
    PROSECUTION FOR. KEEPING OPEN ON SUNDAY.
    Circuit Court of Hamilton County.
    Lutkehaus v. Village of Mt. Healthy.
    Decided, December 19, 1908.
    
      Criminal Law — Sunday Closing — Failure of Proof as io the Exception Provided in the Statute.
    
    A conviction of keeping a place where intoxicating liquors were sold open on Sunday will not he set aside because of failure to prove that the place was not a regular drug store, when the testimony offered was to the effect that the place was a saloon in which intoxicating liquors were sold on other days of the week.
    
      Gog an da Williams, for plaintiff in error.
    
      Oiuen N. Kinney, contra.
    The plaintiff in error was convicted below of keeping his saloon open on Sunday.
    Smith, J.; Swing, P. J., and G-iffen, J., concur.
   In the trial of this case before the mayor no evidence was-offered by the plaintiff in error in defense, and we can not say that he was not proven guilty beyond a reasonable doubt, unless, as claimed by plaintiff in error, no evidence was offered upon the exception in the affidavit that the room claimed to have been open on Sunday was not a regular drug store.

In the absence of evidence to the contrary, we think the testimony offered by the state tended to prove the exception, as there was direct evidence that the place that was open was a saloon, and plaintiff in error sold intoxicating liquors therein; thereby showing it to be a place where on other days of the week intoxicating liquors are usually sold and thus tending to prove that the place was not a regular drug store.

We can not consider the validity of the ordinance, inasmuch as it does not appear upon the record. Nelson v. Berea, 21 Ct. Ct., 781.

Judgment affirmed.  