ALLEGATIONS AS TO CRIME MUSTJBRING THE OFFENSE WITHIN THE STATUTE.

Court of Appeals for Cuyahoga County.

#### Noble v. State of Ohio.

Decided, February 11, 1918.

*Criminal Law*— Allegations *Which Must he Embodied in an Affidavit Charging an Offense*— Failure *of Physician to Use Some Prophylactic to Protect Eyes of New Born Infant from Inflammation.*

1. An affidavit charging a crime must contain allegations of sufficient facts to bring the charge within the language of the statute under which prosecution is sought.

2. Section 1248-5, General Code, 106 O. L., 322, makes it a crime for a physician to fail to use some prophylatie against inflammation of .the eyes of an infant immediately after birth in a “maternity home,” hospital, etc., and an affidavit which charges such failure on the part of a physician in the home of a mother does not charge a crime under that section.

*McKay Poulson,*for plaintiff! in error.

*Jas. L. Lind,*for defendant in error.

Lieghlev, J.

Heard on error.

The parties stood in reverse order in the court below and for convenience will be mentioned herein as their relation there was.

The defendant, Dr. H. H. Noble, was arrested upon an affidavit, which reads in part as follows:

> *471“That on or about the 19th day of April, A. D. 1917, at the said City and County, one Dr. II. H. Noble then and there being a physician in attendance upon one Mabel Robertson in a ease of childbirth in' the home of said Mabel Robertson, did unlawfully fail to use some prophylactic against inflammation of the eyes on one ‘Baby’ Robertson, then and there being a newborn child, and did fail to make a record of the use of any such prophylactic.”

Trial was had in the court below, which resulted in a conviction and sentence, from which judgment error is prosecuted to this court to reverse the same.

Said affidavit is prediacted upon Section 1248-5 G. C. (106 O. L. 322), which, so far as pertinent here, reads as follows:

> “It shall be the duty of the physicians, midwives, or other persons in attendance upon a case of childbirth in a maternity home, hospital, public or charitable institution, in every infant immediately after birth, to use some prophylactic against inflammation of the eyes of the new-born and to make record of the prophylactic used.”

An examination of the statute discloses that the crime consists in a failure to use some prophylactic against inflammation, of the eyes in the event of childbirth in a “maternity home, hospital, public or charitable institution.” The affidavit charges a failure in such use in the case of childbirth in the home of. Mabel Robertson, and is wholly silent as to whether or not this home was a maternity home, or what it was. The statute does not make a failure to use such prophylactic in any other place than those designated in the statute a crime. To sufficiently charge a crime it is absolutely essential that the affidavit in form contains allegations of sufficient facts to bring the charge clearly within the language of the statute.

We are of the opinion that the affidavit falls far short of containing the necessary requirements to charge a crime under this statute, and for insufficiency of the affidavit the judgment of conviction below is contrary to law.

Wherefore the judgment of conviction is reversed and the plaintiff in error discharged.

Grant and Dunlap, JJ., concur.