text:
    INJURY FROM CONTACT OF TELEPHONE WITH TROLLEY WIRES.
    [Circuit Court of Lorain County.]
    The North Amherst Home Telephone Company and The C., E. & W. Railway Company v. Clinton Jackson, an Infant.
    Decided, October 8, 1903.

      Negligence — Where Telephone Wire Fell Across Trolley Wire into the Street — Pedestrian Shocked Toy Contact — May Properly Join the Two Companies — Expert Testimony as to Insulator — Hearsay Evidence Competent for What Purpose — Evidence as to Leaks in. Insulators at Other Points Incompetent.

    1. Where telephone wires were strung across and but a few inches above a pull-over trolley wire, and there were no guard wires or insulators at that point, and one of the telephone wires fell across the trolley wire and thence into the street, and becoming charged caused a severe shock to a pedestrian, the negligence of each company co-operated with that of the other to bring about the injury, and a demurrer will not lie for misjoinder to a petition making them both defendants.
    2. The issue having arisen whether the insulator in use on the pullover wire between the point of contact and the trolley wires was a safe insulator, the testimony of an expert witness was properly heard on that point; and, if for no other reason, the objection thereto by the defendant street railway company on the ground that it was not bound to adopt the best insulator known, and that to compare the insulator in use with some other insulator was in effect making it-appear that they should have adopted another, was without avail for the reason that the defendant had previously inquired of a witness whether the insulator in use was safe.
    3. Questions to witnesses as to what changes had been made in the wires since the accident were not incompetent as tending to cause the jury to believe the company had by making such changes itself recognized that it had been negligent, where it was plain that the purpose of the questions was to fix the condition of things at the time of the accident, and not to show that changes had been made for the purpose of greater safety.
    4. The admission of hearsay evidence is not erroneous where the purpose of such evidence is limited to fixing a date in the mind of the witness.
    5. But evidence that other span wires on the same trolley system, and provided with the same kind of insulators, had been found heavily charged with electricity at or about the time of this accident, opened up a new field in that it called upon the other party to show whether electricity really did escape at other points and at other times, and was therefore erroneous.
    Marvin, J.; Hale, J., and Winch, J., concur.
   The case of The North Amherst Home Telephone Company and The Cleveland, Elyria & Western Railway Company against Clinton Jackson, an infant, is a proceeding in error brought here, seeking to reverse the judgment of the court of common pleas.

Each of the plaintiffs is a corporation. The North Amherst Home Telephone Company operates an exchange in the village of North Amherst, this county, and the railway company operates an electric railroad from North Amherst to Elyria, and so on through to Cleveland.

At Amherst the construction of the railway at its terminus is such that there is a Y, upon which ears are run for the purpose of getting them turned around and headed back over the line. For the purpose of this Y, the trolley over the north branch or track of this Y is drawn to and held in its position by a wire, called a pull-over (that is not the name by which it is called in the petition, but spoken of so many times in the evidence, that we have designated it as a pull-over wire) extending from the trolley to a green maple tree some considerable distance and northerly from the trolley. It is perhaps eighty-five feet from the trolley over to the tree. This pull-over wire is wrapped around the tree with dry boards between the wire and the tree in such wise that the wire does not come in contact with the tree itself. Between the trolley and the tree, and but a few feet from the trolley, there was placed what is known as a globe insulator for the purpose of cutting off the current, which would in the operation of the cars of the trolley company be carried along the trolley and out upon this pullover.

About thirty inches above this pull-over wire and between the insulator and the tree, and crossing the line of the pull-over, the telephone company had strung four of its wires; there were no guards or insulators upon the wires of either company at the place of the crossing, and nothing to prevent the telephone wires from sagging down upon the pull-over wire except the tension of the wires. This crossing point was over one of the public streets of the village.

On the evening of July 4, 1901, there was a severe electric storm at Amherst, accompanied by heavy rain and violent wind. During the storm a barn in the village was set on fire, probably by lightning, and the plaintiff, a boy about eight years of age, with many others, went to the fire, and on returning therefrom, in walking along the public street or sidewalk, he walked against one of the telephone wires, which in some manner had been broken or burned off and was hanging over the pull-over wire of the railway company. This wire was charged with electricity to such an extent that the plaintiff was severely shocked and burned by the electricity upon coming in contact with the wire.

To recover damages for this injury suit was brought by the defendant in error against both the telephone and the railway company, charging that his injury resulted from the carelessness and negligence of these companies. The case was tried to a jury in the court of common pleas, resulting in a verdict and judgment for the boy, the defendant in error, against both of these companies. The bill of exceptions before us contains the proceedings which took place in the trial, including all the evidence. Plaintiffs in error claim a reversal of the judgment for numerous reasons to be noticed.

First. A demurrer was filed by the railway company to the petition for misjoinder of defendants. This was properly overruled, for though each company had control of its own wires, yet the allegations of the petition are such as to show that the negligence of each company co-operated with that of the other to bring about the injury. Not only that, but there could be no prejudice to the railway company in the overruling of that demurrer, for the allegations of the petition showed a good case against that company. But in a case where the allegations are as they are here there was no misjoinder.

The Supreme Court of Alabama, in the case of McKay & Roche v. Southern Bell Telephone & Telegraph Company et al, reported in the 31st of the Lawyers’ Reports Annotated, page 589, uses this language in the third clause of the syllabus:

“A telephone company and an electric railway company are jointly liable for negligence when both maintain their wires with knowledge of the danger caused by the want of guard wires between the trolley wire and a telephone wire insecurely suspended over it, and especially when they permit a broken telephone wire to remain suspended across the trolley wire.”

It is urged further on in the trial, by an objection to the introduction of any evidence, that the petition fails to state a cause of action against anybody; that the charge in the petition, and the only charge of negligence, is that the companies had no guards or insulators at the place where the wires of the telephone company passed over the line of the trolley of the rail way company.

The language of the petition in that regard is this:

“On the 4th day of July, 1901, and for many months prior thereto, the defendants in their said business, knowingly, purposely and negligently suffered and permitted four or more of the wires of said telephone company to cross nearly at right angles to and within a few inches above a certain wire of said railway company at the northwest comer of Main and Milan streets in said village, the same being much traveled thoroughfares in the business center of said village, while all of said wires of both of said companies were heavily charged with electricity, and without any of said wires of either of said companies being properly insulated at said point of crossing as in the exercise of ordinary care by said defendants they should have been.”

Now with the liberal construction given to pleadings under the code, it seems clear to us that there is a charge of negligence here, more than simply negligence that there were no guards and no insulators at the point of crossing. “Without any of said wires of either of said companies being properly insulated by guards from coming in contract with one another at said point of crossing, as in the exercise of ordinary care by said defendants they should have been.” It seems to us that the fair reading of this is that: There was not the proper insulation of the wires of either company, and at the point of crossing there were not proper guards.

Counsel for the plaintiff clearly understood that such was the meaning, and we think it clear it meant that, and that therefore there is a charge of negligence in the want of proper insulation and the additional charge of negligence in the failure to guard the wires at the point of crossing.

Testimony was admitted (this is complained of, over the objection of the railway company), as to whether the insulation of the pull-over wire was a proper one. As has already been stated there was what is called the globe insulator in this pull-over wire a short distance from the trolley wire. The wires of the telephone company crossed the line of the pull-over wire at nearly right angles between this insulator and the tree. The first place where the objection is made to this kind of: evidence as to the insufficiency of this insulator in the pullover wire, is on page 68 of the record. Bert Smith was a witness, and he was asked about the ball or globe insulator which was in the pull-over wire and quite a distance from where the wires crossed. Now it was said no complaint is made in the petition that there was any improper or insufficient insulation anywhere except at the place of crossing. But what has already been said on that point is all that need be said. It is proper to show under this petition that the insulator was not such as should have been used, the insulator at this place in the pull-over wire.

Again, it having been made to appear that the insulator used by the railway company was what is known as the ball insulator, and that other insulators for the same purpose were used by electric railway companies, quite a number of witnesses were asked as to the comparitive merits of this ball insulator with other known insulators. Complaint is made that this kind of evidence should not have been permitted, because it is said the railway company were not bound to use the best insulators known, and that to compare their insulator with some other insulator was in effect to make it — it could not be admitted except for the purpose of making it — appear that the company should have used another, because there was another that was better, and they say they were not bound to have the best, but were only bound to have an approved insulator.

That objection would have more force, and possibly would be good, but for what had before that been elicited by questions put by counsel for the plaintiffs in error, the defendants below. W. J. Hiller was on the stand, placed there by the plaintiff below. He was the superintendent of the railway company. He had testified somewhat as to the construction of this railway. Upon examination he was asked by counsel for the railway company: “What do you say as to the globe insulator being a proper and safe insulator, July 4th, 1901?” That was objected to by the plaintiff below, the objection was overruled and the witness answered: “I think it is as good as they could have got in the market.” Not content with iLat, counsel for the plaintiff in error asked this question: “Were there any that were better?” And the witness answered: “Not to my knowledge.” Now that having been brought out by questions asked by counsel for the railway company, it seems to us justified the defendant in error, the plaintiff below, to show that their superintendent was mistaken when he said that there were no better insulators on the market. Otherwise with what good effect the attorney might go to the jury and say: Why their witness, put on by themselves, says there were no better insulators in the market, overlooking the fact that he said it in answer to their question, and then might add very well in the argument, “and nobody pretends to deny it;” that was the very best insulator that could be got, and nobody is brought on to deny it. There was no such error in permitting the questions of the character under discussion to be answered as would justify a reversal of this ease.

