text:
    PROSECUTION FOR NUISANCE.
    [Circuit Court of Cuyahoga County.]
    E. C. Terry v. State.
    Decided, June, 1902.

      Nuisance — Manager of a Business from Which Nuisance Eminates May he Prosecuted Therefor — Creating and Maintaining a Nuisance —Not Affected hy Section 6920, Relating to Continuance of Nuisance — Evidence as to Nuisance Existing Prior to the Time Charged —Motion to Strike Evidence from Stenographer's Notes — Right of and Demand for Trial hy Jury.

    1. It is not error to deny a trial by jury to one accused of maintaining a common nuisance.
    2. Where such nuisance results from the carrying on of a business, the manager of the business will be prosecuted therefor notwithstanding he has no ownership therein.
    3. Section 6921, relating to the continuation of a nuisance after the prosecution therefor has been begun does not apply to a prosecution for creating and maintaining a nuisance, when the offense charged is not an additional offense.
    4. Evidence in support of such a prosecution is inadmissible where it relates to the existence of the nuisance at times other than that charged in the information; but it is not prejudicial error to refuse to strike out the testimony of a witness who stated that she had been sick and that the odors complained of were the cause of her sickness, where from other and competent evidence the court might well have come to the conclusion reached below.
    5. Where a triai is to the court without a jury, it will be presumed that no evidence was considered that was not competent, and a motion therefor will not lie to strike evidence from the notes of the stenographer.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on error.
   The plaintiff in error was put upon trial and was convicted in the police court upon an information charging him with maintaining a common nuisance in the city of Cleveland from April 9, 1900, continuously to and including April 14, 1900, by carrying on the business in a certain building in said city, of heating and drying damp, wet and sour malt, thereby producing noisome and offensive smells, which were injurious to the health and comfort of residents of the neighborhood in which such business was conducted.

On behalf of the plaintiff in error it is urged that there was error on the part of the trial court in that the demand of the accused for a trial by jury was denied.

The record shows that before any such demand was made the accused objected to the introduction of any evidence, and that such objection was overruled. Then followed the demand for a trial by jury. Though it was urged on the part of the state that this demand came too late because it was preceded bby an objection to the introduction of any evidence, we are not prepared to hold that the demand was not made in time, but we do hold that there was no error in refusing a jury trial.

The constitutional provision that “the right of trial by jury shall remain inviolate, ’ ’ has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the Constitution.

In the case of Inwood v. State, 42 Ohio St., 186, there is a very full discussion in an opinion by Judge Mcllvaine of the question now being considered, and, under the authority of that case and the cases there cited, we hold that the rights of the accused were not violated by the refusal to give him a jury trial.

It is further urged that the evidence wholly failed to establish the charge: (1) Because it is said that the accused was not the proprietor of, nor had he. any interest in, the business which was being carried on at the place charged, and which is said to have caused the nuisance complained of. On this subject Terry himself testified that the business was being carried on by the Cleveland Grain Drying Company; that he had no interest in the business, but that he was an employe. On cross--examination, after he had testified that he was an employe, he was asked this question: “In what capacity?” To which he answered, “Tending to the business of the mill there.”

Question. “Manager or superintendent?” Answer. “I have no superintendency; I merely receive so much salary a week.”

Question. “Manager?” Answer. “Yes, I suppose so.”

From this and the other evidence in the ease, it is clear that the accused was the party who managed the business for the proprietor, and if, in so managing the business the nuisance was created, we hold that he could not escape by reason of his having no ownership in the business.

Section 6921, Revised Statutes, provides that:

“Whoever erects, continues, uses or maintains any building, structure or place for the exercise of any trade, employment or business, or for the keeping or feeding of any animal, which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or the public * * * shall be fined not more than five hundred dollars.”

To hold that where a business is so conducted as to make the proprietors of such business guilty under this statute, that the man who manages the business has charge of it and directs how it shall be carried on, is not guilty, would be to hold that one may create and maintain a nuisance without responsibility on his part, provided only that in so doing he is only the employe of somebody else. This does not accord with our understanding of the law.

It is further urged, however, that the evidence did not justify the finding, because it it said that to do so, it must have been shown that the nuisance continued for a period of not less than five days. Section 6920, Revised Statutes, on this same subject provides that:

“The continuance of any nuisance for five days after prosecution commenced therefor shall be deemed an additional offense.”

A claim seems to be made on the part of the plaintiff in error that this prosecution is affected by this last mentioned section; but we find nothing in the record to show that there had been a prior prosecution, nor that this was charged as “an additional, offense.” Nor do we find from the reading of the statute, or from any authority to which our attention has been called or which has come under our notice, that a continuance for five days of such nuisance is necessary in order to warrant a conviction, and the claim of the plaintiff in error in this regard is not well taken.

It is further urged that the evidence fails to show that the business of which the accused was the manager produced “noisome and offensive smells” to the prejudice of the neighborhood or the public. The evidence in this regard is conflicting. Many of the witnesses testify that on some of the days between the ninth and fourteenth of April, 1900, the stench from this establishment was exceedingly offensive, and that it affected the atmosphere for a long distance from the place of business; and some of the witnesses testify that during this entire period charged in the information the smells coming from .this establishment were in the highest degree offensive. True, others testify that the odors were much less offensive than the witnesses introduced on the part of the prosecution described them to be, but this was a matter for the trial court to determine under all the evidence, and we are not surprised at the conclusion reached, and can not disturb the finding in this regard.

Complaint is further made upon the exclusion by the trial court of evidence offered by the accused. This consists chiefly in the exclusion of evidence as to the existence of these offensive odors at times other than that charged in the information. We find no error in the exclusion of such evidence, nor in any of the rulings of the court upon questions of evidence, which would justify a reversal of the judgment.

As to the exclusion of evidence of the condition at times other than as charged in the information, counsel for the accused stated that he expected to prove that the conditions were' exactly the same at such times as they were between the ninth and the fourteenth of April, but- that would only be to show in a roundabout way what could as well be shown, if there were witnesses who knew, that the conditions were such between the ninth and fourteenth, of April as that the offensive odors could not have been, or, in any event, were not produced.

Perhaps the rulings of the court during the testimony of Mary Phinnin, a witness on the part of the prosecution, are as objectionable to the plaintiff in error as any which were made during the trial. This witness testified that she had been sick about the time that the offense' is charged to have been committed. She was then asked by the prosecuting attorney this question:

J. O. Winship, for plaintiff in error.

Police Prosecutor, for defendant in error.

“Were you sick between the ninth day of April this year and the fourteenth day of April?” (This being the time charged in the information).

This question was objected to by the accused; the objection was overruled, and the witness answered, “Yes.” Then this question was asked:

“What kind of sickness did you have?”

This was objected to, the objection overruled, and an exception taken by the accused, and the witness answered:

‘ ‘ Sick at the stomach on account of the stink that comes from the mill — stomach trouble.”

A motion was made to strike out this last answer. This motion is a little indefinite, because to merely strike out from the stenographer’s notes testimony which has already gone to the trial court or the jury would not result in taking such testimony from the court or the jury. The law does not contemplate that either court or jury read what is written by the stenographer before passing upon the ease. But this is a common form and, of course, meant that the court should not consider this evidence. The trial being to the court, it is to be presumed that no evidence was considered which was not competent. We are not prepared to say that it was not competent to show' that this witness was sick (she lived in the immediate neighborhood-of the establishment of which the accused was the manager) during the period covered in the information. We are not, however, prepared to say that it was competent for her to give the cause of such sickness, but we think no prejudice could have resulted to the accused by the failure of the court to grant the motion to eliminate the answer. From the evidence, which was clearly competent, the court might well have come to the conclusion at which it arrived in the case.

The judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DOWER.
    [Circuit Court of Hamilton County.]
    William Gildehaus et al v. Fidelity Building & Savings Co. et al.
    Decided, December 24, 1902.

      Dower Interest — May Be Subjected to Payment of Debt, Though XJnasssigned — Findings of Fact not Subject to Review, When — Section 5464.
    1. The dower interest of a judgment debtor may, under Section 5464, be subjected to the payment of his debts, although not yet assigned.
    2. Findings of fact and conclusions of law- not made a part of the record by journal entry can not be considered on review.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.

      Henry J. Harrop, for plaintiff in error.

      John Coffey, J. M. Dawson and E. M. Garrison, contra.
   The answer and cross-petition and supplemental answer and cross-petition of Henry Frese set up two judgments in favor of Frese and a right to subject the dower interest of the judgment debtor to the payment thereof. While it is true that he alleges in the supplemental answer and cross-petition that a levy had been made upon the dower interest, and the same sold in another action, yet he does not ask or seek to confirm that sale, but prays that the dower interest may be subjected to the payment of his debt under Section 5464, Revised Statutes. This may be done, although the dower has not yet been assigned. Boltz v. Stolz, 41 Ohio St., 540.

The other questions presented can be determined only by the facts in the case. The court at the request of plaintiff in error made separate findings of fact and conclusions of law, but the same were not made a part of the record by journal entry' or otherwise, and hence can not be considered.

