
    INTOXICATING LIQUORS — VENUE—CRIMINAL LAW.
    [Franklin (2nd) Circuit Court,
    March Term, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    Andy Kappes v. State of Ohio.
    1. Prejudice Must Exist in Cj.tizessh.ip to Warraxt Change of Venue Under Sec. 6529 Rev. Stat. — Whether Applicable to Mayor’s Court, Quaere.
    Prejudice is not a ground for change of venue under Sec. 6529 Rev. Stat., unless it exists in the citizenship, and the applicant be entitled to a trial by jury; prejudice of the magistrate alone toward the applicant is not sufficient. Whether Sec. 6529 Rev. Stat., applies to mayors’ courts, quaere.
    
    2. No Trial by Jury por First Offense Under Sec. 4364-20 Rev. Stat.,’ etc.
    The right of trial by jury does not exist in favor of one charged with a first violation of Sec. 4364-20 Rev. Stat. (commonly called the Sunday closing law); and, as the presumption is, that the offense charged is the first, it must affirmatively appear of record that the accused is charged with a second or subsequent offense in order to warrant the reversal of a judgment of conviction for refusing his demand for a trial by jury.
    3. Mayors’ Courts Have Final Jurisdiction op First and Second Offense Under Sec. 4364-20 Rev. Stat.
    Final jurisdiction of both the first and second offense committed by the same person in violation of Sec. 4364-20 Rev. Stat., is conferred upon mayors’ courts, and, although the accused is entitled to a trial by jury for the second offense but not for the first, the question of his right of trial by jury in either event is not jurisdictional. Hence, the record need not disclose that the offense charged, and for which the accused was convicted and sentenced, was the first offense, in order to give the mayor jurisdiction to try the accused without the intervention of a jury. The presumption is, that the offense charged is the first offense, if the contrary does not appear.
    4. Name of Vendee Must be set out in Charging Sale Under Sec. 4364-20 Rev. Stat.
    The offense of selling intoxicating liquor in violation of See. 4364-20 Rev. Stat., is not charged in an affidavit which fails to set out the name of the vendee, or alleges that it is unknown.
    5. Affidavit not bad for Duplicity When one of the • Offenses Charged is Insufficient. ■
    Where the affidavit does not sufficiently charge the offense of selling intoxicating liquors on Sunday, but sufficiently charges the offense of beeping open a saloon on such day, in violation of Sec. 4364-20 Rev. Stat., the affidavit is not bad for duplicity. The former charge being insufficient, all reference thereto may be treated as surplusage.
    6. Exception of “ Drug Stores ” in Seo. 4364-20 Rev. Stat., Negatived, When.
    That the place where. intoxicating liquor was sold was not a regular drug store within the exception contained in Sec. 4364-20 Rev. Stat., is sufficiently negatived in an affidavit by the words “said saloon being a place where intoxicating liquors are * * * exposed for sale and sold for beverage purposes, and not being a drug store, and said (defendant, naming him) not being, then and there, a regular druggist, and not selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, etc.”
    
