author: Nichols, P. J.,

text:
    Gustafson et al., Appellants, v. Buckley et al., Appellees.
   Nichols, P. J.,

dissenting. This cause is in this court on appeal on questions of law by plaintiffs, Arthur P. Gustafson and Lucy C. Gustafson, from the judgment of the Common Pleas Court of Lake County.

In that court, the plaintiffs filed their petition in which they allege that they are the owners of certain specifically described real estate situated in Lake County, and, in the first cause of action, they allege further that the defendants wilfully and maliciously filed and. caused to be filed with the recorder of Lake County a false and fraudulent affidavit, describing therein plaintiffs’ real estate, and in which an alleged lien against such real estate is claimed. The petition asserts further that such affidavit was filed with the intent and for the purpose of clouding the title to the premises, and in fact that it does create a cloud upon plaintiffs’ title.

Other allegations as to the purpose and intent, as well as the effect of the filing of such affidavit, are set forth in the petition, giving rise to the claim of plaintiffs for damages against defendants as set forth in the second, third and fourth causes of action stated in the petition, all alleged to grow out of the same transaction.

With relation to the first cause of action, the petition prays that said fraudulent lien be cancelled and discharged of record and that plaintiffs’ title to the described premises be quieted against the same.

A summons was issued upon the petition and served upon both defendants in Cuyahoga County by the sheriff of that county. Both defendants, by their counsel, filed the following motion in the Lake County court:

“Now come the defendants, by their attorneys, and without intending to enter their appearance herein, but solely for the purpose of objecting to the jurisdiction of this court over them, these defendants respectfully move this court for an order quashing the service of summons in this action for the reason that the defendant Vernon T. Buckley is a resident of Cuyahoga County and the defendant The Lake Shore Roofing and Sheet Metal Company has its principal place of business in Cuyahoga County and maintains no place of business in Lake County; and that the action is not properly brought in Lake County.”

In the brief filed by defendants in the Court of Common Pleas in support of such motion to quash the service of summons upon them, it is conceded “that a quiet title action is properly brought in the county where the real estate in question is located” and also “that a quiet title action is statutory,” but that the Supreme Court of Ohio has repeatedly held that a quiet title action is equitable in character and is considered as an action in chancery. Clark v. Clark, 110 Ohio St., 644, 144 N. E., 743; Lust v. Farmer’s Bank & Savings Co., 114 Ohio St., 312, 151 N. E., 189; Logan Gas Co. v. Keith, 117 Ohio St., 206, 158 N. E., 184. So reasoning that the relief sought by the plaintiffs is equitable, defendants, in such brief, made two claims, first, that there is no provision of the General Code for the filing of actions for damages in one county against a resident of another county, and, second, that equitable relief will not be granted where there is an adequate remedy at law, and in respect to this second claim, it is asserted that Section 8319, General Code, sets forth the rights and remedies of an owner against whose property a lien has been filed, constituting a legal remedy available to the plaintiffs and that they have no basis for a chancery action.

The trial court granted defendants’ motion to quash the service of summons on defendants, its journal setting forth that “upon due consideration of the briefs of counsel the court finds said motion well taken and therefore sustains the same. It is therefore ordered and adjudged that the service of summons upon said defendants be quashed. Exceptions noted for the plaintiffs. ’ ’

We are not favored with an opinion of the trial judge, and, therefore, do not know whether that court sustained the motion to quash because it found that plaintiffs could not obtain in a chancery action the damages sought in their second, third and fourth causes of action, or whether the court sustained the motion on the ground that plaintiffs had a legal remedy available to them by the provisions of Section 8319, General Code. One thing that is definitely observed is that in their motion to quash no claim is made that defendants do not have an interest in the real estate described in the petition growing out of their filing of affidavits for mechanics lien; and, further, it is definitely observed that in their brief filed in this court defendants admit that the action to quiet title is properly brought in the county where the real estate is situated, subject only to the claim that a mechanics lien, is not an “interest” in the real estate. Further reference will hereinafter be made upon this point.

An appeal on questions of law was duly perfected from the judgment of the Common Pleas Court ordering the service of summons quashed.

This court will not concern itself now with any question of the right of plaintiffs to the damages sought in the second, third and fourth causes of action set up in the petition. If plaintiffs have set up in their first cause of action a good cause of action for the quieting of their title to the described real estate as against the lien sought to be obtained by defendants by the filing of the affidavit therefor with the county recorder, then the trial court was clearly in error in sustaining the motion to quash service of summons, even though both defendants were not residents of Lake County and service was made on them in Cuyahoga County. Any question of misjoinder of the causes of action set up in the petition could only be reached by demurrer on the ground of misjoinder, and not by motion to quash service. Indeed, when defendants, by brief, argued against the right of plaintiffs to damages they thereby likely submitted themselves to the jurisdiction of the Lake County court on the merits of the action, saving, of course, their right to further demur and defend. Misjoinder of causes of action constitutes no ground for sustaining a motion to quash service of summons. But let it be understood that this court cannot and does not now decide whether there has been a misjoinder of causes of action in plaintiffs’ petition, or whether plaintiffs may recover damages in this action. At this time this court is concerned solely with the question whether plaintiffs have stated a good cause of action to quiet title against the filing of defendants’ affidavit for mechanics lien, with venue in Lake County, so as to authorize service of summons in Cuyahoga County on the ■ concededly nonresident defendants, waiving for the time the question whether defendants have submitted their persons to the jurisdiction of the Lake County courts by pleading to the merits of the action.

The claim of defendants now made in this Court of Appeals is that plaintiffs do not have a good cause of action against them to quiet title for two reasons, first, that Section 11901, General Code, authorizes such action to be brought only against “any person who claims an estate or interest” in the real property, and they assert that a person who has filed an affidavit for a mechanics lien has neither an estate nor an interest in the real estate, title to which is sought to be quieted. With that assertion my associates seem to be in accord on the ground that a lien is inconsistent with an estate in the land and the holder haé no interest in the land. I cannot concur with that position. It may be conceded that by the filing of an affidavit for mechanics lien the lien-claimant has established no “estate” in the land. But the statute does not prescribe that the defendant must have an estate therein; he need only have an interest in the land, such as would create a cloud upon the title of the plaintiff. The Legislature carefully so provided by the use of the alternative phrase, “estate or interest,” which clearly demonstrates that the word, “interest,” is meant to describe a claim different from an “estate.” It is definitely established in Ohio that a defendant in an action to quiet title need not have such an estate therein as to entitle him to the possession thereof; and that he is properly made a defendant if he claims some right which creates a cloud upon the title of the owner. This was early held in the case of Rhea v. Dick, 34 Ohio St., 420.

In speaking of the construction to be given the statute for quieting title, the court, in that case, on page 424, quoted with approval from a California case dealing with a like statute, as follows:

“ ‘The statute giving this right of action to the party in possession does not confine the remedy to the case of an adverse claimant setting up a legal title, or even an equitable title, but the act intended to embrace every description of claim whereby the plaintiff might be deprived of the property, or its title clouded, or its value depreciated, or whereby the plaintiff might be incommoded or damnified by the assertion of an outstanding title already held or to grow out of the adverse pretension. The plaintiff has the right to be quieted in his title whenever any claim is made to real estate of which he is in possession, the effect of which claim might be litigation or a loss to him of the property.’ ”

And in Bailey v. Hughes, 35 Ohio St., 597, it was held that the plaintiff in such action need only allege that the defendant claims an adverse estate or interest therein and that the same is unfounded and without right and constitutes a cloud upon plaintiff’s title, without defining the same, and that such allegation is sufficient to require the defendant to set up any estate or interest he may claim to have in the premises or be barred from thereafter asserting the same. However, in the case we review, the plaintiffs have avoided any question of the sufficiency of their petition by setting forth the nature of defendants’ claim and alleging it to be false and fraudulent.