Bert Smith was a witness. He was asked by counsel for the defendant in error his opinion, and this appears on pages 79 and 80: “Whether the ball was a safe insulator.” He was permitted to answer, he did not think it was safe; he said': “It was not safe as against lightning.”

On page 85 he also made the statement “that the ball insulator would leak.” It is complained that the ruling of the court in permitting this, which was permitted over the objection of the railway company, was allowing the witness to give an opinion on an ultimate matter. The witness was permitted to say that the insulator was not a safe insulator, give his opinion it was not a safe insulator, and that the insulator leaked.

Now already attention has been called to the evidence given by Hiller on page 8, when counsel for the railway company asked him: “What do you say as to the globe strain insulator being a proper and safe insulator, July 4th, 1901?” I think that they might very well after the testimony of Hiller, show by Bert Smith or any other competent man that it was not a safe insulator and that it would leak. Not only that, but our Supreme Court in the 61st of the O. S. Reports, at page 608, Ohio and Indiana Torpedo Company v. Fishburn et al, discuss the question of the opinions of witnesses upon matters something like this. There an expert in the matter of drilling oil wells was upon the stand and he was asked the question: “Suppose the shooter of a well brings one hundred quarts of nitro-glycerine to said well, the nitro-glycerine had been placed in the shells, lowered in the well, the well logged in, the derrick boarded up, except the opening facing towards the engine and belt house, the said well being át a distance of from eighty to two hundred feet from the residence and buildings adjoining and surrounding it, located in a village of twelve to thirteen hundred people; the condition of the atmosphere such that when the gas is liberated from the well, it settles to the surface of the earth; would the hour of 7:30 on the seventh day of September, in any year, when darkness had intervened so that fires and lights are lit in certain of such business and dwelling houses be in your opinion a proper time to shoot such well; that is to say, explode such torpedo therein?” And the answer is: “It is not a proper hour.”

The court say:

“The objection urged is that this was error because the fact sought was a matter to be found by the jury. We do not think the admission of the evidence was error.’ The fact called for was evidentiary. It tended to prove one fact involved in the issue but was not the ultimate fact in issue. Nor was it a subject of common knowledge, or one of which the jury could as well judge as the witness.”

The opinion then goes on to discuss the right of an expert to testify to it.

Now here the thing charged was that these people were neg- ' ligent in the use of this insulator. This was one of the negligent acts complained of; we think it was proper to inquire of an expert whether that was a safe insulator, and in any event that it was not error after the other party had inquired of a witness whether it was a safe insulator.

On page 89 of the record we have the testimony of a witness by the name of Kitchon on the stand as an expert, and he was asked: “Now from your practical experience of yonr life time, are you able (after he had given evidence tending to show he was familiar with electric street railroads), are you able, have you the means of knowing, from the practical workings of insulators, are you able to state which is the better insulator for a pull-over wire in July of 1901?” A. “I am.” “You may answer the question.” Then there was an objection and it was overruled. A. “Por me I would put in the porcelain insulator or the wood.” It seems there is an insulator known as the porcelain insulator and there is another insulator made of wood, and they are comparing those. “For me I wouLd put in the porcelain insulator or the wood. Now if you want to know my reasons I will explain my reasons. ” No motion was made to take that testimony from the jury. The question was proper if what has already been said about comparing the different kinds of insulators one with another, if what has been said about that is correct, then the question was proper. If the answer was incompetent, no proper means to have it taken from the jury was exercised, and hence the court committed no error in that regard.

Frank Estinghausen was a witness in the case on the part of the plaintiff below, and as appears on page 103, he was asked to compare the' globe insulator with the wood and other insulators, and that was objected to and overruled. And he was asked: “Do you know anything about that?” The question was proper, if what we have already said is all right. He said r “I have seen these, yes, sir, and seen them used a great deal; in speaking from a standpoint of working for my own safety on one of these or on the strap insulator or wood insulator, I would prefer the wood or strap insulator to this for several reasons.”

The record reads: “Objected to by defendant; objection overruled; exception by defendant.”- The witness continues right on with his answer. “I say, with my own experience, I would prefer the strap insulator or wood insulator, for the reason here with a high current and working on the line; I am speaking strictly from my own experience in working on the line.” He goes on and bases it upon his own experience and what he would prefer, but no motion was made to take that from the jury. If the question was proper, as we have held it was, then the proper method of taking that from the jury was not adopted, and henee no error which would justify a reversal in that regard.

There was asked of more than one witness, one was Steele and I think of another witness, questions as to the condition of the wires at this place where the boy was injured, at the time of the trial. It is urged that error was committed, because the question of what changes had been made should not be permitted to go to the jury, as that might tend to induce the jury to think that the company itself recognized that it was negligent in the way that it had its wires, its arrangement at this place, and had made changes. At each of the places where this complaint is made an examination of the record shows that that is not the purpose at all, that that was not the tendency of it. The questions were asked as to the condition of things, and he said there are ten wires over there now. What the counsel was clearly trying to get at was, how many there were at the other time, not for the purpose of showing they made a change, but when the witness answered there were ten, counsel recognized it was not the same as it was before, and asked: “How was it at the time of this transaction?” There was no tendency to show the company had made any change for the purpose of making it safer, and therefore no prejudice could come to the company by having this question answered. That is true with each of the questions where a reference is made to a change.

Complaint is made as to some inquiry about the time Clark’s buggy was overturned, and the witness stated he had heard of Clark’s buggy being overturned, and it is urged that the plaintiff was getting in hearsay evidence. That was not the purpose of the evidence at all. He was asked, “You heard about Clark’s buggy being overturned?” A. “Yes.” Nobody claimed that was overturned by any electric storm, but in order to get at the time, because they thought they would be able to show when the buggy was overturned, they simply put the question, “Do you remember when Clark’s buggy was overturned?” There was no error in that.

Without stopping to go through with each of the objections made and exceptions taken to the rulings upon evidence, either permitting questions to be answered or excluding answers to questions, we will consider only one other witness, one other matter as to the rulings on evidence.

Ora Mowary was introduced by plaintiff below as a witness, and Mowary testified — -he had been on the stand before — but he was introduced for a second time, as appears on page 278 and following, and he testified that he had been familiar with the lines of the telephone company, and that he was familiar with the lines of this railway company.

Then he was asked: “Have you come in contact with the trolley system of The C. E. & W. Railway Company?” That was objected to and the objection overruled, and no esception was there taken. A. “Yes, sir.” Q. “I will ask you whether or not, in the line of your duties, it has become necessary for yen to climb the poles to which their trolleys were attached?” A. “Yes, sir.” Q. “I will ask you whether or not the span wires running from the trolleys to the poles on the C. E. & W. are supplied with insulators like the one marked Exhibit 1? "What, if anything, have you discovered, Mr. Mowary, regarding live wires between these insulators and poles?” That was objected to and objection overruled and exception taken by defendant. Now following that, several questions are asked of Mr. Mowary of this sort, tending to show and designed to show that Mr. Mowary had observed the workings of the trolley system of this railway company, and that he had noticed that electricity escaped past these insulators, and the lightning.

The objection having been made, the court said this: “I would like to know what you expect to prove?” He asked this of plaintiff’s counsel.

By Mr. Metcalf. “We expect and offer to show by the witness and other evidence, that a large number of the span-wires of the defendant railway company attached to its trolley wires along its line were, at about the time of the accident to the plaintiff, found alive and heavily charged with electricity between the poles to which the span-wires were attached and the globe insulators thereon near the trolley, and while these globe insulators to all appearances were in perfect condition.”

E. G. Johnson, Hale G. Johnson and H. G. Redington, for plaintiffs in error.

Metcalf & Cinniger, for defendant in error.

By the court: “I will allow the testimony to go in under this statement, but before this trial ends, if I find I am wrong, I will endeavor to take it from the jury. ’ ’

The court nowhere took that from the jury; he did permit that kind of evidence, not connected with this transaction, not near to this transaction. Necessarily that opened up, as we think, a field that would have called upon the other party to bring evidence to show — upon finding out from this man where it was — evidence to show whether electricity did escape at other points and other times., We think it was clearly error to admit this testimony, and that it was prejudicial to the defendant, and for this error the judgment must be reversed.

Very many other errors are complained of. The charge of the court is complained of on page 576. Certain language used by the court is said to be ambiguous, and other things in the charge, as already stated, are complained of; at least on page 576 the language is somewhat ambiguous, but we think what was afterwards said by the court in relation to the subject matter contained in that fully explained that, and that is equally true as to page 586, and we think that the charge as a whole was a fair charge, and no error was committed by the court in refusing to give requests made, and no error given in the charge as made, and the only error on which the judgment is reversed is on the admission of this testimony of Mowary, and for that the judgment is reversed and the case remanded to the court of common pleas.


source: Caselaw Access Project

license: Public Domain

text:
    THE WRIT OF MANDAMUS.
    [Circuit Court of Hamilton County.]
    State ex rel Fanger, v. Board of Elections.
    Decided, January 5, 1903.

