Schlagel v. State.

can only be inflicted through the medium of an indictment or presentment of the grand jury. There are however many offenses made so by statute which are but quasi criminal, and, in which the legislature may direct the mode of redress untrammeled by the constitution; such as Sabbath breaking, selling spirituous liquors on Sunday, and the disturbance of religious meetings."

So, the court clearly hold there that, in a case of this kind, the party is not entitled to a trial by jury. Now, I might say that the imprisonment inflicted in this case was until the fine and costs were paid. But, that is not a part of the penalty. The penalty authorized by this statute for the first offense does not include imprisonment, and imprisonment was imposed by the court only as a means of enforcing the penalty.

The second error complained of is the overruling of the motion to quash the affidavit, because the affidavit is insufficient in law to authorize the mayor to take and exercise final jurisdiction without the intervention of a jury; that it is insufficient in law to warrant the mayor in trying the defendant and imposing any punishment.

This motion attacks the jurisdiction of the mayor from all quarters. It follows from what I have said that if he had jurisdiction at all, he had the power to try the case without a jury. Did he have jurisdiction. at all? This must be determined by the statutes, for, being a court of limited jurisdiction, he can only have such jurisdiction as the statutes have conferred upon him.

Laning R. L. 3349 (R. S. 1817) provides that the mayor shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is by the constitution entitled to a trial by jury, and his jurisdiction in such cases shall be coextensive with the county.

Having found that the accused is not entitled to a trial by jury, the statute gives the mayor final jurisdiction in this kind of a case. We have seen that the accused was not entitled to a trial by jury under the constitution, and it necessarily follows that under this section the mayor had the right to try the case, and, as a necessary consequence, that he had ample authority to impose the penalty by fine and enforce its payment by imprisonment.

I refer to Lan. R. L. 11003 (R. S. 7249) as to a motion to quash; to Lan. R. L. 11004 (R. S. 7250) as to a plea in abatement; as to when they may be made; as to when they are proper to be made; to Lan. R. L. 11007 (R. S. 7253), as to when waived. The court will not refer to them further, as the time is short.

The third assignment of error is, that the mayor refused to require the state to elect upon which charge it would proceed.

Licking Common Pleas.

The first count in the affidavit charges the defendant with allowing her saloon to remain open on Sunday, the fourth day of January, 1903. The second count charges the defendant, on the same day, with selling intoxicating liquors.

Both of the charges against the defendant are brought under the same section of the law, presumably growing out of the same transaction. If this motion were well taken-and the court does not think it is-there could be no error, because she was only convicted on the first charge.

The fourth assignment of error is predicated upon the overruling of the demurrer to the affidavit, and this raises the question as to whether the facts stated in the affidavit are sufficient in law to constitute an offense even if true.

Counsel's argument, in the main, was directed at the grammatical construction of the sentence containing the words, "the same being a place where intoxicating liquors are on other days of the week exposed for sale and sold," etc. It is claimed that the verb "are" denotes present time, and can have no reference to a past event. But this clause. of the affidavit follows the act of the legislature defining the offense, and quotes the language used by the legislature in the act. The framers of the constitution provided that the accused shall be furnished with the nature and cause of the accusation against him. Does this affidavit furnish the defendant with the nature and cause of the accusation against her? She is charged with allowing her saloon to remain open on Sunday, January 4, 1903. This branch of the affidavit clearly informs her of the nature of the charge against her. It is not a necessary ingredient that sales of intoxicants be made on that day, but it is necessary that it be a place where intoxicating liquors are-it may be subsequently sold or exposed for sale on other days.

I refer to Hagar v. State, 35 Ohio St. 268, where the court holds that it is not good practice to use other than the language contained in the section of the statute in an indictment. I read from page 269:

"In charging an offense in an indictment, it is not good practice to omit the words of the statute which define the crime. The safer course is to employ them; and, while this is not always indispensable to the validity of the indictment, it is clear that if they are omitted the defect will be fatal, unless the words used are the precise equivalent of the words of the act, or, at least, plainly and necessarily include them."

There is something said about the negative contained in this section of the statute. The Hale v. State, 58 Ohio St. 676 [51 N. E. Rep. 154] disposes of the question, that it is not necessary to plead the negative part of the statute. The negative in this kind of a case must be established by the defendant. I cite a case found on page 676, and I read from the fourth syllabus:

Schlagel v. State.

"Where an exception or proviso in a criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense; but when its effect is merely to except specified acts or persons from the operation of the general prohibitory words of the statute, the negative averment is unnecessary."

There is an apparent defect in the record, as will appear from an examination of the copy of the affidavit-this was not called to the attention of the court, but the court calls the attention of counsel to it -wherein it does not appear that any proper venue is laid in the first charge, a pen having been run through the words "at. the county and state aforesaid," so that there would be no offense charged, if the original affidavit were not attached to, and made a part of, the record. The original affidavit properly lays the venue, and I take it that the pen was inadvertently run through that part of the copy. So that the court did not err in overruling the demurrer.

The fifth ground of error is the receiving of improper evidence. The court does not find that any improper evidence was received. Neither does it find that proper evidence was excluded.

It is contended that there was no legal arraignment. The record shows affirmatively that the defendant was arraigned (see transcript of docket entry, pages 1 and 6). I cannot see how that gentleman can claim that there was no arraignment here, especially when the record appears as it does.

"Mr. Fitzgibbon: It is on the transcript.

