
    ARPS v STATE
    Ohio Appeals, 3rd Dist, Henry Co
    No 274.
    Decided May 20, 1936
    
      H. R. Dittmer, Wapakoneta, for appellant.
    Martin E. Hoeifel, Napoleon, for appellee.
   OPINION

By THE COURT

This is a prosecution under the provisions of §12974, GC, for the violation of the provisions of §7763, GC. Under the decision of the Supreme Court in the case of Parr et v State, 117 Oh St 23, failure to secure excuse of attendance at public school in compliance with the provisions of §7763 et seq, GC, does not preclude parent charged with the violation of §7763, GC, from defending against such charge on the ground that the health of the child was such that it might not be compelled to attend school; and whether or not the health of the child was such that it might be compelled to attend school is an issue of fact with the burden on the state to establish the guilt of the accused beyond a reasonable doubt.

In the case at bar the defendant offered substantial testimony tending to prove the health of the children was such during the period complained of that they should not be compelled to attend school, which testimony was not controverted by the state. And on this issue of whether or not the health of the children was such that they might be compelled to attend school, the finding and judgment of the justice of the peace are therefore against the weight «4 the evidence, and for this reason the finding and judgment of the Court of Common Pleas affirming the judgment of the justice of the peace will be reversed and the cause remanded to the justice of the peace for a new trial and further proceedings according to law.

The question of the jurisdiction of the justice of the peace to enter final judgment in this cause, was not raised either in the trial court or in the error prpceedings, but in view of the fact that this cause may be tried again, we deem it advisable to call the attention of the parties to the fact that a justice of the peace has jurisdiction only to inquire into a cause instituted under the provisions of §12974 GC for the violation of §7763 GC and either discharge the accused or recognize him to the proper court; and that a justice of the peace does not have final jurisdiction of such a cause. Opinions of the Attorney General, 1931, Volume 1, page 184, opinion number 2916, approved.  