      Mandamus — Will not Lie to Compel the Providing of Toting Machines by Board of Elections — Does Not Lie in Anticipation of the Omission of Official Duties.

      1. A writ of mandamus to compel a board of elections to grant tbe petition of sixty-five per centum of tbe electors of a voting pre•cinct for the providing of a voting machine for their precinct under the provisions of 95 O. L., 420, will not be issued, where it does not appear that there are funds on hand applicable to payment for such a machine, or that the board has been derelict in providing by proper levy a fund applicable to such purpose.
    2. The rule that mandamus can not be granted in anticipation of an omission of duty, forbids the issuance of-a writ to compel the purchase of a voting machine which will not be needed for three months, where it does not appear that it is necessary to purchase the machine at once in order to have it in readiness when needed.
    Swing, J.; Giffen, J., and Jelke, J., concur.
   This court, on November 4, ult., the day of the last election, issued an alternative writ of mandamus against the defendants, returnable on December 2, to show cause why they should not purchase a voting machine under and by virtue of the requirements of Section 14 of an act passed by the Legislature in May, 1902 (95 O. L., 420), for Precinct B of the Twenty-sixth ward of the city of Cincinnati. The petition alleges that sixty-five per centum of the. electors have signed a petition praying for the adoption of a voting machine as required by the statute, and that the defendants refused to purchase the same.

The defendants answered, admitting that sixty-five per centum of the electors had filed the petition as alleged, and its refusal to purchase a machine, but denied all other allegations. No evidence was introduced as to the cost of a voting mechine, but it was admitted in the argument that the cost was $500.

No evidence was introduced by the relator showing that there was in'the general revenue fund of the city, applicable to the purchase of a machine, sufficient funds for the purchase of the same. It did not further appear that said board were derelict in providing by proper levy a fund for the purchase of said machine, and as the board can not purchase a machine without funds which are applicable to the purchase of machines, the court should not attempt to compel the board to do an act which it is not in its power to do.

High Extraordinary Remedies, Section 14, says:

“It is a fundamental principle of the law of mandamus that the writ will never be granted in eases where, if issued, it would prove unavailing. And whenever it is apparent to the court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other sufficient causes, so that the granting of the writ must necessarily be fruitless, the court will refuse to interfere. So if it is apparent that the writ, if granted, can not be enforced by the court, relief will be withheld, since the courts are averse to exercising their extraordinary jurisdiction in cases where their authority can not be vindicated by the enforcement of process. Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time.”

The sixty-five per centum of the electors of said precinct presented their petition to said board on October 28, 1902, long after the time for which they might have provided a levy for the purpose of raising a fund sufficient to purchase said machine. It seems to us that this is all that should be said why the writ should be refused. The writ of mandamus is never granted except where the relator shows a clear legal right to have the writ issued, and it has not been shown here by the relator that the defendants have in the general revenue fund of said city funds which by law they are authorized to appropriate to the purchase of such machine. Neither has it been shown that said board neglected or refused to perform any duty resting on it to provide a proper fund in a proper way for the purchase of said machine.

There is still another reason why we think the writ should be refused at this time. The action was not brought to require the board to purchase a machine for the election held on November 4, ult. No application for the alternative writ was made to this court until the day of said election, and no election will occur until the April election of 1903. If the board provides a voting machine by that time, more than three months hence, the relator will get all that he is entitled to. He is not beneficially interested in having the board purchase a voting machine at this particular time.

Geo. B. Okey, Cohen & Mack and Chas. L. Swain, for relator.

Corporation Counsel, for defendants.

“Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is therefore incumbent upon the relator to show an actual omission on the part of the respondent to perform the required act; and. since there can be no such omission before the time has arrived for the performance of the duty, the writ will not issue before that time. In other words, the relator must show * * * a legal duty then due at his hands, and no threats or predetermination can take the place of such default before the time arrives when the duty should be performed; nor does the law contemplate such a degree of diligence as the performance of a duty not yet due." High Extraordinary Remedies, Section 12.

There is no legal duty now due the relator that the defendants must purchase a voting machine at this particular time. The time when there will be any use for said machine will be more than three months hence, and it is not shown that it is necessary to purchase such voting machine now in order to have it by the time needed. Now constat the defendants, if within their power to do so, may provide a voting machine as petitioned for by said electors of said precinct for the coming election in April. And it would only be reasonable to assume that the Legislature intended that in the purchase of machines, the board should make all necessary investigations as to the merits of the different machines and make proper agreements as to terms of sale, and these might very well require some time.

For these reasons the writ must be refused. Having come to this conclusion for the reasons stated, we do not think it proper to enter into a discussion of the other questions presented to us on the argument of the case, for what.we would say would be obiter dictum.


text:
    LIEN ON WATER-CRAFT.
    [Circuit Court of Cuyahoga County.]
    Robert A. Shailer v. Mark H. Hanlon.
    Decided, February 29, 1904.

      Water-Craft — State Courts have Jurisdiction over — Where the Constitutionality of a State Statute is Involved — May Direct to Whom Balance of Purchase Money shall he Paid — Ohio Statute Provides a Lien for Supplies — Coal Furnished in Bulk for the Vessel and Other Purposes.

    1. A state court has jurisdiction to construe a statute of the state relating to liens on water-craft, and where the balance of purchase money for the boat is brought into court by the party owning it, the court has the jurisdiction to direct to whom it shall be paid.
    2. It is not necessary under the Ohio statute (Section 5880) for one furnishing supplies to a vessel with the understanding on the part of both the vendor and the vendee that such supplies were furnished on the credit of the boat, and unless the evidence shows that the supplies were furnished upon the credit of the owner or some other person, one from whom such supplies were obtained is entitled to a lien.
    3. Where coal is furnished to a vessel in bulk, a part to be used on the vessel and a part to be unloaded at a designated place for a known use, a lien will attach to the vessel for the coal used in its navigation.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to court of common pleas.
   The original action was brought by Robert A. Sbailer against the Standard Contracting Company, a corporation, to recover a balance due upon the purchase price of the steamer George T. Burroughs, which was bought by the defendant from the plaintiff. By the contract of sale the plaintiff guaranteed said steamer to be free of all liens. The amount remaining unpaid upon the purchase price is $950. The defendant in error, Mark H. Hanlon, was brought into the case by interpleader, the original defendant, by one of its officers, filing the proper affidavit that said Hanlon claimed a lien upon the steamer, and said Hanlon was thereupon made a party in the ease and filed his answer, setting np that he had a lien and the nature thereof. The steamer was used on Lake Erie in carrying supplies from the dock at the city of Cleveland, Ohio, to what is known as the “crib,” some five miles out in the lake from the dock. The lien claimed by Hanlon grows out. of the following state of facts:

Hanlon was a coal-dealer in the city of Cleveland, and for a series of years prior to the year 1901 had furnished coal which was taken upon this steamer and used in part for the navigation of the vessel,, and in part was unloaded at the “crib” and used there. Up to the year 1901 the coal so delivered by Hanlon to the steamer was paid for by the owner or charterer of the steamer. The steamer, during the greater part of that time, was owned by the. Shailer & Schniglau Company, but on or about the 20th of October, 1901, the boat was sold by that company to the plaintiff. After such sale the boat was chartered by said Shailer & Schniglau Company from the plaintiff, and was used in the same way as it had thereto-coal to the boat for the season of 1901, and Hanlon then gave fore been used. The owner of the boat, or the agentj made inquiry of Hanlon as to the price at which he would furnish the price at $1.95 per ton. Beyond this, no contract was ever entered into between the parties, except that from time to time, during the season of 1901, the master of the boat, and sometimes some other representative of the parties operating the boat, ordered coal to be delivered to the boat by Hanlon, and this was accordingly done. The coal furnished by Hanlon to the boat during the season of 1901 amounted to about 1,200 tons. At the time that Hanlon first began furnishing coal to this boat it was charged by him directly to the steamer, but during the season of 1901 it was charged to the Shailer & Schniglau Company, per Steamer George T. Burroughs. Of the coal thus delivered to the boat by Hanlon 225 tons were used for the purpose of navigating the boat. The balance was unloaded at the “crib” for other purposes. No part of the coal furnished for the season of 1901 was paid for. No distinction or separation was made at the time the coal was delivered between that which was to be used for the navigation of the boat and that which was to be delivered at the “crib.” The coal was simply delivered in bulk, and from that bulk such part was used for this navigation as was necessary. Hanlon claims a lien for the coal used in navigating the boat, under Section 5880 of the Revised Statutes of Ohio, which reads:

“Any steamer, boat or other water-craft navigating the waters within or bordering upon this state shall be liable, and such liability shall be a lien thereon for all debts contracted on account thereof by the master, owner, steward, consignee, or other agent for materials, supplies or labor in the building, repairing, furnishing or equipping of the same.” * * *

The original defendant comes into court and admits the indebtedness on account of the purchase-price of the boat, and tenders payment to the party who shall be found to be entitled to such payment. The court of common pleas held that Hanlon had a lien for the 225 tons used in navigating the boat, at the price of $1.95 per ton, as fixed as the value of the coal delivered, and ordered that the value of this amount at this price should be paid to Hanlon out of the money due from the original defendants.

