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hold the same or that it was one legally held. As to whether the fair was being legally held, or whether the body holding it bad legal authority so to do, a question might very pertinently arise as to the object of the law. If its sole purpose were the protection of the agricultural society itself from interference in its conduct of the fair, the legality of the fair might become important; but if the legislative purpose was to protect from breaches of the peace or annoyance from intoxicated persons or otherwise the people in attendance upon the fair, it would not be of very much consequence whether the fair was conducted by anybody that had been expressly authorized by law so to do; unless perhaps, if it were conducted in violation of law, the legislature might not be presumed to have attempted to go so far in protecting the people in attendance upon it as they might in protecting people who were in attendance upon some lawful institution or gathering. But, as bearing upon this point, I desire to refer to the case of The State v. Long, 48 O. S., pp. 511 and 512. I quote from the opinion: "Here it should be observed in the first place, that the act of 1856 (S. & C., 67), punishing sales of liquor within two miles of a fair ground, was made applicable to 'any independent agricultural society' as well as to state, county and township organizations,—manifesting a purpose to extend its provisions to all such societies then existing, irrespective of the mode of their organization. And no reason appears why such should not have been the policy of the state. Certainly the same inconvenience and annoyance will result to the individual and the public from the sale of liquor near a fair ground, however the fair itself may be organized; for whether organized upon one plan or another, it will be attended and patronized in the same community by substantially the same persons. And we take it that the policy of the statute is founded on the duty of protection to the people who attend such fairs, rather than to the fair itself.”

I need not stop to examine dictionaries as to the meaning of the word 'fair." We generally understand what is meant by the term. I take it any fair is lawful in the state of Ohio which the law does not prohibit, and I know of no inhibition on any individual any more than upon any society or organization forbidding the holding of an exhibition of farm products or products of art, or of any kind of industry. There is nothing in this indictment to indicate that it was an unlawful gathering, and it may be pertinent to say that in the case of large gatherings, even for unlawful purposes, it is a desirable thing to prevent such breaches of the peace, riots, disturbances or other violations of law as oftentimes flow from the excessive use of intoxicants; so that, for that reason, it might be presumed that the legislature in making this enactment had very little regard to the question whether the fair is organized in one way or another. I may say, in passing, that in the two or three cases which we have reported in the supreme court reports, where there have been prosecutions for selling within two miles of a fair, there has been no construction of the statute which bears out the claims of the defendant in this case, that there should be some affirmative showing in the indictment that the fair was carried on by some body authorized by law.

There is a point which was made in argument by counsel for the defense which is not expressly stated in this motion and which perhaps might be more properly considered upon the question as to whether the indictment charges an offense; but it is so closely connected with this question of the construction of the statute as to agricultural societies, that I prefer to consider it at this time. The point is made that the statute, which is found in the law of 1896, on page 435, does not prohibit the selling within two miles of where any fair is being held, but that the clause is qualified by another expression; to-wit:

"Situated within one mile of any incorporated village or city in which the sale of intoxicating liquors is prohibited by an ordinance of such village or city, made in pursuance of the act, entitled, 'An act providing againt the evils resulting from the traffic in intoxicating liquors,' passed March 11, 1887."

With regard to this contention, it may be said that this clause as to proximity to incorporated villages or cities has been inserted by amendment, and

State v. Fromer et al.

does not, in my view of the statute, in any way qualify or subtract from the provision as to sales within a specified distance of where an agricultural fair is being held; and that I am right in this, I think I may say, is substantially shown by the way in which the statute has been treated in cases which have gone to the supreme court, where indictments have been drawn under this act, and in no one of which do we find any allegation that sales within two miles of where an agricultural fair was being held, were also within a mile of the boundaries of any incorporated village or city in which the sales of liquor were prohibited.

The fourth ground of the motion is, "that it does not sufficiently appear in what respect the sale to the said Bert Russell, alleged to have been made, is unlawful; and the fifth, "for that the said alleged sale is averred to have been unlawful with respect to the said Bert Russell, and not with respect to the place where the said fair was being held."

