
    COURTS — CONSTITUTIONAL LAW — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    January 8, 1904.]
    Hale, Marvin and Winch, JJ.
    Louis Kubach v. State.
    1. Jurisdiction of Mayor of Village.
    Under Sec. 1824 Rev. Stat., mayors of villages have final jurisdiction in misdemeanor cases in which, under the constitution, there is no right to trial by jury, and such jurisdiction extends throughout the county.
    2. Section 1824 Rev. Stat., Constitutional. •
    Section 1824 Rev. Stat., is not in conflict with Sec. 10, Art. 4 of the constitution.
    3. Second Offense Must be Charged as-Such.
    In order that a person charged in one affidavit with selling liquor contrary to the statute on more than one occasion may be entitled to a jury, or punished as for a second offense, the affidavit must show a former conviction and that a particular sale is charged as a second or repeated offense. '
    4. Aggregate Penalties may Exceed Limit of One.
    Several charges of distinct sales of liquor contrary to the statute may be made in one affidavit and a fine assessed for each offense, even though the aggregate of such fines exceeds the limit of punishment for one offense.
    5. Information not Required.
    Misdemeanor cases may be instituted and tried before justices of the peace and mayors, upon the filing of an affidavit, and it is not necessary that an information be lodged with the magistrate.
    Hart, Canfield & Croke, and James M. Williams, for plaintiffs in error. .
    
      Albert V. Taylor, for defendant in error.
   WINCH, J.

There are eight cases before this court, numbered from 3134 to 3141 inclusive, on error to the,court of common pleas.

In the cases of Kubach v. State, Nos. 3134, 3135, and 3136, and in the cases of Gittings v. State, Nos. 3139, 3140 and 3141, the plaintiffs in error were convicted before Reuben Osborn, mayor of the village of Bay, in this county, of violations of the Sunday closing law, being Sec. 4364-20 Rev. Stat.

In the cases of Gittings v. State, Nos. 3137 and 3138, plaintiff in error was convicted before said mayor of suffering gaming, contrary to the provisions of Sec. 6933 Rev. Stat.

The defendants thereupon prosecuted error to the court of common pleas, where the convictions were affirmed, and error is prosecuted in this court to reverse the judgment of the common pleas affirming the judgments of the mayor.

In the cases for the violations of Sec. 4364-20 Rev. Stat. each of the affidavits contained several counts alleging distinct sales of intoxicating, liquor, and also charging that the defendant, on the day in question, kept his place open, contrary to the provisions of the statute.

In case No. 3135 there are four counts, three alleging separate sales* of' intoxicating liquor to the persons named, on July 26, 1903, and the fourth count alleging that the place was kept open on that day.

. In case No. 3134 there are three counts, two alleging sales to .different persons, on July 19, and the third count alleging the keeping open on that date.

In case No. 3136 the affidavit contained three counts charging two sales on August 2, and the keeping open of the place on that date.

In. case No. 3139 one sale is alleged, and the keeping open of the place on August 2.

In case No. 3140 there are three counts, alleging two sales and the keeping open of the place on July 19.

In case No. 3141 there are three counts, alleging two sales ajnd the keeping open of the place on July 26.

In the cases of Kubach v. State he was found guilty of all the sales alleged, but not guilty on each count of keeping open, and in the cases of Gittings v. State, he was found guilty of every count charged against him. In each case the mayor imposed a fine on each count on which the defendants were found guilty, so that in case No. 3135, above referred to, the ’defendant was fined $150, being $50 each on the first, second and third counts of the affidavit.

In the case of Gittings v. State, No. 3137, he was found guilty of suffering gaming by means of a gaming device, to wit, a slot machine, on July 18, contrary to the statute referred to, and in case No. 3138, he was found guilty of a like offense committed on July 19. In each of these cases he was fined $50 and costs.

On behalf of the plaintiffs in error, there are several objections made to the proceedings below. The jurisdiction of the mayor is challenged for two reasons: First, it is said that the mayor of the village of Bay has no jurisdiction to try any cases for the violation of the state law for offenses committed outside of the village of Bay; and second, that on the face of the record which is before this court, the defendants are charged with second and subsequent offenses, and are, therefore, entitled to a trial by jury, which was denied them. The questions were raised before the mayor in various ways, so that they are properly before this court.

On the first branch of this question, we find that by Sec. 1824 Rev. Stat. the mayor of the village has final jurisdiction in misdemeanor cases in which, under the constitution, there is no right to a trial by jury, and that this jurisdiction extends throughout the county. Such was the holding of this court in State, ex rel. Carey v. Metzger, as mayor of the village of Bedford, an unreported case which was before it at the last term of court. The relator in that case sought a writ of prohibition to prohibit Metzger, as mayor of the village of Bedford, from proceeding to try the relator for a violation of the Beal local option law, alleged to have "been committed in the village of Lakewood in this county. In that case this court held that Sec. 1824 Rev. Stat. confers jurisdiction upon a village mayor to try misdemeanor cases in which the defendant is not entitled to a jury trial, arising anywhere in the county. The writ asked for in that case was denied, and the petition dismissed. This court also made the same holding; in Joseph Roth v. Metzger et al., unreported, where Roth brought suit against Metzger for damages for false imprisonment, in that Metzger, as mayor oí Bedford, tried Roth at Bedford for violating Sec. 4364-20 Rev. Stat. at Warrensville. It was claimed the mayor had no jurisdiction outside his village. This court held the jurisdiction under Sec. 1824 Rev. Stat. extends throughout the county, and affirmed the ruling of the coitrt of common pleas in sustaining a demurrer to the petition.. We follow those holdings in this case, and hold that the statute confers-jurisdiction on the mayor throughout the county.