On the part of the plaintiff in error it is claimed, first, that the court was without jurisdiction to determine this lien and direct the payment of the money to Hanlon, and, further, that even if the court had jurisdiction, the facts do not entitle Hanlon to a lien.

As to the jurisdiction. It is settled that the liens upon watercraft provided for in the state statutes can not be made the basis of an action in the state courts, but that the federal courts, having admiralty jurisdiction, have the exclusive jurisdiction in actions brought to enforce the lien. But that is not the present case. The boat has been sold. The money due upon the purchase price is brought into the state court. A construction of a statute of the state becomes necessary. We hold that the state court has the jurisdiction to construe the statute and that the money, being brought to the court by the party owing it, when the court has construed the statute it has the jurisdiction to direct to whom it shall be paid. Otherwise we should have this situation: That Hanlon was called upon to plead in this ease. Being so called upon, he must either set up his claim or ignore the court and commence an action in the federal court. If he had failed to assert liis rights in the state court, the court might have proceeded to direct the money to be paid to the plaintiff, even though a part of it were due to Hanlon, and the original defendant, being under the jurisdiction of the state court, would be bound to obey the order of the court, and then when Hanlon brought his suit in the federal court the original defendant might be required to pay again the amount of Hanlon’s lien, if it should be determined that he had a lien.

Though this question is not free from doubt, it seems to us that the better reasoning is that the court which has the parties before it and the money under its control, and having jurisdiction for determining the statute, should have the authority to direct to whom such money should be paid. We hold, therefore, that the court of common pleas had the jurisdiction to determine the rights of the parties in this ease.

There remains the question of whether Hanlon, under the facts, was entitled to a lien. Statutes similar to our own are in force in most, if not all, of the states. They were enacted because, under the admiralty laws, liens were given only for supplies furnished to a vessel in a foreign port, but these statutes provide for many things not provided for by the admiralty laws, and whether or not it would be necessary, in order to hold a lien under admiralty law, for one furnishing supplies to a vessel to show affirmatively that the contract for supplies was made with the understanding on the part of both the vendor and vendee that such supplies were furnished on the credit of the boat, we hold that it is not necessary under our statute.

It is said, in the case of The Lulu, decided by the Supreme Court of the United States, 10 Wallace, 192:

“Experience shows that ships and vessels employed in commerce and navigation often need repairs and supplies in course of a voyage, when the owners of the same are absent, and at times and places when and where the master may be without funds, and may find it impracticable to communicate seasonably with the owners of the vessel upon the subject. Contracts for repairs and supplies, under such circumstances, may be made by the master to enable the vessel to proceed on her voyage, and if the repairs and supplies were necessary for that purpose, and were made and furnished to a foreign vessel or to a vessel of the United States in a port other than a port of the state where the vessel belongs, the prima facie presumption is that the repairs and supplies were made and furnished on the credit of the vessel unless the contrary appears’from the evidence in the case.”

The syllabus in the same case reads:

“ * * * in the case of a lien asserted against a vessel supplied or repaired in a foreign port, necessity for credit must be presumed where it appears that the repairs and supplies for which a lien is set up, were ordered by the master, and that they were necessary for the ship when lying in port, or to fit her for an intended voyage, unless it is shown that the master had funds, or that the owners had sufficient credit, and that the repairer, furnisher, or lender knew these facts, or one of them, or that such facts and circumstances were known to them as were sufficient to put them on inquiry, and to show that if they had used due diligence they would have ascertained that the master was not authorized to obtain any such relief on the credit of the vessel.”

We hold that, under our statute providing for a lien for supplies furnished “on account” of such vessel is sufficient to give the person furnishing such supplies a lien, unless the evidence shows such supplies were furnished upon the credit of the owner, charterer, or some other person, and not upon the credit of the vessel.

Coming, then, to the question of whether because of the fact that the coal for which this lien is claimed was furnished in bulk with other coal, no lien could be upheld, we hold that to the extent’ that this coal was used for the navigation of the vessel Hanlon was entitled to his lien. We think this holding is justified by the holding of the Circuit Court of the United States for the First Circuit, in the case of The Kiersage, 2 Curtis Rep., 421. In that case, a statute of the state of Maine was being considered. The facts were that certain parties furnished materials for the building of two vessels of the same pattern and tonnage, in the same way, in the same yard, at the same time. A claim was made that the parties furnishing these materials were entitled to a lien on each vessel for the materials furnished for both, and the court say upon this question, at page 423:

Goulder, Holding & Masten, for plaintiff in error.

Russell & Eichelberger, for defendant in error.

" The next question which has been argued in this appeal arose out of the following facts: The builders of this vessel were building another of the same tonnage and model in the same yard, at the same time while this one was constructing. The libellants furnished materials for the two vessels without distinguishing between them.”

And on page 425, this language is used in the opinion:

" At the same time, I think that where materials are furnished for two specific vessels though the original contract does not appropriate them specifically to either, yet when they are afterwards appropriated, they may properly be considered as furnished for that vessel in the construction of which they are used. ”

As bearing upon the questions arising in this case, attention is called to the case of The H. B. Foster, 3 Ware, 165.

Entertaining the views expressed in this opinion, the judgment of the court of common pleas is affirmed.


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    ATTORNEY AND CLIENT.
    [Circuit Court of Hamilton County.]
    Spangenberg v. Zumstein.
    Decided, January 15, 1903.

      Judgment — Assignment of to Attorney by Client for Professional Services — Agency.
    One who assigns all right, title or interest in a judgment to an attorney in consideration of professional services theretofore rendered, the said attorney to account to the assignor for one-half the amount realized on the judgment, does not mahe the attorney an agent for the collection of the judgment, but invests him with full title thereto, and the attorney has the right to prosecute an action in his own name against the judgment debtor.
    Swing, P. J.; Giffen, J., and Jelke, J., concur.
   This was an action in the court of common pleas by Spangenberg . against Zumstein on a bond given by said Zumstein to one Kate Dilg to perfect an appeal from the judgment of Philip Winkler, a justice of the peace in this county, in an action pending before him.

This action in the court of common pleas was prosecuted in the name of Spangenberg, who claimed to be the owner of the judgment obtained by Kate Dilg in, said action on appeal from said justice.

The only evidence in the ease was that of Spangenberg, who testified that the judgment had been assigned to him by Kate Dilg, and the assignment was in the following words:

“Kate Dilg v. Christ Dilg. For value received I hereby and by these presents assign, transfer and set over to Ed. M. Spangenberg all my right, title and interest in and to the judgment herein.
“Kate Dilg.
“Cincinnati, July 5, 1901.”

On cross-examination Spangenberg testified as follows-:

“Q. Is it not a fact that at the time of the assignment you agreed to pay one-half of any judgment you might recover to Kate Dilg?
“A. Yes, sir.
“Q. Did you pay any money as a consideration for the assignment of the judgment?
“A. The consideration for the assignment was professional services rendered by me to her, prior to the assignment.”

This was all the evidence offered by either party; on it the court rendered judgment for the defendant and dismissed plaintiff’s petition.

It is urged before us in support of the judgment that the evidence shows that Spangenberg is not the owner of the judgment and had no right to prosecute an action in his own name, as he is not the real party in interest as is required by Section 4993, Revised Statutes.

Was Spangenberg the owner of the judgment? We see no reason to question his absolute ownership of it. It was a chose in action owned by Mrs. Dilg, which she had a right to assign, and she did assign it to Spangenberg, and for a consideration1. (which was for services rendered to her in the past by Spangenberg) . The fact that Spangenberg was to pay over to Mrs. Dilg one-half of whatever he might recover on it did not leave in Mrs. Dilg any right as against Zumstein, that she had transferred to Spangenberg, and instead of her right against Zumstein, she had substituted one against Spangenberg. It is true that it arose out of the right that she had originally against Zumstein, but it was not the same right. The intention to us seems clear that she intended to vest in Spangenberg the ownership of the judgment and not constitute him her agent for the collection of it, of which he was to receive half when collected.

J. J. Gasser, for plaintiff in error.

Shay & Cogan, contra.

This case we think clearly distinguishable from the case of Brown v. Ginn, 66 Ohio St., 316, where the court found the party was the mere agent of the assignors whose claims had been assigned to the assignee for the purpose of collecting the same, and the only consideration moving between the parties in the transaction was to be the services to be thereafter rendered by the assignee in the prosecution and collection of the claims, and where the assignee by the terms of the assignment was to pay all costs of suit and pay over to the assignors the proceeds of the recovery in the judgments after deducting certain amounts due him for services rendered in recovering the same. The court held in this case that the assignee was the mere agent of the assignors, and not the owner of the claims, and that the transaction was champertous, but all the elements in that case seem to us to be lacking here.

Judgment reversed.


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    QUESTIONS ON TRIAL FOR HOMICIDE.
    [Circuit Court of Wyandot County.]
    Marsh Lindsay v. State of Ohio.
    Decided, April Term, 1902.

      Criminal Law — Irregularities in the Impanneling of Grand and Petit Juries — Indictment for Murder in an Attempt to Bob — Premeditation not an Essential Element — Plea in Abatement — Waiver of Constitutional Privileges■ — Change of Venue — Examination of Jurors on their Voir Lire — Charge of Court — Degree of Crime Fixed by the Jury.