See 33 Ohio Jurisprudence, 932, 933, 934, Sections 125, 126 and 127, and cases cited, and 33 Ohio Jurisprudence, 876, 877, Sections 46, 47, 48 and 49.

Section 46, ibid., states:

“An imperfect or invalid mechanics lien is a cloud which equity will remove. The title of the owner of a vacant lot will be quieted against a mechanics lien for the cost of the erection of a building thereon contracted for by parties other than the owner.”

It is conceded that there is one decision by the courts of the state of Ohio which holds that a mechanics lien creates neither an estate nor an interest in the land. See Willis, Admr., v. Yount, 29 Ohio Law Abs., 331. As authority for that holding the court cited Merchants Ins. Co. v. Frick, 5 Dec. Rep., 47, 2 Am. Law Rec., 336; and Wright v. Franklin Bank, 59 Ohio St., 80, 51 N. E., 876. I can see nothing in the Wright case which even remotely so intimates.

My associates seem to find something on page 94 in the opinion in Wright v. Franklin Bank, supra, supporting their position. I quote the language of the opinion and emphasize the portion which I find definitely supports my view that a mechanics lien is an interest in the real estate, though distinct from a trust, to wit:

“Coining now to this case, it is clear that the paper signed by Mr. Youtsey was intended to create only a lien in favor of Mr. Wright, and not a trust. The paper cannot be construed to create both a lien and a trust, as they are the opposites of each other. In a trust the property is held for another, while in the case of a lien it is held by the holder for himself, but burdened with a charge, commonly called a lien, in favor of another. The law applicable to liens must therefore rule this case, and not the law applicable to trusts. * * *

“Should there be no bidder, the liens could be marshaled and the proceeds of the sale distributed, but the hen of the attachment and the conveyance under the deed of assignment, would remain in full force as legal rights fastened upon the estate held by an equitable title, and would both have preference over the defective and unrecorded mortgage held by Mr. Wright.”

Since it was thus held that a lien is a legal right fastened upon the estate, entitled to a preference over an unrecorded defective mortgage, it is clear to me that a lien creates an interest in the real estate upon which it is fastened.

Merchants’ Ins. Co. v. Frick was an action by Frick to recover on an insurance policy issued by the company, the question being whether the insured should have disclosed to the insurer that the plaintiff’s landlord had reserved a lien on the leased property for the rent. The Superior Court of Cincinnati held that the reserved lien was not an interest in the property so as to defeat the policy. Other than in Willis v. Yount, supra, the case has never been cited, but in no event could it be held that the decision is authority for holding that a mechanics lien holder has no interest in the property in an action to quiet title. Five years after the decision in Merchants’ Ins. Co. v. Frick, supra, the Supreme Court of Ohio in Rhea v. Dick, supra, in an action to quiet title, settled the interpretation to be given to the word, “interest,” as used in Section 11901, General Code. That interpretation has been followed ever since.

Section 8321, General Code, provides that mechanics liens ‘ ‘ shall be preferred to all other titles, liens or incumbrances, which may attach to or upon such construction * * * or to, or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said construction. ’ ’

How it can be argued that such liens do not give the holder an interest in the land is simply beyond my comprehension.

In the original edition of Bates, Pleadings, Practice, Parties & Forms (vol. 3, page 2476), under the subject, “Quieting Title,” is found the following statement:

“But the Supreme Court of Ohio has said that ‘the act * * * should be construed to give jurisdiction in every case in which a claim or lien upon real estate appears to be asserted or to exist. It is highly desirable that land should be freed from every lurking and unsubstantial claim, for even the suspicion of such claim, no matter how ill founded, affects the value of property when on sale.’ Quoted with approval in Rhea v. Dick, 34 O. S. 430, 423, and in Lowmiller v Fouser, 52 O. S. 123, 136, from Bogert v. City of Elizabeth, 27 N. J. Eq., 568, 572; see, also, Douglass v. Scott, 5 O. 195, 196.” (Emphasis added.)

It must come as a great surprise to the bench and bar of Ohio, as it does to me after 50 years of practice in this state, to now find a decision of the Court of Appeals which purports to hold that one who has filed or attempted to perfect a mechanics lien upon specific real estate is not thereby asserting or claiming an interest therein which is a cloud upon the title of the owner.

All parties to this action assert that although such action is expressly provided for by Section 11901, General Code, equitable principles will be applied in disposing of the issues raised therein. It is the claim of defendants that because equitable principles are to be applied in such action the plaintiffs cannot avail themselves of the Code provision, or bring an action in chancery for the same relief, because under the statutes providing for mechanics liens the plaintiffs have an adequate remedy at law. Defendants cite and rely on Section 8319, General Code.

But of this much I am certain, the Legislature having-authorized plaintiffs to bring- the action to quiet title, defendants cannot compel plaintiffs to pursue some other action, of defendants’ choosing, as a basis for the sustaining of a motion to quash service of summons. When defendants pursue their effort" to require plaintiffs to adopt some other procedure, if any, then defendants come dangerously near entering their appearance on the merits'of the action. I am prepared to hold that defendants, by their course of argument in the trial court, did enter their appearance to the merits of the action.

However, it is not necessary to go that far at this time because there is nothing in Section 8319, General Code, which provides plaintiffs with an adequate remedy at law.

Had the plaintiffs attempted to pursue the suggested course in Lake County, where the premises are situated and where defendants would be required to institute their action to foreclose their claimed mechanics lien, it is reasonable to assume that defendants would move to quash the service of such notice upon them in Cuyahoga County. It is not now proper to decide whether such motion could be properly sustained, but the question could arise whether the service of the notice would have to be made by the sheriff of Lake County, as stated in the section, or could be made- in Cuyahoga County by some one deputized by the sheriff of Lake County. Be that as it may, such notice could give the defendants no greater or more definite notice to pursue their remedy of foreclosure than did the summons served upon them in this proceeding, wherein they were notified and required to set up in this action their claim to the mechanics lien or the same would be forever barred. If defendants would desire more time to file their cross-petition than the answer day to the summons, leave would undoubtedly be granted so that they might have for that purpose the 60 days provided for in Section 8319, General Code. They could take the dilatory procedure adopted in this action. I say “dilatory” because defendants can never obtain the benefits of their mechanics lien, assuming it to be valid, until they take steps to enforce it either in this action or after service of notice pursuant to Section 8319, General Code.

In this action, governed by equitable principles, it seems to me that we should not sacrifice substance for form, particularly where any action brought to enforce the claimed mechanics lien would be governed by the same equitable principles applying to an action to foreclose a mortgage or any other lien.

As stated above, the provisions of Section 8319, General Code, do not provide plaintiffs with an adequate remedy at law; they do not create a legal cause of action in the plaintiffs, but if availed of by the owner they provide only that the lien claimant must institute his chancery action to foreclose the lien, and if the lien is decreed to be valid by the chancery court and there is any dispute as to the amount due thereon his right to a money judgment would be triable to a jury on demand. He may waive his lien and sue at law for a money judgment.

In Holloway v. Allen County Mutual Relief Association, 57 Ohio App., 507, 510, 15 N. E. (2d), 155, the fourth paragraph of the syllabus reads:

“The provisions of Section-8319, General Code, to the effect that the owner of real estate upon which a lien has been taken may notify the owner of the lien to commence suit, are permissive and not mandatory and the question as to whether the owner of the real estate availed himself of this provision has no bearing on the validity of the lien. ’ ’

The decision of the majority members of this court is in direct conflict with the decision of the Court of Appeals for Allen County, as set forth in the quoted syllabus, and the cause should be certified to the Supreme Court on the ground of such conflict, and it is not necessary to await a motion for such certification.

Suggestion is made in defendants’ brief that plaintiffs could have instituted an action in Cuyahoga County for a mandatory order in personam to require defendants to .cancel their pretended lien. Such an action would be in all respects an action for mandatory injunction, which would be cognizable only in a court of chancery and would in no wise provide plaintiffs with an adequate remedy at law.

