author: Washburn, P. J.

text:
    Nash, Appellee, v. Nash, Appellant.
    (No. 199
    Decided October 26, 1945.)

      Messrs. Aiyistvorih £ Gilbert, for appellee.

      Mr. Carl M. Myers, for appellant.
   Washburn, P. J.

Glenn L. Nash, a soldier, brought this action in July, 1944, against his wife, Bettie M. Nash, whom he had married in June, 1943.

The parties had one child, less than three months of age, and the grounds for the divorce were gross neglect and extreme cruelty.

On the wife’s motion, temporary alimony for the support of herself and child was granted, and in August she filed an answer and cross-petition seeking a divorce because of the gross neglect of duty of the husband, asking that she be granted the custody of their child, and permanent alimony for the support of herself and child.

On January 6, 1945, the husband was granted leave to withdraw his petition for divorce, and on the same day a divorce was granted to the wife on her cross-petition, she was granted the custody of the child, and the husband was ordered to pay her alimony in the sum of $100 a month; and the court also ordered him to pay his arrearage of $300 temporary alimony, at the rate of $25 a month.

On February 8, 1945, 33 days after said divorce and alimony judgment had been entered, and at a subsequent term of court, the husband filed a motion asking the court to “decrease the amount of the alimony and support of minor child heretofore ordered herein, for' the reason that such allowance of alimony is grossly excessive, considering the earnings of the plaintiff and other circumstances involved.”

A hearing was had on this motion, and the evidence and statements of counsel appear in the record in the form of a bill of exceptions.

On February 24, 1945, the court granted the motion and reduced the amount of the monthly alimony from $100 to $60.

Proper exceptions were taken, and the matter is before this court on an appeal on questions of law, it being urged that there was no evidence, at least not suf- ■ ficient evidence, to warrant a change in the amount of the judgment for alimony.

The power of the court in divorce cases to award alimony payable in installments, determine the custody of children, and to make orders for their support, is conferred by statute.

The courts of Ohio have applied a sound public policy in the interpretation of those statutes, and it is established that, except in cases where alimony is awarded pursuant to an agreement of the parties which is submitted to and approved by the court in its journal entry, the jurisdiction exercised by the courts in such matters is a continuing jurisdiction to modify such orders after term, if it be found that changed conditions warrant such modification; and such jurisdiction may be exercised although there is no reservation of authority to modify in'the decree. Corbett v. Corbett, 36 Ohio App., 321, 173 N. E., 316 (affirmed, Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10).

A review of the authorities justifies the conclusion that, in a divorce action, where judgment has been entered granting to the wife a divorce — which is a complete severance of the family relation — and terminating the interproperty rights of the parties and providing for permanent alimony payable in installments, the court granting the divorce (except in those cases where alimony is awarded pursuant to agreement of the parties which is submitted to and approved by the court in its journal entry) has the power and jurisdiction, upon proper application therefor, to modify such alimony judgment if the changed circumstances warrant such modification; but such court, in the absence of fraud or mistake in obtaining such alimony judgment, has no right, at a succeeding term of court, to retry the issue of alimony upon the facts and circumstances existing at the time of the original trial. Also, the changes in the circumstances of the parties that may be considered must be material and not purposely brought about by the complaining party, and must be considered on the basis that the judgment sought to be modified was- justified and proper when made. Olney v. Watts, 43 Ohio St., 499, 3 N. E., 354.

In this case the only change in the circumstances of the parties suggested is — first, that the husband was married within, a very few days after the divorce was granted, and, second, a change in wages earned by the wife.

As to the first claimed change, the evidence shown by the record establishes beyond peradventure thüt the husband, who brought the action for divorce while he was in the service, desired to marry another girl and that he withdrew his petition and induced his wife to obtain a divorce on her cross-petition, by promising to pay her alimony in the sum which the court ordered, and almost immediately thereafter was married; and then, shortly thereafter, filed the motion to reduce the amount.

Under such circumstances, such marriage is not a changed circumstance' which it is proper to consider in support of his motion to modify.

As to the second claimed change, there is no evidence in the record that the wife’s earnings were any different at the time of the hearing on the motion to modify than they were at the time of the granting of the divorce.

Our conclusion is that there was no evidence before the court on the motion to modify of any changes in the circumstances of the parties which could properly form a basis for the granting of such motion, and for that reason the judgment reducing the alimony is reversed. And this court, proceeding now to render the judgment which the trial court should have rendered, hereby overrules the motion of the plaintiff to modify the former order with reference to alimony.

Judgment against appellee for costs, and cause remanded,

Judgment accordingly.

Doyle, J., and Stevens, J., concur.


source: Caselaw Access Project

author: Hildebrant, P. J.

license: Public Domain

text:
    Stoeckel, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 6582
    Decided November 13, 1945.)

      Mr. William Isaacs, for appellant.

      Mr. Edward A. Schoil, for appellee.

      Mr. Henry M. Bruestle, for city of Cincinnati.
   Hildebrant, P. J.

In response to the cry of a police officer ‘ ‘ Stop that man, ’ ’ plaintiff attempted to apprehend a man running along the street with a police officer in pursuit. The fugitive shot the plaintiff, who later filed a claim for compensation with the Industrial Commission of Ohio on the theory that in responding to the cry of “Stop that man” he became an employee of the city within the meaning of Section 1465-61, General Code (114 Ohio Laws, 28), which read as follows:

“The term ‘employe,’ ‘workman’ and ‘operative’ as used in this act, shall be construed to mean:

“1. Every person in the service of the state, or of any county, city, township, incorporated village or school district therein, including regular members of lawfully constituted police and fire departments of cities and villages, under any appointment or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, township, incorporated village or school district therein. * # # J J

The appeal is on questions of law from a judgment of the court below, denying the right of plaintiff to participate in the workmen’s compensation fund.

The sole question is whether, under the above facts, plaintiff was an employee of the city within the meaning of Section 1465-61, General Code.

Under the statutes of Ohio the sole power of creating the relationship of employer and employee of a police officer of a city lies with the director of public safety of the city by virtue'of Section 4368, General Code, subject to the civil service requirements. Cases cited under Section 2833, General Code, relating to county sheriffs have no application here, hence will not be discussed.

It is argued that Section 12857, General Code, somehow applies here. It reads:

“Whoever, when called upon by a sheriff, coroner, constable or other ministerial officer to assist in apprehending a person charged with, or convicted of, a criminal offense, or in securing such person when so apprehended, or in conveying him to prison, neglects or refuses so to do, shall be fined not more than fiftv dollars. ’ ’

If the police officer be an “other ministerial officer” contemplated by the section, it still appears to the court the section is purely a penal one directed to compelling all citizens to recognize their reciprocal obligations of citizenship and can not be the basis for creating the relationship of employer and employee.

The judgment is affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.


author: Matthews, J.

text:
    The State of Ohio, Appellee, v. Nevius, Appellant.

      (No. 457
    Decided December 14, 1945.)

      Mr. Simon L. Leis, Mr. Homer G. Gorry and Mr. Stewart L. Tatum, for appellee.

      Mr. Paul M. Herbert and Mr. Aaron Halloran, for appellant.
   Matthews, J.

The appellant was indicted and convicted on three counts, charging the acceptance of bribes as prosecuting attorney of Clark county, in violation of Section 12823, General Code. Alternate counts in the indictment charged Joseph Parisi and Ralph Sehear with having given the bribes. The court granted the appellant’s motion for a separate trial. This appeal is from the judgment of conviction rendered at that trial.

The first count (second in the indictment) charged that appellant did on or about the 14th day of August, 1944, at the county of Clark, state of Ohio, unlawfully, fraudulently and corruptly accept an automobile of tbe value of $1,300 from Joseph Parisi and Ralph Schear, with intent to influence him with respect to his official duty as prosecuting attorney of Clark county, Ohio.

In support of that count, which was equally applicable to all the counts, the state offered evidence that Parisi, Schear and one Melvin Thomas had been prosecuted by appellant in 1938, on a charge of conducting a gambling establishment, known as Tecumseh Park in Clark county. They were convicted. They then moved to the adjoining county of Miami, where they continued to conduct commercial gambling until 1940, when they moved to a place known as “Silver Dollar,” close to the line between Clark and Greene counties, where they continued to conduct gambling as a business and from which they spread their gambling activities over a wide area embracing several counties.

Competent evidence was offered tending to prove that from 1940 to December 1944, Parisi, Schear and Thomas operated Silver Dollar as a gambling place so openly and on such a large scale that it was generally known that gambling was carried on there. There was testimony that appellant visited the Silver Dollar frequently and on these visits stayed from fifteen minutes to half an hour. There was other evidence that appellant had information, which, if acted upon, would have disclosed that gambling was going on at tbe Silver Dollar, and evidence of failure on his part to make any effort to discover the truth, and, if investigation disclosed gambling, a failure to proceed in any way against the guilty. The only reason for failure to proceed, given at any time, was that the Silver Dollar, the focal point from which the gambling proceeded, was located in Greene county. Whether it was so located, we will not discuss here.

So there is abundant evidence that there was gambling in progress in violation of law, and a failure by the appellant to proceed to suppress it. That, however, is not sufficient to justify a conviction for accepting an automobile as a bribe from the gamblers, for inaction in that regard.

Now what is the evidence as to the way in which this automobile came into the ownership of appellant?

The state called Edwin B. Fred, who had been a dealer in Buick and Pontiac automobiles at Lebanon, Ohio, from 1936 to early in 1942, and had sold automobiles in many - of the surrounding counties during that time. Pie testified that in August 1941, he went to Indianapolis, Indiana, and there bought a new Buick automobile from Monarch Motor Car Company and drove it back to Lebanon. He paid for it, but does not remember whether payment was made to Monarch Motor Car Company or to The Buick Company. We infer that the two places of business were close together and perhaps the former company was a selling agent or dealer for the latter.