Judgment affirmed.


text:
    THE OHIO RULE AS TO CONTRIBUTORY NEGLIGENCE.
    [Circuit Court of Ashtabula County.]
    L. S. & M. S. Railway Co. v. Albert E. Harris, as Adm’r of Cora E. Harris.
    Decided, October 18, 1901.

      Negligence — Contributory Negligence Defeats Recovery — Notwithstanding Negligence of Defendant.

    1. Failure by the exercise of ordinary care to discover the peril of one who was thereby injured, or failure to use ordinary precautions for preventing the accident, do not create liability, where the one injured was himself guilty of negligence in placing himself in the perilous position.
    2. Where one approaches a railroad track at a point where a train could be seen for a great distance, and without looking steps upon the track and is struck by a train and killed, there is no liability on the part of the railroad company, notwithstanding the failure of the engineer to give the statutory signals. Railway Company v. Schade, 15 C. C., 424, not followed.
    Laubie, J.; Burrows, J., and Cook, J., concur.
   This is a proceeding to reverse a judgment of the court of common pleas rendered in favor of defendant in error for the claimed wrongful killing of the decedent by the plaintiff in error.

It appears from the evidence in the case that the decedent, Cora E. Harris, went to the depot of the company at Geneva for the purpose of taking east-bound train, No. 28. On arriving there before the train was due, she passed over the tracks and grounds of the company to the Knapp & Pratt Manufacturing Company’s plant, located north of the tracks, to see her husband, the present administrator, the depot being on the south. There were two main tracks, the west-bound track being the one next to the depot, as the trains of that road run on the left-hand track. Adjoining that on the north and in close proximity was the east-bound track; adjoining that and in close proximity, was a side-track, and then about forty feet north of that was one or more other side-tracks. It seems that there was a way or footpath there, used by the company’s employes in going from the passenger station across to the north side of these tracks to the freight depot. It was also in evidence that there was a path used by the public and by the employes of this manufacturing company without objection on part of the railway company, that ran from a point opposite the center of the station platform to that company’s plant in a slightly northeasterly direction, but not visible across the railway tracks. Mrs. Harris came back on this latter path from the Knapp & Pratt Manufacturing plant toward the passenger station and was struck by train No. 23, which was running west over the south track, and was thrown onto the station platform, dead. This was a fast train that did not stop at Geneva.

It seems there was a street called “North Broadway,” which intersected the tracks east of the passenger station. The distance from the passenger station to North Broadway was definitely fixed by the husband of the decedent, the plaintiff administrator, who testified that he counted the rails from North Broadway to the passenger depot, and there were seventeen rails; and it was shown that the rails were thirty feet in length. So the distance was over five hundred feet instead of two* hundred and fifty, as alleged in the petition.

Exception was taken to the charge of the court in regard to this crossing, which charge is as follows:

“It is claimed that the decedent’s death was caused by the negligence of the defendant.
“First, by running of train No. 23, at a high and dangerous rate of speed near to the depot and over a crossing used by the public in crossing its tracks to certain buildings or shops located upon the opposite side of said depot, and its failure to give notice or warning by sounding its whistle at not less than eighty • or more than a hundred rods before reaching North Broadway, a public highway, located east of the depot, and in not ringing its bell until it had passed over said North Broadway crossing. * * *
“And we say to you, gentlemen, as a matter of law, it was the duty of the railway company to sound its whistle not less than eighty nor more than one hundred rods before reaching the crossing at North Broadway, and to ring or cause to be' rung the bell from said engine until said street was crossed.”

So that the court gave to the jury, as one of the issues in the case, that if the whistle was not blown a statutory distance before the train reached Broadway crossing, and the bell rung, then the plaintiff might recover. What had that to do with the decedent crossing the tracks of the company beyond, and five hundred feet distant from such street? She was not upon that crossing, nor near to it, nor upon that street. What duty did the company on this occasion owe to her in regard to Broadway crossing? The failure to give such signals had no possible connection with her injury, and could not have, as she was not upon or near to that highway. It was only to persons on such highway that such duty was due, and the court submitted to the jury an issue that ought not to have been submitted to it; and for aught we know the jury based its verdict solely upon that very proposition, because there was evidence that such signals were not given for North Broadway; and in this respect the court, as we think, erred.

Another exception was taken by the defendants below to the court’s giving to the jury, at the request of the plaintiff’s counsel, the following instruction:

"‘If the decedent in this case was negligent in going upon the track in the manner and at the time she did, yet if the engineer in charge of the train, ought, by the exercise of ordinary care, to have seen the decedent in her perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to have avoided the collision, and failed so to do, it would be negligent for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”

In the general charge the court instructed the jury along the same lines, but not so clearly and unequivocably as in this request.' The meaning and effect of this request clearly was that the plaintiff might recover although the decedent had been' guilty of the same degree and kind of negligence as the engineer — failure to see her peril and avoid the collision, which she might have done, and could have done, in the exercise of ordinary care.

Now, this is opposed to all our ideas of contributory negligence and its effect. It is opposed to the settled law of the state — settled by many decisions of the court of last resort, unless those decisions have been set aside and reversed by the case referred to and relied upon by counsel for defendant in error (Railway Co. v. Schade, 57 Ohio St., 650). Up to that time it certainly was the law of this state that a person approaching a known railroad crossing was obliged to use his senses of sight and hearing to ascertain whether there was a train approaching which might cause him injury in case he got upon the track of the railway company and that if he did not, without a reasonable excuse therefor, and was injured upon the track, he could not recover, unless, indeed, it was alleged and proved that the engineer actually saw such person in his perilous position in time to have stopped the train, in the exercise of ordinary care, and have prevented the injury.

The case of Railway Co. v. Schade, supra, was taken on error to the Supreme Court from the circuit court of the eighth circuit and affirmed. The case as reported by the circuit court 15 C. C., 424, contains the charge of the trial court upon the question (from which the charge in the case at bar was copied), and is as follows:

“4. If the decedent in this case was negligent in going upon the track in the manner and at the time he did, yet if the engineer in charge of the train ought by the exercise of ordinary care, to have seen the plaintiff in his perilous position, and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to avoid the collision, and failed to do so, it was negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.”

This charge having been upheld as good law by the circuit court, the case was taken to and affirmed by the Supreme Court in Railway Co. v. Schade, 57 Ohio St., 650, as I have stated, but without report.

On what ground it was affirmed the Supreme Court has left " us in doubt. Was it because there was no legal bill of exceptions, or because-no exception was taken to the charge, or because from the undisputed evidence the plaintiff was entitled to recover anyhow, and therefore the charge was not prejudicial? The court has given us no light upon the question. Can it be assumed as a fact that the Supreme Court would thus undertake to reverse the numerous former decisions of that court, and .the settled law of the state, without a word of explanation? Certainly not.' If the court intended to do so, it would have discussed the matter and stated the reasons for such reversal. But we are not left in this position of doubt. If the Supreme Court did undertake in the case just referred to, to reverse and upset the former rulings of that court upon /’this question (which I do not believe it did), the case of Lake Shore & M. S. Railway Co. v. Ehlert, Admr., 63 Ohio St., 320, shows that the court has returned to its original holdings. That case also went up from Cuyahoga County Circuit Court, reported in 19 C. C., 177. In that case Christian Holtz, the decedent, was killed upon the crossing of the Big Four Railway at Barton street, in the city of Cleveland, over which the Lake Shore ran trains. There were gates and a flagman at the crossing. There was no arm of the gates over the sidewalk, but over the street the gates were down. Holtz approached on the sidewalk and placed himself near to the first or south track where he stopped and stood watching and awaiting the passage of a train on the second or north track, when a train approached from the opposite direction on such first track, which he did not see or hear, and he was struck by it and killed. Now the same claim was made by counsel for plaintiff in that ease and the same charge, substantially, given in regard to it as in Railway Co. v. Schade, supra, and we have it (19 C. C., 182), in the opinion rendered by Caldwell, J., as follows:

“Further, I say to you, gentlemen, that although the decedent may have been guilty of negligence in putting himself in a dangerous position, a position in which he was liable to be injured by the passing of the trains, yet if the employes of the railroad company in charge of said passenger train knew of his danger, or might have known of his danger, by the exercise of ordinary care, and, by the exercise of ordinary care thereafter, controlled and stopped and managed the train in snch a manner as to save the decedent from the injury and from death, it was their duty to do it; but, if they failed to do it, under such circumstances, that failure would be the approximate cause of the death, and not negligence in getting into or going into a place of danger.”