As stated above, defendants concede that “a true quiet title action” is properly brought in the county where the land is located pursuant to the provisions of Section 11268, General Code. The only contention of defendants contra is that this is not a true quiet title action because the lien claimed by defendants is not an “interest” in the real estate. That contention is definitely disposed of by what has hereinbefore been said.

This is an action by plaintiffs for the recovery by them of the interest claimed by defendants under the alleged mechanics lien. In their brief filed in this court defendants state:

“The land in question is located in Lake County. * * * The very wording of the basis for a quiet title action explains why, ordinarily, it must be brought in the county in which the land is located. Ohio General Code Section 11901 defines the purpose of a quiet title action for a plaintiff in possession as being to contest a claim of an estate or interest in the real property adverse to the plaintiff. Section 11268 requires that an action for the recovery of an estate or interest in real property be brought in the county in which the land is located. Obviously a true quiet title action, since it deals with claims of an estate or interest in real property, will have to be brought in the county in which the land is located.”

Thus the entire claim of defendants that the Lake County court does not have jurisdiction of this action is based upon the single proposition that the mechanics lien filed by defendants is not an adverse “interest” in the land which may be quieted.

Having decided that this is “a true quiet title action,” the rule laid down by the Supreme Court in Gem City Acetylene Generator Co. v. Coblentz, 86 Ohio St., 199, 99 N. E., 302, Ann. Cas. 1913D, 660, settles the right of plaintiffs to cause summons to be issued to Cuyahoga County for the defendants.

Paragraph two of the syllabus of the cited case reads:

“When the entire property described in the petition and sought to be recovered in such proceeding is real estate, all of which is situated in one county, the action must be brought in that county and summons may be issued to any other county for the defendants.”

And finally, since it is conceded that equitable principles are to be applied in determining the issues in a quiet title action, it certainly is not proper to give a narrow and strained interpretation to the language of Section 11901, General Code. See Darlington v. Compton, 11 C. D., 97, 99, 20 C. C., 242.

The petition in this case meets all the requirements of a bill in equity to remove a cloud from title. Our two greatest writers upon equity jurisprudence very fully consider chancery powers in cases of bills of peace and suits to remove a cloud from title. 2 Story’s Equity Jurisprudence (12 Ed.), 33, 50, Chapters 21, 22; 1 ibid, 683, 698, Sections 700, 711a; 1 Pomeroy’s Equity Jurisprudence (1 Ed.), 243; 3 ibid, 429, 435. Such jurisdiction is held to be “inherent in courts of equity. ’ ’ Speaking generally, the right to relief 'may be said to depend upon title and possession in the plaintiff and some claim by the defendant adverse to that title.

This dissenting opinion is altogether too long, but I cannot refrain from expressing my views in relation to the statement in the majority opinion to the effect that ‘ ‘ the validity of a mechanics lien presents a question for the determination of a jury because it is a creature of the statutes.” It is clear that this appeal from a judgment quashing service of summons presents no occasion for deciding how the action shall be tried, whether to the court or a jury, and I do not understand that .the defendants raised any such question; if they did, then they certainly pleaded to the merits of the case and entered their appearance. I will not accuse counsel for defendants of the folly of urging any such question on this appeal. However much I may disagree with the quoted statement, as related to the issue raised by plaintiffs ’ petition, I should not be guilty of passing upon that question until and if it is raised at a proper time. I assert that such question is not involved on this appeal. Perhaps 1 may be pardoned for repeating that actions to quiet title have always been recognized as cognizable by the chancery courts. The statute of Ohio, Section 11901, General Code, merely shows that the Legislature recognized the right to bring such action; the statute does not attempt to deprive the chancery courts of their jurisdiction in such actions.

The judgment of the Common Pleas Court should be reversed for error in sustaining defendants ’ motion to quash service of summons and the cause remanded with instructions to overrule that motion.


source: Caselaw Access Project

author: Kovachy, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Landrum, Appellant.
    (No. 22793
    Decided July 6, 1953.)

      Mr. Frank T. Cullitan,- prosecuting attorney,' for appellee.

      Mr. P. H. Stern and Mr. Myron D. Malitz, for appellant.
   Kovachy, J.

This is an appeal on questions of law from a verdict of murder in the first degree, with a recommendation of mercy, by a jury in the Court of Common Pleas.

It appears from the evidence that Ethel Landrum, defendant, married William Landrum in 1940. He was a big man and a good worker with a habit of becoming intoxicated almost every week-end, at which time he would beat up, abuse and mistreat his wife shamefully. Seven witnesses took the witness stand to describe his outrageous conduct during their married life until his death on Sunday, August 10, 1952.

It appears that William Landrum was out all night Saturday and was seen (early Sunday morning by defendant, Ethel Landrum) in his automobile with another woman carrying on amorously. Ethel told her neighbor, Pauline Alexander, on Sunday morning that she had in mind killing her husband at some time when he was asleep. However, before parting she told Mrs. Alexander that she had changed her mind and to forget about it. That same day she called Mrs. Alexander on the telephone at 6 p. m. and this conversation took place:

“Well I did it.

‘ ‘ Did what ?

“I killed Billy.

“You did what?

“Well, he is gone.”

That Sunday afternoon William Landrum fell asleep in the kitchen of his living quarters and was persuaded by a roomer to go to his own bedroom to continue his sleep. Ethel Landrum was in the bedroom at the time. Shortly after his entrance, two shots were heard by the roomer and his grandson. The roomer walked to a hall which led to the Landrum’s bedroom and saw the defendant standing in the doorway vvdth a pistol in her hand and thereupon he said to her, “You ought to be ashamed of yourself for shooting around.” While returning to the kitchen, he heard two or three more shots. Some minutes thereafter Ethel Landrum was seen walking through the house with something wrapped in a newspaper in her arms. In response to the question of why she did it, she said, “The s-of-a-b did me wrong.” William was found dead on his bed lying on his left side with three gunshot wounds. One bullet had entered the right side of his face, another his right arm, and a third his right armpit. The course of all three bullets ran upward and in the same general direction. The shot ip the face was instantly fatal. A fourth bullet had bored through the headboard of the bed in an upward course and became imbedded in the wall behind. There were no powder marks.

The following morning the defendant told two police officers that she had gotten tired of taking her husband’s arguments and fighting and upon waiting two or three minutes after he fell asleep on his bed she slipped around the foot of the bed to a chifferobe drawer to obtain a gun. She then closed the curtains of the doorway “so nobody could see her” and standing five or six feet from William Landrum, emptied the gun. The statement was later retold and typed, as spoken, by another police officer in the presence of the same two officers who first heard it. At the trial, however, defendant told a different story. She there claimed that her drunken husband, in the midst of a bitter quarrel over the occurrence of the night before, suddenly confronted her with a gun and threatened to kill her. In great fear of her life she grappled for possession of the gnn, during which it was discharged once or twice. He fell on the bed, loosening his grip on the gun, at which time she got possession of it and retreated to the doorway. He raised himself in bed and again threatened to kill her, and she, realizing that she could not get away from him because of an infected leg, shot him in self-defense.

The jury by its verdict manifestly did not believe the story told by her in court.

The defendant presents seven specific assignments of error. We discuss them seriatim.

“1. That the trial court erred in its charge to the jury by directing a verdict of ‘guilty of at least first degree manslaughter’ in the event that the jury found that the defendant did not act in self-defense.”

We have read the charge of the trial judge and find it a full and complete charge on the matters herein involved. He charged correctly as to murder in the first degree, murder in the second degree, manslaughter in the first degree, and self-defense. He told the jury in plain language that defendant should be found not guilty of any crime if she established her claim of self-defense by a preponderance of the evidence. He told the jury also that if it did not find in her favor on the question of self-defense, it should then consider the crime of murder in the first degree, and if the state had proven every element of that crime beyond a reasonable doubt, to find her guilty of it. But, if it had not proven her guilty of murder in the first degree, to find her not guilty of that crime and to then proceed with the consideration of murder in the second degree, and if not guilty of that, to the consideration of manslaughter in the first degree, and “she would not be guilty of that offense” unless the jury was satisfied beyond the existence of a reasonable doubt.