Fred testified that he had no independent memory as to what became of the automobile, but from the record he concluded that he sold it to the appellant. He did not remember having been paid for it, but when shown appellant’s check, dated August 13, 1941, payable to him, identified his endorsement, and from the bank stamps, etc., testified that it had been deposited in his bank and the proceeds placed to his credit. He remembered nothing about the delivery of that specific automobile. He said he thought he remembered delivering an automobile to a vacant lot in Springfield. His memory was no weaker and no stronger about a transaction in Dayton at Standard Motor Sales Company, when shown a stamp on the check, which seemed to indicate that it had been filled in there. The only irregularity in that sale, as disclosed by the state’s evidence, was that the residence of the appellant was given as at Mason, Warren county, Ohio. That was in the handwriting of Fred’s bookkeeper, who testified to her handwriting. She also testified that she never saw the appellant until a much later date, when she appeared at the Clark county court house to testify before the grand jury. '

The state offered no evidence of any connection of either Parisi or Schear with that automobile transaction. The neárest approach to that was the testimony of Fred that he believed he had sold automobiles to Parisi, which, of course, is no evidence of the sale of that particular automobile to him, or that he had anything to do with its transfer to the appellant. No evidence was offered that either the title or possession of that automobile was transferred to appellant in Clark county, Ohio.

The most, therefore, that can be said of the effect of the state’s evidence on this count is that it proves such widespread and open gambling as to indicate that there existed supine indifference on the part of all the law enforcing officials, including the prosecuting attorney, but it does not prove or tend to prove that the prosecuting attorney accepted the Buick automobile from Parisi or Schear or anyone else. Was this fatal deficiency removed by the appellant’s own testimony?-

Now, on the subject of this Buick automobile, the appellant testified and was corroborated as to many of the details, that in 1941 he owned two automobiles — a Studebaker and a Ford — and wanted to dispose of them and purchase a Buick. After making inquiry of dealers in Springfield and being unable to find a Buick, he learned through his investigator in his office that he could get one in Dayton from a Mr. Slavin, who did business there under the name of Standard Motor Sales Company. Accordingly, he went to Standard Motor Sales Company, delivered his Studebaker and Ford to it for sale and there bought the Buick from Edwin Fred, whom he met there. The source of the money used in the purchase and all the other circumstances were developed in great detail. While the state characterizes the appellant’s testimony as incredible, we are unable to so consider it. In- any event, it contains nothing that could be used as admissions, express or implied, to connect Parisi or Schear, or either with this transaction in any way or to create an inference that either the title or possession of this Buick automobile was transferred to appellant in Clark county.

The trial court erred in overruling the motions of appellant, made at the close of the state’s evidence and renewed at the close of all the evidence for an instructed verdict of not guilty, and appellant is now entitled to a reversal of the conviction on such count and a discharge therefrom.

In the next count upon which appellant was found guilty, the slate charged that on or about August 26, 1943, in Clark county, Ohio, the appellant unlawfully and corruptly accepted an automobile of the value of $1,437 from Joseph Parisi and Ralph Schear, with intent to influence him in respect to his duties as prosecuting attorney of Clark county.

Without detailing the evidence relating directly to the acquisition of the automobile it seems sufficient to state that the appellant admits he obtained a Buick automobile from Joseph Parisi about the time laid in the count, but testified that he paid full value ($1,200) for it in cash, and that it was not transferred to him to influence him in the discharge of his official duties. There were circumstances which cast doubt upon appellant’s denial. There was, therefore, present in the evidence relating to this automobile what was absent in connection with the other, to wit, that it was Parisi who arranged for and actually transferred the title and possession to the appellant, and an issue as to whether appellant paid cash for it, or whether it was a bribe, and that title was taken in Clark county, Ohio.

On this count, the record presents the problem of weighing evidence, drawing permissible inferences, and passing upon the credibility of witnesses, all issues within the province of a jury. The motions for an instructed verdict and for judgment were properly overruled.

This limits our task to examining the record to determine whether any substantial error, prejudicial to the rights of the appellant, intervened in the manner of its submission to the jury. That will be dismissed after considering the third and last count, upon which the appellant was found guilty.

In the next count against the appellant, and upon which he was convicted, the state charged that from on or about January 1, 1941, to on or about July 1, 1944, the appellant unlawfully and corruptly accepted largo sums of money from Joseph Parisi and Ralph Schear with intent to influence him in the discharge of his duties as prosecuting attorney.

In addition to the relation of Parisi to the transfer of the second automobile to the appellant, which was the subject of a separate count, the only other evidence in proof of benefits received by appellant from Parisi and Schear, or either, was that Parisi entered a store in Dayton with appellant and introduced him to one of the proprietors, to whom appellant talked about buying a piano, a deep -freeze, and perhaps- some other articles, but bought nothing on that occasion. About a month later, in response to a call from the storekeeper, the appellant returned alone, and bought and paid cash for the articles. On subsequent occasions he made purchases over a period of more than a year and always paid cash. The total purchases consisting of household equipment amounted to about $850. The only relation of Parisi to these transactions was that he introduced the appellant to the storekeeper.

There was evidence of other purchases from other stores, but there was no evidence that Parisi or Sehear had any connection with them. The only evidential value of that testimony was as reflecting upon the amount of money spent by appellant during the period.

There was also evidence that the appellant visited the Silver Dollar twro or three times a month for a period of more than a year.

The only other evidence having any relation to this count concerned the amount of money that passed through appellant’s bank account.

With the data of money handled before him, a comparison was made with appellant’s known sources of income by an expert who testified that there was an excess of expenditures over known income of more than $12,000 during the period from January 1, 1941, to June 30, 1944.

The accuracy of the expert’s analysis was challenged by the appellant and evidence was offered on his behalf accounting for income for which he had not been credited by the-expert and tending to prove that all money received by him during the period came from sources other than Parisi or Sehear. The appellant denied that he had ever received any sum whatsoever from either Parisi or Sehear.

The state of the evidence presented an issue of whether the state had proven a total income larger than the items from known sources.

The legal question presented is whether the jury, having found that the total income was larger than from known sources, could draw the conclusion that the excess represented money paid appellant by Parisi or Sebear to influence appellant in the discharge of his duty as prosecuting attorney.

What is the evidence that leads the mind to the conclusion that the excess of money came from Parisi orSebear?

Certainly, the automobile transaction does not furnish any such clue. The theory of the state was that it was the automobile and not money that was the bribe, and appellant was convicted of accepting the automobile as a bribe. It cannot under such circumstances be considered that the money which Parisi paid for the automobile, used as a bribe, was also evidence of money paid as a bribe.

We are also of the opinion that the fact that Parisi introduced1 the appellant to a merchant, and the fact that he visited the Silver Dollar furnish no basis for the inference that money had been given and received as a bribe. There is no logical or natural connection between the premise and the claimed conclusion.

We are further of the opinion that even though it. should be found that the evidence showed appellant handled money, the source of which was unexplained, still that would be no evidence that the unexplained portion was received as a bribe. The record would simply show that the source of some of the money was known and some unknown. That means only that there was a failure of proof — and a failure of proof can never take the place of proof.

Finally, wo are of the opinion that all these items, lacking in evidential value when taken separately, are equally lacking when taken in combination.

While circumstantial evidence may satisfactorily prove a fact in issue, that must result from the natural, usual, and logical conclusions to be drawn from the circumstances and cannot be extended beyond that. Findings of fact must be kept within the bounds of rationality. Reasoning cannot be extended beyond the evidence by piling inference upon inference. United States v. Ross, 92 U. S., 281, 23 L. Ed., 707; Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634; Cunard S. S. Co. v. Kelley, 126 F., 610.

Upon this subject of keeping judicial reasoning within the limits of reason, Thayer, in his Preliminary Treatise on Evidence, says at page 208:

“Especially has this function come into play in sup-, ervising and regulating the exercise of the jury’s office. Herein lies one of the most searching and far-reaching occasions for judicial control — that of keeping the jury within th'e bounds of reason. This duty, as well as that of preserving discipline and order, belongs to the judge in his mere capacity of presiding officer in the exercise of judicature. Reason is not so much a part of the law, as it is the element wherein it lives and works; those who have to administer the law can neither see, nor move, nor breathe without it. Therefore, not merely must the jury’s verdict be conformable to legal rules, but it must be defensible in point of sense; it must not be absurd or whimsical. This, of course, is a different thing from imposing upon the jury the judge’s own private standard of what is reasonable.”

The same necessity is pointed out in different nomenclature in 20 American Jurisprudence, 163:

“A presumption cannot ordinarily be raised from some fact proved unless a rational connection exists between such fact ‘and the ultimate fact presumed. * # * Furthermore, a fact can be regarded as the basis of an inference only where the inference is a probable or natural explanation of the fact. Inferences may not be drawn from one transaction to another that is not specifically connected with it, merely because the two resemble each other, but must be linked together by the chain of cause and effect and common experience.”

These tests disclose that the verdict of guilty of accepting money as a bribe is supported not by evidence proving the fact, but only by speculation, conjecture and suspicion.

The state called Dorothy Miller as a witness and she was permitted to testify over the objection of the appellant that Parisi told her in process of settling an action against him and others to recover money lost at gambling: “You know we have things fixed with the prosecuting attorney and the sheriff,” and that they were the prosecuting attorney and sheriff of . Springfield.

■The state called one Melvin Thomas as a witness. He was a partner of Parisi and Schear in the operation of the Silver Dollar Club, and was the manager of the enterprise and received 25 per cent of the profits. On direct examination, he was asked; “Didn’t you make a statement to a Mrs. Miller the reason that yon moved to Clark county was because you had things fixed with the sheriff and prosecuting attorney of Clark county?” Over the objection of the appellant, he was permitted to answer, and his answer was in the negative. The question was repeated and, over the appellant’s repeated objection, the witness was directed to answer, which he did by denying that he had ever made such a statement.