In affirming this charge, Judge Caldwell said:

“I have already said that Christian Holtz was to blame in part for his own death. He was guilty of contributory negligence.
■“Now, here is the proposition in law given by the court to the jury, saying to them that notwithstanding a party may contribute to his own injury, yet if his negligence can be seen and known by the defendant in time to protect him or save his life, and it fails to do it, then such negligence of the defendant is the proximate cause, and that of the plaintiff is the remote cause, and the party may recover. *, * *
“This is a proposition that has undergone a vast amount of discussion by the courts. A large number of states hold it to be the law. The United States court holds it to be the law, and as we understand it, this state holds it to be the law.
“In Railway Co. v. Kassen, 49 Ohio St., 230, there was much discussion as to whether that case settled this principle of law or not. But a case went from this county to the Supreme Court that involved the question fairly and squarely, and the Supreme Court affirmed the opinion of this court, or affirmed the case wherein this court had allowed a charge of that nature to stand. L. S. & M. S. R. R. Co. v. Schade, 15 C. C., 424; affirmed by Supreme Court without report, 57 O. S., 650.
“We think that has settled the law of Ohio, and that this is a proper charge if the facts warrant it.”

So the learned judge in thus announcing the majority opinion of the court, stated that it had now become the settled law of the state that in such a ease plaintiff might recover, although he was guilty of precisely the same grade of negligence as the servants of the defendant.

We can not think so. Let us consider the effect of such a proposition for a moment.

Two persons walking very rapidly upon a sidewalk come in collision and both are injured. If each could have seen the other in time to have avoided the collision, then each would be equally guilty of negligence; can each recover in such a ease, or which one may recover? Where a party with a team and loaded wagon undertakes to cross the track of a known railroad, and a train comes along and strikes the wagon, as in the ease of Railway Co. v. Schade, supra, and kills driver and horses, etnd the train be thrown off the track, when the driver of the team and of the engine could each have avoided the collision by looking out for the danger, but neither did; or, where at a crossing of two railroads, trains of the respective roads come in collision, which might have been avoided had either engineer looked along the other’s track, which party can recover of the other? Such cases have occurred. May each recover of the other, or is it the one that first sues that can recover? Or, is it to be contended that the rule applies only where but one of the parties is injured? These questions are substantially answered by the Supreme Court in disposing of Lake Shore & Michigan Southern Railway Co. v. Ehlert, 63 Ohio St., 320, and this is the syllabus:

“1. When the gates across a highway at «a railroad crossing are closed, they definitely warn the public that the crossing, whether it is of a single or a double track, is, for the time being, to be used for the passage of trains.
“2. One who, with the knowledge of such warning, passes a closed gate and takes a position upon the crossing is guilty of negligence which will prevent a recovery for injuries he may receive from a passing train.”

And the case was reversed, but why? If the doctrine given to the jury, and affirmed by the circuit court was correct— if such doctrine had become the settled law of the state by the affirmance of Railway Company v. Schade, supra — then why did not the Supreme Court affirm, instead of reversing this case of Railway Co. v. Ehlert, Admr.? The jury under the evidence must have founded its verdict directly upon the proposition given to it by the trial judge, that although the decedent was negligent in the respects claimed, yet if the engineer could have seen him and saved him from injury, by the exercise of ordinary care, the plaintiff would be entitled to recover. The Supreme Court in reversing the case held otherwise, and returned to, if it ever did abandon, the doctrine of the effect of contributory negligence in defeating recovery, where either party might have avoided the injury by the exercise of ordinary care. True the Supreme Court in reversing this case, did not refer to, notice, or expressly disapprove of the charge of the trial court and th'e assumption of its legality by the circuit court by reason of the affirmance of Railway Co. v. Schade, supra; but to place the matter beyond question, the doctrine that “ordinary care requires that a person in the full enjoyment of the faculties of sight and hearing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed,” as held in Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Elliott, 28 Ohio St., 340; and Railway Co. v. Rothgeb, 32 Ohio St., 66, was expressly upheld, affirmed and applied in the case of Wabash Ry. Co. v. Skiles, 64 Ohio St., 458.

The case of C., H. & D. Co. v. Kassen, 49 Ohio St., 230, has no bearing upon the question, as the holding in that case was predicated upon the fact that the servants of the company had actual notice, or that which amounted to the same thing, of the perilous position of the deceased in time to have saved him, and yet made no effort to do so.

We therefore hold that the court in this case erred in its instructions to the jury on this point.

It is also claimed that the verdict in this case is contrary to the evidence, and as may be inferred from what I have said, we find that claim to be correct. I have stated some of the facts, but not all by any means bearing upon this question. It was shown upon the part of the defendant below, that from the tracks, and especially as far north as the third track north of the- station platform, one could see along the track on which this train was coming for a great distance— that any one looking to the east eonld see the train approaching for some miles. What did the decedent do? The evidence is, that she looked neither to the east nor the west; that she was running until she approached near to the south track on which this train was approaching from the east, when she dropped into a walk and was struck evidently when near the south rail, as she was thrown to the south onto the station platform. The evidence further shows that people on the platform were yelling to her to stop; men were waving their hats at her, and some one looking out of the telegraph office, in the excitement of the moment, as an expression of the situation, exclaimed, “My God, that women is going to try to cross.” Everybody saw the train coming. Everybody heard it. Did she? If she did not, it was her own fault.

T. E. Hoyt and A. J. Trunkey, for plaintiff in error.

Theodore Hall, for defendant.

The warnings were sufficient in every way, and the train that she wanted to take (No. 28), was still a mile or more to the west, and did not arrive for several minutes after this accident, so that it was not necessary that this unfortunate woman should have rushed into this danger for the purpose of making sure that she should make her train.

These facts make it plain that there could be no recovery in this ease; that there was no disputed questions of fact to submit to the jury, and for the errors stated, the ease will have to be reversed and remanded.


text:
    ACCOUNTS OF EXECUTORS.
    [Circuit Court of Hamilton County.]
    Estate of Bridget Glenn, Deceased.
    Decided, April 2, 1902.

      Widow — First Tear’s Support of — Bar of the Statute as to — Presumption in Case of Failure to File Claim — First Tears Support for Children — Agreed Statement of Facts Not Made Part of the Record.

    1. The first year’s support of widow falls within Section 6113, Revised Statutes, limiting the time for bringing an action against the estate to two years from the appointment of the personal representative; but this limitation runs as to an account against the estate paid by the executrix, from the date of the allowance and confirmation of her account as executrix. • .
    2. Failure by a widow acting as executrix of her husband’s estate to file a claim against his estate raises the presumption that she intended the amount of the claim should inure to the benefit of her children.
    3. The provision under Section 6040 for the allowance of a year’s support for children under fifteen years of age applies to the estate of their deceased mother as well as that of their deceased father.
    4. Where the judgment entry indicates that the case was submitted to the court below upon an agreed statement of facts, the failure to enter such agreed statement of facts formally on record or to file a bill of exceptions, does not deprive a reviewing court of jurisdiction to review the findings of the trial judge.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.
   This case was heard in the probate court upon exceptions to the inventory filed, and was submitted upon an agreed statement of facts, the substance of which is as follows:

Martin S. Glenn died in April, 1898, leaving Bridget Glenn, his widow, and three children, aged eleven, eight and six years, respectively. By his last will and testament he gave all his property, real and personal, to his widow for life, with remainder to his children. Bridget Glenn was duly appointed and qualified as executrix, and on the--day of May, 1898, published notice of her appointment. On July 13, 1898, she filed an inventory, wherein the appraisers set off the sum of $500 in money, and merchandise of the value of $--, no part of said sum of $500 having been paid. On January 30, 1900, the executrix filed her account in the probate court, which was • allowed and confirmed February 28, 1900. The account contained no charge against the executrix, although she had collected accounts to the amount of $166.77, but it showed a credit of debts and expenses' of administration paid in the sum of $264.15.

On May 14, 1898, she collected $2,000 life insurance, from which fund and from her own money she paid debts of the estate of Martin S. Glenn, other than those mentioned in her account filed January 30, 1900, in the sum of $1,143.62, ■ and was not herself indebted to any one. On July 1, 1900, and subsequently thereto, she became indebted to sundry parties in the sum of $1,578.23.

Bridget Glenn died intestate January 14, 1901, leaving Mary and Laura, her children. The inventory of her estate shows assets in the sum of $2,008.13, of which $600 was set off for the support of the children. The exceptions filed by the creditors are to the allowance of $600 to the children, to the omission from the inventory of the sum of $264.15 paid by Bridget Glenn for the estate of Martin S. Glenn, as shown by her account as executrix, filed January 30, 1900, and the further sum of $1,143.62, paid for the estate of Martin S. Glenn, and also to the omission of the claim of $500 set off to her for twelve months’ support.

The exceptions were sustained by the probate court, and that ( judgment affirmed by the. common pleas court.

The exception to the allowance of $600 to the children is disposed of by the case of Hinton’s Estate, In re, 64 Ohio St., 485, and should have been overruled. (See also Section 6040, Revised Statutes, providing for allowance of year’s support to children under fifteen years).

As to the claim that the sum of $1,143.62 paid to Bridget Glenn for the estate of Martin S. Glenn is a debt of the latter, the burden of proof is upon the creditors excepting to the inventory. The only evidence in support of it is the payment itself, while on the other hand, the failure of Bridget Glenn to file any account of such claim, or institute proceedings for its allowance and collection, raises a strong presumption that she did not intend to charge it against her husband’s estate, but that it should inure to their children. We think, therefore, that the court erred in sustaining the exception to this claim.