      ERROR to the court of common pleas of Franklin county:
    On August 4, 1903, an affidavit was filed before J. S. Rickets, mayor of the village of Marble Cliff in Franklin county, Ohio, the body of which contained the following language.
    “J. W. Morgan being duly sworn saith that, on the second day of August, A. D. 1903, the said day being the first day of the week, and commonly called Sunday, at the county aforesaid, one, Andy Kappe.s, in' the township of Clinton, did, unlawfully and knowingly, keep open a saloon on said day, and did then and there, unlawfully and knowingly, expose, sell, and furnish, intoxicating liquors to be used as a beverage, said saloon being a place where intoxicating liquors are, on other days of the week, exposed for sale and sold for beverage purposes, and not being a drug store, and said Andy Kappes not being, then and there a regular druggist, and not selling and furnishing said intoxicating liquors upon a written prescription of a regular practicing physician for medicinal purposes only, or for pharmaceutical, scientific, mechanical, or sacramental purposes, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    The cause came on for hearing and the defendant successively moved for a change of venue because the mayor was a material witness for the defendant and was prejudiced; that defendant had offered to waive examination and be bound over to the police court of Columbus, Ohio; defendant also demurred to the jurisdiction of the court, and to the sufficiency of the affidavit ; and moved to quash the affidavit because it did not sufficiently charge the keeping open of a saloon on Sunday. These motions and demurrers were each overruled, whereupon defendant demanded a trial by jury which was refused.
    On trial before the mayor, the defendant was found guilty of keeping open a saloon on Sunday, and was fined $100 and costs. On error, the court of common pleas affirmed the judgment of the mayor.
    G. E. Trump, for plaintiff in error:
    The affidavit is insufficient because it is duplicitous, in that it charges two offenses, to wit, keeping open’a'saloon on Sunday, and selling intoxicating liquors on Sunday. Section 4364-20 Rev. Stat.; Weaver v. Mt. Yernon, 6 Dec. 436 (7 N. P. 37<4) ; Lederer v. State, 3 Circ. Dec. 303 (5 R. 623) ; Barnhouse v. State, 31 Ohio St. 39; People v. Keefer, 97 Mich. 15 [56 N. W. Rep. 105],
    Not necessary to allege the name of the purchaser, or that it is unknown. State v. Moseli, 49 Kan. 142 [30 Pac. Rep. 189] ; State v. Pischel, 16 Neb. 608 [21 N. W. Rep. 468] ; Osgood v. People, 39 N. Y. 449; iiarnhouse v. State, 31 Ohio St. 39; Gordon v. State, 46 Ohio St. 607. 625 [23 N E. Iiep. 63; 6 L. R. A. 749], cited in support of the proposition that an affidavit charging illegal sales should set out the name of the party to whom sold, does not even tend to support the ]) reposition.
    Barnhouse v. State, 31 Ohio St. 39, holds directly that Sec. 7215 Jiev. Stat. does not relieve the defect of charging two separate offenses in the same court.
    The affidavit in this case is bad for the reason that the exception stated in the statute, to wit, that said saloon was not a regular drug store, is not set out.
    Exceptions like those contained in Sec. 4364-20 Rev. Stat., must be pleaded in the indictment or affidavit. This is fundamental, and requires that in this case the exception that the defendant’s saloon was not a regular drug store, be set out in the affidavit. People v. Hass, 79 Mich. 449 [44 N. W. Rep. 928] ; People v. Decarie, 80 Mich. 578 [45 N. W. Rep. 491] ; Kaufmann v. Hillsboro (Vil.), 45 Ohio St. 700 [17 N. E. Rep. 557]!
    The court erred in overruling the defendant’s motion for a change of venue. Section 6529 Rev. Stat.; McMillen v. Andrews, 10 Ohio St. 112. 113.
    The provisions of this statute are mandatory, and all that it is necessary for a party to do to secure a change of venue is to ñle his affidavit before a magistrate setting forth clearly the fact that he is a material witness, and it becomes mandatory upon the court to allow the change. People v. Yoakum, 53 Cal. 566; Herbert'V. Beathard, 26 Kan. 746; Paul v. Ziebell, 43 Neb. 424 [61 N. W. Rep. 630].
    Statutes relating to a change of venue should be construed liberally, to the end that a change of venue should not be denied. 4 Enc. PI. & Pr. 380; Packwood v. State, 24 Ore. 261 [33 Pac. Rep. 674] ; Stockwell v. White Lake, 22 Mich. 341, 349; Searls v. Munson, 17 Ill.’558, 560.
    Although Sec. 6529 Rev. Stat. refers to actions before “justices of the peace,’-’ yet Sec. 1830 Rev. Stat. provides that mayors of villages shall have concurrent jurisdiction and power “in criminal proceedings’' with justices of the peace. Applying the rule of liberal construction laid down in the above authorities to the statutes of Ohio, and-bearing-in mind the fundamental principle that fairness and justice requires that no cause should be tried before a court which is biased or prejudiced to any degree, we have sufficient reason for holding that See. 6529 Rev. Stat. applies to actions before mayors of villages as well as justices of the peace. Truman v. Walton, 59 Ohio St. 517, 525 [53 N. E. Rep. 57] ; Ogle v. Plank Road Co. 2 Re. 293 (2 W. L. M. 318) ; Miller y. Oehler, 36 Ohio St. 624, 626.
    The mayor ’.s court erred in. assuming jurisdiction to try the case without the intervention of a jury. Truman v. Walton, 59 Ohio St. 517, 525, 529 [53 N. E. Rep. 57] ; Truesdell v. Combs, 33 Ohio St. 186; Sec. 5, Art. 1, Const.
    The record must affirmatively show that the accused in this case was not entitled to a trial by jury before the mayor could assume jurisdiction to try this cause without a jury, and, also, if the record fails to show that the defendant below was not entitled to a trial by jury, then it is affirmatively shown that the mayor had no jurisdiction to try the ease without a jury, and by so trying the case he exceeded his jurisdiction and the proceedings herein are illegal and erroneous, and the judgment should be reversed. Truman v. Walton, 59 Ohio St. 517, 530 L53 N. E. Rep. 57].
    The affidavit should state every fact necessary to advise the court of the jurisdiction. Bishop, Or. Proced. Secs. 77, 236, 325, 538; Yogel v. State, 31 Ind. 64; Blackburn v. State, 50 Ohio St. 428 [36 N. E. Rep. 18]; Rauch v. Commonwealth, 78 Pa. St. 490; People v. Youngs,.! Caines (N. Y.) 37; Massa v. State, 2 Circ. Dec. 6 (3 R. 9); 18 Am. & Eng. Enc. Law (2 ed.) 38; State v. Yates, 36 Neb. 287 [54 N. W. Rep. 429] ; State v. Dolby, 49 N. H. 483 [6 Am. Rep. 588].
    Jurisdiction cannot be assumed in cases similar to the one at bar, by inferior courts, where the maximum penalty is greater than they have power to inflict. Anear, Ex parte, 114 Cal. 370 [46 Pac. Rep. 172] ; Commonwealth v. Woolford, 108 Mass. 483; State v. Weeks, 14 S. C. 400; State v. Madden, 28 S. C. 50 [4 S. E. Rep. 810] ; Hersom, In re, 39 Me. 476; Berry, In re, 7 Mich. 467; State v. Yates, 36 Neb. 287 [54 N. W. Rep. 429] ; State v. Dolby, 49 N. H. 483 [6 Am. Rep. 588] ; State v. Edney, 80 N. C. 360.
    The sentence is erroneous and should be set aside. Moore, In re, 7 Circ. Dec. 575 (14 R. 237).
    W. B. Wheeler and M. E. Thrailkill, for defendant in error:
    The mayor had jurisdiction. Sections 1824, 1536-773, 1536-777, 1536-783, 1536-876 Rev. Stat.; State v. Smith, 69 Ohio St. 196; Kubach v. State,' 25 O. C. C. 488; Kubach v. State, 14 Dec. 000.
    The affidavit was sufficient. 95 O. L. 87; See. 7135 Rev. Stat.
    Defendant was not entitled to a trial by jury. Secs. 1744, 1824, 6529 Rev. Stat.; Inwood v. State, 42 Ohio' St. 186; Cincinnati v. Stein-karnp, 54 Ohio St. 284, 290 [43 N. E. Rep. 490] ; Ward v. State, 5 Dec. 230 (5 N. P. 81) ; Peters v. State, 11 Dec. 555 (8 N. P. 595).
    
