
    PROSECUTION UNDER. THE STATUTE PROHIBITING COMMON LABOR ON SUNDAY.
    Circuit Court of Hamilton County.
    Nathan Goldsmith v. State of Ohio, and Nine Other Similar Cases; and State of Ohio v. Kate Magrish, and Three Other Similar Cases.
    Decided, June 4, 1910.
    
      Criminal Law — Insufficient Laying of Venue — Charging of Knowledge and Criminal Intent — Duplicity—Prosecution for Opening Stores and Selling Goods on Sunday — Failure to Take the Offenses out of the Statutory Exemptions — Sections 13044, et seq., and 13500, General Code.
    
    1. The venue of an offense is not sufficiently stated, where the substance of the accusation is not set forth in the warrant, or the affidavit incorporated therein, or attached to and referred to in the warrant, and neither the affidavit nor the warrant contains any allegation as to the county in which the offense is alleged to have occurred.
    2. An affidavit and warrant do not charge a violation of the Sunday closing law or the performance of common labor on Sunday, if •there is a failure to charge knowledge and criminal intent on the part of the accused.
    3. The performance of common labor on Sunday and the causing of a place to be opened for the transaction of business on Sunday are distinct offenses, and an affidavit and warrant which charge them as one offense are bad for duplicity.
    4. A warrant charging common labor on Sunday is insufficient, if it . does not set out the negative averments that the labor performed was not a work of necessity or charity and that it did not come within the other saving- clauses of the statute.
    
      
      Pogue & Pogue, for plaintiffs in error.
    
      Bates & Meyer, contra.
    Smith, J; Giffen, P. J., and Swing, J., concur.
    In the first ten eas'es and last four above named, the plaintiffs in error and defendants in error respectively were arrested, tried and convicted before the mayor of the village of Delhi for an alleged violation of Section 7033, Revised Statutes, which prohibits performance of common labor on Sunday.
   Upon the hearing of petitions in error to the court of common pleas, the judgments of the mayor in the first five eases were affirmed, in the next five cases the judgments were -affirmed in part and reversed in part, and in the remaining four cases the judgments of the trial court were reversed on the ground that the s-ame were not sustained by the evidence.

From the record it appears that each of the parties was arrested upon affidavits and warrants issued by the mayor of the village of Delhi in the following language, except as to the name of the respective defendants.

‘ ‘ State of Ohio, Hamilton County, ss :
“Before me, a notary public in and for said county, came Anthony Fichtl, who being duly sworn according to law, deposeth and saith, that on or about the 15th day o.f September, 1907, at the county aforesaid, Nathan Goldsmith, being over fourteen years of age, engaged in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity, and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit, selling dry-goods contrary to the statutes in such eases made and provided, and further this deponent saith not. ’ ’

(Duly signed by affiant and authenticated by a notary public.)

The warrant reads as follows:

“State of Ohio, Hamilton County.
“Marshal of the Village of Delhi, Greeting.
“Whereas, complainant has been before me, Mayor of-the Village of Delhi, Hamilton County, aforesaid, upon the oath of Anthony Fichtl, that Nathan Goldsmith being over 14 years, did, on or about the 15th day of September, 1907, at the county aforesaid, engage in common labor on the first day of the week, commonly called Sunday, by engaging in the business of selling dry-goods, not being a work of necessity or charity and also caused to be opened in the county aforesaid and on said day a place for the transaction of business, to-wit: selling dry-goods.
"These are therefore to command you to take the said Nathan Goldsmith, if he be found in your county, or if he shall have fled, that you pursue after him into any other county in the state and him take and safely keep, so that you have his body-forthwith, before me to answer the said complaint and be further dealt with according to law.
‘‘Given under my hand this 17th day of September, A. D. 1907.
"E. E. Kjruthoeeer,
“Mayor of the Tillage of Delhi.”

At the trial, motions to quash the information, demurrers to the same and motions to discharge were made in each ease, but they were overruled by the trial court; each defendant being adjudged guilty and fined by the mayor.

Objections are made to the judgments rendered against the various parties by the trial court for the following reasons:

First. A venue of the offense- can not be ascertained from the affidavits and warrants.

Second. That the return of the service is defective.

Third. That the affidavits and warrants fail to allege a crime.

Fourth. That the affidavits and warrants are bad for duplicity.

Fifth. That the necessary negative averments are not contained in the affidavits and warrants.

Sixth. That the affidavits and warrants are defective in that they fail to allege criminal intent.

Seventh. The affidavits and warrants are defective in that the second charge is not complete in omitting the necessary exceptions, that the causing to be opened a building or place for the transaction of business was not a work of necessity or charity.

As to the first objection, we .are of the .opinion that it is well taken. The warrant was based upon the .affidavit and should show a copy of it inserted therein, or annexed and referred to, or recite the substance of the accusation. (Section 7137, Revised Statutes.) Nowhere therein does it contain an allegation as to the county in which the alleged misdemeanor is claimed to have occurred, either in the affidavit or in the warrant, both of which simply refer to the caption which merely sets forth the county in which the affidavit is taken and the warrant issued. Knight v. State; 54 O. S., 365.

Second. We find no objection to the return of the service made upon the various individuals of the affidavit or of the warrant.

Third. The .affidavit and warrant do not, we think, contain words sufficient to charge a crime, for they nowhere charge knowledge and criminal intent on the part of the various individuals arrested. '“An affidavit charging the accused with violation of a Sunday closing ordinance is insufficient unless it charges knowledge and criminal intent.” Daugherty v. Village of Dennison, 11 C.C.(N.S.), 13; affirmed, 59 O. S., 593.

Fourth. In a number of the affidavits and warrants issued against certain of the individuals, two alleged misdemeanors are set out in the same affidavit and warrant — one of performing labor on Sunday and another causing to be opened a place for the transaction of business. These are two distinct offenses, and for this reason the affidavit and warrant relating thereto are bad for duplicity. Duplicity is the joinder of two or more distinct offenses in one count. (Bishop’s Criminal Procedure, Section 432.) In the eases where the defendants are charged with two offenses in one count and tried on both, the affidavit and warrant were defective for this duplicity. Barnhouse v. State, 31 O. S., 39.

Fifth. Under Section 7033 it was necessary to have set out the negative averments contained in the statute: first, that the performance of the common labor complained of was not a work of necessity or charity, or that the work did not come within the other saving clauses of the statute. Hirn v. State, 1 O. S., 15; Canton v. Nist, 9 O. S., 439.

The sixth objection as to not alleging criminal intent is included in and covered by the third objection.

The seventh objection raised by counsel to the affidavits and warrants, we think is fully covered by what the court has heretofore said relating to the omission in the same of the necessary exceptions in the statute.

For the above reasons the judgments in the first ten eases will be reversed and in the last four will be affirmed.  