Jacob Krummel and John J. Gasser, for plaintiff in error.

Closs & Luebbert, contra.

The exception as to the omission from the inventory of the sum of $264.15, we think, therefore, was properly sustained, because in the account filed January 30, 1900, there appears this statement: “Paid by Bridget Glenn, widow,” thereby showing an intention to charge the same against the estate of her husband.

It is urged, however, that the claim was barred by the statute of limitations of two years provided by Section 6113, Revised Statutes; but we think that the limitation began to run only from the allowance and confirmation of the account by the probate court on' February 28, 1900.

The debt owing to Bridget Glenn as an allowance from the estate of Martin S. Glenn for her support being a preferred claim, the presumption is that she applied the book accounts collected in part payment thereof. The residue of the claim is barred under Section 6113, Revised Statutes.

It is contended finally that, there being no bill of exceptions, and the agreed statement of facts not being formally made part of the record, this court can not consider it. The facts being agreed upon by the parties, no bill of exceptions was required, and the judgment entry showing that the case was submitted upon the agreed statement of facts, there would seem to be no necessity for a further entry to make such statement a part of the record. Ish v. Crane, 13 Ohio St., 574; Brown v. Mott, 22 Ohio St., 149; McGonnigle v. Arthur, 27 Ohio St., 251.

Judgment of the common pleas and probate courts reversed and cause remanded.


text:
    TRIAL UNDER THE LOCAL OPTION LAW.
    [Circuit Court of Geauga County.]
    John Stick v. State of Ohio.
    Decided, February Term, 1902.

      Local Option — Election thereunder — Form of Ballot — Trial for Sales of Liquor — Prosecution may he 'Required to Elect — Burden of Proof upon the State as to All Essential Facts.

    1. In an election under tbe local option law no more formalities should be required than are actually necessary, and any form of ballot wbicb has written or printed upon it the words “For the sale” or “Against the sale,” is sufficient.
    2. In a trial under an indictment for selling intoxicating liquor In a township where such sale is prohibited and unlawful, each sale is a distinct offense, and where there is but one count charging several different sales, the accused has the right before introducing his evidence to require the state to elect upon which sale reliance is had for conviction.
    3. A charge to the jury which proceeds upon the theory that the burden of proof shifts as to any essential fact during the trial is erroneous; the obligation to convince the jury of the' guilt of the accused beyond a reasonable doubt as to all essential facts continues throughout the trial.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Heard on error.
   John Stick was convicted of selling intoxicating liquor as a beverage in a local option township in this county; a motion for a new trial was overruled and judgment entered upon the verdict; and the case is now before this court to reverse the judgment. Three grounds are urged by counsel for reversing the judgment:

First, that no valid election was held prohibiting the selling of intoxicating liquors in the township.

Second, that the court should have required the prosecuting attorney, at the conclusion of the evidence by the state, to elect upon which sale he relied for conviction; and

Third, that the court erred in' its charge to the jury as to whom the burden was upon to show that a valid election had been held.

As to the question whether or not a valid election had been held, the only objection made is that the ballots were not in conformity to the statute. It is conceded that all the formalities of the Australian ballot law were conformed to except as to the form of the ballots.

The evidence shows conclusively that the ballots used were slips of paper upon one set of which were printed the words, “For the sale” and on the other “Against the sale.” The slips were one inch in width and only of sufficient length to permit being, folded. There was no circle at the top or blank space at the side of the ballot. The ballots were not attached to stubs, nor designated “Official ballots.” Indeed, there were no marks upon them whatever except the words expressing the judgment of the voter as to the sale of intoxicating liquor in the township; and therefore they were not in conformity to either Sections 2948 or 2966-32, Revised Statutes.

Is it necessary that the ballot should conform to one or the other of these sections? We think not. We do not think that these sections as to the form of the ballots apply to elections of this character. It is true Section 4365-24, Revised Statutes, provides that: “Notice shall be given and the election conducted in all respects as provided by law for the election of township trustees;” but Section 4364-25, Revised Statutes, makes provision for what shall be upon the ballots and contemplates two forms of ballots, one for and the other against the sale of intoxicating liquors, while Sections 2948 and 2966-32, Revised Statutes, provide for one ballot requiring the elector to make a mark before the name of the candidate for whom he desires to vote; and in like manner we have no doubt as to a question submitted to be voted upon, where one is submitted at the same election. Elections to determine whether or not intoxicating liquors shall be sold in the township must, under Section 4364-24, Revised Statutes, be special elections.. The object was to take the elections as far as possible out of politics and divest them of every other consideration but the one directly voted upon. No more formalities should be required than actually necessary under the law, and we think that any 'form of ballot that has written or printed upon it “For the sale” or “Against the sale” would be sufficient.

Second. During the trial the evidence tended to show a number of sales made to different parties upon the same evening. A man by the name of Berry made several purchases; also a man by the name of Laughlin, while a number were sitting at the table drinking. The indictment charges that sales were made to Berry and Laughlin and to other persons to the grand jury unknown. At the close of the testimony for the state, the attorneys for the accused moved the court to require the prosecuting attorney to elect upon which sale he relied for conviction; this the court refused to do, and exception was taken.

This ruling we think was error. The indictment charges the defendant with selling intoxicating liquor in a township where such sale was prohibited and unlawful, and not with keeping a place where such liquors were kept for sale; therefore, each sale would be a distinct offense, and the accused could have been convicted upon proof of any one sale. There is but one count in the indictment, consequently but one offense could be properly charged. Each sale being a separate offense, the evidence of the state should have been restricted to one sale, and the accused had a right to know before introducing his evidence the distinct sale he was required to meet. Furthermore, it was important that the record should show what sale he was tried for making in violation of the law, so that if acquitted or convicted, it might be plead in bar of another action. Stockwell v. State, 27 Ohio St., 563; Bainbridge v. State, 30 Ohio St., 264.

The case of State v. Bailey, 50 Ohio St., 636, in no way conflicts with this holding. In that case there were two counts in the indictment framed for the express purpose of meeting the contingency of the evidence, and under such circumstances it was held that the prosecuting attorney is not required before the case commences to elect upon which count he will proceed to trial.

Third. The court in its charge said to the jury:

“Now if you find that the record of such election introduced in evidence in the ease shows the facts above stated, that is, that a majority voting at said election were against the sale, then you are instructed that the burden of proof that such election was illegal rests on the defendant; but the law does not require so strong a degree of proof of defendant upon that proposition as is required of the state, and it is only necessary that the defendant should show the illegality of such election by a preponderance of the evidence in the case. That is to say, that there shall be more evidence on that issue -as claimed by the defendant than against it.”

This we think was error. In such case the burden does not change; it still continues with the state. The averment in the indictment is that the sale was made in a township where such sale was unlawful and prohibited. To this the accused plead not guilty; that is, he denied the averment. The state affirmed and the accused denied. It is true that Section 4364-24, Revised Statutes, provides that the record of the township clerk shall be prima facie evidence that the sale is prohibited if it shows that a majority were against the sale and that the selling shall be illegal. Still the question remains, was the selling prohibited, and upon that question there is a denial. • The accused in no way admits that the selling was prohibited.

It differs entirely from the plea of self defense and insanity. In such eases the commission of the act is admitted and then justified or excused by necessity or irresponsibility; such pleas are in the nature of confession and avoidance. We think Mr. Underhill, in his work on Criminal Evidence, Section 23, expresses the correct rule.

. “The general rule stated broadly, as laid down by the eases, is that the burden of proof and the obligation to convince the .jury of the prisoner’s guilt beyond a reasonable doubt as to all essential facts, including the criminal intent, are upon the prosecution throughout the trial. There is no shifting of the burden of proof during the trial.
“This rule is clearly applicable in every case where the defendant by pleading ‘not guilty’ alone, and without qualification, stands upon a negative allegation, and does not rely upon any facts which are separate and distinct from, or ^independent of, the original transaction set forth in the indictment. By such a plea the prisoner restricts himself to denying and disapproving the facts involved in the original transaction upon which the charge is based, including, of course, all the accomipanying circumstances.
“The defendant is entitled to the benefit of the presumption of innocence before he introduces any evidence. Hence, though he offers no evidence, the court has no legal power to direct a verdict, but the prima facie case against him must be submitted to the jury. They must take into consideration the presumption of innocence, and should not convict unless the state has sustained the burden of proof. But when the defendant pleads any substantive, distinct and independent matter as a defense, which upon its face does not necessarily constitute an element of the transaction with which he is charged, it has been said that the burden of proving such defense devolves upon him. The accused must prove the independent exculpatory facts upon which he relies, and in this respect and to this extent, it is correct to say the burden lies on him.”