      Powers to grant changes of venue are strictly statutory, and unless the power be delegated, it cannot be exercised. There is no statutory authority conferred on village mayors to grant a- change of venue. State v. McGehan, 27 Ohio St.'280.
    A motion for a change of venue is addressed to the sound discretion of the court. Hotelling v. State, 2 Circ. Dec. 366 (3 E. 630).
    Interest of a judge must be a pecuniary interest to warrant change of venue.
    Affidavits of prejudice. 48 Bull. 743.
    Defendant was not entitled to a trial by jury. Inwood v. State, 42 Ohio St. 186; Quigley v. State, 3 Circ. Dec. 310 (5 E. 638) ; Mason v. State, 58 Ohio St. 30, 40 [ 50 N. E. Eep. 6; 41 L. E. A. 291] ; see also Cincinnati v. Steinkamp, 54 Ohio St. 284, 290 [43 N. E. Eep. 490] ; State v. Smith, 69 Ohio St. 169.
   WILSON, J.

The plaintiff in error was convicted in the mayor’s court of the village of Marble Cliff in Franklin county, Ohio, of the offense of keeping open on Sunday a room where intoxicating liquors were sold.

He interposed a motion for a new trial which was overruled.

A bill of exceptions was allowed and error prosecuted to the court of common pleas to reverse the judgment. The court affirmed the judgment, and error is prosecuted here to reverse the judgment of affirmance, as well as the judgment of the mayor’s court. It is claimed that the trial court erred in overruling the motion of the plaintiff in error for a change of venue upon the ground that the mayor was a material witness for the defendant, without whose testimony he could not safely proceed to trial.

Without determining the question whether the statute providing for change of venue applies to the mayor’s court, the hearing on this motion does not satisfy this court that the mayor was a material witness, or that the motion was made iu good faith. The evidence tended to show prejudice, but that is not a ground for change of venue, unless it be in the citizenship, and the defendant be entitled to a trial by jury.

The motion was properly overrul

The defendant demurred to the affidavit for duplicity, and that it did not charge the offense of keeping open on Sunday. The court overruled the demurrer. This was not error. The affidavit does not charge the offense of selling intoxicating liquors on Sunday.- What is said in that regard could properly be treated as surplusage, or as descriptive of the kind of room that was kept open. The language negativing the fact that it was a regular drug store is sufficient under the statute.

The defendant demanded a jury trial, which was refused. The mayor’s court had jurisdiction to’ try the case, whether it was a first or second offense, the only difference being that he could try it without a jury if it was a first offense. In either case he had final jurisdiction. The question of the right of the defendant to a jury trial was not, therefore, jurisdictional; and it is not necessary that the record should disclose that it was a first offense in order to give the court jurisdiction. But in order to find that there was error in overruling the demand for the jury, it must affirmatively appear of record, that-it was a second offense1. If that does not appear, the presumption is, the charge was for a first offense. There was no error in the refusal of the jury trial.

AVe find no prejudicial error in the • admission and rejection of evidence, and no error on the record.

The judgment is affirmed with costs, and remanded to the mayor’s court for execution.  