The court based its ruling overruling the defendant’s objection at this time on the theory that .the state had been taken By surprise and that the witness was hostile.

It is familiar law that permission to ask leading questions on direct examination rests largely in the discretion of the court and when it appears that the witness is hostile or that counsel has been surprised by the .witness’ testimony, the courts are prone to exercise that discretion' in favor of the examiner so as to enable him to exhaust the witness’ knowledge of the facts. 42 Ohio Jurisprudence, 320 et seq. But that relates to the manner of eliciting competent evidence. It does not enlarge the limits of competency so as to permit the introduction of evidence which would otherwise be incompetent. It does not make hearsay evidence competent.

If the method pursued was for the purpose of refreshing recollection or- of breaking through the hostility of the witness, then no matter whether the method pursued had been successful or otherwise, the incident would be closed. Hurley v. State, 46 Ohio St., 320, 21 N. E., 645, 4 L. R. A., 161. The examiner would be bound by the answer in the sense that evidence by way of impeachment would not thereby be rendered competent.

However, in this case it seems that the state, at the lime, contemplated calling Dorothy Miller, and in fact did call her for the purpose of proving that Thomas had made that statement to her, and the court, over the appellant’s objection, permitted her to so testify.

Now, clearly, that could not be justified on the basis of impeachment. It would violate the rule that a party is not permitted to impeach his own witness. Furthermore, as impeaching evidence its effect would be limited to affecting Thomas’ credibility. It would not be evidence at ail of the truth of the substance of the impeaching statement. State v. Duffy, 134 Ohio St., 16, 15 N. E. (2d), 535.

Justification for the ruling as to both the Parisi and Thomas statements is sought to be based on the theory that the evidence shows Parisi, Thomas and appellant ‘ were co-conspirators and that, therefore, the declarations of each in pursuance of' the common design were admissible against the other as substantive evidence. It should be observed here .that if the evidence showed they and appellant were co-conspirators, no other foundation for the admissibility of their statements in pursuance of the common design would be necessary. And what they said as co-conspirators would be substantive evidence of the facts.

Now, is there any evidence that they and appellant were participants in a common conspiracy in pursuance of which Thomas made this statement to Dorothy Miller?

The indictment contains no count in which Parisi and Schear are joined with the appellant in the commission of a crime. There is no count which joins Thomas with appellant. In certain.counts Parisi and Schear are accused of giving bribes. In other counts the appellant is accused of accepting bribes.

Certainly, the evidence does not go beyond the accusations in this respect. There is no evidence that the appellant as a co-conspirator of Parisi, Schear and Thomas engaged in the operation of the Silver Dollar Club or any other gambling enterprise.

The question, then, is whether the unsworn, extrajudicial declarations of conspirators engaged in violating the law are competent upon the trial of a prosecuting attorney charged with having been bribed by them to neglect his duty to enforce the law against them. It is clear that they would not be regarded as co-conspirators at common law.

In the case of Gebardi v. United States, 287 U. S., 112, 77 L. Ed., 206, 53 S. Ct., 35, 84 A. L. R., 370, a Mann Act case, the court says at page 121:

“If this were the only case covered by the Act, it would be within those decisions which hold, consistently with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy * * * at common law. Shannon v. Commonwealth, 14 Pa. St., 226; Miles v. State, 58 Ala., 390; cf. State v. Law, 189 Iowa, 910 [11 A. L. R., 194], 179 N. W., 145; see State, ex rel. Durner, v. Huegin, 110 Wis., 189, 243 [62 L. R. A., 700], 85 N. W., 1046.”

To the same effect is People v. Wettengel, 98 Colo., 193, 58 P. (2d), 279, 104 A. L. R., 1423, the syllabus of which, as reported in A. L. R., is:

“Where the concerted action of the giver and the taker is essential to constitute the crime of bribery, an indictment will not lie for conspiracy to commit bribery if the conspiracy is charged to have included both the prospective giver and the prospective receiver, although several persons are involved, as prospective givers, in the alleged conspiracy.”

In 8 American Jurisprudence,- 896, it is stated that:

“Assuming that concert of action of the giver and the taker is essential to constitute the crime of bribery there is no such crime as conspiracy to commit bribery where the persons charged as conspirators are the prospective giver and the prospective receiver.”

We are, therefore, of the opinion that there was no proof of a conspiracy between the appellant and Thomas or Parisi or Schear, and that, therefore, statements made by either in the absence of the appellant were not competent evidence against him.

We are also of the opinion that the statements offered in evidence were recitals of past occurrences, not made to further any common purpose, and for that reason were incompetent.

The court permitted a witness to testify to the re-suits of an analysis of the income tax returns of Parisi and Schear for the years 1941, 1942, 1943 and 1944. The data for these returns was furnished by a bookkeeper of Parisi and Schear. It was in evidence that Parisi had a business in Montgomery county, and that his business extended over several counties. It was not claimed that the appellant had any interest in any way in the Montgomery county business, and there was no proof that he had any interest as partner or otherwise in any business transacted by Parisi or Schear anywhere. The evidence was admitted presumably to show the extent of gambling in Clark county. It did show that Parisi and Schear had a'large income during those years. It did not show that that income resulted from gambling and particularly from gambling in Clark county. No attempt was made to connect appellant with the making of these income tax returns, and we are clear that the evidence was incompetent as declarations by co-conspirators because of lack of evidence of a conspiracy of which appellant was a member, and also because the income tax returns of the individuals could not possibly be regarded as made in pursuance of the purpose of a conspiracy. The returns were made to comply with the income tax law. There was no other purpose. The appellant was not bound by them in any way.

The appellant attacked the indictment against him by a plea in abatement, based on the procedure followed in the appointment of Simon L. Leis, attorney, to represent the state as assistant prosecuting attorney, in assisting the grand jury in the investigation which resulted in the return of this indictment. It was recited in the order that it was made under authority of Section 2912, General Code. The record shows that the Common Pleas Court judge signed the entry appointing Mr. Leis on October 2, 1944, and this entry was stamped by tbe clerk as having been filed on that day, and was then returned to the custody of the judge who held it until December 5, 1944, when it was entered upon the journal in space under that date which had been reserved for that purpose. In the meantime, Mr. Leis' had taken the oath and given the bond required of him and had actively assisted the grand jury in its investigation which resulted in the return of this indictment. No notation upon the court records of the taking of the oath or the giving of the bond was made until at or about the time of the return of the indictment.

While no formal notice was given appellant and no opportunity to be heard formally given, there is abundant evidence that appellant knew of the court’s intention to appoint, and that the appointment had been made and that Mr. Leis was acting'in the capacity of prosecuting attorney and acquiesced therein.

The plea in abatement is based solely on the contention that because of the .irregularity in the appointment, Mr. Leis had no title to the office, the duties of which he assumed to discharge. It is not claimed that what he did would have been beyond the power or duty of a duly appointed prosecuting attorney.

Reliance is placed upon the case of State, ex rel. Thomas, v. Henderson, 123 Ohio St., 474, 175 N. E., 865, in which, under somewhat similar circumstances, the court held that' the prosecuting attorney was entitled to notice and an opportunity to be heard before such an appointment could be made. But that was a direct action by the state in quo warranto to test the title to the office. In the case at bar it is sought to invalidate the action of the grand jury because of a defect in the title of the prosecuting attorney. In our view,, this case falls into a different category from that of State, ex rel. Thomas, v. Henderson, supra. It involves action under color of office of an occupant claiming title thereto.

In 32 Ohio Jurisprudence, 1096, it is stated:

“The general rule is that the acts of a de facto officer are to be upheld as valid, in so far as they involve the interests, of the public and of third persons, until his title to the office is adjudged insufficient. The acts of a de facto officer, however, must comply with the requirement of applicable law, to the same extent and in the sdSne manner as the valid acts of de jure officers. Third persons are not supposed to know whether an officer has taken every necessary step to qualify himself, and therefore, it is sufficient for them to show that he is such de facto.

“One important consequence of the rule that the acts of a de facto public officer are valid as far as the public and third persons are concerned is that the official acts of a de facto officer cannot be collaterally attacked. ’ ’

We think the facts in this case bring it within the stated principle and that the plea in abatement was properly overruled. Whether the prosecuting attorney was de facto or de jv,re, in either event he occupied the office, and his acts should be judged by the same standard.

T-he evidence was conflicting as to whether the Silver Dollar Club was located in Clark county or Greene county. It is earnestly contended that this geographical dispute 'must be decided in order to determine jurisdiction and venue. We do not think so. The duty of the prosecuting attorney to inquire into commission of crime within his territorial jurisdiction involved the duty to determine the boundaries of the county and the corrupt acceptance of money to influence that decision, so as' to exclude gambling at a certain place from the field of his duty, would be bribery, and it would be none the less so even though it might thereafter appear that the site was outside the county.

Another error assigned is that one of the attorneys for the state was guilty.of misconduct in his argument to the jury. A reading of the argument leads to the ■ conclusion that the jury could readily infer the speaker was basing his opinion of guilt on an investigation made by him, and not solely on the evidence adduced at the trial. Such method of argument was denounced in State v. Thayer, 124 Ohio St., 1, 176 N. E., 656, 75 A. L. R., 48.

There were other instances in which the prosecutors made reference to incidents of the war, having no relation to this case. Those tended to divert the jury from the issues and to inflame the passions. Whether these incidents were so prejudicial as to require a reversal in a case where guilt is clear might be questioned, but we think they were prejudicial in. this case, and should not be repeated on a retrial.

There ar<f other assignments of error, but we find none of a substantial and prejudicial nature, .except those already discussed.

For these reasons, the judgment is reversed, and the appellant ordered dismissed on the second and sixth counts in the indictment, and the cause remanded for a new trial upon the fourth count of the indictment.