It was further urged in argument that the grant of jurisdiction to a village mayor throughout the county is repugnant to the constitution, and that jurisdiction could be lawfully conferred upon the mayor only for the village in which he had been elected. In the argument in this case, no particular part of the constitution was referred to, which it is claimed this statute violates, but in the case of State, ex rel. Carey v. Metzger, supra, it was claimed that Sec. 1824 Rev. Stat. was in conflict with the provisions of Sec. 10, Art. 4 of the constitution. In that case, this court held, that no such conflict existed, and that that section of the constitution in no way prevents the grant of such power. We are still of that opinion, and no suggestion having been made that Sec. 1824 Rev. Stat. violates any other provision of the constitution, we hold that Sec. 1824 Rev. Stat. is a constitutional and valid enactment.

It is urged as an additional reason why the mayor is without jurisdiction in these cases that on the face of the record the defendant is being prosecuted for a second or subsequent offense by reason of the fact that the affidavit, as in case No. 3135, contains four separate charges of distinct offenses. We are cited to a recent decision of our Supreme Court which seems to us conclusive on this point. We refer to the case of State v. Smith, 69 Ohio St. 196. In that case the second paragraph of the syllabus reads as follows:

“Unless such affidavit charges the particular sale to be the second ox-subsequent offense, imprisonment cannot be imposed as a part of the punishment, and a justice of the peace with whom the affidavit is filed has jurisdiction to try the accused without the intervention of a jury.”

The case under consideration in State v. Smith, supra, was for a violation of the pure food law, and, like the statute under consideration here, authorized the imposition of imprisonment as a penalty for a second or subsequent violation of the statute, but did not authorize the imposition of imprisonment for a first offense.

On the authority of that case and the following cases, Larney v. Cleveland, 34 Ohio St. 599, and Inwood v. State, 42 Ohio St. 186, we hold that as none of the affidavits in these cases contained any allegation that the offense in question was a second or repeated offense, the defendants were properly pi-osecuted on all the counts as for the first offense.

We also hold that the affidavit must allege not only a previous offense,, but also a former conviction of that offense, in order to justify the increased punishment. To prove a second offense the state must prove a first offense, and the proof of one must be as clear and certain as the proof of the other. Any proof of such first offense that falls short of the proof xxecessary for a conviction therefor, would be inadequate. Such being the case, if the accused is charged with and being tried for a second offense only, a first offense should be proved by a conviction therefor; otherwise the accused would be put upon his defense of two charges when being tried upon but one. In none of the cases before us was there any allegation of any previous conviction, nor was there any. allegation that the defendants were being prosecuted otherwise than for the first offense, and we therefore hold that the court had no authority on any count of any one of the affidavits under consideration, to punish the defendants otherwise than as for a first offense. 'Imprisonment, therefore, could not be a part of the punishment in any of these cases, and the mayor properly tried the defendants without the intervention of a jury.

Objection is also made to what ma)' be termed the cumulative penalty in these cases, and attention is called to the case in which the mayor imposed a fine of $150, being a fine of $50 each on three separate counts for a violation of the Sunday law. The highest penalty that can be inflicted for a single offense under this statute, when the defendant is prosecuted for a first offense, is $100, and it is claimed that there is error in this action of the mayor.

Bishop, New Cr. Proced. Sec. 452, contains the following:

“By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment, to be followed by one trial for all, and by one conviction for each, the same as though all were charged in separate indictments, subject to practical limitations from judicial discretion. So in liquor selling, when made by statute a misdemeanor with a fine for each sale, several counts for distinct sales may be combined in one indictment and the accumulated penalty imposed.”

This clearly justifies the joinder of several counts for distinct offenses in one affidavit in misdemeanor cases where imprisonment is not part of thé punishment, to be followed by one trial on all of the charges and a fine upon each, with one sentence for the whole amount of the fine assessed upon the several counts in one affidavit, even though the accumulated penalty exceeds the maximum amount authorized to be assessed upon a single violation of the statute. .Such is the general holding of the authorities upon this proposition, and the courts of this state are in accord with such holding. We refer to the following cases: Bailey v. State, 4 Ohio St. 440, 441; Boose v. State, 10 Ohio St. 575, 576; Eldredge v. State, 37 Ohio St. 191.

” It is urged on behalf of the plaintiff in error, that in misdemeanor cases prosecuted on behalf of the state, where an indictment is not required, it is necessary that the filing of the affidavit be followed by the filing of an information setting forth the offense • in the manner usual in informations in criminal cases.

We are not cited to any statute of-this state which requires that an information be filed in the mayor’s court, nor are we cited to any holding in this state that such information is necessary. It is true the courts of. this state have held that in cases where an information is proper, the information must be supported by an affidavit, and will quash the information unless an affidavit has been filed. Gates v. State, 3 Ohio St. 293; Eichenlaub v. State, 36 Ohio St. 140.

But no court has ever held, to our knowledge, that an information is essential to support an affidavit in cases of this character. The long established practice before justices of the peace and mayors in misdemeanor cases in this state has been to proceed upon affidavit and not upon information. i

Sections 7131 and 7133 Rev. Stat. authorize certain magistrates, including mayors of villages, to issue warrants for the arrest of any person charged with an offense, upon the filing of an affidavit with such magistrate. There is no requirement in-this body of the law, nor elsewhere-that we have been able to discover, that with such affidavit an information shall be filed. After the arrest of the defendant, the provisions found in the municipal code confer jurisdiction upon the mayor to try the defendant. In this case that jurisdiction is found in Sec. 1824 Rev.;Stat.

The foregoing disposes of all objections urged by the plaintiffs in error against the validity of the judgments below, and, finding no errors, the judgments of the court of common pleas affirming the judgments of the mayor of the village of Bay in the eight cases before us, are affirmed.  