    1. An irregularity in the impanneling of a grand jury, such as the swearing of and instruction of the jury before the return of the venire facias, is not ground for quashing an indictment, or for a plea in abatement, but must be taken advantage of, if at all, by challenge for cause.
    2. Premeditation is not an essential element of an indictment for murder in the first' degree, when the homicide was committed in an attempt to rob; and it is not necessary, where the indictment charges that the act was done by several persons jointly, that it should set out which one of the defendants actually did the killing.
    3. An inquest before a grand jury is not a trial, and a plea in abatement in which it is alleged that the defendant was compelled to attend before the grand jury and to be sworn and give testimony without the advice of counsel, and to dress himself in disguise as the persons were dressed who committed the crime, and when thus dressed to exhibit himself before the grand jury, is bad for uncertainty and insufficiency because it does not allege that he claimed his constitutional privilege of refusing to answer or to dress himself in disguise.
    4. The action of the trial court on motion for a change of venue can not he reviewed on error unless it should clearly appear that there was an abuse of discretion in overruling the motion.
    5. The panel of a petit jury in a capital case when containing less than thirty-six names, may be filled by special venire.
    6. Where in the examination of a petit juror on his voir dire, the juror states that he has formed an opinion or prejudice which is against the defendant, but he thinks he can render a fair and impartial verdict according to the law and the evidence, the acceptance of such juror by the court is a finding that the court was of the opinion that the juror would render a fair and impartial verdict, and the refusal of the. defendant’s challenge for cause was not error.
    7. The charge of the court in a homicide case should leave the jury-free to render such verdict and to fix such a degree of crime as their judgment and conscience dictate.
    Douglass, J.; Voorhees, J., and Donahue, J., of the fifth circuit sitting in the third circuit; opinion by Voorhees, J.
   Plaintiff in error was indicted, together with four others, at the April Term of the Court of Common Pleas of Wyandot County, Ohio, on July 27, 1901, for the murder of William C. Johnson, on September 11, 1900. At said term plaintiff in error was tried and convicted of murder in the second degree, and sentenced to the penitentiary for life.

Error is prosecuted to this court, and numerous grounds are assigned for the reversal of the judgment. Among the errors assigned are:

1. Irregularity in selecting a special grand jury.

2. That the indictment is defective in form, viz.: That it does not define and describe a crime; it does not aver deliberate and premeditated malice; that it does not state -which of the defendants held in his hands and discharged the pistol, or committed the supposed crime; the indictment was not returned and presented to the court as required by law; the grand jury, if sworn and charged at all, were sworn and charged before the return of the venire facias; that the grand jury was not sworn and charged until after they had entered upon said investigation and found said bill.

3. That said jury only investigated this case charged in the indictment against this defendant and his co-defendants, and that while said grand jury was investigating said case, and while so doing, caused a subpcena to be issued for this defendant, plaintiff in error, and required him to be sworn in open court, and to give testimony before said grand jury concerning this ease, and while the conduct of this defendant was being investigated, and required him to give testimony concerning the charge against him in violation of his constitutional rights.

4. In sustaining the demurrer of the state to defendant’s plea in abatement.

5. In overruling defendant’s motion for a change of venue.

6. Errors in selecting and impanneling the petit jury, and in overruling objections of defendant to jurors for cause, and in compelling defendant to accept a juror challenged for cause after having exhausted the peremptory challenges under the statute.

7. Error in the charge of the court as given, and in refusing to charge as requested.

8. Misconduct of prosecuting attorney in the conduct of the case and in his closing argument to jury.

9. That the verdict of the jury is not supported by sufficient evidence and is against the weight of the evidence.

We will consider the errors in the order named:

1. As to the impanneling of the grand jury.

The errors complained of as to impanneling the grand jury are irregularities only, and not objections to any of the panel as to their qualifications. Sections 5162 and 5167, Revised Statutes, provide for the selection, drawing and summoning of grand and petit juries. Mere irregularities in selecting and drawing grand juries, which do not relate to or affect their qualifications as such, must be taken advantage of, if at all, by challenge for cause, and can not be made grounds to quash the indictment or be pleaded in abatement. Huling v. State, 17 Ohio St., 583; Blair v. State, 5 C. C., 496; affirmed by Supreme Court, 25 Bull., 388.

Technical defects in obtaining and impanneling a grand jury, which do not affect the competency of the persons to act, can not properly be made the basis of a motion to quash the indictment or plea in abatement, but must, by express statutory provision, be availed of, if at all, by challenge before the jury is impanneled and sworn. Blarney v. State, 17 C. C., 486.

Section 5171, Revised Statutes, provides for the filing of the panel of a grand jury, and is not affected by Section 5167, Revised Statutes (Julian v. State, 46 Ohio St., 511). Said Section 5171, Revised Statutes, is not repealed by the act of 1894 and 1895. Stahl v. State, 11 C. C., 23-33.

A special grand jury, assembled to consider one case, is not thereby prevented from investigating any matter which involves a violation of the criminal law of the state. Franklin Co. (Comrs.), In re, 7 N. P., 450.

Section 5171, Revised Statutes, provides that:

“If, by reason of challenge, or for other cause, there be not present a sufficient, number of jurors, summoned as aforesaid, to make up the panel, whether of the grand or petit jury, or if the array be challenged and set aside, the sheriff shall summon a sufficient number of talesmen to make up the deficiency; or, if there be such deficiency in the grand jury, the court may issue a special venire to the sheriff, commanding him to summon the persons therein named to attend forthwith as grand jurors; and at the close of each term of the court all persons who have served on either jury for such term, together with those who are found permanently disabled, disqualified or not liable to serve, shall be discharged. ’ ’

Section 7 of the jury act of 1894 (91 O. L., 146), repealing certain named sections of the revised statutes, relating to the drawing of grand juries, did not, by implication, repeal other sections not therein named, relating to the summoning of tales-men for the grand jury. Stahl v. State, supra.

“Section 5167, Revised Statutes, as amended February 23, 1889 (86 O. L., 51), relating to the drawing of grand and petit juries, * * * gives a rule for the filling of the panel for a petit jury, but does not relate to the filling of the panel for a grand jury. The latter is governed, as theretofore, by Section 5171, Revised Statutes.” Julian v. State, supra.

This section (5171) is not repealed by the act of 1894-1895. Stahl v. State, supra.

At the January Term, 1901, of said court, the record shows that fifteen persons were summoned by the sheriff from among the bystanders to appear on March 1, 1901, as grand jurors; and the court appointed Amos Bixby foreman, and he and his fellows took the oath as grand jurors as required by law, and on March 5, 1901, said grand jurors presented their certain bill of indictment endorsed by Amos Bixby, foreman of the grand jury, “a true bill,” and against the following named persons: Charles Foster, Willis Miller, Marsh Lindsey, Lock Foster, George Ury, murder in the first degree, in attempting to rob William C. Johnson.

It is contended by plaintiff in error that the grand jury was sworn and charged before the return of the venire facias. The record shows that the jurors were called and took the oath required by law, and were instructed by the court in relation to their duties. Even if this were done before the return of the venire, it would be an irregularity only, and would not be any reason or ground for quashing the indictment. Blair v. State, and Julian v. State, supra. Therefore, the motion to quash was properly overruled, so far as irregularities in selecting the grand jury are concerned.

2. Is the indictment defective in form?

The indictment in this case is predicated upon Section 6808, Revised Statutes, and charges the defendant, with four others named, with killing one William C. Johnson in attempting to perpetrate a robbery. The persons named in the indictment are all charged as principals. The indictment does not charge that the act of killing was with deliberation and premeditation, or with premeditated malice. But the charge is, that the act was done, with the intent unlawfully and purposely to kill and murder, whilst engaged in an attempt to perpetrate a robbery in and upon said William C. Johnson.

In an indictment for murder in the first degree, when the act was done in an attempt to rob, premeditation is not an essential element. Section 6808, Revised Statutes, provides that “Whoever purposely, and either of deliberate or premeditated malice, or by means of poison, or in perpetrating, or attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree.”

In the ease at bar, the intentional killing of Johnson by the defendant and others, while attempting to perpetrate a robbery, is a charge under the statute of the crime of murder in the first degree. Premeditation in such a case is not essential Stephens v. State, 42 Ohio St., 150; Robbins v. State, 8 Ohio St., 131; Jones v. State, 14 C. C., 35.

It is alleged in the motion to quash, and also in the plea in abatement, that the act and crime complained of were committed By all five defendants, and that there is no allegation that the defendant committed it. They were all indicted together, and charged with the same offense. It is not neeessary for the indictment in such case to set out which one of the defendants fired the fatal shot. It was proper and sufficient to allege that all five committed the unlawful act. If the proof on trial showed that the five were together, and that only one of them did the act, and the others were present aiding and abetting him, they should be charged as principals. We think the indictment is sufficient in form, and charges a crime of murder in the first degree, and it is not indefinite by reason of failing to allege which one of the five charged held the pistol or fired the fatal shot.