Near the conclusion of his charge, in explaining the various forms of verdicts, the trial judge said:

“If, however, ladies and gentlemen of the jury, you come to the conclusion that the state has failed to prove, or that the defendant has failed to establish her defense of self-defense as alleged and claimed by this defendant, by a preponderance of the evidence, and you come to the conclusion after a full and careful consideration of all the evidence, the defendant in this case having admitted that she shot her husband, and if it is found by the jury that she did not do so while acting in self-defense, this defendant would at least be guilty of the crime of manslaughter in the first degree. So I say to you, ladies and gentlemen of the jury, under all of the evidence, under all of the rules of law that the court has given to you, the defendant can be found not guilty of these crimes only if she acted'in self-defense. If she has failed to establish that defense you are not to consider the verdict of not guilty under those circumstances.”

From the charge of the court and the verdict of the jury, it seems patent to us that the jury never came to consider the included crime of manslaughter. It necessarily follows that thi above remarks made in the nature of an afterthought by the trial judge, cannot un7 der these circumstances be deemed prejudicial to the substantial rights of the defendant.

‘ ‘ 2. That the trial court erred by invading the province of the jury.”

In the same charge discussed and set forth above under assignment of error No. 1, the judge said:

“The defendant in this case having admitted that she shot her husband * * *.”

The defendant claims error on the ground that the judge assumed a fact which was in dispute. The defendant on cross-examination testified as follows:

“I said, when he raised up and said he was going to kill me and called me those names, that is when I fired. ’ ’

It is conclusive in this case that the shot in the face tvas the one that killed the victim instantly, so that even accepting the version told by the defendant in court, the fact remains that she unquestionably fired the shot that killed her husband. That being so, we fail to find any prejudice resulting from this remark of the trial judge.

“3. That the raising of a plea of self-defense is not inconsistent with the claim that the defendant did not commit the homicide. ’ ’

The defendant at no time said that her husband was shot during the scuffle described by her in court. It is inconceivable that powder marks would not have been found on his person had that occurred. The jury moreover conclusively indicated by the verdict that it believed the statement made by defendant to the police the day after the shooting. We accordingly find no error in this regard.

“4. That the trial court erred in admitting in evidence an unsigned and unacknowledged written statement alleged to have been made by defendant. ’ ’

The underlying facts concerning this document are not in dispute and no claim was made that the statements contained in it were not voluntary. The officers testified that the defendant read it and acknowledged its correctness but refused to sign it upon advice of counsel. The defendant claimed in court that the writing was brought to her for signature the day following its composition and that she refused to sign it because it did not contain the statements she had related to the officers.

The prosecuting attorney argues that the paper was not offered as a confession in his case in chief; that it was offered in rebuttal as a direct impeachment of defendant’s testimony in connection with it. The record discloses that the trial judge received it in evidence and made no comment whatever to the jury about it.

We feel that under the circumstances the confessivo character of the document so predominates that we should regard it as a proffer of an unsigned confession. As such, we find no error in its being received in evidence.

The general rule as to the admissibility of such a document, is stated in 23 A. L. R. (2d), 926, Section 6:

“Where an oral confession taken down in writing or typing, or stenographieally and then transcribed, by a third person is acknowledged by the accused to be correct when he reads or hears it, there seems to be no question of its admissibility in evidence even though it was never signed by him. ’ ’

The Court of Appeals of the Second Appellate District of Ohio dealt with the problem in State v. Cremeans, 46 Ohio Law Abs., 573, and states the applicable law in paragraph 2 of the syllabus:

“A statement of confession taken and transcribed by a stenographer but unsigned by the accused, is admissible where corroborated by other evidence and where no issue has been raised as to the involuntary character of such confession.”

2 Wharton Criminal Evidence (11 Ed.), 961, Section 582, says:

“It is not necessary to the admissibility of a written confession * * * that it should be signed by the accused. ’ ’

The Supreme Court of Colorado states the law in Moya v. People (88 Colo., 139), 293 P., 335, paragraph 5 of the headnotes as follows:

“In homicide prosecution, defendant’s unsigned written statements, merely corroborative of oral testimony which was clearly admissible, held properly admitted. ’ ’

The Court of Errors and Appeals of New Jersey, in State v. Donato (106 N. J. L., 397), 148 A., 776, headnote 11, states:

“Confession reduced to writing by one other than accused, and signed or admitted by him to be correct, is admissible as ‘written confession’; admission of confession reduced to writing by another, but which accused refused to sign, except on advice of counsel, was not erroneous.”

See, also, Bosko v. People, 68 Colo., 256, 188 P., 743; State v. Dierlamm, 189 La., 544, 180 So., 135; People v. Whalen, 249 App. Div., 890, 292 N. Y. Supp., 570; State v. Howarth, 24 Utah, 398, 68 P., 155.

Even were it error to have received the document in evidence, it could not conceivably have been prejudicial. The contents of it was fully told to the jury by officer Todd. The defendant was exhaustively cross-examined with respect to it and in rebuttal officer Staub, the typist, and officers Coleman and Todd were examined with respect to it, item by item. The jury no doubt was thoroughly familiar with every word contained in it. In our opinion, it added nothing of a probative value to the evidence already in the record.

“5. That certain matters transpired constituting misconduct on the part of the prosecuting attorney during his closing argument which was prejudicial to the defendant.”

Defendant in her brief makes four separate claims of misconduct on the part of the prosecuting attorney in his closing argument to the jury.

I.

Comment on failure to prove good character:

The record discloses that the prosecuting attorney in argument mentioned the failure of defendant to offer any witnesses to testify as to her good character and reputation, and it is true none had testified on that subject. The bill of exceptions, however, shows no objection made by counsel for defendant at the time the statement was made with a request to the court to instruct the jury to disregard the same. Any error committed in connection therewith, consequently, was waived, particularly since, in our opinion, an instruction then and there given to the jury would have cured the prejudice, if any, flowing therefrom. In Scott v. State, 107 Ohio St., 475, 141 N. E., 19, paragraph 2 of the syllabus provides:

“2. Improper remarks of counsel for the state during argument, unless so flagrantly improper as to prevent a fair trial, should be at once objected to and exception taken; otherwise error cannot be predicated upon the remarks alleged to have been improper.”

II.

Suggesting that defendant might be guilty of a misdemeanor :

The prosecuting attorney in argument said that he was not permitted to ask “if she had been, ever been, guilty of a misdemeanor.” This was immediately objected to and the objection was sustained by the court with the remark, “I am going to instruct counsel to keep entirely out of this situation, off the record.” Counsel for defendant claims error on the part of the court in not instructing “the jury to disregard such statement” despite the fact no such request was made of it. In our opinion, counsel waived any error by remaining silent thereon.

III.

Arguing on matters not in evidence:

The prosecuting attorney in closing argument said:

Officer Todd. Officer Todd, if you please, a captain in the United States Army on reserve duty, who faced combat action and offered his life so you and I might live. ’ ’

Counsel for defendant objected on the ground “that there is no testimony of that.” The trial court sustained the objection, saying, “I know of no evidence in the case.” Counsel now claims “that the trial court again failed to even instruct the jury to disregard the statement.” We hold that counsel by failing to request the court to give such an instruction, waived it, and consequently find no error in the matter.

IV.

Appealing to the pecuniary interests of the jury:

The prosecuting attorney argued as follows:

“Well, the taxpayers gave her hospital treatment at City Hospital for $12 didn’t they?”

