
    City of Cincinnati, Appellee, v. Lindsay, Appellant.
    (No. 7257
    Decided May 15, 1950.)
    
      Mr. Henry M. Bruestle, Mr. Robert J. Paul and Mr. Don Burkholder, for appellee.
    
      Mr. Melvin Schaengold, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of conviction in the Municipal Court of Cincinnati.

The appellant advances two principal assignments of error: (1) The judgment is against the weight of the evidence, and (2) the ordinance under which the defendant was convicted is unconstitutional.

As to the first assignment of error, the court finds no justification for the claim that the judgment is against the weight of the evidence.

The record discloses that the second assignment of error involves a question for the first time raised in this court, to wit, the constitutionality of the ordinance. The trial court, the Court of Common Pleas and this court had jurisdiction to determine such constitutionality. A reviewing court is not required to determine such constitutionality where the defendant has not raised such affirmative defense in the trial and appellate courts. 2 Ohio Jurisprudence, 299, 869, Sections 150, 502. See, also, Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251; Cuthbertson v. State, 106 Ohio St., 658, 140 N. E., 941.

It is difficult to see how this court could reverse a judgment of the Court of Common Pleas, which court affirmed the judgment of the Municipal Court, for errors in ruling upon a 'question which was never presented to either court. The unconstitutionality of a statute is an affirmative defense, and must be asserted in order to be considered even in a criminal case.

It is claimed also that Section 13448-4, General Code, requires a reversal. Again, the record shows that the rights, if any, of the defendant under such statute were never presented to the trial court or the Court of Common Pleas.

Under such circumstances, the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur.  