There is certainly no such express averment in this indictment as claimed. I find no language which can be so construed. If the offense of selling within two miles of the fair is not charged, no offense is charged; if the name of the buyer had been omitted, there could have been no question as to intent to charge a violation of section 6946; but, to violate that section, there must be some buyer, as well as seller. Does it make the charge indefinite or the indictment insufficient to name him? It seems to me that giving the name adds definiteness to the description of the transaction, and is a benefit, not an injury to the defendant, and that he ought not to complain of it.

There being no allegation that the buyer was a minor, or a person intoxicated, or in the habit of becoming intoxicated, or that the sale, so far as it relates to the person buying, was in any respect illegal, the indictment must perforce be construed as an attempt to charge some other kind of a crime. If the indictment could apply to two distinct offenses, or rather to either of two distinct offenses, it might be ambiguous; but, by its terms, it can apply to but one. It describes the offense of selling liquor within two miles of where an agricultural fair was being held, or it describes no offense at all. There is but one kind of an offense indicated in this indictment and that is clearly a violation of section 6946; whether it is sufficiently charged or not, is another question.

I might fortify myself in this part of what I have to say, by referring to the case of Driggs v. The State, 52 O. S., 37, where a demurrer to an indictment in similar form to this, so far as naming the buyer is concerned, was overruled and still a conviction upon that indictment was sustained. Again, in the case of Heck v. The State, 44 O. S., 536-539, it is said that the indictment charged that on September 30, 1885, the defendant unlawfully sold intoxicating liquor to one C. within two miles of the place where an agricultural fair, (naming it, etc.,) was being held. I fail to find that any prejudice is done to the defendant by naming the person to whom the liquor is sold; and, as I have said, it seems to me that there is no intimation in this indictment of any intention on the part of the grand jurors to charge that the sale was unlawful by reason of any other fact than that it was made within two miles of where an agricultural fair was being held.

Some of the foregoing questions might perhaps more properly be raised by demurrer than by motion, but counsel wisely thought proper to raise them by .motion in order that they might not waive any of their client's rights. I have already sufficiently indicated that the motion should be overruled.

There remains an important question, the one which has given me the most trouble, which could be raised only by demurrer. For the purpose of considering this question, a demurrer to the effect that the facts stated do not constitute an offense against the laws of Ohio, will be considered as filed instanter.

There is no averment in this indictment that the seller knew that a fair was being held. Is such an averment necessary? The statute says nothing about knowledge. As a general rule, although one to be taken not without exceptions, it is undoubtedly true, as stated in the case of Davis v. The State, 32 O.

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S., 24, 28: "A good criminal pleader will never attempt more certainty than the law requires, for fear that, in the minuteness of detail, he may, by chance, misdescribe, in some essential particular, which would be fatal error. Spencer v. The State, 13 O., 401, 407. There is no common-law crime in this state, and therefore we always look to the statute to ascertain what is the offense of the accused. Sutcliffe v. The State, 18 O., 469, 476. All the elements necessary to constitute the crime must be averred and these elements must be gathered from the statute describing the offense, and not aliunde. Rich v. The State, 8 O., 112. The offense must be described within the terms of the statute. To do this it is generally necessary to use the words of the statute. There is great danger in employing what are supposed to be convertible terms. Poage v. The State, 3 0. S., 229."

But, as I have said, while these propositions are true, as general statements, it is well known to lawyers that they are not to be taken without qualification, and that like most of the general rules, they are subject to exception. Our supreme court has found reason to make exceptions with regard to this very matter of scienter in several prosecutions for violations of the criminal laws of Ohio. I believe I have examined every case that has been decided in Ohio, reported in any of the reports, either by the supreme court, or any of the subordinate courts of the state bearing directly upon this question. This question raised by the demurrer was very thoroughly and very elaborately argued, and the arguments of counsel on both sides showed extensive research among the adjudications of this state, as well as among the cases which have been decided by the courts of other states.