Counsel for defendant in this instance not only objected to the statement (it was admittedly not in evidence) but properly asked the court to instruct the jury to disregard it, which was done. We feel the timely objection and immediate instruction to the 'jury cured any possible prejudice to the defendant with respect to this matter.

“6. That the verdict of the jury is contrary to the manifest weight of the evidence.”

We have carefully read the voluminous record in this case and are unanimously of the opinion that there is substantial evidence in it to sustain the verdict brought by the jury. The verdict is not manifestly against the weight of the evidence.

In Scaccuto v. State, 118 Ohio St., 397, 161 N. E., 211, the syllabus is:

“In a criminal prosecution, questions of fact are for the jury, and a judgment of guilty will not be reversed as not sustained by sufficient evidence unless the verdict and judgment are clearly and manifestly contrary to the evidence. (Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340, approved and followed.)”

“7. That the verdict of the jury is contrary to law.”

The défendant moved for a mistrial at the close of the final argument of the prosecuting attorney, “for misconduct of prosecutor in the closing argument,” and also pressed for a new trial for misconduct of the prosecutor in her motion for a new trial. We deem it our duty,, therefore, to re-examine and analyze the matters complained of in that regard in connection with the entire record, particularly from the standpoint of whether this defendant had been accorded a fair trial as a matter of law.

In Sabo v. State, 29 Ohio App., 200, 163 N. E., 496, the syllabus provides:

‘ ‘ If errors occur at the trial of either a civil or criminal case, and no exceptions are taken thereto, a reviewing court cannot reverse solely for such errors; but if a motion for a new trial, containing the ground that the verdict is contrary to law, is overruled, and exception noted, a reviewing court will consider said errors in connection with the whole record, for the purpose of determining whether the justice of the case requires a reversal of the judgment. ’ ’

The competent evidence in this case is so conclusive of the guilt of the defendant of murder in the first degree that no honest juror could have come to any other conclusion; great provocation; her conversation, before and after the deed, with Mrs. Alexander; her demeanor toward the roomer after the first shots; the uniform course of all bullets; the intoxicated condition of the victim; the condition of the bedroom; the locale of the fatal shot; her exit with a newspaper package ; her remarks upon leaving the scene; and her oral admission to the police. Since the verdict is supported'by evidence so overwhelming, misconduct of the prosecuting attorney in his final argument, we feel, is reduced to a negligible quantum from the standpoint of its effect upon the verdict in the ease. It should likewise be noted that none of the statements of the prosecuting attorney complained of involved language directly bearing upon the guilt of the defendant of the crime charged.

In State v. Navone, 186 Wash., 532, 538, 58 P. (2d), 1208, it is held:

“Misconduct is to be judged not so much by what was said or done as by the effect which is likely to flow therefrom. What would be misconduct in one case might very well be held not to be misconduct in another. Each situation involving the question of misconduct must stand by itself and must be considered in the light of all of its facts and circumstances to the end that verdicts properly arrived at shall not be disturbed, and that those verdicts which may have been induced by prejudice, or by something beyond the issues, shall not be allowed to stand.”

In Sisson v. State, 19 C. C. (N. S.), 99, 32 C. D., 362, the syllabus provides:

“In a criminal case, where it is plain from the evidence that the jury could not have reached any conclusion other than that which was reached, a verdict will not be set aside for reprehensible misconduct of the prosecuting attorney.”

Keeping in mind the above factors, together with the fact that the jury was explicitly instructed by the trial court not to consider the arguments of counsel as evidence in the case, we unanimously conclude that the verdict of the jury is not contrary to law.

Section 13449-5, General Code of Ohio in part reads:

“No motion for a new trial shall be granted or verdict set aside * * * for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby; nor for any misdirection of the jury unless the accused was or may have been prejudiced thereby; nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

The judgment of the trial court, therefore, should be and it is affirmed.

Judgment affirmed.

Hurd, P. J., and Skebl, J., concur.


author: Doyle, P. J.

text:
    Schenley, Appellee, v. Kauth, Appellant.
    (No. 4311
    Decided November 18, 1953.)

      Mr. G. D. Evans and Mr. Patti E. Weimer, for appellee.

      Mr. Sal Germano and Mr. James A. Rondy, for appellant.
   Doyle, P. J.

Plaintiff, by petition in the Court of Common Pleas of Summit County, sought damages from the defendant, which she claimed arose out of the defendant’s violation of the terms of an option given her for the purchase of real property. The trial court, at the conclusion of the opening statements of counsel, ruled as a matter of law that the defendant was liable for any damages sustained, and submitted only for the jury’s determination the amount thereof.

The following errors are here asserted:

“1. The trial court erred in overruling defendant’s motion for a judgment in its favor made at the close of plaintiff’s opening statement.

“2. The trial court erred in directing a verdict in favor of the plaintiff at the close of the defendant’s opening statement.

“3. The trial court erred in directing a verdict in favor of the plaintiff, instead of permitting the jury to reach a verdict.

“4. The judgment and decree of the Court of Common Pleas is contrary to law and should have been in favor of the defendant, on the pleadings of conceded facts and the record made herein.

“5. That the trial court erred in determining as a matter of law that the agreement of the parties hereto was not to be limited by a reasonable time.

“6. That the trial court erred in not permitting the jury to hear the testimony and determine whether or not a reasonable time had elapsed since the signing of the instrument of the parties herein.”

From the pleadings and counsels’ statements, the following undisputed facts may be sifted:

In the year 1941, the defendant, pursuant to oral negotiations with plaintiff, deeded plaintiff 7% acres of a 10-acre tract of land which she owned, at a price of $325 per acre, and, as a part of the same transaction, gave to the plaintiff the following written option:

“June 17, 1941.

“Mabel St. Clair Schenley:

“As a consideration of your purchase of 7%-acre tract belonging to me, located in Franklin Township, Summit County, Ohio, I hereby give you the option to purchase the remaining 2y2 acres -belonging to me, which joins your 7%-acre tract to the north, at the same price per acre as you are paying for the 7%-acre tract; namely, $325 per acre.

“This option is granted to you only in the event I desire to sell the 21/2-acre tract.

“Very truly yours,

“Florence I. Graber.”

Florence I. Kauth was formerly Florence 1. Graber.

Several years after these transactions (in about the middle of the 1940’s) the defendant told the plaintiff “that she would decide after she came back from California whether or not she was going to sell that property.” At no time did the defendant- offer to sell the property to the plaintiff for the price stated in the option. When she returned from California, she stated that she did not want to sell, although several years later, in 1950, in conversation with the plaintiff, she said that she would sell at a price far in excess of the amount set out in the written memorandum. The plaintiff refused to agree to pay more than the amount' stipulated, but did offer to buy at the price set out in the option. Shortly after this conversation, the defendant sold the property to a third person, without notice to the plaintiff, for a price substantially greater than $325 per acre. The defendant’s opening statement concludes with the following:

“The conversation and the evidence will show that a trip to California was contemplated * * *, that she would make up her mind whether or not she was going to keep it or whether she was going to sell it. We expect the evidence to show that when she returned, she stated that she was going to keep it and not sell it. We expect the evidence to show that * * * a reasonable time was contemplated, and that nine years time is unreasonable, and we do not feel that we are obligated to the plaintiff in any manner whatsoever.”

It is principally claimed by the appellant that the trial court erred in precluding her from offering oral testimony to the effect “that the instrument so signed by her was intended and understood by the parties to remain in force and effect for only a reasonable length of time,” and that whether or not a reasonable length of time had elapsed was a question for the jury. To this claim, we now direct our attention.

1. It is generally held that a written option, signed by an optionor, founded on valid consideration, which gives an optionee the right to purchase real property at a stipulated price in the event the owner of the land desires to sell, constitutes a contract. The law may be succinctly stated as follows:

“A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” I Restatement of the Law of Contracts, Section 1.

“(1) A promise is an undertaking, however expressed, either that something shall happen, or that something shall not happen, in the future.

