
    PROSECUTION FOR. PERFORMING COMMON LABOR ON SUNDAY.
    [Common Pleas Court of Crawford County.]
    Louis J. Kimmerline v. State of Ohio.
    Decided, May Term, 1907.
    
      Criminal Law — Prosecution before Magistrate — For Violation of Sunday Law as to Performing Common Labor — Opening Place of Business —Sufficiency of Affidavit — Defects in not Waived by Plea of Guilty —Duplicity—Absence of Negative Averment — Works of Necessity —Failure of Proof as to Age of Defendant — Motion for New Trial— Grounds for — Time for Filing Bill of Exceptions — Revieioing Court must Consider Weight of Evidence.
    
    1. The restrictions of Section 6550, Revised Statutes, as to motions for new trial, do not apply to a defendant who has heen convicted before a magistrate of a misdemeanor, hut it is the right of such a one to file a motion for a new trial upon the ground of any error alleged to have occurred during the trial.
    2. The time within which a bill of exceptions may be prepared in such a case is not less than five or more than ten days from the overruling of the motion for a new trial, if such a motion is filed; and when a proper bill of exceptions embodying the testimony is allowed, signed and filed with the petition in error, it is the duty of the court of common pleas to pass upon the weight of the evidence.
    3. An affidavit charging the performance of common labor on the first day of the week, commonly called Sunday, is defective if it does not contain the negative averment that the work complained of was not work of necessity or charity or if the performing of common labor on Sunday and the having of a place open for the transaction of business on Sunday is charged as one offense.
   Babst, J.

Error to mayor’s court.

This is a proceeding in error. It appears from the record that on June 18, 1906, Louis J. Kimmerline was arrested upon a warrant duly issued by the mayor of the village of New Washington upon an affidavit in which it was charged that he, being over the age of fourteen years, was engaged in common labor upon the first day of the week, commonly called Sundajr, on June 17, 1906, and was carrying on his usual business of cutting and selling meat at his usual place of business in a building located on lot No. 402 in said village, and that he, on the same day, opened a building located on said lot for the transaction of business therein. A trial was had; he was found guilty, and sentenced to pay a fine of $25 and costs.

A petition in error was filed in this court on July 17, 1906, praying that the action of the court below be set aside and held for naught for the reasons:

First. That the affidavit was insufficient in law and did not charge the commission of any offense.

Second. That it was bad for duplicity, charging separate and distinct offenses jointly.

Third. That the mayor had no jurisdiction.

Fourth. The various customary assignments of error as to admission and rejection of evidence, overruling motion for new trial, etc.

Fifth. That the judgment was against the evidence.

A bill of exceptions was filed with the petition in error, which it is moved to strike from the files, for the reason that it was not allowed and signed by the mayor within the timé allowed by law, and that the filing of said bill of exceptions in this action was not authorized by law.

The record shows that the defendant was arrested on the eighteenth of June, 1906, and tried on the twenty-eighth. Before the trial began, the defendant filed a motion to quash the affidavit and proceedings herein and dismiss the cause, because of lack of jurisdiction of the mayor and insufficiency of the affidavit, which motion was overruled, and the trial proceeded. When the state rested, it was renewed with the additional ground that the evidence was insufficient to warrant a conviction. This motion, too, was overruled; the trial proceeded, and, as stated, resulted in a judgment of guilty. Defendant’s exceptions were saved at each stage of the case.

The next day (June 29), plaintiff in error, defendant below, filed a motion for a new trial on the grounds of lack of jurisdiction of the court; insufficiency of the affidavit; that the affidavit was bad for duplicity; irregularity in the proceedings of the court; error in admission and rejection of evidence; that the finding and judgment were not sustained by the evidence and were contrary to law, and the finding and judgment were in favor of the prosecution when, according to the law and the evidence, the same should have been for the defendant.

This motion was heard and overruled July 2, to which defendant excepted, and “the court does grant the statutory time of ten days in which to reduce his exceptions to writing and prepare his bill of exceptions for signing and filing. ’ The same day a bill of exceptions was presented, which was allowed and signed July 9.

Whether this bill can be considered by this court lies in the solution of two questions':

1. Was the motion for a new trial upon such grounds as were authorized by law?

2. Was the bill of exceptions signed and allowed within the time specified by the statute 1

It is contended by counsel for defendant in error that under Revised Statutes, Section 6560, the grounds of the motion for a new trial were unwarranted, and that the mayor could only consider a motion for a new trial upon three grounds, none of which were incorporated in the motion, to-wit, fraud, partiality or undue means.

