text:
    REQUIREMENT UNDER A LIFE INSURANCE POLICY THAT PROOF OF DEATH BE MADE IN WRITING.
    Circuit Court of Hamilton County.
    Sarah C. Menear, by E. B. Rogers, Her Guardian, v. The Aetna Life Insurance Company of Hartford, Connecticut.
    Decided, October, 1909.

      Dife Insurance — Averment that all Conditions were Performed — Inconsistent with Averment of Waiver — Proof of Death — Notice of Defect is not Necessary, When — Requirement as to Identification of Deceased — -Pleading—Evidence.
    1. Averments in a petition in a suit on a life insurance policy, that the condition as to proof of death was definitely performed on a certain date and that every condition required by the policy was performed, are wholly inconsistent with a subsequent averment that the condition of the policy with reference to proof of death had been waived; and in the absence of any averment óf an excuse for non-performance, or any inference to be drawn from the petition that there was such an excuse, evidence could not be offered on the question of waiver.
    2. The requirement that a proof of death be made in writing is a reasonable requirement, as is also a requirement as to the identification of the deceased.
    3. Notice of a defect in a proof of death is not necessary, where repeated notices have been given by the company that no proof of death has been filed.

      Andrews, Harlan & Andrews, for plaintiff in error.

      Wm. K. Maxwell and Shotts & Millikin, contra.

      Giffen, P. J.; Swing, J., and Smith, J., concur.
   It is averred in the petition that proofs of death were furnished on March 8, 1906, and that the plaintiff performed every condition required to be performed by the policy, then it is averred that the defendant waived the furnishing of proofs of death. The whole question, therefore, hinges upon whether- the proofs of death were furnished on March 8, 1906, or whether they were waived.

The averment in the petition, that the conditions were performed, first definitely performed on March 8, 1906, and then the general averment that .all conditions precedent were performed, and the averment that this condition was waived, are wholly inconsistent.

The Supreme Court has decided, in a very late ease, The List & Son Co. v. Chase, 80 Ohio State, —:

“Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performance, but must be alleged as an excuse for non-performance, before proof of such waiver can be received; and in the absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver. ’ ’

There is no averment here, and there is no inference to be drawn from the petition, that there was an excuse for non-performance, because there is a positive averment that there was a performance.

It is, therefore, manifest that no evidence could be offered on the waiver, because the petition avers there was a performance of this condition, and any error that is complained of with reference to the waiver is of no consequence — the petition averring, or requiring rather, proof of performance of condition precedent — that proofs of death had been furnished.

Many other errors are urged in the petition in error, and some of them perhaps are well taken — especially that one which required the plaintiff to offer proof that she was living, before she could recover. But if from the pleadings and the undisputed facts the court can draw a legal conclusion in accordance with the verdict — the judgment of the court — it is immaterial what errors the court committed in its charge to the jury.

Counsel, however, insist that if not permitted to prove waiver, that there was actual performance of that condition, that the proofs of death were actuary made on March 8, 1906; therefore, the policy would have been payable on June 8, 1906.

But in form 2 of the proof of death, question 5 required the identification of the deceased to be the person mentioned in the policy.

Proof of death would be of little avail if it did not show the death of the particular party insured. This was not an unreasonable requirement.

Mr. Rogers, who signed this form of the proof of death, was mentioned in the application,' which was made a part of the policy, as- an intimate friend of the insured; he had paid the premium from time to time, and was therefore particularly qualified to answer this question; yet it was not answered, was not even filled out, the number of the policy given or otherwise.

However, it is claimed that Mr. Rogers did answer this question but by failure of the agent of the company, or of the notary employed by him, that it was not filled out as he had answered it.

Proofs of death were to be made in writing; that was not an unreasonable requirement. Proofs of death were made for the purpose of being forwarded to the home office of the company, and it was in compliance with a reasonable requirement on part of the company to furnish that in writing.

Besides, to hold that to be sufficient, would be to hold that the agent representing the company had waived this right, and we have already said the pleadings do not w'arrant proof of waiver of the condition.

The proofs of death were finally furnished in May, 1907, as required by the company. Mr. Rogers voluntarily did this, and thereby tacitly acknowledged that the proofs of death pretended xo be furnished on March 8, 1906, were not sufficient.