Judgment accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment..

Hildebrant, P. J., Matthews and Ross, JJ., of the First Appellate District, sitting by designation in the Second Appellate District.


author: Jackson, J.

text:
    Fay, Appellee, v. Thrasher, Appellant.
    (No. 365
    Decided January 24, 1946.)

      Mr. Rex T'F. Hanna and Mr. Roy W. Roof, for appellee.

      Mr. Carl TF. Loris, for appellant.
   Jackson, J.

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

The issues -are made by the amended, petition and answer.

The action stems in negligence which resulted in injury to the plaintiff as a paid passenger in an automobile.

The defendant filed an answer to the amended petition, which.answer consists of two defenses, one being a general denial and the second alleging that the injuries-to the plaintiff were caused solely and entirely by the negligence of the plaintiff himself and through no fault or negligence of the defendant.

The amended petition alleges facts showing that the plaintiff was a paid passenger, and the action is one for personal injuries. The negligence charged is that the driver selected by the defendant, in the operation of the automobile so manipulated it that it overturned as the result of such negligent operation, thereby causing' the injuries to the plaintiff.

The facts are substantially as follows: On the 10th day of January, 1944, the plaintiff was being carried in the automobile of the defendant, from the Lima Tank Depot in the southwestern part of Lima, Ohio, to the city of Kenton, Ohio, a distance of approximately 30 miles. All of the parties in the automobile were employed on the night shift at the Lima Tank Depot, and lived in the city of Kenton or in the immediate vicinity of such city. They left the Lima Tank Depot together in defendant’s automobile at approximately seven o’clock in the morning. In the automobile, in addition to the plaintiff and defendant, were two other passengers, Walter Zurcher and Willis Fay. The automobile was driven by the defendant from the tank depot to the main business section of Lima, Ohio, whore all the persons in the automobile stopped at a place known as Stone’s Grill, where intoxicating liquors and wines are dispensed. While at Stone’s Grill the defendant was taken sick and under his direction the operation of the automobile was taken over by Walter Zurcher. As they left Stone’s Grill and until the time of the accident in which the plaintiff received his injuries the occupants of the automobile.were seated as follows: Walter Zurcher was on the left side driving, Willis Fay, the brother of the plaintiff, was sitting on the right side of the front seat, and the defendant and plaintiff were riding in the rear seat. After leaving Stone’s Grill the automobile stopped again at a place about seven miles east of Lima, on the direct route to Kenton, on what is known as U. S. route 80S, at an inn where beverages and sandwiches were sold. On the way between Stone’s Grill and the inn, Walter Zurcher, the driver of the automobile, swayed it from one side of tlie road to the other in a spirit of levity to awaken the two riders in the rear seat. Plaintiff immediately protested to the driver, Zurcher, as to such operation of the automobile and the driver immediately heeded the protest and from thenceforth to the inn proceeded to drive in a proper manner. When the automobile was stopped at the inn, Zurcher and Willis Pay left the automobile and went inside, leaving the plaintiff and the defendant in the automobile. A short time later, plaintiff went into the inn, or at least to the door of the inn, and requested Zurcher to proceed on to Kenton. After proceeding from the inn, at a place four or five miles east of Maysville-, Ohio, and two miles east of Ada, Ohio, or approximately 14 miles west of Kenton, Ohio, Zurcher, the driver, after passing a gasoline truck going in the same direction, again swerved tlie automobile from side to side of the road. The plaintiff and another passenger in the car protested against such manner of driving, but immediately following such protest and before the driver could act thereon the swaying of the automobile caused it to turn over and land right side up on the right side of the road with the rear end completely in the ditch and with the front wheels above the ditch. The overturning of the automobile was the cause of the injuries sustained by the plaintiff.

The plaintiff alleges that he suffered many cuts and contusions on his head and face; great nervous shock; that the muscles and ligaments in his left shoulder and arm were sprained and torn, as well as a sprain and séparation of the sacroiliac joints and dislocation of one of the vertebrae in his back; and that the muscles and ligaments in the scrotum and groin were sprained and torn.

The occasion for the plaintiff riding in the automobile of the defendant arose by reason of an arrangement between them whereby the use of each other’s automobiles was to be employed in conveying them to and from their place of employment, but in any event whichever automobile was used for the designated week, the other party was to pay to the owner of the one being used, the sum of four dollars per week. The evidence indicates that the plaintiff’s automobile was never used in trips to the Lima Tank Depot and that the plaintiff did pay the stipulated amount of four dollars a week to the defendant.

That situation constituted the plaintiff a paid passenger in contradistinction to a guest.

The jury returned a verdict for $3,500, on which verdict judgment was entered after a motion for new trial was overruled.

The defendant (appellant herein) assigns five specifications of error which occurred in the trial of the cause.

Assignment of error No. 1. The court erred in its general charge in withdrawing from the jury the question of joint enterprise.

There is nothing in the record to show any set of circumstances which in any wise could constitute the plaintiff and defendant in a joint enterprise, the plaintiff having no control oyer the automobile. A joint enterprise'within the law of imputed negligence is a joint execution of a common purpose under such circumstances that each member of such enterprise lias the authority to act for all in respect to the control of the agencies employed to execute such common purpose.

There is no evidence that plaintiff had any control over the automobile or authority to act for the defendant and consequently there is no evidence showing joint enterprise under the rule above mentioned. Bloom v. Leech, Admr., 120 Ohio St., 239, 166 N. E., 137; Simensky v. Zwyer, 40 Ohio App., 275, 178 N. E., 422.

Therefore, the court did not err in withdrawing from the jury the question of joint enterprise, and such assignment of error is overruled.

Assignment of error No. 3. The record establishes that the defendant was paid by the passenger plaintiff, and there is some evidence, of little or no weight, that the defendant and the passenger plaintiff exchanged services. It is of no consequence whether the plaintiff actually paid compensation to the defendant or exchanged services with him. Miller v. Fairley, 141 Ohio St., 327, 48 N. E. (2d), 217.

. We hold, as a matter of law, that the plaintiff was a paid passenger. Assignment of error No. 3 is, therefore,. overruled.

Assignment of error No. 4. The record discloses that there was credible and substantial evidence tending to prove all the facts essential to a recovery by the plaintiff, and consequently the court did not err in refusing to sustain the motion for a directed verdict. Assignment of error No. 4 is, therefore, overruled.

Assignment of error No. 5. The verdict of the jury was against the weight of the evidence. There is no merit in this contention and assignment No. 5 is overruled.

In Assignment of error No. 2, the defendant complains that there is error involved because the court in its charge withdrew from the jury the question of assumption of risk.

It is to be noted that the defendant did not plead assumption of risk as a defense.

There is nothing in the record indicating that the defendant expressly requested the court to charge the jury upon the question of assumption of risk. However, we do find in the general charge of the court, the following statement:

“Defendant claims that under the facts disclosed by the evidence plaintiff assumed the risk of riding in the car and that such assumption thereof precludes him from any recovery, notwithstánding the alleged negligence, if any, of defendant’s agent. -While this is likewise a correct proposition of law under certain circumstances nevertheless upon consideration of the factual situation disclosed by the undisputed evidence on this point, the court concludes and you are instructed that plaintiff did not assume the risk and would not be precluded from recovery on that theory.”

Although defendant did not expressly request a charge on the subject of assumption of risk by the plaintiff, the above quotation from the general charge of the court shows that the defendant had called the attention of the court to his contention that an issue of assumption of risk had been raised by the evidence in the case' and that the court should charge the law applicable to such issue. In such situation, if an issue of assumption of risk was raised by the evidence in the case, the court erred when it was called to his attention as above mentioned, in refusing to charge on such issue, notwithstanding such issue was not pleaded.

The defense of assumption of risk in cases of this character is similar in this respect to that of contributory negligence in that if such issue is raised by the evidence in the case it is the duty of the court, upon request, to charge upon it irrespective of whether such defense is pleaded.

We shall, therefore, consider the law applicable to the defense of assiimption of risk and whether such issue was raised by the evidence.

We have found only one reported case in Ohio in which assumption of risk has been held to be a defense in an action for damages brought by a person riding as a guest in his host’s automobile, for personal injuries sustained by him through the negligence of his host. This is the case of Gill, Jr., a Minor, v. Arthur, 69 Ohio App., 386, 43 N. E. (2d), 894. The Supreme Court, apparently, has not passed on this question.

In 29 Ohio Jurisprudence, under the subject of Negligence, the following statement with reference to assumption of risk appears at Section 91 on page 536:

“It is generally recognized that contributory negligence and assumption of risk are distinct and different defenses. At times, however, courts loosely use the expression ‘assumption of risk’ in the sense of contributory negligence. The rule is, that one who exposes himself to an obvious and appreciated danger, even though he should not appreciate the full extent of the danger, assumes the risk of injury that may result to him therefrom. Under ordinary circumstances, a person fully aware of'a danger, who ignores it, assumes the risk incident to such danger. Where the injured party knowingly and deliberately assumes the risk that leads him into immediate danger, he ought not to have a remedy for injuries brought on by his own act, and arising from perils that are obvious and certain.”

The following statement as to assumption of risk appears under the heading of Negligence, in 38 American Jurisprudence, 845, Section 171:

“The principle that one who voluntarily assumed the risk of injury from a known danger is debarred from a recovery is recognized in negligence cases. As stated, a plaintiff who, by his conduct, has brought himself within the operation of the maxim, ‘volenti non fit injuria/ cannot recover on the basis of the defendant’s negligence. In the words of the maxim as translated, ‘that to which a person assents is not esteemed in law an injury.’ Although there is authority for confining the doctrine of assumption of risk to cases arising out of the relation of master and servant, or at least to cases involving a contract relationship, it is now fairly well settled that the defense of assumed risk may exist independently of the relation of master and servant. The maxim, ‘volenti non fit injuria,’ applies in a proper case independently of any contract relation. It is said that one who knows, appreciates, and deliberately exposes himself to a danger ‘assumes the risk’ thereof. One cannot deliberately incur an obvious risk of personal injury, especially when preventive measures are at hand, and then hold the author of the danger for the ensuing injury.”