“(2) Words which in terms promise the happening or failure to happen of something not within human control, or the existence or non-existence of a present or past state of facts, are to be interpreted as a promise or undertaking to be answerable for such proximate damage as may be caused by the failure to happen or the happening of the specified event, or by the existence or non-existence of the asserted state of facts.” Ibid., Section 2.

See, also, “Comment” and “Illustrations” following text, among which is the following illustration:

“4. A says to B, ‘I will employ you for a year at a salary of $5000 if I go into business.’ This is a promise, for although it is wholly optional with A to go into business or not, he does not keep his word if he goes into business without employing B. ’ ’

It thus far appears obvious that the written instrument here under consideration has all of the essentials of a valid contract. The consideration shown to exist precludes a revocation by the offeror; a definite price is stated for the property; and it is adequately described.

2. Whether a jury question is ever presented in the determination of what is a reasonable time within which a unilateral contract to sell must be accepted by an optionee in situations where no specific time for acceptance is incorporated, we neither consider nor decide. The contract before us does not require it. Nor do we decide whether oral testimony of the parties would be admissible to determine the question.

Our conclusions in the foregoing paragraph are based upon the fact that the contract before us fixes a definite time when the optionee must exercise the option — to wit, when the optionor desires to sell. It is apparent that the optionor desired and decided to sell, because she did in fact sell to a third person, without notifying the optionee. In so doing, she breached her contract to sell the property for the stipulated price to the optionee, if the optionee agreed to buy, at a time when she desired to sell; and, as a consequence thereof, she must respond in damages.. The question of a reasonable length of time is not in the case.

We find no error in the conduct of the trial in the Court of Common Pleas, and the judgment will be affirmed.

Judgment affirmed.

Stevens, J., and Htjnsiciver, J., concur.


author: Per Curiam.

text:
    Manker, Appellant, v. Shaffer, Appellee.
    (No. 2222
    Decided- April 10, 1953.)

      Messrs. Harrison, Spangenberg é Hull and Mr. Herbert M. Eikenbary, for appellant.

      Messrs. Matthews & Altick, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County.

Plaintiff, appellant herein, while riding in an automobile driven by defendant, suffered injuries when the automobile left the road and collided with a tree. There is evidence supporting the claim that plaintiff and other occupants of the automobile were on the way to work, and that the defendant received compensation from the plaintiff for such transportation. At the close of plaintiff’s case, the court directed a verdict for the defendant.

Plaintiff assigns as error, the directing of the verdict for defendant; that the verdict is contrary to law; that the verdict is against the manifest weight of the evidence; and that there are other errors appearing upon the record. The weight of the evidence is not involved, and other errors apparent upon the record are not discussed in the briefs. Therefore, the sole error for our consideration is whether the court should have directed a verdict for the defendant.

The trial court held that the evidence did not show negligence on the part of the defendant, and that reasonable minds could not differ on the proposition that thére is no evidence from which an inference could be drawn that defendant was negligent. The plaintiff contends that the doctrine of res ipsa loquitur applies, and that in the application of the doctrine, the case should have been submitted to the jury.

The plaintiff in his amended petition made four specific allegations of negligence, as follows:

“Plaintiff says that at the time herein referred to the defendant was negligent in the following respects:

“(1) In so directing the course of said automobile as to cause it to leave said highway.

“(2) In failing to keep said automobile under control.

“ (3) In operating said automobile at a rate of speed greater than was reasonable and proper under all of the circumstances then and there existing, to wit: 50 miles per hour.

“ (4) In so directing the course of said automobile as to cause it to run off said road and against a tree alongside said road.”

There is one allegation in the amended petition which may be construed as a general allegation of negligence.

Some evidence was presented in support of the specific charges of negligence, but such evidence fell short of proving negligence on the part of the defendant.

The pleading of specific acts of negligence does not necessarily prevent the application of the doctrine of res ipsa loquitur in a proper case. Pierce v. Gooding Amusement Co., Inc., 55 Ohio Law Abs., 556, 562, 90 N. E. (2d), 585.

In the case at bar, the facts are that the plaintiff was seated in the rear seat of defendant’s station wagon, along with eight other occupants and the driver. The accident happened in the early morning hours. It had been raining, and the road was wet. The plaintiff testified that he felt the automobile swerve and called to the defendant to keep it on the road. Immediately the automobile left the road on the right side, travelled some distance in a ditch, and stopped when it collided with a tree. Before leaving the road the automobile was travelling between 40 and 50 miles per hour. The plaintiff offered no evidence as to why the automobile swerved, or why it left the road. The fact is established that the plaintiff was injured by reason of the automobile leaving the road and crashing into the tree.

The doctrine of res ipsa loquitur “is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence, where the instrumentality causing the injury is under the exclusive management and control of one of the parties, and an accident occurs under circumstances where, in the ordinai'y-course of events, it would not occur when ordinary care is observed.” 29 Ohio Jurisprudence, 635, Section 156.

Do the facts proven require the application of the doctrine? The doctrine was applied in Zwick v. Zwick, 29 Ohio App., 522, 163 N. E., 917, where the driver of an automobile permitted the steering wheel to escape her control, throwing the vehicle against poles at a street corner; in Nassar, Admr., v. Interstate Motor Freight System, 58 Ohio App., 443, 451, 16 N. E. (2d), 832, where a motor truck, while being driven along a highway and without coming in contact with any obstacle, left the road and plunged into a creek; and in Scovanner v. Toelke, 119 Ohio St., 256, 163 N. E., 493, where a motor vehicle was being operated along a thoroughfare and left such thoroughfare and collided with and damaged an adjoining building.

The plaintiff called the defendant to testify as if under cross-examination, and defendant testified that the automobile slipped or swerved when it passed over a broken or slippery spot in the road. This testimony, given by the defendant when called to testify as if under cross-examination, does not prevent the application of the doctrine of res ipsa loquitur. On a motion to direct a verdict at the end of the.plaintiff’s case, the evidence should be construed most favorably in favor of the plaintiff. The plaintiff is entitled to go to the jury on his evidence. Fink v. New York Central Rd. Co., 144 Ohio St., 1, 56 N. E. (2d), 456. In that ease the court held that the trial court, in a jury trial, in a case which calls for the application of the rule of res ipsa loquitur, is without authority to declare, as a matter of law, that the inference of neglect which the jury is permitted to draw has been rebutted or destroyed by an explanation of the circumstances offered by the defendant, and such action on the part of the trial court is an invasion of the province of the jury. Moreover, in the case at bar, the explanation offered by the defendant was not given in defense, but was given by the defendant when the plaintiff called him to testify as if under cross-examination.

In our opinion, it could not be said that reasonable minds might not differ as to negligence of the defendant. The motion to direct a verdict should have been overruled.

Since we find error in the record prejudicial to the rights of plaintiff, appellant, the judgment is reversed, and the cause is remanded for further proceedings according to law.

Judgment reversed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Fess, J. Conn, J.,

text:
    City of Toledo, Appellant, v. Kohlhofer, Appellee.

      (No. 4767
    Decided March 15, 1954.)

      Mr. Robert Dorr ell, for appellant.

      Messrs. Hartman, Wynn & Carter and Mr. Dan H. McCullough, for appellee.
   Fess, J.

This is an appeal by the city of Toledo on questions of law from a judgment of the Municipal Court of Toledo sustaining a demurrer and dismissing an affidavit charging that the defendant “did, at 2 N. Erie Street in the city of Toledo, Ohio, sell, offer for sale and did exhibit a device or article, to wit: a rubber device commonly known as a condom, intended for the prevention of conception, the same being contrary to Section 17-10-8 of the Municiple [sic] Code for the city of Toledo, Ohio.”