Within thirty days after proofs of death were furnished in May, 1907, the company tendered a check’for $2,000, which was refused solely upon the ground of not being sufficient, and upon no other ground. The Supreme Court has held that such a tender, although in the form of a check, is sufficient.

The whole difficulty arose from the fact that on April 20, Mr. Rogers informed the company "that the beneficiary. was incompetent to receive the money and it would be necessary to appoint a guardian.

Counsel in their brief admit that any defect in proofs of death could be taken advantage of by the company, but that they should have reasonable notice.

Well, of course, they were never notified as to the defect in the proofs of death attempted to be made out in March, 1906, but they were notified repeatedly that no proofs of death had been furnished, and still delay continued for fourteen months— until May, 1907.

If they have been deprived of the use of the money, it was . wholly on account of their neglect, and not that of the company, who constantly expressed a readiness and willingness to pay the face of the policy — two thousand dollars.

It is, therefore, the opinion of the court that upon the pleadings and undisputed facts, the verdict of the jury was right, and that the judgment of the court of common pleas should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WHEN A STREET MAY BE VACATED.
    Circuit Court of Lucas County.
    In re Vacation of Part of Michigan Street, Toledo.
    Decided, January 16, 1909.

      Streets — Necessary Prerequisite to Vacation of — Satisfactory Proof of Necessity Required — Public Interest — Municipal Corporations— Section $655.

    Under the statute of Ohio a court should not vacate a public street unless satisfied that such vacation will conduce to the general interests of the municipality. The court is not in error in refusing such vacation upon a mere showing that the street is not demanded by the present needs of travel. Section 2655, Revised Statutes, construed and applied.
    Wildman, J.; Kinkade, J., concurs; Parker, J., not sitting.
    Error to Lucas Common Pleas Court.
   Case No. 2212 is entitled, In the Matter of the Vacation of Michigan Street. It is a somewhat peculiar title for .a proceeding in error, which this is. An application was made in the court of common pleas under Section 2655 of the Revised Statutes to vacate that part of Michigan street extending from Cleveland street to Troy street in the northern part of the city of Toledo. The application was refused by the court below, and to reverse the judgment of dismissal of the petitioner’s application, this proceeding was instituted here.

■ We have in the statute alternative proceedings for the vacation of streets. Section 2655 provides for the seeking óf the vacation of the street by a proceeding in the court of common pleas, the remedy being by the section of the statute made cumulative to like procedure before the municipal body, the city council, as provided in Section 2652, Revised Statutes. The present proceeding in.the court below was based upon Section 2655, which reads as follows:

“On petition filed in the court of common pleas by any-person owning a lot in any city or in an incorporated or unincorporated hamlet or village, for the - establishment or vacation of a street or alley in the immediate vicinity of such lot, the court, upon hearing, and being satisfied that it will conduce to the general interests of such city, hamlet, or village, may declare such street or alley established or vacated; but the remedy shall be in addition to those prescribed in this title. ’ ’

The present proceeding was started by what is known as the Toledo Boiler Works Company, which owned property on both sides of the part of the street sought to be vacated. The claim is made that the evidence disclosed in the court below was sufficient to require the court, proceeding under this statute, to vacate this part of the street.

The statute requires as a prerequisite to the vacation of a street that the court shall be satisfied that such vacation will conduce to the general interests of the municipality. Until so satisfied the court should refuse its judgment in favor of the petitioner.

It appears that this part of the street named has received no improvement at the hands of the city; that it is in a marshy region, the part of the street referred to being not directly upon marshy land or across it, but closely adjacent to it; and perhaps it sufficiently appears that at the present time there is no very practical demand for the use of this street by the public. The court, however, is not altogether apprised of the general purposes and plans of ,the city in the extension of its avenues, its thoroughfares, its streets and alleys. It is something like a condition which may arise where a city under the authority given by law establishes a general system of sewerage, and works towards it, making sewers from time to time according to the necessities of the public and the means available. To say that such a plan should be abandoned because there are no present means for the carrying out of some of its details, might be an interference with wise action of the municipal body.

