
    SUFFICIENCY OF THE AFFIDAVIT UNDER THE BEAL LAW.
    [Circuit Court of Franklin County.]
    Andy Kappes v. The State of Ohio.
    Decided, March, 1904.
    
      Beal Law — Affidavit Charging Keeping Open on Sunday — Surplusage— Duplicity■ — Jurisdiction of Mayor — Prejudice—First and Second Offense — Demand for Jury.
    
    1. An affidavit in the form used in this case is sufficient to support a conviction of keeping open on Sunday a room where intoxicating liquor is sold.
    2. Under an affidavit in that form there is but one offense charged; all reference to the sale of liquor is mere surplusage.
    S. The presumption is that the offense charged was a first offense, and if it does not affirmatively appear from the record that it was a second offense, the action of a mayor in overruling a demand for a jury will not be disturbed.
    On August 4, 1903, an affidavit was filed before J. S. Ricketts, 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 2d 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 Kappes, 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 (1) because the mayor was prejudiced; (3) offered to waive examination and be bound over to the police court of Columbus, Ohio; (4) demurred to the jurisdiction of the court; (5) demurred to the sufficiency of the affidavit; and (6) moved to quash the affidavit because it did not sufficiently charge the sale of intoxicating liquors on Sunday. These motions and demurrers were each, in succession, overruled, and then the 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 proceedings the court of common pleas affirmed the judgment of the mayor, and that judgment has been affirmed by the circuit court, Judge Wilson rendering the opinion as follows:
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
   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 in 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 overruled.

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.

G. E. Trump, for plaintiff in error.

W. B. Wheeler and M. E. Thrailkill, for defendant in error.

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 a jury, it must affirmatively appear of record that it was a second offense. That does not appear. The presumption is the charge was for a first offense. There was no error in the refusal of a jury trial.

We 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.  