Although no provision is made for an appeal from a judgment adverse to a municipality in Chapter 2953 of the Revised Code (Section 13459-1 et seq., General Code), such an appeal is authorized to be taken either to the Common Pleas Court or the Court of Appeals by Section 1901.30, Revised Code (Section 1609, General Code), in accordance with, the provisions of Chapter 2505 of the Revised Code (Section 12223-1 et seq., General Code), as well as Chapter 2953 of the Revised Code (Section 13459-1 et seq., General Code). Cf. State v. Brunswick, 69 Ohio App., 407, 44 N. E. (2d), 116. Procedure on criminal appeals specifically provided in Chapter 2953, Revised Code, must govern, but in the absence of such specific provision, the provisions of Chapter 2505, Revised Code, are to be applied.

In determining this appeal, this court takes judicial notice of the ordinance of the city under which the charge is brought. Orose v. Hodge Drive-It-Yourself Co., 132 Ohio St., 607, 9 N. E. (2d), 671, 111 A. L. R., 954; Page v. Wieland, Recr., 137 Ohio St., 198, 204, 28 N. E. (2d), 583, and Village of Strongsville v. McPhee, 142 Ohio St., 534, 539, 53 N. E. (2d), 522.

Ordinance 17-10-8 reads as follows:

1. “Whoever sells, lends, gives away, exhibits, or offers to sell, lend, give away or exhibit, or publishes or offers to publish or has in his possession for such purpose, an obscene, lewd, or lascivious book, pamphlet, writing, advertisement, circular, print, picture, photograph, drawing, representation, figure, image, cast, instrument or article of an indecent or immoral nature, or a drug, medicine, article or thing intended for the prevention of conception or for causing an abortion, or advertises any of them for sale or writes, prints or causes to be written, or printed a card, book, pamphlet, advertisement, or notice giving information when, where, how, of whom or by what means any of such articles or things can be purchased or obtained, or manufactures, draws, prints or makes such articles or things, or sells, gives away or shows to a minor, a book, pamphlet, magazine, newspaper story, paper or other paper devoted to the publication or principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures and stories of immoral deeds, lust or crime, or exhibits upon a street or highway or in a place which may be within the view of a minor, any of such books, papers or pictures, shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) or imprisoned not more than six months, or both.” (Italics supplied.)

2. “This section .shall not affect the publication of standard medical books, or regular practitioners of medicine, or druggists in their legitimate business.”

The grounds of the demurrer are:

1. That the facts stated in the affidavit do not constitute an offense against the ordinances of the city of Toledo or the laws of Ohio.

2. That the ordinance is unconstitutional, arbitrary and capricious, and seeks to establish an unreasonable classification of persons who may sell condoms solely for the purpose of creating a monopoly.

The unconstitutionality of a statute or ordinance upon which the charge is brought may be raised by demurrer on the ground that the statute is unconstitutional on its face. But the well-established canon of construction that every reasonable presumption be indulged in favor of the constitutionality of a statute applies to the power of municipalities to adopt and enforce such local regulations under the police power as are not in conflict with general laws. Leis v. Cleveland Ry. Co., 101 Ohio St., 162, 128 N. E., 73; City of Xenia v. Schmidt, 101 Ohio St., 437, 130 N. E., 24. It is also held in many Ohio decisions that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional. 8 Ohio Jurisprudence, 162, Section 63; City of Xenia v. Schmidt, supra; L. & M. Investment Co. v. Cutler, 125 Ohio St., 12, 19, 180 N. E., 379, 86 A. L. R., 707.

The demurrer admits the truth of well-pleaded allegations of the affidavit (State v. Peters, 112 Ohio St., 249, 252, 147 N. E., 81) and in ruling upon a demurrer, the court should treat as admitted all facts well pleaded in the affidavit or complaint attacked, and may not consider any fact dehors the pleading or the record. 42 Corpus Juris Secundum, 1233, Section 223. Although section 2 of the ordinance provides that it shall not affect regular practitioners of medicine or druggists in their legitimate business, in the absence of evidence clearly disclosing that the classification is unreasonable in violation of the Constitution, the contention of the defendant that the ordinance on its face is unconstitutional is not sustained. The presumption of constitutionality continues until its invalidity is “proved” beyond every substantial doubt, and must be determined from its operation and effect rather than from the form it may be made to assume. Butzman v. Whitbeck, 42 Ohio St., 223.

Defendant is charged with selling, offering for sale and exhibiting an article known as a condom intended for the prevention of conception. The. ordinance prohibits the selling, offering for sale or exhibiting an article or thing intended for the prevention of conception. The complaint, therefore, upon its face, states a valid cause of action under the ordinance.

Except for the penalty, the ordinance at the time of its adoption was copied almost verbatim from Section 13035, General Code, which at the time of the adoption of the ordinance did not include knowledge as an element of the offense. (In the interest of raising revenue municipalities are too often prone to re-enact statutory penalties.) In 1943 (120 Ohio Laws, 230), Section 13035, General Code, was amended in several respects and provided that whoever knowingly sells, etc., but the ordinance has not been subsequently amended to conform to the 1943 amendment.

Municipalities are invested with authority to adopt and enforce within their limits such local police, sanitary and other similar regulations “as are not in conflict with general laws.” Section 3, Article XVIII, Ohio Constitution. The variance between the general law of the state and the ordinance is that the state law requires knowledge and imposes a penalty of a fine not less than $200 nor more than $2,000, or imprisonment of not more than seven years and the ordinance lacks the element of scienter and imposes merely a fine of not less than $50 nor more than $500, or imprisonment of not more than sis months. Violation of the statute is a felony and violation of the ordinance is a misdemeanor. Whether a municipal ordinance is in conflict with general law is not determined by the penalties prescribed, but rather whether the ordinance permits or licenses that which the state prohibits and forbids, and vice versa. Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519; In re Calhoun, 87 Ohio App., 193, 94 N. E. (2d), 388. Nor do we regard the variance in the matter of scienter a conflict in violation of the Constitution. The contention of the defendant that the ordinance violates the conflict clause of the Constitution is therefore not sustained.

A perusal of the ordinance incorporating so many phases of immoral activity would appear to violate the provision of the Toledo Charter that an ordinance shall not contain more than one subject, which shall be clearly stated in the title thereof. However, in construing a similar provision of the Ohio Constitution, it has been held that such provision is directory only. Pim v. Nicholson, 6 Ohio St., 176; State, ex rel. Atty. Genl., v. Covington, 29 Ohio St., 102; State, ex rel. Ach, v. Braden, 125 Ohio St., 307, 317, 181 N. E., 138; City of Wellsville v. O’Connor, 1 C. C. (N. S.), 253, 14 C. D., 689.

The affidavit fails to allege knowledge and intent or that the act was unlawfully committed. The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the mtent is not alleged and proof thereof is necessary to make out the offense charged. Section 13439-9, General Code (Section 2941.57, Revised .Code).

