
    GAUGHAN v EAST CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 14541.
    Decided May 13, 1935
    
      Joseph B. Corrigan, Cleveland, for plaintiff in error.
    Edward A. Binyon, Cleveland, for defendant in error.
   OPINION

By LEVINE, J.

We are of the opinion that the affidavit did not allege an offense under said Ordinance. It will be noted that as part of *the definition of the offense, the Ordinance reads: “Any person who shall disturb the good order and quiet of the city by intoxication.” The affidavit reads: “That one Anthony P. Gaughan did unlawfully get intoxicated by drinking intoxicating liquor * * * and the said Anthony F. Gaughan was then and there found in a state of intoxication.”

There is no allegation that he disturbed the peace and quiet of the city of East Cleveland by intoxication, which is the gravamen of the offense provided for in the ordinance.

If the affidavit were based upon the General Code of Ohio and alleged a violation of §13194 GC, we would hold the same sufficient as the state law does not contain the element of disturbance but merely as a definition of the offense provides that whosoever is found in a state of intoxication is guilty of a violation of law. The penalty provided in the state law is entirely different from the penalty provided in the ordinance of the city of East Cleveland, upon which the affidavit was based.

Counsel for the city of East Cleveland very candidly stated to the court that the ordinance upon which the affidavit is based does not make “being found in a state of intoxication” an offense under said ordinance.

We hold that the affidavit was defectively drawn and does not allege an offense under said ordinance. The judgment of the Municipal Court of the city of East Cleveland is ordered reversed and plaintiff in error is ordered discharged.

LIEGHLEY, PJ, and TERRELL, J, concur in judgment.  