
    Larney v. City of Cleveland.
    1. Where a greater pun ishment may he inflicted on a conviction for a second or subsequent violation of a criminal law, than for the first, the fact that the offense charged is a second or subsequent offense must be averred in the indictment or information, in order to justify the increased punishment.
    2. A sentence of imprisonment “ to commence after the expiration of former sentences ” is too uncertain and indefinite. See 18 Ohio St. 47; 22 Ohio St. 405.
    Error to the Police Court of the city of Cleveland.
    The plaintiff in error was convicted upon an information founded on an ordinance of the city declaring certain offenses, and providing that any person convicted of any such offense “ shall be fined in any sum not exceeding fifty dollars, or imprisonment at hard labor in the work-house, or both, at the discretion of the court, such imprisonment for the first offense not to exceed thirty days; for the second offense, ninety days; for the third offense, six months, and for the fourth, and each subsequent offense, one year.” The plaintiff in error was sentenced to pay a fine of fifty dollars, and to be imprisoned for the term of six months. “ The sentence to commence after the expiration of previous sentences have expired or otherwise disposed of according to law.”
    It does not appear in the information that the offense charged was other than the first offense committed by the plaintiff in error against the provisions of the ordinance; although testimony was offered on the trial showfing that the defendant was, before that time, twice convicted for the like violation of the ordinance. Nor does it appear in the record what “ previous sentences ” were referred to by the court at the expiration of which the present sentence was to commence.
    [The Court of Common Pleas and District Court of Cuyahoga county have refused to give relief.]
    
      John W. Heisley and William Clark, for plaintiff in error:
    The information should contain an averment that the defendant had been convicted of a former offense to justify increased punishment. 1 Bishop Cr. L., § 573; 2 Met. 413 ■ 2 Selden, 50; 9 Conn. 560.
    The sentence was too uncertain and indefinite. Williams v. The State, 18 Ohio St. 46; Pickett v. The State, 22 Ohio St. 405.
    
      W. H. Birney, prosecuting attorney, for the defendant in error.
   By the Court.

The judgment below must be reversed.

1-. Under the ordinance, six months’ imprisonment can be imposed only upon conviction of the third, or subsequent, violation of the ordinance, and in order to support such sentence, the information should show that, at least two previous violations of the ordinance had been committed by the defendant. The rule, and the principle upon which it is founded, are well stated by Mr. Bishop : “ "Where the offense is the first, or is prosecuted as such, the indictment need not charge it to be the first, for this is presumed. But if it be the second or third, and the sentence is to be heavier by reason of its being such, the fact thus relied oh must be averred in the indictment; because, by the rules of criminal pleading, the indictment must always contain an averment of every fact essential to the punishment to be inflicted.” See 1 Bish. Cr. L., 6th ed., § 961, and eases there cited. The same rule applies to an information.

2. The terms of the sentence were too uncertain and indefinite. Williams v. The State, 18 Ohio St. 47; Picket v. The State, 22 Ohio St. 405.

Judgment reversed, and cause remanded to police court.  