
    CRIMINAL LAW — SUNDAY LAWS.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.
    Lutkehaus v. Mt. Healthy (Vil.).
    Failure to Affirmatively Prove Negative Averment in Sunday Law Prosecution Affidavit not Ground for Reversal.
    A conviction for keeping a place where intoxicating liquors are sold open on Sunday, supported by .direct evidence showing the place to be a saloon in which intoxicating liquors were usually sold on other days of the week, will not be reversed for failure to prove that the place was not a regular drug store, in the absence of evidence upon the exception in the affidavit to the contrary.
    The plaintiff in error was convicted below of keeping his saloon open on Sunday.
    Cogan & Williams, for plaintiff in error.
    O. N. Kinney, for defendant in error:
    Cited and commented upon the following authorities: Wightmm v. State, 10 Ohio 452; State v. TJlm, 8 Dee. 677 (7 N. P. 659) ; Marble'
      v. Akron, 14 Ohio 586; Burckholter v. McConnellsville, 20 Ohio St. 308; Bergman v. Cleveland, 39 Ohio St. 651; Piqua v. Zimmerlin, 35 OhioíSt. 507; Nelson v.-Berea (Vil.)-, 12 Ciro.-.free, 329 (21 R. 781) ; Strattss v. Conneaut (Vil.), 23 Circ. Dec. 320 (3 N. S. 445); Effinger v. State, 6 Circ. Dec. 417 (9 R. 376) ; Moliior v. State, 3 Circ. Dec. 445 • (6 R. 263) ; State v. Heibel, 54 Ohio St. 321 [43 N. E. Rep. 328]; : Emery v. Elyria, 11 Dec. 316 (8 N. P. 208). •
   SMITH, J.

In the trial of this case before the mayor no evidence was offered by the plaintiff in error in defense, and we cannot say that he was not proven guilty beyond a reasonable doubt, unless, as claimed by plaintiff in error, no evidence was offered upon the exception in the affidavit that the room claimed to have been open on Sunday was not a regular drug store.

In the absence of evidence to the contrary, we think the testimony offered by the state tended to prove the exception, as there was direct evidence that the place that was open was a saloon, and plaintiff in error sold intoxicating liquors therein; thereby showing it to be a place where on other days of the week intoxicating liquors are usually sold and thus tending to prove that the place was not a regular drug store.

•We cannot consider the validity of the ordinance, inasmuch as it does not appear upon the record. Nelson v. Berea, 12 Circ. Dec. 335 (21 R. 781).

Judgment affirmed.

Swing and Giffen, JJ., concur.  