In 4 Restatement of Law of Torts, Chapter 45, Section 893, page 491, the following rule is laid down with reference to voluntary exposure to risk as a defense :

“A person who knows that another * * * is doing a dangerous act * * *, and who nevertheless chooses * * * to remain within * * * the area of risk is not entitled to recover for harm unintentionally caused to him * * * by the other’s conduct * * * except where the other’s conduct constitutes a breach of duty to him or to a third person and has created a situation in which it is reasonably necessary to undergo a risk in order to protect a right or avert a harm.”

In comment (b) under the above rule it is stated that this defense is effective in a situation “where the defendant’s conduct would be wrongful to the plaintiff but for the plaintiff’s assent to its continu-' anee and where the plaintiff is willing or desirous of having the conduct continue.”

In 4 Blashfield’s Cyclopedia of Automobile Law (1935 Ed.), Chapter 70, Section 2512, page 333, subject, Assumption of Risk, it'is stated:

“Where a guest enters an automobile with knowledge that the driver is incompetent or inexperienced, or, after he has assumed his position in the car, it comes to his knowledge that the driver is reckless in Jiis driving, and with such knowledge he aids or encourages the driver or acquiesces in such recklessness, he takes the chances of an accident, and, in case an accident occurs arising from such known incompetency, inexperience, or recklessness, he cannot recover against * the driver; for in such case he assumes the risk of accident by inciting the driver’s natural predisposition to operate the vehicle in an irresponsible manner. ’ ’

In the case of Young v. Nunn, Rush & Weldon Shoe Co., 212 Wis., 403, 249 N. W., 278, it is held that an automobile guest will be considered to acquiesce in any course of driving that has persisted long enough to give the guest an opportunity to protest and thus indicate disapproval of the manner of driving.

In 38 American Jurisprudence, under the subject of Negligence, Section 172, at page 847, the defense of contributory negligence is distinguished from the defense of assumption of risk, as follows:

“The defense of assumption of risk is closely associated with the defense of contributory negligence. One who does not exercise ordinary care for his own safety is said, speaking broadly, to assume the risk, that is, take the chance, of being hurt. The defense of assumption of risk is not incompatible with contributory negligence; the two defenses may arise under the same state of facts. Some courts regard the defenses as interchangeable. However, there is a clear distinction between the defense of assumption of risk and the defense of contributory negligence, notwithstanding they may arise under the same set of facts and may sometimes overlap. There is a line of demarcation which, if carefully scrutinized and followed, will allow the court to differentiate between them. Assumption of risk rests in contract or iii the principle expressed by the ancient maxim, ‘volenti non fit injuria,’ whereas contributory negligence rests in tort. The former involves a choice made more or less deliberately, and negatives liability without reference to the fact that the plaintiff may have acted with due care, whereas the defense of contributory negligence implies the failure of the plaintiff to exercise due care. As stated in some decisions, assumption of risk is a mental state of willingness, whereas contributory negligence is a matter of conduct.”

From the foregoing authorities, including the case . of Gill, Jr., a Minor, v. Arthur, supra, we conclude and hold:

1. That assumption of risk may constitute a defense in an action brought by a passenger for hire against the owner of an automobile for damages by reason of personal injuries sustained as such passenger, through the carelessness, recklessness or negligence of the person driving such automobile at the. direction of the owner.

2. Asumption of risk rests in contract or in the principle expressed by the ancient maxim, “volenti non fit injuria,’’ whereas contributory negligence rests in tort.

3. That such defense is available in a situation where the conduct of the driver of the defendant’s automobile would be wrongful to the plaintiff but for the plaintiff’s assent to its continuance and where the plaintiff is willing or desirous of having the conduct continue.

4. An automobile passenger for hire will be considered to acquiesce in any course of driving that has persisted long enough to give him an opportunity to protest and for the driver to heed his protest and avoid injuring him.

5. Where insufficient time elapses from the adoption of ah improper course of driving by the driver of an automobile, for a passenger to protest against such course of driving and for the driver to heed such protest and correct his manner of driving and thereby avoid injuring him, the passenger will not be considered as acquiescing in such course of driving.

6. Where an automobile passenger protests against any improper course of driving and the driver of the automobile heeds such protest and discontinues such course of driving, such passenger will’not, by reason of such previous improper course of driving, be considered as acquiescing in a subsequent improper course of driving by such driver.

7. It is only in cases where the driver of an automobile persists or threatens to persist in an improper course of driving, over the protests of a passenger, and the passenger has an opportunity to alight therefrom and avoid injuries that may be occasioned by such improper course of driving, that the passenger may be held to have acquiesced in such improper course of driving.

The defendant argues in his brief in the instant case that as the plaintiff had observed the reckless manner in which the defendant’s driver was operating the automobile prior to their arrival at the inn seven miles east of Lima, on the way to Kenton, and there had an opportunity to leave the automobile when it stopped at the inn, but instead had asked the driver to proceed in the automobile to Kenton, and remained in the same, a factual situation was presented requiring the submission of the issue of assumption of risk on the part of the plaintiff to the jury.

There is no evidence in the case that the plaintiff assented to or was willing or desirous of having the reckless conduct of the defendant’s driver, exhibited on the way from Lima to the inn, continue. In fact, the evidence shows conclusively that the plaintiff admonished the driver concerning his reckless operation of the car prior to their arrival at the inn and that defendant’s driver immediately heeded such admonishment and thereafter operated the automobile in a proper manner until and after' the arrival at the inn.

Tested by our holdings hereinbefore mentioned, there is no evidence that the plaintiff acquiesced in the improper course of driving subsequently adopted by the driver immediately preceding the overturning of the automobile, resulting in plaintiff’s injuries, as it is apparent from the evidence that the automobile overturned immediately following the adoption of such course of driving by the driver and that insufficient time elapsed from the adoption of such improper course of driving, for the plaintiff to protest against the same and for the driver to heed such protest and correct his manner of driving and avoid injuring the plaintiff.

There being no evidence of acquiescence on the part of the plaintiff to the improper course of driving by defendant’s driver, the evidence did not warrant the submission of the issue of assumption of risk to the jury. The court, therefore, did not err in refusing such submission.

Whether the evidence in the ease warranted the submission of the issue of contributory negligence on the part of the plaintiff, it is unnecessary to determine as the defendant did not request such submission. Langdon v. Cincinnati Street Ry. Co., 75 Ohio App., 482, 62 N. E. (2d), 380.

For the reasons mentioned, we find no error in any of the particulars assigned and argued in defendant’s brief, and the judgment of the Common Pleas Court is affirmed, at costs of appellant, and the cause is remanded for execution.

Judgment affirmed.

Middleton, P. J., and GtUernsey, J., concur.


author: Ross, J.

text:
    The State of Ohio, Appellee, v. Lindsey, Appellant.
    (No. 6557
    Decided November 13, 1945.)

      Mr. Ira Stephenson, for appellee.

      Mr. Sol Goodman, for appellant.
   Ross, J.

This is an appeal from the Court of Common Pleas of Hamilton county upon questions of law.

The entry of that court from which the appeal is taken is in the following terms:

“This cause came on to be heard upon the affidavit of 'Thomas Lindsey and statements of counsel and was submitted to the court.

“Upon consideration the court finds said aifidavit not well taken and hereby orders that this proceeding be dismissed. To all of which Thomas Lindsey excepts.”

It appears from the record that the defendant, appellant herein, was charged with the crime of assault and battery in an affidavit filed in the court of Frank Seed, mayor of the city of Lockland; that at the time a request was made for continuance in such mayor’s court; and that the magistrate made certain remarks which the defendant considered indicated bias and prejudice on the part of such magistrate against the defendant. The defendant filed an affidavit of bias and prejudice in the mayor’s court.

Section 13433-19, General Code, provides :

“When a magistrate or a judge of a court inferior to the Court of Common Pleas is interested in a cause pending before him, or is related to or has a bias or prejudice either for or against a party to such cause or to his counsel, or is otherwise disqualified to sit in such cause, on the filing of an affidavit of such party or his counsel, setting forth the fact of such interest, relationship, bias, prejudice or disqualification, the clerk of such court, or such magistrate, shall enter the filing of such affidavit on the docket in said cause, and, forthwith notify the presiding judge, or the chief justice of the Court of Common Pleas, or if there be no such officer, then a judge of the Court of Common Pleas of such county, who shall proceed without delay to examine into said affidavit, and if he finds from all the evidence that such interest, relationship, bias, prejudice or disqualification exists, he shall designate another magistrate of the township or county, or another judge of said court or the Court of Common Pleas to hear and determine said cause. Thereupon the judge or magistrate so designated shall proceed to try such cause. Such' affidavit must be filed not less than twenty-four hours before the time set for the hearing of said cause, unless such filing be unavoidably prevented.

‘ ‘ This section shall apply to criminal and civil proceedings.”

Pursuant to such provisions, the presiding judge of the Common Pleas Court of Hamilton county seems to have been notified of the filing of such affidavit; in fact an affidavit charging bias and prejudice against Mayor Reed appears among the original papers filed in the Court of Common Pleas. Whether it is the original affidavit filed in the mayor’s court or a copy of same does not appear.

It will be observed, however, that the statute does not provide for the filing of such affidavit'in the Court of Common Pleas, but only that notice of such filing shall be given the presiding judge of the Court of Common Pleas. There appears to be no provision for removing such affidavit from the trial court, the statute merely providing that the Common Pleas judge in question “shall proceed without delay to examine into said affidavit.”