This question was considered by the Supreme Court in the recent case of Koch v. State, 73 Ohio St., 131, and the conflicting statutes passed upon. In that case a motion for a new trial was filed so similar to the one in the ease at bar as to warrant us in citing it as a controlling authority. The court, speaking with reference to the confusion caused by the statutes providing for a review of judgments of justices, mayors and police courts, and upon the further question as to review of the weight of the evidence, say, p. 135:

“It seems to be claimed by the state in this case, that there is a separate procedure for the review of such judgments in criminal cases; one for the review of the judgment of a justice of the peace, another provision for the review of a judgment of a mayor, and still another for the review of a judgment of a police court, and that the practice prescribed for one can not be adopted to .review a judgment of either of the courts named. * * # If this be true, it is an unfortunate state of the law in which we have independent systems of practice before those tribunals wher-uniformity as well as simplicity should prevail. But we do not ttiinlr such contention is tenable to the extent claimed. ’ ’

Section 7356, Revised Statutes, provides that in any criminal case, including conviction for violation of an ordinance of a municipal corporation, th§, judgment or finding and order of the court or officer inferior to the common pleas court may be reviewed in this court; and from the fact that by this section the Supreme Court is exempted from passing on the weight of the evidence, it is the duty of all other courts to consider it.

Continuing to quote from the Koch case (which was for the alleged violation of the state liquor laws) the court say, page 137:

“This section clearly authorizes a review of the judgment of the mayor in cases like the present, if the method of procedure to reach the reviewing court includes the right to consider the weight of the evidence. We think Section 6565 now furnishes this mode of procedure, and it includes the right to have a review of the judgment on the weight of the evidence. ’ ’

So it is clear that the contention of counsel for the defendant in error is not well taken, and that the motion for a new trial in the court below, in so far as its form and matter was concerned, was proper.

Going now to the question as to whether the bill of exceptions was signed and sealed within the time specified by statute, the record discloses the fact that trial was had on June 28, 1906, that the motion for a new trial was filed'on the twenty-ninth and’ overruled on July 2, and that on the same day a bill of exceptions was filed with the magistrate and which was by him subsequently, on July 9, signed, sealed and allowed. Under Section 6565, Revised Statutes, we find that—

“The party objecting to the decision must except at the time the decision is made, and time shall be given to reduce the exceptions to writing, but not more than ten days nor less than five days beyond the date of overruling the motion for a new trial, if such motion be made.

In the ease at bar the motion was overruled July 2 and on the same day a bill of exceptions was filed. So that if we should hold that the plaintiff in error was responsible for the delay occasioned by the mayor between the second and ninth of July, in signing the bill of exceptions, we should still have intervening but seven days. The language of Section 6565, Revised Statutes, is so explicit that we do not see how it is possible to adopt any other construction than we have placed upon it. Counsel cite numerous authorities upon this proposition, and where they err is the initial date upon which the statute begins to run. As we construe this statute, the time begins to run from the date of the overruling of the motion for a new trial,- and not from the date of the decision of the magistrate in rendering judgment, so we hold the bill of exceptions was properly allowed and signed and overrule the motion to strike it from the files. The bill being before this court, we hold it our duty to consider all the matters therein contained, including the weight of the evidence.

Coming now to consider the whole case upon the errors assigned in the petition in error and the evidence, we will consider, first, the sufficiency of the affidavit.

To be an offense under Section 7033, Revised Statutes, the accused must be over fourteen years of age, the labor must be common labor, and on the first day of the week. Second, the person must be over fourteen years of age and shall open or cause to be opened any building or place for the transaction of business on the first day of the week. It is also provided that the section shall not contemplate nor embrace works of necessity or charity. It is contended on the part of plaintiff in error that the “cutting and selling of meat” is not common labor. AVith this we can not agree. Any labor is common that is manual as contradistinguished from intellectual, and if a man’s vocation falls within these lines pursued by him on secular days, if continued on the first day of the week, it would, in the opinion of the court, be a violation of this law, provided it was not work of necessity or charity or came within the other saving clauses of the statute.