He further adds:

“Notwithstanding this, if, after all the evidence is in, it is found that upon the whole case the prosecution has not sustained the burden of proof in convincing the jury of the prisoner’s guilt beyond a reasonable doubt, he should be acquitted. ’ ’

WThether the latter part of the section is correct or not it is not necessary now to determine. To the same effect are Jones v. State, 51 Ohio St., 331, and Kelch v. State, 55 Ohio St., 146.

In the case under consideration the record of the township trustees made out a prima facie ease, it is true, but if no evidence had been offered by the accused, still the duty devolved upon the state to show that the accused was guilty of the offense charged beyond a reasonable doubt, one element of which charge was that he made the sale in a township where the sale of intoxicating liquor was prohibited. The accused relied upon no facts which were separate and distinct from, or independent of the original transaction. He did not plead or introduce evidence tending to prove any substantive, distinct and independent matter, as a defense; hence the charge of the court was clearly erroneous.

For these reasons the judgment must be reversed at the costs of the defendant in error, and the case remanded for a new trial.

N. H. Bostwick and George King, for plaintiff in error.

H. O. Bostwick, Prosecuting Attorney, for defendant in error.


text:
    SPECIFIC DEVISES.
    [Circuit Court of Hamilton County.]
    Woodruff v. Woodruff.
    Decided, 1902.

      Wills — Specific and General Devises — Debts of Son to Estate of His Father — Superior to a Mortgage Lien — Executed by the Son on Land Coming to Him by General Devise.

    1. A debt due from a son to the estate of his father is superior to a mortgage or judgment liens against him on real estate coming to him from his father by way of general devise.
    2. Where a devise reads, “All that certain piece or parcel of real estate on which we now live, situate on Mt. Auburn * * * * and all the income and profits of all the rest and residue of my estate, real, personal, and mixed,” to the wife of the testator, and another item of the will devises, “said real estate on Mt. Auburn above described, and all the rest and residue of my estate, both real, personal and mixed * * * * after the decease of my wife, to my children, to be equally divided between them,” the devise thereby made to a son of the testator is a general and not a specific devise.
    Swing, J.; Giffen, J., and Jelke, J., concur.
    Heard on error.
   This was an action in the court of common pleas for partition and an accounting, and for general equitable relief. The case in this court is on error to the judgment of said court, both sides prosecuting error to certain portions of the judgment of the court. The errors arise on the pleadings and the finding of facts and the judgment of the court. The facts are substantially as follows:

Edward Woodruff died in February, 1883, testate. He left surviving him his widow and seven children, of whom Horace W. Woodruff was one. His will was executed on January 13, 1881, and on January 29, 1881, lie executed a codicil to said will. By the first item of his will he directs the payment of his debts; by the second item he gives to his wife for her life all of his estate, both real and personal, with power to sell and dispose of his household furniture, silverware, piano, bookcase and books, as she may deem best, and with power, to change and reinvest in bonds and securities. In the devise of his real estate to his wife he says:

“I give and devise to my beloved wife * * * all that piece or parcel of real estate on which we now live, situate on Mt. Auburn, in the city of Cincinnati, * * * being the same property conveyed to me by Jethro Mitchell by deed dated September 28, 1872.”

He further says:

“I also give and bequeath to her all the income and profits of all the rest and residue of my estate, real, personal and mixed. ’ ’

The effect of this devise was to vest in his wife for her life his whole estate, after the payment of his debts, with the power to sell certain chattel property if she saw fit, and with power to change and reinvest bonds, stocks and securities. The third item of the will is as follows:

“I devise and bequeath said real estate on Mt. Auburn, above described, and all the rest and residue of my estate, real, personal arid mixed, with all said household furniture, silverware, piano, bookcase and books, including the proceeds of my life insurance policy, after the decease of my wife, to my children, to be equally divided between them, the representatives of any of my children who may be deceased to take the Share of such deceased child, respectively, under this will; this devise and bequest to my children being subject, however, to the devise and bequest to my said wife, as above made, which are to be in lieu of her dower in my real estate and in lieu of the statutory allowance for her support, or otherwise.”

By the fourth item he appointed his wife executrix of his will. By the codicil to his will he directs and empowers his wife to sell certain parcels of this real estate, consisting of certain lots, which are specified, in such manner as she may deem proper, and the proceeds she is to have during her natural life, and then it provides as follows:

“The principal, and whatever interest may remain, shall be divided between my children and their legal representatives, share and share alike, as provided in my said will for the other property. ’ ’

The widow elected to take under the will, and enjoyed the estate granted to her until her death, in the year 1897.

On June 1, 1882, Horace W. Woodruff borrowed of his father the sum of $5,000, for which he gave his note, and this note remains unpaid, although he paid the interest on the same to his mother up to the year 1891. Horace W. Woodruff is insolvent, and the amount he owes the estate is greater than he would receive from the estate on distribution.

Horace W. Woodruff gave a mortgage on the Mt. Auburn homestead, and certain judgments were rendered against him, and executions on the same were levied on said real estate. The controversy here is whether this mortgage and the judgments are entitled to be paid out of his share of this particular real estate and his other portion of the real estate before he satisfies the note held by the estate against him.

Since the decision by our Supreme Court in Keever v. Hunter, 62 Ohio St., 616, we think there can be no doubt that unless the devise of the Mt. Auburn homestead is a specific devise, indicating that the testator intended that the devisee should enjoy this in specia, that neither Horace W. Woodruff nor his creditors may share in the estate until his debt to the estate is paid.

In the court of common pleas it was held that the devise of the Mt. Auburn real estate was specific, but that the. other real estate devised was not. In holding that all the balance of the real estate devised was not specific and that it is subject to his indebtedness, we think the court was right, and it will not be considered further except as it comes under what we have to say as to the portion of the devise held to-be specific.

We come now to a construction of the will. The law having granted to one the right to make a will, the courts have universally held that the intention of the testator as gathered from the whole will taken in connection with the surrounding circumstances must be given effect to, unless the expressed intention is contrary to law or against public policy. There are numerous other rules of construction but they must all bend to and conform to this rule so that nothing stands in the way of the expressed intention of the testator, unless it be contrary to law. This is a sound and reasonable rule and never likely to be departed from, for to hold that the intention of the testator was not to be carried out would, in effect, be to deny to the testator the right to make a will, as the expressed intention is the will. Carrying out this rule the courts have frequently said that adjudicated cases in which the intention of the testator has been determined give little or no aid in arriving at the intention of the testator in another and different will.

In Robertson v. Broadbeck (Law Rep., 8 App. Cas., 812), a question similar to the one in this case was before the House of Lords. Selborne, L. C., in giving his opinion, held the legacy in question not to be specific and gave a defixiition of a specific legacy. Lord Blackburn also gave an opinion and in doing so used the following language:

“I think that in considering the case below, more has been said as to the definition of what is a specific bequest, as if it was a technical question, than was quite requisite for the decision of the case. I do not’-know if it was necessary to give a. definition of a specific legacy that any would come nearer to my idea than what has been said by the Loi’d Chancellor in this case: ‘Something which a testator, identifying it by a sufficient description and manifesting an intention that it should be enjoyed, in the state and condition indicated by that description, separates in favor of a particular legatee from the general mass of his personal estate.’
“I do not, however, like to bind myself even to saying that this is a precise definition. I think the real question is what is the true construction of the will of this testator. * * * But it all comes round to the same thing. The court can not make a will for the testator; it must construe the one he has made. And I think that the bequest of the residue of his effects, which shall not consist of money or securities for money to Mrs. Robertson, and the residue of his personal estate to the two trustees is one residuary bequest to two persons. ’ ’

The general purpose of the testator evidently was to give all of his estate, real and personal, to his wife for her life, and at her death all of said estate remaining was to go to his several children or their descendants, to be equally divided between them. If there was any property left to the children in the nature of a specific devise it was not to be enjoyed in specia, as his wife was to enjoy it, but it was to be equally divided between them. Suppose a testator had three farms and three sons and no other lands and no other children, and he should devise farm No. 1 to his three sons to be equally divided between them, and he should devise the other two farms in the same way, these could not be considered as specific devises, but the devises would be nothing more than a devise of the whole of his real estate to his three sons to be equally divided between them; but if he had devised farm No. 1 to Thomas and farm No. 2 to William and farm No. 3 to John, these would be specific devises of separate property to separate devisees. Does the fact that the testator in this case mentions particularly one piece of real estate as going under his will and devises all his other real estate “as all the rest and residue of my estate, real” indicate an intention to separate this particular piece of real estate from the balance of his real estate, to be taken and held by them in any different way from the other real estate ?

It seems clear that the intention of the testator that all of his estate remaining at the death of his wife should be equally divided among his children; not a part of it should be equally divided among them, but all of it. If this be the clear and plain intention, it must be given effect, and any technical rule of construction which might stand in the way must be disregarded. If the testator had said that he gave all of his estate to his wife for her life (with power to dispose of certain chattels and reinvest in certain securities), and the remainder to go to Ms children at her death, it would be equivalent to what he has said.