The transcript of docket and journal entries for the Court of Common Pleas indicates procedure based upon an entire misconception of the procedure provided for in the section of the General Code quoted supra. The proceeding in the transcript is designated:

“Court of Common Pleas Hamilton County, Ohio

No. A-91104

“State of Ohio ) Plaintiff ) vs. ) “Thomas Lindsey) Defendant. )

“January Term, 1945. 1/25/45 Appeal from Prank Reed Mayor of Lockland, Ohio Action for Appeal. Pees taxed in costs.”

Now, certainly, this, whatever else it might be, was not an “action for appeal” from the mayor’s court.

•Nor does there appear in the statutes any provision for filing the affidavit or anything else in the Court of Common Pleas. A mere notice to a Common Pleas judge is all that is mentioned. Actions and proceedings in the Common Pleas Court are instituted by a filing with the clerk of that court. The final action provided for in the statute by the judge merely refers to a situation where the “judge” finds bias and prejudice to exist. There is no provision for action where no bias and prejudice is found to exist. Presumably, the justice or trial judge would be notified by the judge of the Court of Common Pleas that no bias or prejudice had been found and trial would proceed in the original court.

The question is: Does the action of the judge of the Court of Common Pleas in his finding that no bias and prejudice existed in the magistrate constitute a judgment or final order of the Court of Common Pleas? If it does not, then this court has no jurisdiction, and there is no appeal on questions of law to this court, and such appeal should be dismissed.

No statute can be considered as increasing the jurisdiction of this court upon appeals upon questions of law from the judgments of the Court of Common Pleas. Eastman v. State, 131 Ohio St., 1, 1 N. E. (2d), 140.

If. the Constitution does not give the court jurisdiction to review the action of the judge of the Court of Common Pleas, this court has no such jurisdiction.

The Constitution limits consideration by this court to judgments (or by interpretation) final orders of courts of record.

Nowhere is there found in the Constitution provision for appeals to this court from the action of an individual jhdge not entering a judgment or final order of the Court of Common Pleas.

It is claimed, however, that the action of the Common Pleas judge in the instant matter is the action of the Court of Common Pleas. The case of Duncan, Supervising Judge, v. State, ex rel. Brown, 82 Ohio St., 351, 92 N. E., 481, is cited in support of that contention. That was a case where the. relator had filed an affidavit of bias and prejudice in the 'Court of Common Pleas of Wyandot .county, charging that the judge assigned to try her case was influenced by bias and prejudice, and, therefore, disqualified to sit and hear and determine her case. The affidavit was duly filed and the defendant, supervising judge, refusing to assign another judge, an action in mandamus was filed in the Circuit Court of Hancock county. The relator having stated her case, the defendant filed an answer alleging the affidavits were insufficient in law, that-the defendant had a discretion to disqualify the trial judge, which discretion he had exercised, that he found no bias and prejudice after full hearing, and that the statute providing for assignment was unconstitutional. The demurrer of the relator to the answer of the supervising judge was sustained and a writ of mandamus issued. The finding of the Supreme Court is found in the syllabus:

“The affidavit setting forth the fact of disqualification of a judge, as provided in Section 550, Revised Statutes, is not conclusive proof of the disqualification, and the supervising judge is, by said section and Section 469, Revised Statutes, invested with a judicial discretion to require additional information satisfactory to him, regarding such disqualification.”

And at page 356 of the opinion, the court says:

‘ ‘ Section four hundred and sixty-nine provides that when the supervising judge receives ‘satisfactory information’ that by reason of illness or ‘other disability’ a common pleas judge is unable to perform his duty, he shall assign another judge for that duty. Now taking these two sections together, it is clear that two things must concur before the supervising judge is authorized to appoint another judge: first, the actual fact of interest, relationship, bias or prejudice, or other disqualification must exist and, second, he must have satisfactory information of that fact. That is, the information which authorizes the supervising judge to designate another judge, must be of such a nature as to satisfy him that the disqualification really exists and is Hot a subterfuge. The affidavit is, at best, no more than prima facie evidence of the fact. The supervising judge may accept it and act upon it if he chooses to do so; but if, for any reason, he feels that further evidence of the disqualification is desirable, it is not only his privilege but his duty to require it..He is therefore invested with a judicial discretion which cannot be controlled by a writ of mandamus.

“We adopt this construction of the statute the more readily, because, if the affidavit be taken as final and conclusive, it would raise a more serious question as to whether the Legislature has overstepped constitutional limits, and it cannot be lightly assumed that it intended to do so.”

Certainly, nowhere in the opinion or syllabus is there anything to support the contention of the defendant in the mayor’s court.

The case of State, ex rel. Hogan, v. Hunt, 84 Ohio St., 143, 95 N. E., 666, has also been read with the result that the' opinion and syllabus are authority for the proposition that the position of the “supervising judge” of the Common Pleas Court is not an office separate and apart from that of judge of the Common Pleas Court and, therefore, is not subject to attack by quo warranto. In the opinion, however, it isolated at page 148 thereof:

“In giving construction to the statute it must be borne in mind that the policy of this state, as shown by its general legislation under the present constitution, while it has in a few instances imposed additional ministerial' duties on judges of the court of common pleas, has been not to impose the burden of making appointments to office upon such judges.”

In State, ex rel. Hawke, v. LeBlond, 108 Ohio St., 126, 140 N. E., 510, the first paragraph of the syllabus is:

“In any county in Ohio, where more than 'one judge of the Court of Common Pleas holds office, the ‘Court of Common Pleas’ of such county may be constituted by one or more of the common pleas judges holding office in that county, and the judges so holding pffice have unlimited discretion to determine the number of judges who shall preside over any session of such court. ’ ’

In the opinion by Marshall, C. J., it is stated at page 132:

“It cannot be doubted that by these statutes the Ohio Legislature has recognized the distinction between courts and judges. It is apparent, however, that no artificial or unusual distinctions are made, but, on the contrary, they are in perfect harmony with the distinctions recognized throughout English and American jurisprudence.

“The court is a tribunal organized for the purpose of administering justice, while the judge is the officer who presides over that tribunal:

‘‘The terms ‘court’ and ‘judge’ are sometimes used interchangeably and synonymously, but they are never technically the same in meaning.

“A court is an incorporeal, political being, composed of one or-more judges, who sit at fixed times and places, attended by proper officers, pursuant to lawful authority, for the administration of justice. It is only when a court is in session thus regularly constituted that it may lawfully perform its fixed and permanent functions, and it is in this sense that the term ‘court of common pleas’ is used in Section 1707, General Code. On the other hand, by the provisions of Section 11869, General Code, and other sections, the Legislature under authority of Sections 4 and 18, Article IV of the Constitution, has conferred upon ‘judges,’ as well as courts, certain power and authority in provisional matters, but by reference to those statutes it will be found that they are of a temporary and emergent nature, which may not always await the fixed, open session of the court.

“All the sections referred to, conferring authority upon a ‘judge,’ will be found to relate to provisional remedies to permit action of an emergent nature at times when the court is not in session.”

Section 120, General Code, in dealing with the appointment of notaries public, provides:

“Before the appointment is made, the applicant shall produce to the governor a certificate from a judge of the Common Pleas Court, Court of Appeals, or Supreme Court, that he is of good moral character, a citizen of the county in which he resides, and if it be the fact that applicant is an attorney-at-law duly qualified and admitted to practice in this state, and possessed of sufficient qualifications and ability to discharge the duties of the office of notary public. No judge shall issue such certificate until he is satisfied from his personal knowledge that the applicant possesses. the qualifications necessary to a proper discharge of the duties of the office, or until the applicant has passed an examination under such rules and regulations as the judge may prescribe. If the applicant is admitted to the practice of law in this state, this fact shall also bo certified by the judge in his certification. ’ ’

' Could it be seriously contended that the certificate provided for, signed by a judge of the Court of Common Pleas, was a judgment or final order of that court; or, if the certificate be signed by a judge of the Court of Appeals, that such certification constituted an official act of the court?

Section 11194, General Code, provides that a judge of the Court of Common Pleas may issue a marriage license to the probate judge of the county. Is this a judgment of the Court of Common Pleas?

In Section 1558-45, General Code, the character of a judge of the. Municipal Court of Cincinnati, when acting as a part of that court and individually performing extraordinary duties is set forth:

“Any judge of the Municipal Court of Cincinnati, including the presiding judge, shall have power to exercise the jurisdiction and authority vested in said Municipal Court of Cincinnati, and shall also have jurisdiction and authority to administer all oaths or affirmations authorized or required by law to be administered; to take the acknowledgments of deeds, mortgages and other instruments of writing; and to solemnize marriages. All fees for administering oaths and affirmations, taking acknowledgments, and" for solemnizing marriages, earned by any municipal court judge by virtue of this section, when not connected with any cause or proceeding pending in the Municipal Court, shall be collected by and belong to the judge so earning said fees.”

It can not be again supposed that when such judge takes the acknowledgment to a deed or solemnizes a marriage he is thereby entering any final judgment of the Municipal Court of Cincinnati.

Sections 1526 to 1528, inclusive, General Code, provide that the Chief Justice of the Court of Appeals may assign a judge of that court to a district other than his own when an application is made either by a judge of the Court of Appeals, to be relieved'from duty, or by a Court of Appeals for the assignment of a judge or judges to their district. Could the action of the Chief Justice of the Court of Appeals be considered a final order of his own court or any other court?

Section 1527, General Code, provides for hearing by the Chief Justice of the Supreme Court of charges of bias and prejudice, after the filing of affidavits of bias and prejudice in the Court of Appeals against a judge thereof. Again, can such action be considered a final order or judgment of the Supreme Court of Ohio? That section differs from Section 13433-19, General Code, in that it provides that the decision of the Chief Justice shall be entered upon the journal of the Court of Appeals. Does this provision mate the decision of the Chief Justice an act, final order, or judgment even of that Court of Appeals?