It is said that the view is taken in some cases that a criminal intent is not a necessary element of offenses which are merely malum prohibitum or of prohibitive statutes which cover misdemeanors in aid of the police power, where no provision is made as to intention, and if a criminal intent is not an essential element of a statutory crime it need not be proved, in order to justify a conviction. ' In other words, it is immaterial that the defendant acted in good faith or did not know that he was violating the law. 14 American Jurisprudence, 784, Section 24; Commonwealth v. New York Cent. & H. R. Rd. Co., 202 Mass., 394, 88 N. E., 764, 132 Am. St. Rep., 507; Commonwealth v. Closson, 229 Mass., 329, 118 N. E., 653, L. R. A. 1918C, 939. But the rule is applicable only to a limited class of malum prohibitum statutory offenses. In Morissette v. United States (1952), 342 U. S., 246, 96 L. Ed., 288, 72 S. Ct., 240, appears an exhaustive review of the origin and development of case law holding that proof of knowledge and intent (except intention to commit the act charged) in certain regulatory statutes in aid of the police power is not essential. The doctrine of crime without intent is roughly classified into (1) illegal sales of liquor; (2) sales of impure food or drugs; (3) sales of misbranded articles; (4) violations of anti-narcotic acts; (5) criminal nuisances; (6) traffic regulations; (7) motor vehicle laws; and (8) violations of general regulations, passed for the safety, health or well-being of the community. Morissette v. United States, supra, p. 262. The Supreme Court of the United States held that in a prosecution under a statute providing that whoever embezzles, steals, purloins or knowingly converts government property is punishable by fine and imprisonment, the mere fact that defendant’s removal of property was a conscious and intentional act did not give rise to a presumption of criminal intent, and the question whether the intent existed must be determined by the jury not only from the act of taking but from that act together with the defendant’s testimony and all the surrounding circumstances, and the mere omission of any mention of intent from the statute will not be construed as eliminating the element of intent. The indictment in the cited case charged a misdemeanor, but recited that the defendant “did unlawfully, wilfully and knowingly steal or convert,” etc. In applying a similar rule in Ohio, we recently held:

“Where a statute defines an offense regardless of scienter, and the means of knowledge are available to the accused or the act is such as to impose a duty (in the interest of the public weal) upon the offender at his peril to ascertain the fact of violation, knowledge is not an essential element to support conviction; but under a charge of violating a statute which does not by its terms include scienter as an element of the offense, where the means of knowledge or the circumstances are such that the accused is not bound at his peril to know the fact and obey the law, proof of knowledge of the fact is essential to support a conviction.” State v. Williams, 94 Ohio App., 249.

Ordinance 17-10-8 may fall within the classification of regulatory acts not requiring scienter but mere omission of any mention of intent from ordinance 17-10-8 is not to be construed as eliminating that element from the offense denounced. There is inherent in the phraseology of the ordinance the element of specific intent on the part of the seller-accused that the article was sold for the purpose of preventing conception, and mere proof that the article sold is capable of preventing conception is insufficient to support a conviction.

The affidavit substantially follows the language of the ordinance. In section 2, the ordinance recognizes that contraceptives may be used for a lawful as well as an unlawful purpose. Although the phrase, “intended for the prevention of conception,” refers to the article or thing intended for the prevention of conception, nevertheless in the light of the fact that contraceptives may be used for a lawful purpose, there is inherent in the definition of the offense that the seller must have known that the article was intended to be used for an unlawful purpose. In Massachusetts, the sale of articles for the prevention of conception is absolutely prohibited without any exception or exemption. Commonwealth v. Gardner, 300 Mass., 372. 15 N. E. (2d), 222. But the Massachusetts Supreme Court in later cases holds that under the statute the legislative intent was to make unlawful the sale of articles intended to be used for the prevention of conception and not those merely capable of such use and in some instances so used. The court further holds that a conviction was not warranted in the absence of proof that the defendant knew what use the buyer intended to make of the article and there was no evidence that the sale was made- with a view to use for any unlawful purpose. Commonwealth v. Corbett, 307 Mass., 7, 29 N. E. (2d), 151; Commonwealth v. Werlinsky, 307 Mass., 608, 29 N. E. (2d), 150. It is to be observed that the Massachusetts court distinguished State v. Arnold, 217 Wis., 340, 258 N. W., 843, wherein unlawful intent was permitted to be inferred from placing the article on sale in a vending machine located in a public toilet.

In Davis v. United States, 62 F. (2d), 473, defendants were charged under a federal statute prohibiting the shipment in interstate commerce of any “article, or thing designed, adapted, or intended for preventing conception.” The court held, upon authority of Youngs Rubber Corp. v. C. I. Lee & Co., 45 F. (2d), 103, 108; Nosowitz v. United States, 282 F., 575; Stroh Products Co. v. Davis, 8 F. (2d), 773, that, applying the rule of reasonable construction of the statute, the design or intent to use the thing sold in an unlawful way must be the design or intent of the seller, not of the buyer. The court therefore held that intent that the articles shipped were to be used for condemned purposes was a prerequisite to conviction.

In the prosecution of a druggist for violation of a liquor law, it was not sufficient to charge that he sold intoxicating liquor upon a written prescription and that the sale was not made by him in good faith for medicinal purposes, without alleging that it was known to him that the liquor would be used for other than the purpose the prescription called for. Rowland v. State (1908), 18 C. C. (N. S.), 598, 33 C. D., 245 (affirmed without opinion 80 Ohio St., 711).

An affidavit charging the accused with, violation of a Sunday closing ordinance was held insufficiént for failing to charge knowledge and criminal intent, and the judgment of conviction was reversed and the defendant discharged. Daugherty v. Village of Dennison (1898), 11 C. C. (N. S.), 13, 12 C. D., 776 (affirmed without opinion 59 Ohio St., 593); Goldsmith v. State (1910), 13 C. C. (N. S.), 148, 22 C. D., 160.

The primary function of an indictment, information or affidavit charging an offense is to apprise the accused of the offense of which he is charged, and the Rowland, Daugherty, and Goldsmith cases were decided prior to the enactment of Section 13437-4, General Code, in 1929. But the Supreme Court has declared that although the liberal provisions of the Criminal Code (Section 13437-4 et seq., General Code) should be recognized and applied in a proper case, if a vital and material element identifying or characterizing an offense is omitted from an indictment, the indictment is insufficient to charge an offense. Harris v. State, 125 Ohio St., 257, 181 N. E., 104; State v. Parker, 150 Ohio St., 22, 26, 80 N. E. (2d), 490; State v. Cimpritz, 158 Ohio St., 490, 493, 110 N. E. (2d), 416. Contra: State v. Costanzo, 140 Ohio St., 190, 42 N. E. (2d), 896; State v. Yudick, 155 Ohio St., 269, 98 N. E. (2d), 415; City of Columbus v. Highsmith, 85 Ohio App., 149, 84 N. E. (2d), 303; State v. Webster, 91 Ohio App., 541, 547, 102 N. E. (2d), 736.

Having reached the conclusion that proof of intent is necessary to make out the offense charged, in my opinion it was incumbent upon the city to allege in the affidavit such intent as required by Section 2941.57, Revised Code (Section 13439-9, General Code), and that the judgment sustaining the demurrer should be affirmed.

Judgment affirmed.

Conn, J., concurs.

Deeds, J., concurs in the judgment of affirmance.

Conn, J.,

concurring. I concur in the affirmance of the judgment of the trial court. However, I wish to make a brief observation.,

The issue raised on the record is the sufficiency of the affidavit to charge an offense. In the well-considered opinion of Judge Fess, it is pointed out that the affidavit states an offense under the ordinance. With this conclusion, I am not in accord. It is my opinion that in the light of the exceptions in the ordinance, giving the contraband article a lawful status, the affidavit must contain an averment that the act charged as constituting an offense was unlawful, or averments of the same import, from which the unlawfulness of the act condemned may be reasonably inferred.

In considering the sufficiency of the affidavit, my primary concern does no+ embrace what the proof may show as to the character of the surrounding facts and circumstances.

The Code of Criminal Procedure specifically provides that short forms of charging offenses may be used. Section 2941.07, Revised Code (Section 13437-6, General Code). Under the rule, the offense may be laid in the language of the statute. However, it appears from the statute above referred to, that in the several approved forms, in both felonies and misdemeanors, the aot charged as being criminal is expressed in terms as being “unlawful,” or the use of language, in describing the act, as imparting unlawfulness.

A criminal act contains two essentials, the act and the intent. While an averment of intent, or guilty knowledge, may be omitted from the' charge laid against a defendant, the unlawful character of the act may not be omitted in stating the offense.

Criminal intent, whether specific or general, may be shown by the surrounding facts and circumstances. When an act is shown to have been done knowingly, and such act is unlawful, the law presumes a criminal intent from such unlawful act. State v. Huffman, 131 Ohio St., 27, 1 N. E. (2d), 313.

If the foregoing premise be correct, the conclusion is imperative that the affidavit does not state an offense under the ordinance.