
    RETAKING GOODS SOLD ON INSTALLMENTS.
    Circuit Court of Hamilton County.
    Jacob Tennenbaum v. State of Ohio.
    Decided, November, 1907.
    
      Criminal Law — Defective Affidavit in Prosecution for Retaking Goods Sold on Installments — Conditional Sales — Sections 4155-2, 4155-3 and 4155-4.
    In the absence of an allegation that the transaction was a conditional sale as defined by Section 1 of Revised Statutes 4155-2, a demurrer will lie to an affidavit charging the seller with retaking goods which had been sold on installments and on which the amount paid exceeded twenty-five per cent, of the contract price for said goods.
    
      
      Thomas H. 'Darby and Lem 8. Miller, for plaintiff in error.
    
      Benton 8. Oppenheimer, for the state.
    Swing, P. J.; G-iffen, J., and Smith, J., concur.
   Jacob Tennenbaum was tried, convicted and sentenced in the police court of the city of Cincinnati, on a warrant and affidavit containing the following charge:

“That one Jacob Tennenbaum, on or about the 2d day of April, 1907, at the city and county aforesaid, did unlawfully and knowingly take possession by writ of replevin of certain furniture and household goods, theretofore, to-wit, on the 26th day of August, 1905, sold by said Jacob Tennenbaum to said affiant to be paid for in installments, and then and there in the possession’ of said affiant, without then and there tendering or refunding -’to said affiant any part of the money paid by said affiant to «aid Jacob Tennenbaum, the amount so paid having exceeded tw.enty-five per centum of the contract price of said property.”

We are of the opinion that no offense is charged in this affidavit under our statute. There is no allegation in it that it was a conditional sálé, as defined by Section 4155-2, Section 1, Revised Statutes. A conditional sale as therein defined is one where the title remains' in the vendor until 'the purchase price is paid.

Section 4155-3, Revised Statutes, provides that property so sold, that is conditionally, shall not be retaken except upon the repayment of a certain amount of the purchase price; and Section 4155-4, Revised Statutes, provides that any one violating this provision shall upon conviction be deemed guilty of a misdemeanor.

There being no offense charged, the demurrer of the defendant to the affidavit should have been sustained. The offense defined by the statute must, in substance a.t least, be charged in the affidavit, and there 'is no charge here.

Judgment reversed.  