right to depart from the exact time and date charged by the affidavit, information or indictment, or the testimony offered in support thereof.