
    CRIMINAL LAW — INTOXICATING LIQUORS.
    [Cuyahoga (8th) Court of Appeals,
    March 25, 1913.]
    Jones, Metcalfe and Ferneding, JJ.
    (Judge Jones of the 4th district, Judge Metcalfe of the 7th district, and Judge Ferneding of the 2nd district, sitting by designation, in place of Winch, Meals and Grant, JJ.)
    John A. Sanders v. State of Ohio. Jasper Post v. State of Ohio. August Pfaff v. State of Ohio.
    1. Prosecution of Accused for Violation of Liquor Laws by Initials of Given Names not Prejudicial.
    Courts take judicial notice that Christian and surnames are abbreviated. 'Hence, in a prosecution before a mayor under Gen. Code 13195, for keeping a place where intoxicating liquors are sold in violation of law, the fact that accused is named in the affidavit by initials instead of his full name does not necessitate a reversal for variance under Gen. Code 13582, especially where no objection is made on the trial thereto and in his internal revenue certificate and state liquor tax application it appears that his name is designated by such initials.
    
      2. Proof of Single Sale in Connection with other Indicia of Place where Intoxicating Liquors are Kept and Sold Justifies Conviction for Sunday Violation.
    Proof of a single sale on Sunday of intoxicating liquors in a room furnished with bar fixtures, a bar tender and other indicia of a, place where liquors are kept, justifies a conviction under Gen. Code 13195 for keeping a place where intoxicating liquors are sold contrary to law.
    3. Inhibition against Unlawfully Keeping for Sale of Intoxicating Liquors Applies to Sunday Violation as well as Local Option Territory.
    The inhibition of Gen. Code 13195 as to unlawfully keeping a place for sale of intoxicating liquors is not limited to dry territory but includes unlawfully keeping a place on Sunday.
    4. Jury Trial not Necessary upon Issue of Former Jeopardy in Prosecution for Keeping Place for Unlawful Sale of Intoxicating Liquors.
    Plea of former jeopardy is properly heard and determined by a mayor under Gen. Code 4528, in a prosecution for unlawfully keeping a place for sale of intoxicating liquors contrary to Gen. Code 13195, and, since the prosecution is for a fine only, a jury trial is not necessary.
    [Syllabus approved by the court.]
    Error to common pleas court.
    
      Geo. W. Shaw and M. Bernstein, for plaintiffs in error.
    
      John A. Chamberlain, David E. Oreen and Cyrus Locher* Pros. Atty., for defendants in error.
   JONES, J.

Plaintiffs in error were each brought before and convicted by J. R. MacQuigg, mayor of East Cleveland, upon affidavits based upon Gen. Code 13195, charging them with keeping a place in the adjoining city of Cleveland where intoxicating liquors were sold in violation of law. The convictions were each affirmed by the common pleas court, and proceedings in error are here instituted to. reverse the judgment of the lower courts.

The cases involve similar questions except that in the Pfaff case the additional claim is made that Pfaff, as shown by the record, has been once in jeopardy for the same offense before a Cleveland city justice of the peace; and that when he had demanded a jury before the East Cleveland mayor, upon a plea in bar, he was denied the same.

It is claimed in all three cases that the judgments below are against the evidence, in that the showing of a single sale could not be held to be a violation of the statute as to keeping, etc.; that the defendant, Sanders, was not shown to be the John A. Sanders who was on trial. The testimony refers to the defendant as “J. A. Sanders”; the internal revenue and state licenses were issued to “J. A. Sanders” but it is insisted that this “J. A. Sanders” was not shown to be the John A. Sanders charged in the affidavit. The record does not show that defendant made any issue of the fact on the trial, but reserved it for review only. The variance is not material. Courts will take judicial notice that Christian and surnames are abbreviated. If tried under indictment it would not appear to be prejudicial to the defendant under Gen. Code 13582. While the section is not made applicable, in terms, to procedure before magistrates, Ave think that no prejudice arose to the defendant which would necessitate reversal for that cause. Furthermore, no proper action was taken at the time by defendant objecting because of variance. What has been said as to Sander’s case applies as well io the Pfaff case.

Again, it is urged that proof of a single sale on a single day does not dignify the offense as one of keeping a place. Strictly speaking, that is true. Under the law a single sale is of itself an offense punishable as such. Where, however, a single sale is accompanied by proof evidencing the indicia of a place Avhere liquors are kept, showing the connection wherewith a room furnished with fixtures, bartender or other evidence connecting such’ sale with the place, such proof in connection with a single sale may be sufficient to justify of “keeping a place, etc.” We are not comdnced that there was a failure of proof in this regard, or that the judgment was against the evidence. The circuit court of the fourth circuit has held, as above stated, in cases of similar character. But here appears the additional fact that the salé in question was made on the first day of the week. Therefore, a showing of the place and a single sale therein, would fall within the inhibition of Gen. Code 13195. This view is supported by the case of Lynch v. State, 31 O. C. C. 352 (12 N. S. 330), affirmed, no op., Lynch v. State, 81 Ohio St. 489.

While the sale in the foregoing case was in violation of law, as being made in dry territory, tbe principle is analogous where the violation of law claimed is under Gen. Code 13050.

Plaintiffs in error urge that Gen. Code 13195 applies only to the keeping of places and the violation of law in dry territory. It is somewhat difficult to follow counsel in this phase of the case, for the reason that Gen. Code 13195 was substantially as it is now, long before the local option laws were effective in this state, and in its original form applied to the entire state.

But the argument is wholly unavailing for the reason that the plain import of the section applies to any place where intoxicating liquors are sold in violation of law. Furthermore, under the local option sections of the Code, Gen. Code 13225, 13226, special provisions are made for punishment and abatement in cases where the places are within dry territory.

The defendant below, August Pfaff, filed before the mayor of East Cleveland his plea, in abatement, alleging former acquittal for the same offense before a justice of the city of Cleveland, and demanded a jury upon that issue; this the mayor refused, and himself heard the entire case, including the issue of former acquittal. Plaintiff in error, Pfaff, relies on his right to a jury on Gen. Code 13630 found in title 2, part four of criminal procedure. Gen. Code 13630 is made applicable to criminal proceedings upon indictment and is lodged in title 2, part four.

Gen. Code 10490 and 10491 do not apply the procedure of Gen. Code 13630 to justices’ and mayors’ procedure, as will be seen from an inspection of those sections.

Under Gen. Code 4528 the mayor has final jurisdiction in misdemeanor cases, unless the accused, is, by the constitution, entitled to a jury trial. The offense charged under Gen. Code 13195 against the defendant was punishable by fine only. The mayor had complete and full jurisdiction to hear and determine 1he offense including every issue made, and including the plea of former jeopardy. Gen. Code 4528, clothes him with full final jurisdiction to “hear and determine any prosecution for a misdemeanor.” ’ Any issue embraced within that “prosecution” may be therefore determined by him, without the intervention of a jury.

That, upon a second conviction, the defendant’s place may be abated as a nuisance and that a constitutional right to a jury trial would then accrue to him, and that therefore, by force of the second, need not now be discussed, for obvious reasons. A second offense was not charged.

Upon an inspection of the record in the three cases, we are constrained to hold that no prejudicial error has been committed irad the judgments of the mayor’s and common pleas court will foe affirmed.

Cause remanded to the mayor’s court for execution and for lurther proceedings according to law.

Metcalfe and Ferneding, JJ., concur.  