I will call attention first to the cases cited in Ohio, holding the averment of scienter necessary in indictments for the violation of our criminal laws. The first case cited by counsel for the defense is the case of Gatewood v. The State, 4 O., 386; in which the offense charged was the stealing of bank bills knowing them to be such, and the court held in the case that it was necessary to charge such knowledge in the indictment. An examination, however, of the case, discloses the fact that it has no application to the question which is under consideration, for the indictment was drawn under a statute providing that the stealing of bank bills must be accompanied with knowledge that they were of a certain character, an element which the case at bar lacks. The statute under which this indictment was drawn, has as I have said, no express requirement that the seller should know_that an agricultural fair was being held. The next case, that of Anderson v. The State, is found in the second part of the 7 O., 250, and may be taken as the pioneer case upon this question. The indictment was for aiding to pass forged paper and it was held that the indictment must set forth that the accused knew it to be a forgery. It is to be noted in passing that this was not an indictment against the principal criminal; it was against the person who passed the paper and who might very reasonably be supposed, without some evidence to the contrary, to be entirely ignorant of the fact that the paper was forged. But, in the body of the case, the court say, "There can be no intention without knowl edge; hence the necessity of the allegation, that the accused in this case, knew that the paper he aided to pass off was a forgery. It must be manifest to every one that Anderson might, with entire innocency, have taken an active agency in obtaining cash for the certificate of deposit in question. He might suppose it to be genuine, and all he did be grounded upon that belief. The statute does not attach criminality to one who, in honesty and good faith becomes instrumental in passing off a forged paper. This record charges the fact, that the paper was a forgery, and that Anderson aided Stevens to pass it," etc. "No knowledge that it was a forgery, no design to defraud another person, is charged against him; so that, in the terms of the indictment, nothing is alleged against him that can be regarded as criminal. Upon the trial of this indictment, no proof of knowledge or intention to defraud could legally be received."

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The next case was the case of Birney v. The State, 8 O., 230 to 237-a memorable case in which a person was indicted for harboring a fugitive slave, and this case has been sometimes treated as the pioneer case in the state, notwithstanding the Anderson case, supra. Mr. Wharton, has referred to this Birney case, as a political case. However that may be, the reasoning in the case is strong. It seems to me that the decision is an entirely well grounded one, considering the circumstances surrounding the case, and our constitution, under which a man is presumed to be free until the contrary is shown, no slavery being recognized in the state of Ohio. It will be noted on page 238 of the Birney case that one of the grounds of the court's decision is this very presumption of freedom. "There is no averment that the plaintiff in error knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a state whose constitution declares that all are born free and equal, and that there shall be neither slavery nor involuntary servitude within its limits, except as a punishment for the commission of crimes. On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt."

The next citation is the case of Miller v. The State, and Gibson v. The State, a double case, found in 3 O. S., 475. It constitutes the first decision of our supreme court in which this question as to the necessity or non-necessity of the averment of scienter is applied to the claimed violation of a liquor law.

The cases were of alleged liquor selling to a minor, and the supreme court, on the strength of the Birney case, and without any reasoning, held that it was necessary in the indictment to charge that the vendor of the liquors knew at the time of the sale, that the person to whom he sold was a minor. As I say, there was no reasoning in the case beyond the mere reference to the Birney case as an authority.

The next case is the case of Aultfather v. The State, 4 O. S., 467 and 468. This was also a case of an alleged sale to a minor. The court followed the Miller case, supra, and without any reasoning, merely cited the Miller case as an authority. It was decided upon the strength of the Miller case that it must be averred in the indictment that the person to whom the sale was made was known by the seller to be a minor. This is the last case to be found decided by the court of last resort in this state directly holding an averment of scienter necessary in any case approaching in its character the case at bar. I say directly holding, and that case was decided in the year 1855. There are, however, two commission cases, in which opinions are rendered by Judge Ashburn, the Crabtree case, reported in the 30 O. S., 382, and the Farrell case, in the 32 O. S., 456. The Crabtree case was one in which the indictment charged the selling to a person in the habit of becoming intoxicated, and the court held that ignorance of the fact that the person to whom the sale was made was one in the habit of becoming intoxicated, was a legitimate defense. The court was not called upon to decide, although Judge Ashburn in his opinion did say, that it was a necessary averment in the indictment, following the Miller case. The indictment contained the averment, and it was not necessary to raise the question as to whether it would have been sufficient without it.