Third and fourth grounds of error are considered together. It is alleged in the motion to quash, and also in the plea in abatement, that the grand jury, investigating the case of the defendant (plaintiff in error), caused a subpoena to be issued for the defendant, requiring him to be sworn in open court, and required him to, and he did, give testimony concerning said case, and the conduct of the defendant in relation to said crime was being investigated, and the state required defendant to give testimony concerning the charge against him. When he so gave his testimony he did not know that any case against him was being investigated, and that he was not permitted to have counsel to obtain advice upon said matters, and was required to and did take an oath, as a witness, against his will, and was required to appear before said grand jury and to give testimony concerning said case; that he was, by the prosecuting attorney and sheriff, required, against his will, to dress himself as the person or persons who committed the crime for which he stands charged, were dressed, or appeared to be dressed, at the time the crime was committed; and while so dressed against his will, he was required to walk, talk and exhibit himself in the presence of the prosecuting witness and other witnesess for the state, to enable them to testify before the grand jury as to whether or not the defendant was the person who committed the crime with which he stands charged,, and that said witnesses, after having so seen this defendant disguised as aforesaid, appeared before the grand jury and gave testimony against him as to his identity.

It is contended that in this, the constitutional rights of the plaintiff in error were violated by his being so subpoenaed and appearing before the grand jury, and in being sworn and in testifying upon any matter connected with the crime for which he was indicted. The plaintiff in error does not aver in his plea in abatement that he claimed his constitutional privilege to refuse to answer any questions or interrogatories, but his allegation is that he was required and compelled to and did make answers to all the questions put to him. This is a conclusion from the facts which he was required to set forth in his plea, and not the conclusions themselves. He further contends that he was denied the assistance of counsel. The legal sufficiency of this plea in abatement is raised by demurrer by the state to the plea. The demurrer was sustained and the defendant excepted. This raises an important question as to whether or not a constitutional right of the defendant was violated in this regard. At the time he so testified he was not on trial. It is true Section 10, Article I, Ohio Constitution, provides: “Nor shall any person be compelled in any criminal case to be a witness against himself, or be twice put in jeopardy for the same offense.”

The question in this case is, should an indictment be quashed on motion or by plea in abatement merely because the accused was one of several witnesses summoned and examined by the grand jury in investigating a crime for which he was after-wards with others indicted? If any person summoned to so appear and testify, fails to claim his privilege, but answers questions incriminating or implicating himself, the mere fact that he has so testified is not enough to invalidate an indictment against him, though based in part upon his testimony. Nor will the fact that a suspected person has been required to give evidence in another matter be sufficient to set aside an indictment on the ground that he is compelled to testify against himself, unless it affirmatively appears that he was indicted wholly or in part on his own admission. Boone v. People, 36 N. E. Rep., 99 (148 Ill., 440); Mackin v. People, 3 N. E. Rep., 222 (115 Ill., 312).

In People v. Lauder, 46 N. E. Rep., 956 (82 Mich., 109), it was held: That the constitutional rights of the respondent were not violated by his being subpoenaed and appearing before the grand jury, and being sworn, nor in testifying upon any matter then under investigation that did not criminate him, and, if he testified without objection, he was deemed to have done so voluntarily. It was further held in the same case that the respondent, not having averred in his plea that he claimed his privilege or refused to answer any interrogatories, but that he was required and compelled to, and did make answer to the questions put to him, was a conclusion from the facts, which he was required to set forth.

It will be observed upon an inspection of the defendant’s plea in abatement, that he does not allege that he claimed his privilege or refused to answer the interrogatories, or that he refused to dress himself in disguise, but his allegations are, that he was required and compelled to do so. This is pleading a conclusion instead of the facts, which he should have set up in his plea. The court, in People v. Lauder, supra, page 957, on the sufficiency of a plea in abatement, uses this language:

“Second, because his (defendant’s) constitutional privilege was invaded in compelling him to testify against himself. In determining the sufficiency of this plea, it should be borne in mind that the finding of the grand jury was not a trial upon the merits, but a presentment of charges or mere accusation upon which a trial may be had. The plea does not assail the form or the substance of the indictment, but sets up the misconduct of the grand jury in proceedings before them, anterior to the finding of the indictment. It is a dilatory plea, which, in the unbroken practice of the courts, is for that reason looked upon with disfavor, and has always been subjected to technical rules. When such dilatory pleas are resorted to, we must apply to them those long-established canons of construction to test their sufficiency for the purpose of abating the prosecution, which the experience of courts through a long series of years has found necessary to protect suitors from unnecessary delay and expense. Those rules are necessarily strict and technical, and a party interposing such dilatory plea invites the most rigid scrutiny of its sufficiency under the established rules of pleading. ’ ’

The defendant, plaintiff in error, does not claim in his plea that he asserted his privilege, or refused to answer any interrogatory, or refused to be dressed in disguise. He avers that he was required and compelled to-, and did make answer to the questions put to him; that he was compelled to dress, walk and talk and exhibit himself in the presence of the prosecuting witness and other witnesses for the state, to enable them to testify before the grand jury as to his identity with the person who committed the crime with which he stands charged. He avers that he was required and compelled to, and did do these things. This is a conclusion from the facts. The rules of pleading in abatement require him to set forth the facts, and not his conclusions. The same is true with the averment of the plea with reference to his being compelled to take his oath. The real complaint made by the plea is, that he was subpoenaed to appear before the grand jury, and he appeared in obedience thereto; that he was sworn in open court, was interrogated and answered questions; that he was dressed in disguise, etc. He states that all this was done without having the aid and advice of counsel, etc. As he was not upon trial for any offense, no exceptions can be taken to his not having the assistance of counsel; and as he made no objection to testifying, dressing up, walking or talking, on account of privilege, these acts and facts furnish no ground for quashing the indictment.

It has been held in the following cases, that a prisoner, when on trial, may be compelled to furnish personal evidence of his identity. State v. Graham, 74 N. C., 646 (21 Am. Rep., 493); Walker v. State, 7 Tex. Ct. App., 245 (32 Am. Rep., 595); State v. Ah Chuey, 14 Nev., 79 (33 Am. Rep., 530).

In the last cited case the defendant was held compellable to expose his arm to determine whether there were tatoo marks on it, as described by witnesses, and the holding was sustained by a majority of the court.

In State v. Garrett, 71 N. C., 85 (17 Am. Rep., 1), the prisoner was held properly compelled to exhibit her hand, which she pretended to have burned.

In State v. Prudhome, 25 La. Ann., 523, the court said:

“The tracks of the murderer were found near the scene of the murder, and to enable the witness who saw the tracks to state how they corresponded in size with the feet of the prisoner, he was forced to take his feet from under a chair where he had put them. This the prisoner’s counsel called forcing him to give evidence against himself. Mere statement of the fact shows how utterly untenable the objection is. The witness was required to look at the feet of the prisoner in order to testify to facts which might enable the jury to connect the prisoner with the perpetrator of the crime, and we are unable to perceive how any constitutional right of the prisoner was infringed by compelling him to place his feet where they could be seen by the witness.
“The accused may, when arrested, be subjected to a compulsory physical examination to ascertain his identity. A witness may always testify to the physical condition of the prisoner, when his condition is relevant. He may state what marks he saw on the prisoner’s body, whether he was physically deformed in any way, and may describe his general personal appearance so far as he observed it. And this is the rule even where the clothing of the prisoner is forcibly removed without his consent by the police officers who arrested him, or who have him in charge, and his nude body is examined for purposes of identification. Where the condition of the prisoner’s hand, at the date of the crime, is relevant, it has been held that he may be required to exhibit it devoid of covering; and a witness who saw it then exhibited, at the coroner’s inquest, may testify to its condition, though the exhibition was obtained by intimidation.” State v. Garrett, 71 N. C., 85, 87 (17 Am. Rep., 1).

The cases jpst reviewed are cases where the accused party was upon trial in the trial court, and we take it that if the constitutional rights of a prisoner were not violated in these cases, much stronger reasons favor the holding that the prisoner’s constitutional rights were not violated by his being subpoenaed and appearing before the grand jury and being sworn, and in testifying upon any matter that did not criminate him, and especially when he did not claim his privilege or refuse to answer the interrogatories put to him. At the time he so testified that he was not on trial. An inquest before a grand jury is not a trial. The plea in abatement sets up the facts embraced in grounds one and two, and as we have considered them, it is not necessary to consume time to show that there was no error in sustaining the demurrer to his plea.

5. Motion for change of venue.

This motion is attempted to be supported by affidavits that a fair trial for defendant could not be had in this county on account of prejudice. Counter affidavits were submitted by the state. On examination of the evidence submitted, we are of the opinion the court did not err in overruling the motion. Such motions are addressed to the sound discretion of the court, and unless there has been an abuse of discretion, there was no error in overruling the motion. Hotelling v. State, 3 C. C., 630.

6. Error is assigned in selecting and impanneling the petit jury that tried the defendant, in this: But thirty-five of the jurors reported under first venire. The panel was filled by special venire. It is contended that this was irregular and illegal.