The statute here in question provides for an inquisition into the attitude of the magistrate by a judge of the-Common Pleas Court; Primarily such duty rests upon the presiding judge or Chief Justice of such court. If there be no such judge so qualified, then, secondarily, upon a judge of the Common Pleas Court.

It seems manifest that from such provisions it was intended to impose upon such judge a duty in addition to those incumbent upon him by reason of his membership in the Court of Common Pleas. Such duty, while judicial in character, is distinct and separate from the duties of such judge while presiding over the court. In this latter character, he is an integral part of the court. In the former capacity, he acts merely as an inquisitor into the conduct and attitude of the magistrate.

Nowhere in the Constitution or statutes appears any provision for an appeal to this court from the final action of the judge of the Court of Common Pleas upon the affidavit charging bias and prejudice.

The judge of the Court of Common Pleas is only required to act. When he does so, his conclusion is final. That conclusion is not and cannot be characterized as a final order or judgment of the Court of Common Pleas.

The appeal in the instant case is dismissed for the reasons given.

Appeal dismissed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the .syllabus, opinion and judgment.


text:
    The State of Ohio, Appellee, v. Simonian, Appellant. (Two eases.)
    (Nos. 6568 and 6569
    Decided November 13, 1945.)

      Mr. Robert J. Paul, Mr. Harry Meier and Mr. Ralph E. Gors, for appellee.

      Mr. 'William F. HopMns, for appellant.
   Ross, J.

These cases were heard together, being appeals upon questions of law from the judgments of the Municipal Court of Cincinnati. The facts involved are the same in each case, except that two separate offenses involving separate gambling devices or machines were involved. The trials in the Municipal Court resulted in convictions and sentences, from which these appeals are taken. Both prosecutions were predicated on affidavits charging specifically violations of Section 13066, General Code, in that it is stated that the defendant did “unlawfully, knowingly, wilfully keep, and exhibit for gain a certain gaming device, commonly known as ‘Pin-Ball’ called ‘5-10-20,’ in one case and ‘Arizona’ in the other.”

From the bill of exceptions it appears that the defendant was a cook employed in a cafe known as Yacht Club, by one Lincoln Rice (sometimes referred to as Jack). The defendant among other duties was required to “pay off” the machines in question, when players thereon succeeded in manipulating the same in such a manner as to cause them to register winning signals (hits). Police officers entered the cafe, operated the machines, and were paid off by the defendant for their winnings or “hits.” The nickels used in paying off such winners were kept in a glass bowl, from which the defendant secured the nickels; all of this she did under direct instructions from her employer. The machines were' introduced in evidence and have been brought before the court. They consist of rectangular boxes supported by legs, slightly longer in the rear than in the front, thus causing a slight fall in the box from the back to front.

The machines áre operated partly by electricity and partly mechanically. Upon inserting a coin, five steel balls are released into a pocket from which the player may cause them severally to enter a groove. By pulling back a plunger which is controlled by a spring;' and releasing the same, the steel ball being thus struck by the plunger is projected up the groove, and by force of gravity, or the force of impact with the rear wall of the box, caused to roll down toward the front of the box. A number of plugs or knobs are placed at various intervals in the box and the ball as it rolls down the box may strike any number of these plugs or knobs, causing an electrical contact. The action of the steel ball is affected to a certain extent by the distance to which the plunger is withdrawn. However, the element of chance is also present. 3

The score of the player is affected by the number of plugs or knobs which the ball contacts in its path from the back to the front of the box. By electrical connections, certain numerals are illuminated upon a panel rising from the rear of the bos, showing the extent of the player’s score. Premiums are paid for certain totals or “hits” caused by the operation of the steel balls coming in contact with the plugs or knobs. The player is.able to “shoot” five balls and is entitled to the total score produced by their use.

It is admitted that the machines are gaming devices and were operated, kept and exhibited by the defendant.

The sole defense urged is that neither she nor her employer made any personal profit from the operation of the machines, but, on the contrary, that her employer gave all profit from same to a charitable institution. The evidence upon this point is that the proprietor of the cafe, Lincoln Rice, leased the machines from one Ray Bigner, who called from time to time and withdrew the coins deposited by players therein; and that the owner would take 50 per cent of such deposits as his rent for the use of the machines. Rice then deducted from his half of the deposits, amounts paid out to players as premiums, the differences being set aside until he had accumulated the sum of $50, when such sum was paid to Bigner, who sent a check to the charity designated by Rice. In the bill of exceptions it is stated:

“Q. [By Mr. Hopkins] What was your-arrangement? In other words, what were you to get for rent? A. Take 50 per cent of the gross amount of money that was in the machine.

“Q. How often would-you settle with Mr. Rice? A. Every week.

“Q. Every week. Directing your attention to on or about November 14, 1944, did you have a conversation with Mr. Rice ? A. I did.

“Q. And as a result of that conversation, did you send a check any place? A. I sent a check to the United State — Jack gave me $50 and asked me to send a check in to the Veterans.

“Mr. Meier: I will object to that testimony and ask it be stricken from the record.

“The Court: Overruled.

“Mr. Meier: Exception.

“Q. [By Mr. Hopkins] Bid you give him a receipt? A. I think I scribbled out a receipt on a piece of paper. ’ ’

There is no evidence in the record that the defendant received anything directly from the operation of such gaming devices. The sole revenue received by her for services in the cafe was from her employer, in the shape of wages. The services rendered by the defendant in connection with the operation of the machines were purely incidental to her main occupation as cook in the cafe. The defendant testified:

“Q. As part of your employment, do you handle payoffs of this machine? A. No, my job is cooking.

“Q. You would pay off on this machine — you did on this particular day? A. Yes, I was instructed by Mr.' Rice to do that.

“Q. You were instructed to do that by your employer? A. That’s right.

“Q. And you are paid for that as being part of your employment? A. No.”

Rice testified:

“Q. Miss Simonian, the defendant in these cases, is an employee of yours? A. That’s right.

“Q. How much do you pay her? A. Thirty dollars a week.

“Q. And what are her duties? A. Well, she cooks, that’s her jo'b.

“Q. And were you present the day the detectives came in and were paid off, and arrested Miss Simonian? A. Yes, sir.

“Q. And you saw her pay off these detectives? A. No, sir, I did not.

“Q. Isn’t that part of her regular work when — A. It is not her regular work, but I was upstairs.

“Q. She does it quite frequently? A. I couldn’t say who pays them off.

“Q. You are the owner of that place; why don’t you know? A. Well, probably that this—

“The Court: They are all authorized to pay off?

“The witness: Yes, sir.

“Q. [By Mr. Meier] All of your employees are authorized to pay off on these machines? A. That’s right.

“Q. And that includes Miss Simonian and she receives $30.a week? A. That’s right.”

It may be seriously doubted whether the evidence shows that the defendant kept and exhibited these gaming devices for her own gain. Unless the sole defense interposed by the defendant is valid, there can be no doubt that they were operated for the gain of her employer. As the statute in question, Section 13066, General Code, does not limit a violation to operation or exhibiting for personal gain and as no point is made of this by the defendant, it will not be considered further except in connection with the defense relied upon by defendant.

The sole defense set up by the defendant is that the machines were not operated for the gain or profit of the owner of the cafe, Rice, because he donated any such profit to a charitable institution, and, therefore, by reference to the provisions of Section 13064, General Code, the defendant is excused from any liability.

Before discussing that defense as stated by the defendant, other considerations are worthy of comment. In the first place, Rice did not keep and exhibit such machines under any notice thereon or in his establishment indicating that they were operated for the benefit of anyone bnt himself. In the next place, when the lessor settled with him, one-half of the deposits of coins made by customers became his own individual property. What he did with such .sum or any part thereof was his own personal affair. He could keep it all or donate it to charity or give it to another. Because he made a contribution to charity which was the exact equivalent of his profit from the operation of the machine, he claims the machines were not operated for his “own profit.” In view of the fact that his share of the contents of the box came into his possession, and especially remained so until he had accumulated $50, it may be seriously doubted whether his contention may be sustained, that such machines were not operated for his own profit. It may be noted also incidentally that in Section 13064, General Code, the word charity is not used and it is apparent that all that would be necessary is that under that section the lottery or scheme of chance shall not be conducted for the profit of him who promotes the same.

Upon this phase of the case, therefore, the contention of the defendant would lead to this conclusion, that if one who is otherwise guilty of a violation of Section 13066, General Code, donates or gives to some other an amount equivalent to the profits obtained from the operation of a gaming device, he can not be considered guilty under such section by reason of the 1943 amendment of Section 13064, General Code.

Aside from such considerations, however, it is apparent from an examination of Sections 13064 and 13066, General Code, that they are not in pari materia; that their historical development shows they are distinct and separate; and that the implications applicable to Section 13064, General Code, whatever they may be, cannot be applied or considered in connection with a prosecution under Section 13066, General Code.

Section 13064, General Code, as amended, and effective September 21, 1943, provides:

“Whoever, for. his own profit, establishes, opens, sets on foot, carries on, promotes, makes, draws or acts as ‘backer’ or ‘vendor’ for or on account of a lottery or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid or . carried on within or without this state, or by any of such means, sells or exposes for sale anything of value, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than six months.”

Section 13066, General Code, which was in force in its present form at the time when Section 13064, General Code, was amended, provides:

“Whoever keeps or exhibits‘for gain or to win or gain money or other property, a gambling t#ble, or faro or keno bank, or a gambling device or machine, or keeps or exhibits a billiard table for the purpose of gambling or allows it to be so used, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behavior for one year. ’ ’

Specifically, the claim of the defendant is, then, that because of the use of the words in Section 13064, General Code, “his own profit,” one does not violate the provisions of Section 13064, General Code, when he uses the profits from the transactions therein prohibited for the benefit of charity, and that Section 13066, General Code, being in existence at the time of the amendment, by which the Legislature inserted such words in Section 13064, General Code, that section too (Section 13066, General Code) is modified also to the extent that one who keeps and exhibits a gaming device for the benefit of charity is not guilty of violating the provisions of such Section 13066, General Code.