It is strenuously argued on behalf of the plaintiff in error that the affidavit is defective because it fails to recite the saving clause provided for by this statute; that is to say, that the work complained of was not that of necessity or charity. The rule regulating this question, as laid down in Ciarle, Criminal Procedure, Section 271, is: ■

“Where a statute on which an indictment is founded, or some other statute, contains exceptions or provisos which ar.e so incorporated with the clause or clauses of the statute which define the offense that they enter into the description of the offense, and can not be separated from it, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos, for the offense can be accurately and clearly described without doing so. A prima facie case is stated, and it is for the party for whom matter of excuse is furnished by statute to bring it forward in his defense. When, however, the exceptions are themselves stated in the clause which defines the offense, and, in addition to this, are so incorporated with it that one can not be read without the other, or if, even when contained in a subsequent clause, section, or statute, they are clothed in such language and so incorporated with words used to define the offense that they become a part of the description of it, it is necessary to negative them in order that the description of the offense in the indictment may correspond with the statutes.” See also Section 274.

From Hirn v. State, 1 Ohio St., 15, 23, we quote:

“It is claimed that the indictment is defective on the ground that it does not contain a'-negative averment, that the sale of the spirituous liquor charged was not for medicinal or pharmaceutical purposes. The penal offense is described or defined in Section 1 of the act of 1851, and at the close of the section is a proviso in these words: ‘Provided, that nothing contained in this section shall be so construed as to make it unlawful to sell any spirituous liquors for medicinal and pharmaceutical purposes. ’ * *

“It is requisite that every indictment should contain a substantial description of all the circumstances descriptive of the offense as defined in the statute, so as to bring the defendant precisely within it. And the only substantial reason for requiring this negative averment at all. is. that without it the description of the offense would not be complete. When, therefore, the matter of the proviso or exception in the statute, >::= * enters into, and becomes a part of, the description of the offense, or a material qualification of the language which defines or creates the offense, the negative allegation in the indictment, is requisite. ■ * * *

“In the case before the court, the matter of the proviso in Section 1 of the act of 1851, points directly to the character of the offense, is in the same sentence with it, and made a material qualification in the statutory description of it. It is the opinion of the majority of the court that the indictment should have contained the negative averment; that the sale of the liquor was not for medicinal or pharmaceutical purposes, and is, therefore, defective. ’ ’

This case has been largely cited in the text-books and followed in many cases in this as well as other states. We believe the statute now being considered falls within the rules of law just read, and so hold that the negative averment should have been plead and for want thereof the affidavit was insufficient.

Were these defects waived by a plea of not guilty? This plea cost him none of his rights for there was no affidavit charging an offense. If the defendant had pleaded guilty, yet he would be discharged if fined or imprisoned on an affidavit which did not charge an offense. Davis v. State, 19 Ohio St., 270.

Is the affidavit void for duplicity? It charges that Kimmerline was engaged in common labor on Sunday and says how, and that he opened a building on Sunday for the discharge of business, and described the business. On the part of defendant in error it is claimed that under the statute this constitutes one offense. Let us look at the statute, Section 7033, Revised Statutes, for a moment:

“Whoever,.being over fourteen'years of age, engages in common labor on the first day of the week, commonly called Sunday; and whoever, being over fourteen years of age, shall open or cause to be opened any building,” etc.

If it is true as claimed by counsel for the defendant in error that the two constitute one offense, no man could be punished for common labor on Sunday unless he opened, or caused to be opened, some building or place for the transaction of business. Surely, this could not have been the intention of the Legislature in enacting this law. At least it is the opinion of the court that such could not have been the intendment of the Legislature in this enaetmnet.

Finley & Gallinger, for plaintiff in error.

C. H. Henkel, Prosecuting Attorney, L. G. Feighner and G. W. Sheets, contra.

The question of the weight of the evidence, as shown by the bill of exceptions, is disposed of in the case of Koch v. State, supra. This court must review the testimony, where it is alleged in the petition in error that the judgment is against the weight of the evidence.

A careful reading of the evidence as shown by the bill of exceptions discloses the fact that there is a total failure to- show the age of the plaintiff in -error, the defendant below — not one word of evidence on this question. There is also no evidence showing that he opened, or caused to be opened, the building. There is further no evidence as to whether the work so done was or was not of charity or necessity. There is also error in the admission of testimony over the objection of plaintiff in error, notably the copy of the affidavit upon which the warrant was issued upon which he was arrested.

We therefore find the bill of exceptions properly before the court; find the affidavit to be defective because of duplicity and because of the absence of the negative averment that the work was not of necessity or charity; find failure of proof as to age, etc.; find error in the admission of evidence for the state over the objection of defendant; find error in overruling the motion for a new trial.

The judgment of the mayor is reversed and set aside and the defendant ordered to be discharged.  