In the devise of the life estate to his wife, he describes particularly his Mt. Auburn real estate; it was his homestead, and was the most valuable part of his real estate, and wMle not intending that she should hold this property in any different way than the balance of his real estate (which he devised to her by saying: “I give and bequeath to her all the income and profits of all the rest and residue of my estate, real, personal and mixed”). It was only natural that he should specifically describe the larger portion of his real property, his homestead, as he did; and as to his wife, there was to be no different holding of his estate except as to the matters already referred to. With these exceptions it was simply a life estate in h;s whole estate.

When he comes to the devise of the remainder to his children, he follows, in the main, the gift to the wife just preceding. He says: “I devise and bequeath said real estate on Mt. Auburn, above described, and all the rest and residue of my estate, real, personal and mixed.” This, no doubt, is the reason why the language employed is as it is; he had already given his wife a life estate in all his estate, and coming to give the remainder to his children, he uses as near as he can the same language used in the gift to his wife. In both instances he used more words in creating the devises than was absolutely necessary to effectuate his purpose, but this was not unreasonable. A will is rarely found that does not contain more words than is necessary to express the meaning of the testator.

Here the testator particularly mentions his Mt. Auburn real estate, but he does not immediately after state how he wants it divided or what he wants done with it; but he goes on and gives the balance of his real estate and all his personal estate, and says it is to go to his children “to be equally divided between them;” then he goes on and says, “this devise and bequest,” clearly indicating that there was but one devise to the children. If the testator had intended that his Mt. Auburn real estate should go to his children differently from the way that his other real and personal property should go to them, he certainly would have used some more apt words to have expressed that intention, and would not afterwards have mentioned it as “this devise and bequest.” The codicil also throws considerable light on the intention of the testator as to this devise. In this he provides for the sale of certain lots and the investment of the proceeds for the benefit of his wife during her life, with the remainder to “be divided between my children and their legal representatives, share and share alike, as provided in my said will for the other property,” clearly indicating that there was but one provision in his will for the other property, and which was that it was all to be divided equally between his children as one gift of all his estate in which he describes with more or less exactness his real and his personal estate.

William Worthington, for plaintiff in error.

Pogue & Pogue, for defendant in error.

What was the effect of the testator giving to all his children all of his estate, real and personal, subject to the life estate of his wife? He gave them nothing but what they would have taken if he had made no will. It is equivalent to saying, I give to my children all my estate to which they are entitled under the law. Such a will is of no effect, and the heir takes by force of the statute rather than by will. This is an old and well established principle of the law. Powell on Devises, 284; 4 Kent’s Com., star pp. 506-7; Ellis v. Page, 7 Cashing, 161.

There is no necessity for making a will when property is given in the same way that the statute passes it; the object in giving the right to dispose of property is that it might be given in a way different from that in which the law gives it.

In holding that the Mt. Auburn property was subject to the mortgage given by Horace W. Woodruff, and to the judgment liens existing against it in favor of his creditors before the debt due his father’s estate, we think the learned judge who gave the judgment erred, and so much of said judgment is reversed and the cause remanded to said court to carry this judgment into execution.


text:
    APPEAL BY A CO-EXECUTOR.
    [Circuit Court of Trumbull County.]
    Henry C. Downing, Executor, v. William Downing et al.
    Decided, February Term, 1902.

      Appeal — Undertaking for must be Given by a Oo-executor — Transcript from Probate Court Must be Piled — Statute Governing such an Appeal.

    1. Where an executor, who is also a devisee under the will, desires to appeal from the finding and judgment of the probate court upon the allowance of a personal claim of his co-executor, the filing of a written notice of his intention to appeal is not sufficient, but he must execute an undertaking.
    2. A transcript on appeal from the probate court must be filed in the common pleas by the party appealing, on or before the second day of the term of that court next after the undertaking or notice of intention to appeal is given; the filing within this time is mandatory.
    3. In a proceeding for the allowance of a claim of an executor against the estate of the decedent, a co-executor is not a necessary party. The appeal from such an allowance is under Section 6101.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Heard on error.
   Henry C. Downing, plaintiff in error, and William Downing, one of the defendants in error, were co-executors of the last will and testament of Isabell C. Downing, deceased. William Downing had a claim against his testatrix for services rendered for her previous ‘to her death. He presented his claim to the probate court for allowance, under Section 6100, Revised Statutes. The court fixed a day for the hearing upon said claim and issued an order to said William Downing, requiring him to give notice in writing to all heirs, legatees and devisees interested in said estate and also to the creditors named in said order as required by said section. Henry C. Downing was a legatee under said will, and he, among other parties, was notified in writing by said William Downing of the presentation of his claim for allowance and of the time for hearing. Upon the hearing the claim was allowed in part by the probate court.

The finding and judgment of the probate court was made and entered on September 25, 1901, and on the same day Henry C. Downing as executor filed a written notice of appeal, setting forth in said notice that he was acting in a fiduciary capacity and was not required to give bond. This was his. first appearance as executor. The probate court allowed the appeal without bond.

At the time of the making and entering of the findings and judgment by the probate court the term of the common pleas court had expired and the next term began September 30, 1901. The transcript of the docket and journal entries and the order and judgment appealed from was not filed with the clerk of the common pleas court until October 12, 1901. A motion was made in the common pleas court to dismiss the appeal, which was sustained, and the case is before this court upon error to reverse the judgment of the common pleas court dismissing the appeal.

The judgment -of the common pleas court 'is sought to be sustained for two reasons:

First. That no bond was filed by appellant in the probate court and,

Second. That the transcript of the proceedings of the probate court was not filed in time.

It is claimed on the part of the plaintiff in error that he was not required to give bond for the reason that he was one of the executors and his appeal was in the interest of the estate.

In a proceeding for the allowance of a claim of an executor against the estate his co-executor under Section 6100, Revised Statutes, is not a necessary party. It is a proceeding between heirs, legatees, devisees and creditors, and the executor having the claim. The executor is the adversary party as against those interested in the distribution of the estate, and the fact that there is a co-executor does not alter the case under the statute. The co-executor would be presumed to be interested with and closely allied to his .colleague.

It is true the last clause of the section says that: “Any other person having an interest in the estate may come in and be made a party thereto.” This provision no doubt applies to such other persons as are in the classes designated in the statute heirs, devisees, legatees and creditors.

Plowever that may be, Henry C. Downing, plaintiff in error, as executor, never asked to be made a party to this proceeding. He was already in the proceeding, having a personal interest as devisee. He represented himself in his personal interest, and if he desired to appeal, he should have given an undertaking in the same manner as any other party having a personal interest.

Was the transcript from the probate court filed in time with the clerk of the common pleas court? No claim is made but what the filing of the transcript in the time provided by the statute is jurisdictional. Indeed, none could be made. It was the duty of the appellant and not the probate court to file the transcript and the provision of the statute is mandatory, Section 6409, Revised Statutes, says it “shall be filed with the clerk of the court of common pleas on or before the second day of the term of said court, next after an undertaking or notice is given.”

The claim of counsel for plaintiff is that under Section 6408, Revised Statutes, he had twenty days after the finding and judgment of the probate court to give the bond or notice of appeal, and that the second day of the term of the common pleas court being within that time that he had until the second day of the succeeding January term to file the transcript.

We do not think the position of counsel is tenable. The words of the statute are specific and definite, admitting of no such construction, “Which shall be filed with the clerk of the court of common pleas on or before the second day of the term of said court next after an undertaking or notice is given.” Not next' after the expiration of the time at which the undertaking or notice might have been given.

Appellant, plaintiff in error, having seen fit to file his notice of intention to appeal upon the very day the finding and judgment of the probate court was made, to-wit, on September 15, he should have filed the transcript upon the second day of the term, to-wit, on October 1; and October 12 was too late even if the notice had been sufficient without the giving of an undertaking which, as we have seen, it was not.

T. H. Gilmer, for plaintiff in error.

Gilbert & Christ, for defendant in error.

It is of no importance probably, but the appeal was not under Section 6408, but under Section 6101, Revised Statutes. The appeal provided for in Sections 6407 and 6408, Revised Statutes, are those cases not specially provided for. In the allowance or refusal to allow a claim of an executor or administrator the appeal is specially provided for by Section 6101, Revised Statutes, and the time for giving of the undertaking is twelve days, and not twenty days, as provided in Section 6408, Revised Statutes. The special provision must govern; Section 4956, Revised Statutes, so determines. The judgment of the common pleas court is affirmed at the costs of Henry C. Downing and the ease remanded to the probate court for further proceedings.


author: Per Curiam.

text:
    JURISDICTION.
    [Circuit Court of Hamilton County.]
    Marie L. Hafner v. Bank of Enterprise.
    Decided, July 25, 1902.

      Jurisdiction — Of the Circuit Court of. the United States — Pleading— Waiver of Technical Defect in.

