
    BURT v DAYTON (city)
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 1069.
    Decided Dec 21, 1931
    Strother B. Jackson, Dayton, for plaintiff in error.
    J. B. Harshman and Franklin G. Krehbiel, Dayton, for defendant in error.
   KUNKLE, J.

This court had occasion to examine an affidavit of this nature in the case of Columbus v Carson, reported in 23 Oh Ap, page 299. We do not think this affidavit properly charged a second offense and that the Court of Common Pleas correctly so held and properly remanded the cause to the trial court for a re-sentence of the plaintiff in error as of a first offense. We cannot see that the plaintiff in error was prejudiced by the remanding of the cause for a proper sentence under the proven facts.

The judgment of the Court of Common Pleas will be affirmed and the cause remanded for such further proceedings as are provided by law. 4

ALLREAD, PJ, and HORNBECK, J, concur.  