Section 7267, Revised Statutes, provides for the jury in capital cases. Section 7268, Revised Statutes, provides for additional jurors. Upon the trial of a capital offense, the first thirty-six persons summoned who answer to their names, and who are without the disqualifications named in Section 7268, Revised Statutes, constitute the panel from which the jury for the trial of the cause is to be chosen, but if so many of this number be set aside or challenged as would not leave twelve persons competent to serve, the vacancy so caused must be filled in the manner directed in Section 7275, Revised Statutes. The court may order additional names to be drawn (Section 7269, Revised Statutes). Jurors summoned as provided by Sections 7267, 7268 and 7269, Revised Statutes, or such of them as are not set aside on challenge, together with so many of the bystanders having the qualifications aforesaid as will make up the number of twelve, as may not be set aside on challenge, shall be a lawful jury, etc.; provided that either party may demand and have a special venire to fill the panel as provided in Section 5173, Revised Statutes (Section 7275, Revised Statutes). Peremptory challenges by defendant in a capital case shall be sixteen (Section 7272, Revised Statutes).

It is urged that the trial judge erred in refusing to sustain the challenge for cause interposed by the defendant to each of the persons called as jurors, to-wit: Arthur Bigman, George Spoon, Lewis Cross, and who, after the overruling of the challenge for cause, were peremptorily challenged by the defendant. After the defendant had exhausted his peremptory challenge, he ashed to challenge the juror, Parker, the last juror called, peremptorily, and the challenge was overruled.

It will be impracticable to review all the testimony bearing upon the qualifications of these three jurors. In selecting Lewis Cross, perhaps the question can be tested as well as by either or all of the others. Cross said in answer to questions propounded by counsel for defendant:

“Q. From all you have talked and read about the other trials (presumably the other trials mentioned were those of the co-defendants of plaintiff in error), have you formed any opinion as to the guilt or innocence of the defendant. A. I think I did have an opinion.
“Q. Is that opinion with you still? A. Yes, sir.
“Q. Would it require any testimony to remove the opinion you have now formed? A. Yes, I think it would.
“Q. And the opinion that you now have is against the de- ■ fendant? A. Yes, it would be against him. ■
“Q. It would take more testimony to remove that opinion, would it not ? A. It would take some testimony; yes.
“Q. When you start into the investigation of this case, you would not start exactly fair and even between the state and the defendant, would you? A. I think I could start about even with this man in this case.
“Q. You say it would take testimony to remove the opinion you now have? A. Well, of course, it would.
“Q. Your opinion against the defendant is, that he was possibly one of the gang ? A. Yes, sir.
“Q. And it would take more testimony to remove that conclusion of yours? A. Yes, sir.”

Thereupon he was challenged for cause. On examination of the prosecuting attorney he was asked:

“Q. Have you auy opinion now, whether the defendant, Marsh Lindsay, is guilty of the offense? A. Yes, sir.
“Q. Well, if you have any explanation you may offer it? A. My opinion is that he was guilty if he was in the gang with the other fellows, if he don’t prove himself.
“Q. But you don’t know now if he was in the gang or not? A. I have no opinion that he is guilty.
"Q. Have you an opinion now that he was in the gang?' A. Not any more than as they have indicted him.
“Q. If the judge here told you that you need not consider the fact that he was indicted, could you lay aside that fact and not consider that as evidence against him? A. I think I could.
"Q. Could you,, notwithstanding any bias, opinion or prejudice that you may have, render a fair and impartial verdict according to the law and evidence? A. Yes, sir.”

Thereupon challenge for cause overruled, and the juror was challenged peremptorily by the defendant.

The opinion which should exclude a juror must be one of a fixed and determined character, deliberately formed and still entertained, and one that in an undue measure shuts out a different belief, as when the opinion of the juror has been formed upon the evidence given in a former trial, or when the opinion of the prisoner’s guilt has become a fixed belief, and under such conditions it would be wrong to receive the juror. On the other hand, when his opinion or impressions are founded upon rumor or reports in newspapers, which the juror feels conscious he can dismiss, and is able to say he can fairly try the prisoner on the evidence, he ought not to be excluded.

Taking all that the juror, Cross, says in his examination, it shows that his opinion falls within the latter class. He said from what he had talked and read about the other trials, that he had an opinion in his mind as to the guilt or innocence of the defendant; and that opinion would follow him into the jury box. If he had no evidence against it, it would influence him if he had no other evidence. The remainder of the examination in chief is but a repetition of the same thought. In his cross-examination, after he is told as to the effect of the fact that the defendant was indicted, and the report that the defendant belonged to the gang, that his opinion so formed would not influence him, unless the evidence sustained it; and, finally, in reply to a question by the prosecuting attorney whether he could, notwithstanding any bias, opinion or prejudice that he then had, render a fair and impartial verdict according to the law and the evidence, he answers he could.

This case presents a test of the principle whether the reading of newspaper reports, rumors and the fact that a party is indicted and an opinion formed from these sources shall disqualify a juror. To so hold we think would require us to recede from the practice that has been established in this state testing the qualification of jurors.

In Goins v. State, 46 Ohio St., 457, the juror had conversed with the father of the deceased on the day of the tragedy, and with others who claimed to have been eye-witnesses, and described all about it, and the court, having put the question whether, notwithstanding his opinion, he could render a fair and impartial verdict according to the law and the evidence, and the juror answering that he could, the juror was not disqualified, or the reception of the juror was not an abuse of the discretion lodged in the trial court to warrant a reversal of the judgment on that ground alone. It is not clear in the case at bar that the prejudice or opinion of the juror resulted from talking with any witness who professed to be acquainted with the facts, or that had any knowledge excepting such as was gained from newspaper reports, or in talking with persons who professed to know the facts.

Under these circumstances we do not think the trial court abused its discretion in coming to the conclusion, from the whole examination, that the juror would, if selected, render a fair and impartial verdict. Such conclusion may be drawn from the fact that the court so accepted him. This court, in coming to this conclusion, believes that it is following the trend of decisions in Ohio, as found in McCarthy v. State, 5 C. C., 627; Blair v. State, 5 C. C., 496; McHugh v. State, 42 Ohio St., 154, 160; Doll v. State, 45 Ohio St., 445, 446; Goins v. State, 46 Ohio St., 457; Jones v. State, 14 C. C., 35; Limerick v. State, 14 C. C., 207. To same effect are the following authorities out of the state: State v. Cunningham, 12 S. W. Rep., 376 (100 Mo., 382); State v. Sawtelle, 66 N. H., 488 (10 Am. Cr. Rep., 347).

7. Did the court err in its charge to the jury?

Before argument the defendant requested the court to charge certain propositions of law, which the court gave as requested.

Among the propositions as requested and given is the following :

“The law and the evidence should be their, the jury’s, only guide in determining the guilt or innocence of the defendant. Has the state established by clear, convincing and satisfactory evidence beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, or of some other degree of murder or manslaughter, or it may be assault and battery, or assault merely; otherwise your verdict should be not guilty.”

II. Defines a reasonable doubt.

III. The nature, effect and purpose of the defense of an alibi, and how proven.

IV. The effect of and indictment being found against the defendant; that it is not of itself any evidence of the defendant’s guilt.

V. As to the claim and evidence offered by the state tending to prove that five different persons participated in the commission of the crime mentioned in the indictment.

The instructions so given before argument on these several propositions of law are correct, and the general charge on the same propositions are in harmony with them.

The principal contention, however, arises on the general charge, wherein the court instructed the jury, that while the indictment charges the crime of murder in the first degree, the statute requires the jury, in case they find the defendant guilty under such indictment, to determine the degree of the offense of which they so find him guilty. It is contended by plaintiff in error there was error in so instructing the jury.

The indictment charges the accused with purposely killing the deceased, while perpetrating or attempting to perpetrate a robbery; and if the evidence tended to show no other grade of offense, it was error to charge the jury that if they found him guilty under the indictment, to determine the degree of offense of which they so found him guilty, and in further saying to the jury that there were included within the terms of the indictment lesser offenses than murder in the first degree. The contention is, that it was error, under these conditions, for the jury to render a verdict fixing a degree less than murder in the first degree; that the charge is murder in the first degree, and if not so found, the verdict should have been an acquittal.

In every charge of murder in this state the rule is, that when the fact of killing is established, the law presumes the killing to be no higher than murder in the second degree, if there be no explanatory circumstances in the evidence introduced by the state, and none are proven by the prisoner. To establish the higher degree, namely, murder in the first degree, the state must establish premeditated malice, or that the killing was committed by administering poison, or in perpetrating or attempting to perpetrate a robbery, etc. Prima facie every unlawful killing is murder, for malice is presumed unless the prisoner shows extenuating circumstances, which take away the presumption of malice. This is a common law presumption, but where the Legislature classified murder into degrees, the bur den is upon the state to show that the homicide is murder in the first degree, the common law presumption rising no higher than the second degree.

Section 7316, Revised Statutes, provides:

“When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any inferior degree; and if the offense charged is murder, and the accused be convicted by confession in open court, the court shall examine the witnesses and determine the degree of the crime, and pronounce sentence accordingly. ’ ’

In the instructions requested by defendant and given by the court before the argument, the rule of law is recognized, the jury is to determine whether the state has established by clear, convincing and satisfactory evidence, beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, or of some other degree of murder or of manslaughter; otherwise their verdict should be not guilty.

To have directed the jury that they must find the prisoner guilty of murder in the first degree or acquit, would have been an invasion of the jury’s right to determine, or ascertain from the evidence before them of which of the degrees of the crime the defendant was guilty, as he stood charged in the indictment. Beaudien v. State, 8 Ohio St., 634; Robbins v. State, 8 Ohio St., 131.