    1. The Circuit Cpurt of the United States is not a court of special jurisdiction within the contemplation of Section 5090, Ohio Revised Statutes, but is a court of general though limited jurisdiction.
    2. While the answer “Now comes the defendant and says that she denies” is technically not in good form, yet when the parties went to trial upon such answer below it will be treated on review as a sufficient general denial.
    Giffen, J., Swing, J., and Jelke, J.
    Heard on error.
   Per Curiam.

The answer, “Now comes defendant and says that she denies,” etc., is technically not in good form, but as the parties went to trial below without objection to its form and on the assumption that it is a good traverse to the allegations of the petition, it will be treated here as a sufficient general denial. At all events, it could be cured by amendment.

We are of opinion that the Circuit Court of the United States is not a court of special jurisdiction within the contemplation of Section 5090, Revised Statutes. The provisions of this section are confined to judgments of inferior tribunals. Wehrman v. Reakirt, 2 C. S. C., 29; Seney’s Code (1860 Ed.), p. 162, Section 120 and notes; Memphis Med. Co. v. Newton, 2 Handy, 163; Hollister v. Hollister, 10 How. Pr. (N. Y.), 532-539.

As against the provisions of this statute the Circuit Court of the United States is a court of general but limited jurisdiction (see Dowell v. Applegate, 152 U. S., 327, opinion per Mr. Justice Harlan, page 340), and as such has the right to pass upon its own jurisdiction, and its judgment is entitled to all the presumption in its favor which attaches to the judgments of courts of general jurisdiction of our own and sister states.

“Neither the constitutional provision, that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, nor the act of congress, passed in pursuance thereof, prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered.

“The record of a judgment rendered in another state may be contradicted, as to the facts necessary to give the court jurisdiction; and if it be shown that such facts did not exist, the record would be a nullity, notwithstanding it may recite that they did exist.” Pennywit v. Foote, 27 Ohio St., 600; Spier v. Corll, 33 Ohio St., 236; Wilhelm v. Parker, 17 C. C., 234, 237; Dodd v. Groll, 19 C. C., 718.

The petition in this ease allege's the jurisdiction of the Circuit Court of the United States of the District of Kansas, and the answer denies the same. Its jurisdiction is fairly put in issue. Conceding that the presumption which obtains in favor of the judgment sustains the burden on the plaintiff in the first instance, what evidence does an examination of the record disclose to rebut it?

J. D. Creed and E. A. Hafner, for plaintiff in error.

Kelley & Hauck, contra.

(1) There is the testimony of the witness, R. P. March, in his deposition, ‘ ‘ Exhibit B: ”

“Were you personally acquainted with John A. Hafner'and Marie L. Plainer?
“A. I was.
“Where did they reside in 1894?
“A. At Enterprise, Kansas, and they continued to reside there until some time in 1895.”

(2) There is the evidence in the note itself dated “Enterprise, Kansas, November 1, 1893,” also P. O. address,

“Enterprise, Kansas.
“Due November 1st, 1894.”

(3) The fact that the action was brought in the district of Kansas.

Weighing this evidence as against the presumption, we find as a fact that Marie L. Hafner was a citizen of Kansas on June 29, 1894, and are hence of opinion that the Circuit Court of the United States had no jurisdiction of a cause of action between Marie L. Hafner and the Bank of Enterprise, both being citizens of the same state.

Judgment reversed.


text:
    TRIAL FOR. HAVING POSSESSION OF STOLEN GOODS.
    [Circuit Court of Summit County.]
    Pasquale Carano v. State of Ohio.
    Decided, October Term, 1902.

      Criminal Law — Burglary and Larceny — Knowingly Receiving Stolen Goods — Mistake in Verdict as Rendered — Qualification of Jurors— Circumstantial Evidence — Effect of Having Stolen Goods in Possession.

    1. The language of a verdict should not be strained and a prisoner held to have been acquitted, where it is clear that the jury did not intend to find him not guilty, and it is not error in such a case to overrule a plea in bar against further proceedings.
    2. The fact that a juror has served upon the trial of a plea in bar is not a ground for challenge upon the subsequent trial of the accused under the indictment, the trial of the plea in bar not being a trial of the cause within the meaning of Section 7278.
    8. A juror who states that he has formed an opinion as to the guilt of the accused, but who believes that he can render an impartial verdict is not subject to challenge for cause, but is within the exception of the second paragraph of Section 7278.
    4. Where it is admitted by the defendant that he has stolen goods in his possession, it is not error to refuse to charge with reference to circumstantial evidence tending to trace the goods from the place where they were stolen to his house.
    5. It is not error to admit evidence as to packing material being seen in the car from which the goods were stolen, when it appears that some of the material was scattered between the car and the house of the defendant in which the goods were discovered.
    6. Possession of stolen goods by a defendant soon after the theft was committed, raises a presumption against him which calls for an explanation as to how he came into possession of the goods.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
    Error to the court of common pleas.
   The plaintiff in error was indicted at the January Term, 1902, of the court of common pleas of this county, there being two counts in the indictment. The first count charged burglary and larceny, and set out in proper form that the defendant committed such burglary and larceny by breaking into a railroad car in the night season and taking therefrom a considerable quantity of goods, all set out in the indictment, and the charge is that this was done unlawfully, maliciously and forcibly; in short, everything necessary to constitute the crime of burglary and larceny is this count of the indictment.

The second count of the indictment charges the plaintiff in error with having received the same goods named in the first count of the indictment, and that he so received them knowing them to have been stolen.

To this indictment, and to each count of it, Pasquale Carano pleaded not guilty. He was put upon his trial before a court and; jury, and at the close of the evidence and after argument of counsel and the charge of the court the jury retired, and upon coming again into court returned the following verdict: =x= * * “do that the prisoner at the bar, Pasquale Carano, is guilty of receiving stolen goods valued at $48.84, and do not find as charged in the first and second counts in indictment. S. P. Thompson, Foremem.” Thereupon the court inquired of the jury if some mistake had not been made in their verdict, to which the foreman of the jury replied that they had made a mistake. The jury were then instructed to retire to their room and agree upon a verdict, which should be responsive to the indictment. The jury then retired again to their room, and upon again coming into court returned a verdict in which they found that the prisoner “is guilty as he stands charged in the second count in the indictment, and not guilty as he stands charged in the first count in the indictment, and fix the value of the goods at $48.84. S. P. Thompson, Foreman.”

A motion was then made by defendant that he be discharged, notwithstanding the verdict, and for cause say, that the verdict first returned by the jury was, in effect, a verdict of not guilty, and that the court had no authority to require further verdict of the jury. This motion the court overruled, and error is charged in that regard.

Thereafter a motion was made by the plaintiff in error for a new trial, and this motion was granted. Carano was then called upon again to plead to the indictment, and he thereupon filed a plea in bar to any further proceedings under the indictment, setting np the return of the verdict first herein before quoted, the claim again being made that this verdict was equivalent to a finding by the jury that he was not guilty as charged in the indictment. This plea in bar was submitted to a jury, and the evidence adduced established substantially what has been already said as to the occurrences at the time of the return of the first verdict in the case. At the close of this evidence the court directed the jury to return a verdict upon the issue of the plea in bar against the defendant, and error is claimed in this regard.

The question then raised as to all the-proceedings thus far set out in this opinion is whether or not the first verdict returned by the jury was such as to preclude further proceedings against the prisoner. If the verdict was, in legal effect, a return by the jury of not guilty as to each of the counts in the indictment, then the prisoner was entitled thereupon to be discharged. If this is not the legal effect of the verdict, then the action of the court in directing the jury to return to its room and further consider its verdict, and in directing the jury in the trial upon the plea in bar to return a verdict for the state, was right.

The verdict originally returned is peculiar, and there can be little doubt that it was returned under a mistake on the part of the jury; indeed, Mr. Thompson, who was the foreman of the jury, so stated to the court at the time it was returned when inquiry was made of the jury as to whether or not a mistake had been made. This appears from evidence taken upon the trial of the plea in bar, as shown at page 17 of the bill of exceptions. It clearly was not the intention of the jury to find the prisoner not guilty as to the second count in the indictment, notwithstanding which, if they have said by their verdict that he was not guilty as charged in either the first or the second count, then the plea in bar was well taken, and the prisoner was entitled to his discharge. Where, however, it is clear that the jury did not intend to find the defendant not guilty, the language of the verdict is not to be strained to make it result in an acquittal. The language is that the jury “do not find as charged in the first and second count in indictment.” Technically, this is a statement of the jury that they make no finding as to whether the defendant was guilty or not under either count in the indictment. What precedes this in the verdict clearly shows that they did intend to find him guilty of the offense charged in the second count in the indictment, but they were mistaken as to this being the second count.

As has already been said, if the verdict stated that they found him not guilty as charged in this second count, then, though a mistake was made, the prisoner would have been entitled to be discharged; but it would be a straining of words to make the language used in the last part of the verdict a finding that the prisoner was not guilty as charged in the second count.

The court, therefore, did not err in refusing to discharge the prisoner, nor in charging the jury on the trial of the plea in bar to return a verdict against the defendant.

