
    BROSIOUS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9797.
    Decided March 25, 1929
    W A Moran, Cleveland, for Brosious.
    S O Hirstius, Cleveland, for State.
   VICKERY, PJ.

Upon what basis the judgment of conviction could be maintained in this case is rather difficult to understand. The statute under which this affidavit and complaint was framed relates to the sale of merchandise, securities or service, and if there is any false statement contained in any such .advertisement the party is violating. the statute, but an examination of the advertisement in this case in which it is claimed a false statement was contained, shows that the party advertising did not want to sell anything but he wanted to buy the services of an agent and he entered into a contract with the agent to pay him a certain amount of money, which he failed to pay.

When this case came before the Municipal Court a demurrer was filed to this affidavit, for the reason that it did not state an offense. That demurrer was overruled and the state proceeded to put on its evidence which showed the state of facts which I have outlined, and after the evidence was all in, proper proceedings were taken to protect the right of the defendant below and exceptions were taken to the ruling of the court. A motion was made to discharge the defendant for lack of evidence, which motion was overruled and an exception taken, and error is prosecuted to this court on the ground that the affidavit did not state a crime or misdemeanor or an offense within thé meaning of the statute, and that the evidence fell short of showing, any violation of the law.

We are constrained to come to the conclusion that the court should have sustained this demurrer.

The judgment of conviction was, therefore, clearly wrong, and the judgment will be reversed and the plaintiff in error discharged.

Sullivan and Levine, JJ, concur.  