There would be no question as to the correctness of the court’s instruction in this regard were it not for the apparent conflict with the case of Dresback v. State, 38 Ohio St., 365. In that case the court held:

“That on the trial of an indictment for murder in the first degree, charging the accused with purposely killing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty, their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter.”

The jury must be left free to determine the degree of the crime, where the indictment charges an offense including different degrees. This principle was violated in the case of Dresback v. State, supra, when the court told the jury their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. Their duty is only discharged when, from the evidence they determine, first, if the accused is guilty as he stands charged in the indictment, and further, from the same source, determine or ascertain the degree of the crime, where the offense includes different degres, as in that of murder.

The principle of the law is, that the jury must not be imperatively required to render a verdict for a particular degree of homicide; nor must the instruction be such as to deny to them the power of rendering such verdict as their judgment and conscience dictate, after being fully instructed as to their duty. Adams v. State, 29 Ohio St., 412, 415.

8. Misconduct of prosecuting attorney in his closing argument to the jury.

It appears from the fragmentary extracts of the argument, as shown by the record, that the prosecutor made allusion to conditions, but the record is very indefinite as to just what was intended to be conveyed by the remarks made; for example:

“Why don’t they put Walker on the stand? The moment he put Walker on the stand and he swore he slept with George Ury, he would bring Miller to show it was he who slept with Ury.”
“Shuck and his whole family say he was near the Johnson house on the sixteenth day of last September.”

Without reproducing more of the record, we are of the. opinion that these comments are not of that character that would warrant a. reversal of the judgment.

9. That the verdict of the jury is not supported by sufficient evidence.

The defendant was found guilty of murder in the second degree as he stood charged in the indictment, and not guilty of murder in the first degree as therein charged; and it is contended by plaintiff in error that the verdict is not supported by sufficient evidence. The record is a very voluminous one, and we have taken the time, and with care and labor gone through and carefully examined the whole record. There is much positive and direct evidence on the part of the state as to the identity of the plaintiff in error as being one of the five men who were present at the time and place, and who took part in committing the homicide. On the other hand, the defendant produced many witnesses who testified with a great deal of positiveness as to his presence elsewhere at the time the homicide was committed. This evidence tended to establish, and, it is claimed, did establish what is known in the law as an alibi. The evidence is conflicting on this question as to the albi. If the evidence on the part of the state is true as to the identity of the plaintiff, and as to his presence at the time and place when and where the homicide was committed, then he is guilty beyond a reasonable doubt. If the testimony of the defendant is to be believed as to his presence elsewhere at that time, then he could not be guilty.

The jury found the issue thus made against the defendant, and we can not consistently with the rules of law say, from a careful examination of all the evidence, that they were manifestly wrong in so finding.

The court has reached a unanimous conclusion upon all the questions involved, including the one now under consideration; and, without attempting to review the record in detail, we are of the opinion the verdict is supported by the evidence.

E. T. Dunn, John M. Winn and W. R. Hare, for plaintiff in error.

Benjamin Meck, for defendant in error.

The case has been ably and well tried by able counsel on both sides, and with clear and proper instructions from the court resulted in a verdict of guilty against the plaintiff in error of murder in the second degree.

This court can not disturb the verdict under the well recognized rules of law governing reviewing courts in reviewing and passing upon the sufficiency of evidence to support verdicts of juries in criminal cases.

Finding no error in the record, the judgment of the common pleas court is affirmed with costs, and execution is awarded and the cause remanded for execution.

       Affirmed by the Supreme Court, 69 Ohio State, 215


text:
    NOTICE OF APPEAL.
    [Circuit Court of Clark County.]
    Robert A. Kefauver v. Franklin P. Batdorf.
    Decided, May Term, 1903.

      Appeal — Notice of — Legality of, Where Signed Uy Counsel — Section 5227.
    Where it appears from the record that the attorney signing the notice of appeal was the attorney of the appellant from the beginning of the action, and had signed other papers with the approval of his client, his authority to sign a notice of appeal will be presumed, and only clear proof can overcome this presumption.
    Sullivan, J.; Summers, J., and Wilson, J., concur.
    On motion to dismiss appeal.
   The defendant moves the court to dismiss the appeal taken in this ease, for the reason that a written notice of appeal ! as required by Section 5227, Revised Statutes, as amended October 22, 1902 (96 O. L., 12), was not given by plaintiff. The section as amended provides that a party desiring to appeal his cause to the circuit court shall, within three days after the order or judgment is entered, file with the clerk of the common pleas court a written notice of such intention, and within thirty days after the entering of such judgment or order give an undertaking,” etc.

The notice filed and found with the papers in the case is signed in the following manner: “Robert Kefauver, by Reinhoel, his attorney.” The defendant contends that the record does not show that the attorney was authorized to sign plaintiff’s name to the notice, and that such authority can not be presumed, though the record shows that the attorney named represented the plaintiff in the common pleas court from the bringing of thé action until it passed into judgment; that the above section as amended requires the notice to be signed by the party, and if the attorney signs his client’s name, it must affirmatively appear that he was authorized to do so, and there is no presumption of such authority, arising from the fact that the record shows the attorney to have conducted the suit for appellant from the beginning of the action until the order or judgment appealed from was entered; that in this case the plaintiff, as appears from the record, was and is a non-resident of the state of Ohio, and a resident of the state of Maryland, and that within the time that the notice was required to be given, the attorney could not have received authority. The motion was submitted upon the facts as shown by the record.

On the other hand, plaintiff contends that the section as amended does not require the notice to be signed by the party; that this was not the purpose of the amendment; that it was simply to avoid controversy between parties, as to whether notice of appeal had in fact been given, and when given.

The statute, Section 5227, Revised Statutes, prior to the amendment of October 22, 1902, provided that “A party desiring to appeal his cause to the circuit court shall within three days after the judgment or order is entered, enter on the records notice of such intention.” Unless this notice was entered upon the record within three days, the right of appeal was lost, though the party may have given such notice verbally in open court, and the judge may have entered the fact of such notice upon Ms docket. The record alone determined whether the required notice had been given, and the time when entered, and the omission to enter the notice upon the record could not be remedied by mono pro tunc. Therefore, the controversy suggested by appellant’s counsel could not arise.

The Legislature had some object in view in amending the statute. It was not to have it appear of record that an appeal had been taken, for as we have seen, before the amendment to the statute the notice had to be entered on the record. The section now, as well as before the amendment, provided that the party should enter the notice upon the record, but this was almost universally done by the attorney, and frequently without the knowledge of the party, and perhaps without and conference with the party whether he desired to take an appeal.

That it should appear of record that the party had, in fact, taken an appeal, is, we think, the only reason apparent for' the amendment. As to the necessity or wisdom of the amendment, we neither consider or discuss. The section expressly provides that the party, and not the attorney, shall give the written notice, and for the purpose, we think, to have the record show that the party had taken the appeal.

“The right of appeal exists only by virtue of the statute, and to give the appellate court jurisdiction the statutory provisions must be strictly followed.” Brown v. Wallace, 66 Ohio St., 57.

The party, however, may authorize his attorney, to sign such notice. The remaining question presented here is whether this authority is presumed from counsel’s employment in the cause as shown by the record, or from the style in which this notice is signed.

Counsel for appellee contends that an attorney’s authority ceases when the judgment is rendered. After that he has no authority to act for and bind the party in the action, and hence no presumption of authority to do so arises. He further contends that the record shows that the residence of the party being in another state was so remote from the court that it was impossible for counsel to have received express authority within the period that such notice was required to be given.

Upon the first point he cites two authorities which we have not considered fully, for the reason, we think, they are not in point upon the state of facts presented in the case before us. The second we think not well taken, for the reason that authority could have been given by the party by other methods than by mail, and by the party before the case had passed into judgment.

Martin & Martin, for motion.

D. F. Reinhoel, contra.

The record shows the counsel signing the notice to have been employed by the appellant throughout the entire proceedings; that he is the attorney of record, and that his services were accepted by the appellant signing papers in the action with his approval.

"The act of the attorney in entering the appearance of a defendant carries with it a presumption of due authority upon his part to do so." Garrison v. McGowan, 48 Cal., 592, 600; Harshey v. Blackmarr, 20 Iowa, 161 (89 Am. Dec., 520).

If relief be sought against a judgment rendered after such entry of appearance upon the ground of want of authority of the attorney, it is incumbent upon the party to make out a clear and unmixed case.

In the cases cited it did not appear from the record that the attorneys entering the appearance of the defendants had any authority to do so at the time it was done. In the case before us, it appears from the record that the attorney signing the notice was the attorney of the appellant from the beginning of the action and throughout the entire proceedings in the case, signing, during its progress, papers in the case. We are of the opinion, therefore, that his authority to sign the notice must be presumed, and such presumption could only be overcome by clear proof.

The motion, therefore, to dismiss the appeal is overruled.

After the court had disposed of the motion upon the submission upon the record, the appellee asked leave to offer testimony as to counsel’s authority to sign appellant’s name to the notice of appeal, which was refused; to which refusal, as well as to overruling the motion to dismiss the appeal, counsel for defendant, at the time, excepted.