This view is supported by the case of Commonwealth v. Call, 38 Mass. (21 Pick.), 509, and in State v. Arthur, 21 Ia., 322, 323. In this last case the prisoner was tried upon an indictment charging him with having in his possession at the same, time five or more pieces of false and counterfeit money, etc. The verdict returned was that the defendant is “guilty of having had in his possession five half dollars, four of them counterfeit coin, one doubtful, and two quarter dollars counterfeit coin, with intent to pass the same.” On page 325 the court, in discussing the case, speak of this verdict and say that it Vas fatally defective in failing to find that the prisoner had this counterfeit coin with a knowledge, etc., and say:

“It partakes of the nature of a special verdict. ' s it certainly is, rather than a general verdict, as defined by the statute. Assuming it to be such, then, as it did not pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, the order should have been that they ‘retire for further deliberation.’ ”

The verdict against the prisoner having been returned on the trial on the plea in bar, the prisoner entered the plea of not guilty, and the court proceeded to impannel the jury; and upon this second trial a verdict of guilty as charged in the second count of the indictment was returned. A motion for a new trial was made and overruled, and judgment and sentence were pronounced upon the verdict.

Complaint is made that the court erred in the impanneling of the jury for this trial. The jury was made up chiefly, if not altogether, of those who constituted the jury upon the trial of the plea in bar, and each juror was challenged for that cause. Section 7278, Revised Statutes, provides for what causes a juror may be challenged. Among those, the fifth reads:

“That he served on a petit jury that was drawn in the same cause against the same defendant, and which jury was discharged after hearing the evidence, or rendered a verdict which was set aside.”

It is this clause of. the' section which, it is said, the court disregarded in impanneling this jury. It is clear that the jurors challenged did not come within the letter of this clause of the section. No one of them had served as a juror in the same cause. The cause for which this jury was impanneled was the prosecution by the state against the prisoner under the indictment. That cause had not been tried to this jury, nor to any of these jurors. No evidence tending to prove or disprove the guilt of the prisoner had been heard upon the trial of the plea in bar; nothing had transpired upon that trial calculated to show either that the prisoner was or was not guilty as -he was charged in the indictment; and if the several jurors were (as for all that had transpired in that case, they well might be) unprejudiced, there was no ground for challenge.

It is especially urged that as to- the juror, Mr. Wuchter, the court erred, because upon his examination at the time the jury was impanneled he made certain answers to questions put to him. The questions put to him were in reference to the hearing upon the plea in bar, and this was asked of him: .

“Mr. Wuchter, you heard what took place yesterday in regard to this ease; I will ask you if what you heard, what you saw, left any impression upon your mind in regard to the guilt or innocence of this defendant of receiving stolen property which would require evidence to remove from your mind ? ’ ’

To this he answered: “Well, it might be possible.”

Question: ‘ ‘ Then, as I understand, you say it is possible that an impression as to the guilt or innocence of the defendant was left upon your mind which might require evidence to remove from your mind?” v

To this Mr. Wuchter answered: “Yes, sir; I think so.”

Mr. Wuchter was then sworn and was questioned, and he answered that no impression which was upon his mind resulted from any conversation that he had with the defendant or with any witnesses in the case so far as he knew. He says further, that he did not get any impression from reading any newspaper articles, and still further he was asked this question:

“Now then, do you think that, notwithstanding that, you could fairly and impartially try this defendant and render a fair and impartial verdict; without reference to that, do you think you could do that?”

To this he answered: “I think I could do that; yes, sir.”

Upon further questioning he emphasizes the statement that he thinks he could tty the case impartially, and challenge as to him was overruled. The juror seems to have brought himself clearly within the exception provided in the second paragraph of Section 7278, Revised Statutes, which reads:

“* * * but if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror on oath as to the grounds of such opinion, and if such juror shall say that he believes he can render an impartial verdict notwithstanding such opinions, and if the court is satisfied that such juror will render an impartial verdict on the evidence, may admit him as competent to serve in such case as a juror.”

There was no error in the ruling of the court in this regard. Complaint is further made that the court erred in admitting certain evidence produced by the state and admitted over the objection of the plaintiff in error. Especial attention is called to the witness, Goodenberger, whose testimony begins on page 83. The testimony specially complained of, however, is found on page 86. The witness was a police officer of the city of Akron and was one of those who found that the ear, from which it was said that goods, for the concealing of which the prisoner was on trial, were taken, had been broken open, and this question was put to him:

“Do you remember of finding any packing material about the floor of either of these cars?”

This was admitted over the objection of the defendant. There was no error to the prejudice of the prisoner in the ruling of the court upon this question. As appeared further on in the case, it was sought to show that there was packing- material found in the car, and that such material was scattered along the pathway leading from this car to the house of the defendant in which the goods in question were found by the officers.

Similar complaint is made as to testimony about letters which it is claimed were scattered along this pathway. Each of these circumstances tended to show that the goods were carried from the ear from which they were taken to the house of the defendant, and it would have been clearly competent to introduce such circumstances in evidence, but for the admission on the part of the prisoner that the goods found at his house were those taken from the ear. On the prisoner’s part the claim was made that he purchased the goods of a peddler who came to his house very early in the morning carrying what must have been, as the exhibits in this case show, a tremendously large and heavy package of goods. The state claimed that if the prisoner did not commit the burglary and larceny, it was committed by others living in his house, and evidence tending to show that the goods were carried directly from this car to the house of the prisoner was pertinent as tending to show his knowledge of the way in which those who brought him the goods obtained them.

Without .going over severally the other questions as to the rulings upon evidence shown by the bill of exceptions, the court finds no error as to any ruling upon questions of evidence.

Complaint is further made that the court erred in refusing to charge as requested by the defendant; especially, it is said, that there was error in refusing to give the fifth request made. That reads:

“The evidence for the state in this case being largely what is known as circumstantial evidence; that is, a chain of facts and circumstances from which you are asked to infer the guilt of the defendant. You should not convict the defendant on such evidence unless these facts and circumstances, taken in connection with all the other evidence in the case, are consistent with each other and with the guilt of the defendant, and are wholly inconsistent with the innocence of the defendant on any reasonable hypothesis. ’ ’

There are cases in which this charge would have been eminently proper. In this case it would have been likely to mislead the jury, if it had any effect upon them whatever. This was not an ordinary case of circumstantial evidence. The fact that the goods taken from the car were, shortly thereafter, found in the possession of the prisoner, did not at all depend upon circumstances. As has already been said, that was admitted. This admission raised so strong a presumption against the prisoner as to call upon him to explain how he came into possession of the goods.

It is true, as said in the case of Methard v. State, 19 Ohio St., 363, that “the facts of burglary, or larceny, and of possession of the stolen goods soon thereafter by the accused, do not alone raise a presumption of law that he is guilty of both the burglary and larceny.”

In the opinion in the same case, on page 368, this language is used:

“The fact that a building was burglariously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury, and, in connection with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, .of the manner in which, or the means by which, he came into 'possession of the stolen goods, that may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny. ’ ’

In Lawson Pres. Ev., 519, the following quotation is made from Hale’s Pleas of the Crown:

"As a general proposition, where the person is in possession of property, it is reasonable to suppose that he is able to give an account of how he came by it, and when the property in question has belonged to another, it is, in general, not unreasonable to call upon him to do so. If the change of possession has been recent, he will not be likely to have forgotten, still less if it be an article of bulk or value. If, then, it be reasonable under such circumstances to call upon the party in possession to account for such possession, it can not be unreasonable to presume against the lawfulness of that possession when he is unwilling to give an account, or is unable to give a probable reason why he can not.”

In 1 Roscoe Crim. Ev. (side paging), 21, it is said:

"If the property be proved to have been stolen, or may fairly be presumed to have been so, then the question arises whether or not the prisoner is to be called upon to account for the possession of it. This he will be bound to do, and, on his failing to do so, a presumption against him will arise, if taking into consideration- the matter of the goods in question they can be said to have been recenly stolen. The presumption will be either that he stole the property, or that he received it, knowing it to be stolen.”

If the state had been depending upon circumstances to show that the goods came into the possession of the prisoner shortly after they were stolen, the request might well have been taken, but that was a conceded fact in the case, and hence the rule which would be applicable to the ease of tracing the goods to the defendant by circumstances is not applicable in this case. The charge given to the jury stated the law applicable to the ease, and so stated it that if followed by the jury, no mistake would be made. There was no eiror in refusing to charge as requested, and no error, for which the case should be reversed, in the charge given to the jury.

As to the motion for a new trial upon the facts of the case, there was clearly no error in overruling the motion. Whoever reads the record of the case will have very little doubt but that the conviction was right, and surely no court would be justified in saying that the jury might not have been satisfied beyond a reasonable doubt of the guilt of the prisoner.

Wilson & Grant and W. A. Spencer, for plaintiff in error.

H. M. Hagellbarger, Prosecuting Attorney, and C. S. Cobbs, for the state.

The judgment of the court of common pleas is affirmed.