In other words, one may not be found guilty under either section, when the profits received from the transactions or acts therein described are used for charity.

Those two sections deal with two entirely different subjects which will be shown to have been, until recently, completely isolated from each other.

Section 13064, General Code, as amended, deals with a “lottery or scheme of chance.” Section 13066, General Code, deals with “a gaming table, or faro or keno bank, or a gambling device or machine” or a' “billiard table for the purpose of gambling.”

Reference to the Ordinance of 1787, passed by the then Congress, for the government of the territory of the United States northwest of the river Ohio, will show no mention either of lotteries or any form of gambling.

However, by a law passed by the Governor and Judges of the Northwest Territory at. Vincennes, August 4,1790, in Section 1, “any species of gaming, play or pastime whatever” whereby money may be won or lost was prohibited. In Section 2 the use of billiard tables, faro, E. O. hazard, “or other gaming tables, or any other machine” for gambling was prohibited. See 1 Chase’s Statutes, 105.

By law promulgated by such Governor and Judges, “adopted from the Statutes of Virginia — Published July 16, 1795 — to take effect October 1, 1795” by Section 3 thereof — tavern keepers and inn holders were prohibited from permitting “cards, dice, billiards, or any instrument of gaming to be made use of” on the premises operated by them as such tavern or inn. 1 Chase’s Statutes, 199.

In 1802 the first Constitution of Ohio was adopted. Nowhere in that instrument is there direct reference to lottery or gambling.' It is apparent, however, that it was not long until lotteries were recognized as lawful by both general and local or special acts of the Legislature of Ohio.

By an act of the Legislature passed on January 30, 1807, it was made an offense to conduct a lottery “without a special act of the legislature.” 5 Ohio Laws (1806), 91. See 1 Chase’s Statutes, 559.

Previous to this, on February 14, 1805, the ,Legislature had passed an act making various forms of garni bling illegal. See 1 Chase’s Statutes, 503.

On January 27, 1807, the Ohio Legislature passed “an act for raising by way of lottery money to repair and secure the bank of the Scioto on which the town of Chillicothe is built.” 5 Ohio Laws (1806), 89. ’On January 28, 1807, this act was amended. 5 Ohio Laws (1806), 105.

On January 31, 1807, the Ohio Legislature passed “an act for raising, by way of lottery, money to build a bridge across the mouth of the Muskingum river.” 5 Ohio Laws (1806), 110.

On February 3, 1807, the Legislature of Ohio passed “an act to raise money, by way of lottery, to improve the navigation of the Cuyahoga and Muskingum rivers.” 5 Ohio Laws (1806), 74.

On February 17,1808, the act providing for a lottery to repair and secure the Scioto river was again amended. 6 Ohio Laws (1807), 97.

On February 20, 1808, the act to provide for a lottery to pay for the bridge across the Muskingum river was amended. It is interesting to note that by this amendment it was provided that the original act “shall be good and valid as it respects the purposes therein mentioned to all intents as though no such omission had taken place, and all the acts and doings of the managers therein apxaointed are hereby ratified and confirmed. ” 6 Ohio Laws (1807), 374.

On January 4, 1811, the act to provide a lottery to raise funds to improve navigation on the Cuyahoga and Muskingum rivers was amended. 9 Ohio Laws (1810), 9.

On January 14, 1812, the act providing for a lottery for the purpose of raising funds to improve the Scioto river was again amended. 10 Ohio Laws (1811), 32. .

On February 20,1812, the Cuyahoga and Muskingum rivers act was again amended. 10 Ohio Laws (1811), 124.

On J anuary 28, 1813, by act of the Ohio Legislature, lottery tickets were made negotiable, and authority given to sue for sums paid for tickets when the lottery was not completed. 11 Ohio Laws (1812), 50.

By an act of the Legislature, passed on January 4, 1814, various forms of gambling and the use of gaming tables were prohibited. 2 Chase’s Statutes, 824.

On February 2, 1824, the Legislature by special act provided for a lottery for $25,000, proceeds thereof to be used by one Oliver Ormsby to replace a steam mill destroyed by fire in the city of Cincinnati. 22 Local Laws (1823), 27.

On January 16, 1828, by special act, a lottery was provided to rebuild a woolen factory in Lancaster, Fairfield county, for the benefit of one Elisha Barret. 26 Local Laws (1827), 52.

But, on February 22,1830, the Ohio Legislature prohibited in language substantially the same as that used in Section 13064, General Code, the further use of lotteries or schemes of chance for any purpose.

That inhibition was carried into the Constitution of 1851 by a provision — -“Lotteries, and the sale of lottery tickets, for any purpose whatever, shall forever be prohibited in this state.” Section 6, Article XY, Constitution of 1851.

It will be seen, therefore, that up to this time (1830-1851) while such forms of gaming or gambling as are mentioned in Section 13066, General Code, were the subject of constant and repeated legislation, providing punishment for indulgence therein and prosecutions proceeded thereunder, the public policy of the state included approval of lotteries and schemes of chance .enterprises now covered by Section 13064, General Code. It is interesting also to note that when the people of the state adopted the Constitution of 1851, nothing therein was said of gaming or gambling as such, or in the amendments to that Constitution later adopted. The prohibition of the Constitution is against lotteries and the sale of lottery tickets only.

The adverse attitude of the Legislatures, even before the creation of the state, toward the employment of gambling machines or devices was so pronounced, and their use so adverse to the policy of the state, that it apparently was thought unnecessary to write any prohibition thereof into the Constitution. It was only because the Legislatures had seen fit to employ the scheme of a lottery for public and private purposes that the people considered it necessary to prohibit lotteries in the Constitution.

In this connection it may be noted that the constitutional provision, while it prohibits lotteries and the sale of tickets, is not self-executing insofar as violation of such provision may be the subject of a criminal prosecution. No penalty for such violation is provided for in the Constitution. It is left to the Legislature to impose a penalty or not as it sees fit. Of course this privilege also applies to the forms of gambling long prohibited only by statute.

In the case of Section 13064, General Code, therefore, since the Legislature has provided no penalty for one who conducts a lottery or scheme of chance, where such lottery or scheme is not conducted for such person’s “own profit,” although the constitutional prohibition still remains, it is obvious that no criminal prosecution may be predicated upon such conduct, under such circumstances.

An examination of the various compilations of the statutes from such time (1830-1851) until the first publication of the General Code of Ohio, will show that* the offense of conducting a lottery or scheme of chance was included usually under the title of “Crimes and Misdemeanors — Second Class,” or a separate chapter devoted to lotteries and schemes of chance, and that offenses predicated upon the various forms of gambling covered by Section 13066, General Code, were found in other chapters usually designated “Gaming” or “Gambling.” A distinct line of cleavage was recognized between the conduct of a lottery and forms of gambling including those mentioned in Section 13066, General Code. 3 Chase’s Statutes, pages 1656 and 1878. Swan’s Statutes (1841), page 248, Section 90, XLIY (Lotteries); page 426, Chapter 54 (Gambling). Swan’s Revised'Statutes (1854), page 292, Section 141 (Lotteries); page 437, Chapter 51 (Gambling). Curwen’s Laws of Ohio (1854), page 199, Section 44 (Lotteries); page 307, Section 1 et seq. (Gambling). Sayler’s Statutes (1876), page 2944, Section 1 (Lotteries); page 3021, Section 1 (Gambling). Revised Statutes of 1880, Section 6929, sub-heading “Lotteries”; Section 6932 et seq., sub-heading “Gaming and Betting.” Bates’ Annotated Ohio Statutes 1897, under General Title ‘ Offenses Against Public Policy,” Section 6929, sub-heading “Lotteries”; Section 6932, sub-heading “Gaming and Betting.”

In the General Code of Ohio, 1910, under general chapter “Gambling,” appears Section 13064, Promoting schemes of chance; Section 13066, Exhibiting gaming device for gain. Here, for the first time, the several offenses appear grouped together under a common title, without separation of any kind, as they now appear in the General Code.

Another consideration separating these two sections is worthy of comment.

In Stevens v. Cincinnati Times-Star Co., 72 Ohio St., 112, at page 147 et seq. of the opinion, 73 N. E., 1058, 106 Am. St. Rep., 586, lottery is defined. It is apparent from this and other definitions that a lottery or even.a scheme of chance, at least usually, involves participation by the public or a number of persons. On the contrary, the devices or machines mentioned in Section 13066, General Code, are usually operated by one person who pits the result of his skill or luck against the keeper or exhibitor of the device. In the case of a lottery, it is a question of one or more persons succeeding in possessing the winning “lot,” while in the case of a gaming device it is a question, at least usually, of personal participation only. Lottery or the practice of “casting lots’-’ is of ancient origin. “They parted my raiment among them and for my vesture they did cast lots.”

Prom what has been said, therefore, it appears that Section 13064, General Code, and Section 13066, General Code, have distinct historical backgrounds, which, although such sections are now' found in. close proximity, associated under the common title of “Gambling,” wmuld clearly indicate that they are still to be disassociated and that unless provision as to one section is by specific language applied to the other, a modification of one has no effect upon the other. Hence, the contention of the defendant cannot be' maintained, and it is immaterial whether a violation of the prohibitions in Section 13066, G-eneral Code, exists for the benefit, profit, or gain of the exhibitor of the gaming device, or for some person or persons other than himself, and even though such latter benefit may be considered of a charitable nature.

The judgments of the Municipal Court of Cincinnati are affirmed.

Judgments affirmed.

Hiloebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.