The case of Farrell v. The State, 32 O., 456, went away beyond all the other cases in its holding, and has been very much criticised since by some of the lower courts, and seems to be entirely in conflict with the weight of authority of cases outside the state. This, too, was a commission case, and was decided by a divided court, Judge Scott dissenting. The claim was made that upon the sale of alleged intoxicating liquor, the defendant might show as a defense that he believed the liquor sold to be non-intoxicating; that he was ignorant, in other words, of its intoxicating character. The lower court refused to sustain this claim and the supreme court commission held that it should have been sustained. But even in this case, as in the Crabtree case, all that the court really holds is, that the de

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fendant was entitled to show ignorance of the character or the liquor sold as a defense. The sufficiency of the indictment was not in question.

Neither of these cases constitutes a direct adjudication as to what is necessary to aver in the indictment. There is no case cited to me, or which I have discovered, directly holding the necessity of an averment of knowledge on the part of the vendor, either of the character of the liquor sold, or the character of the person to whom it is sold, or any other circumstances going beyond the statutory language, since the cases decided in the 3d and 4th O. S. R. Those decisions were made upon the authority of the Birney case supra citing it without any discussion.

In the first of the Ohio Decisions, on page 496, is a case decided by Judge Baldwin in the Cuyahoga circuit court, in which the defendant was charged with selling adulterated wine. There was no averment in the indictment that, at the time of the sale, the defendant knew that the wine which he sold was adulterated.

This is the case of Ernest Altschul v. The State of Ohio,40. C. D., 402, in which the court held that it is not necessary to a conviction, under the act of March 26, 1891 (88 O. L., 231), for selling adulterated wine, that the jury should be satisfied beyond a reasonable doubt, that the accused knew the wine to be adulterated.

In rendering the opinion, Judge Baldwin discusses at some considerable length the question involved, and a little of the language I will call attention to. As one of the grounds on which he bases his opinion, speaking for the court, he

says:

"It is easy to see that to require affirmative proof on the part of the state that the accused had actual knowledge of the adulteration would put an end to very many meritorious prosecutions. To prove the contents of a man's mind is always difficult, and the experience and means of knowledge of the accused are thoroughly within his own cognizance, and not that of the state. The cases go even beyond this, holding that the accused must know at his peril and that such doctrine is necessary to protect the public."

Judge Baldwin, in this Altschul case, attempts to reconcile the Ohio cases, but he clearly indicates his view that in any case where ignorantia facti excusat applies, it is a defense.

The Altschul case was never reviewed by the supreme court. I find by reference to Vol. 1 OHIO LEGAL NEWS, 588, that a motion was made in the supreme court for leave to file a petition in error, but that the motion was subsequently withdrawn.

The next case to which I will call attention is the case decided in the Cuyahoga circuit court-decided by a lawyer and a judge, justly held in very high esteem and respect-Judge Hale. The case is that of Meyer v. The State, 60. C. D., —. It will be remembered that in the Altschul case Judge Baldwin held that it was not necessary to allege in the indictment the fact that the seller of adulterated liquor knew that it was adulterated; that if ignorance was available to the defendant at all, it was available only as a defense. Judge Hale goes further in the case of Meyer v. The State, and affirmatively and expressly holds that knowledge of the adulteration of the liquor is not an essential element of the crime and is not even a defense. Judge Hale in referring to the Farrell case, 32 O. S., 456, says (page 201, 3 Ohio Decisions): "We are not disposed to extend the principle announced in that case beyond the class of cases in which the question arose. Nor do we see anything in any of the Ohio cases which leads us to believe that the supreme court will so extend the principle."

In the case of Heck v. The State. 44 O. S. 536, the question here involved was not directly raised, but the language of the indictment is substantially given, apparently showing that there was no averment of scienter. The case, like the one at bar, was a prosecution for selling liquor within two miles of the place where an agricultural fair was being held. The indictment charged that on September 20, 1885, the defendant unlawfully sold intoxicating liquors to one C., in the county, within two miles of the place where an agricultural fair, naming it, was