"The Court (continuing): Counsel for the defendant waived the reading of the affidavit, and plead not guilty."

Now, I suppose counsel intended to claim to the court that they have no right to do this.

But the statute gives counsel a right to do it. It was said by counsel in the argument, that the defendant ought to be present. "The defendant not being present at the trial, her attorneys then demanded a jury." It is not disclosed whether she was present when the plea of not guilty was made or not; but it says in the record and in the bill of exceptions that a plea was entered of not guilty. Laning R. L. 11011 (R. S. 7257) provides:

"The accused shall be arraigned by the clerk of the court or his deputy, reading to him the indictment unless the accused by himself or his attorney waive the reading of the same and he shall then be asked by the court whether he is guilty or not guitly of the offense charged."

So, there is no error in that.

It is claimed that the defendant was not informed of the judg

Licking Common Pleas.

ment of the court, and asked whether she had anything to say why the judgment of the court should not be pronounced against her. That is governed by Lan. R. L. 11073 (R. S. 7318) :

That seems to be mandatory.

"Before sentence is pronounced, the defendant must be informed. by the court of the verdict of the jury, and asked whether he has anything to say why judgment should not be pronounced against him." But, the record does not show but what that was done. It does not show affirmatively that it was not done; and it is held that where it does not affirmatively appear that it was not done the court will presume that what is required by the statute to be done was done; that is, that it will not be presumed that the court did not do its duty under the statutes. The record does not show affirmatively that it was not done. It is presumed that the court did what was necessary under the circumstances. There are a number of decisions sustaining the court upon that proposition. Unless the record affirmatively shows that the defendant was not asked why sentence should not be passed, the law presumes that what the court ought to have done in that case, it did do. It would seem that this is a necessary prerequisite to the passing of sentence; but the record does not show that it was not done. I cite Bond v. State, 23 Ohio St. 349; Bartlett v. State, 28 Ohio St. 669; Carper v. State, 27 Ohio St. 572.

It is claimed that the judgment was against the law and the weight of the evidence. The court is not called upon to consider the weight of the evidence, as it is not pretended, so far as the bill of exceptions shows, that all of the evidence is set out. The certificate of the mayor does not show that all the evidence is set out in the bill of exceptions, and so the court does not consider that matter at all. The court cites on that question: Armleder v. Lieberman, 33 Ohio St. 77 [31 Am. Rep. 530]; Pitts. Ft. W. & C. Ry. v. Probst, 30 Ohio St. 104; Cantwell v. State, 18 Ohio St. 477, 480; Farmer's College v. Butler, 18 Ohio St. 418.

So the court find that there are no errors in these two casesthe cases against Schlagel and Forsythe-and the judgment of the mayor will be affirmed, with exceptions.

Herold v. Herold.

DEAD BODIES-EQUITY-WILLS.

[Butler Common Pleas, July 22, 1905.]

SARAH J. HEROLD V. HENRY HEROLD ET AL.

1. EQUITY HAS AUTHORITY TO DECIDE AS TO CUSTODY OF CORPSE, BUT IS NOT BOUND BY ANY DEFINITE RULE WITH REFERENCE THERETO.

A court of equity has full authority to decide controversies as to the disposition and custody of dead bodies; and in so doing, the chancellor will take into consideration all the circumstances of the case, none of which, however, will be absolutely controlling upon his judgment.

2. ONE CANNOT DISPOSE OF HIS DEAD BODY BY WILL.

A man cannot by will dispose of his dead body, as there is no property in it and it does not form a part of his estate; his wishes, however, will be considered with the other circumstances by a court of equity, in deciding as to the disposition thereof.

3. ORDINARILY, WIFE WILL HAVE RIGHT OF BURIAL OF HUSBAND'S BODY.

Under ordinary circumstances, the custody of a corpse and right of burial is in the next of kin in the order of their relationship to the decedent, and a wife will therefore have the paramount right to dispose of her deceased consort's remains.

4. WIFE WILL HAVE CONTROL OF HUSBAND'S BODY EVEN IF THEY HAD LIVED APART FOR A LONG TIME, IF EQUITY SO DICTATES.

A wife who has maintained normal conjugal relations with her husband until his death, but from the peculiar circumstances of the case was obliged to live apart from him for some time before his decease, will be awarded the custody and control of his dead body, notwithstanding his expressed wishes that the custody thereof be vested in his father, where it appears that his burial in the father's family lot would have the effect of preventing the widow and their child from visiting decedent's grave, and to prevent their future burial by his side.

C. J. Smith and A. F. Hume, for plaintiff.

W. S. Bowers and T. E. Bock, for defendants.

BELDEN, J. (Orally.)

This is an action to obtain custody of the dead body of one Ernest Herold. The plaintiff is the widow, and the defendant, Henry Herold, is the father, of said Ernest Herold. The defendant, Albert P. Wagner is the undertaker employed by the defendant, Henry Herold, to prepare the body of Ernest Herold for burial, and to inter the same.

The plaintiff desires to have the body interred in Lakeview Cemetery, in Cleveland, in this state. The father and sisters of deeeased desire to have the body interred in Greenwood Cemetery, at Hamilton. The controversy is between these parties.

The authority of a court of equity to decide matters of this kind is unquestioned. 8 Am. & Eng. Enc. Law (2 ed.) 836; 13 Cyc. 268.

The widow has the paramount right in case of dispute between her and the next of kin. Hadsell v. Hadsell, 3 Circ. Dec. 725 (7 R. 196).