The claim is made here in behalf of this application that it will be conducive to the general interests of the city to vacate this street because it is in a locality where it is of no special use to the traveling public or to adjacent property; that it is an ideal spot for the establishment of such factories as the one owned by this applicant, the Toledo Boiler Works Company, and that it is to the interest of the city to encourage manufacturers. It may be altogether true that it is to the general interest of the city to encourage them. It is not made to appear to us, however, by the record before us, nor was it, apparently, to the court below, that any general interest of the city of Toledo would be sub-served by maintaining this particular spot of ground as a place for the putting up of factory buildings or the maintenance of a manufacturing plant, nor does it appear that if the street is not vacated the factory will be lost to the city in any way. There seems to be an abundance of territory owned and controlled by the Toledo Boiler Works Company for the maintenance of'their plant without their intruding upon the territory comprised within the street boundaries. There was much plausibility in the arguments made to us by counsel for the applicant, the present plaintiff in error, but we have not been able to arrive at the conclusion that the evidence adduced upon the hearing in the court below is of such character as to make it manifest and clear that the court should have been satisfied that the public interests would be subserved by the vacation of the street.

Oiir judgment, therefore, is that the order dismissing the plaintiff’s application be affirmed at the costs of the plaintiff in error.


text:
    PROSECUTION FOR. BURNING UNFINISHED BUILDING.
    Circuit Court of Williams County.
    Eli Van Immons v. State of Ohio.

    Decided, 1905.

      Arson — Indictment Not Rendered Bad for Duplicity — By Self Evident Mistake in Date — Acquittal of Burning Unfinished Dwelling — Not a Bar to Prosecution for Burning Building Other than a Dwelling— Criminal Law — Sections 6SS1 and 7215.

    1. An indictment, the first count of which charges the accused as principal with burning a building in 1804, and the second with aiding and abetting another in the same crime in 1894, s not bad for duplicity and indefiniteness, inasmuch as the date in the first count ' was clearly a mistake; and no substantial right of accused being prejudiced, under Revised Statutes 7215, a motion to quash was properly overruled.
    2. To constitute the crime of arson under Revised Statutes 6881, it is not necessary that the building burned be entirely completed. It is sufficient if it be a structure in the course of erection and intended for a dwelling, and although unfit for the purposes for which it is ultimately intended is so far completed that it could be used temporarily for shelter or occupation or for the storage of personal property.
    3. Acquittal of the charge of burning a dwelling-house is not a bar to a subsequent prosecution for the same offense, under an indictment charging the burning of a structure other than a dwelling-house.

      C. L. Newcomer, for plaintiff in error.

      Edward Gaudern, contra.
    Hull, J.; Haynes, J., and Parker, J., concur.

       Affirmed by the Supreme Court, without report, 72 O. S., 678,

   Tbe defendant in this case was indicted by the grand jury of this county for the crime of arson. It is charged that he burned a certain building, the property of Martha Page, of the value of $50 or more, and he was convicted, judgment was entered upon the verdict and he was sentenced to imprisonment in the penitentiary. •A motion for a new trial was overruled by the court and a petition in error filed in this court to reverse the judgment.

There are numerous errors complained of:

First, it is claimed that the court erred in overruling the motion to quash this indictment.

The offense was set up in different forms in two counts in the indictment.

The first count charged that the defendant then and there unlawfully, maliciously and willfully did attempt to burn a certain building, to-wit, a certain building then and there being, and then and there in the course of construction, then and there not completed, then and there designed to be used thereafter as a dwelling-house, then and there unoccupied, then and there being of the value of $50, and more, etc., charging the time of the commission of this offense as set forth in the first count of the indictment as in the year 1804.

In the second count it is charged that the defendant willfully and maliciously did attempt to burn, and then and there unlawfully, willfully and maliciously did burn a certain building; to-wit, a certain building then and there being in the course of construction, then and there not completed, and then and there designed thereafter to be used as a dwelling-house, then and there unoccupied, then and there being the property of one Martha Page, of the value of $50 or more. And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that one Eli Van Immons before said arson was committed^ as aforesaid-by the said Homer Morrison, the said arson being the same unlawful, willful and malicious burning mentioned in the first count of this indictment and before said unlawful, willful and malicious burning was- committed as aforesaid by the said Homer Morrison aforesaid; to-wit, on October 8, A. D. 1894, at the county and state aforesaid unlawfully, willfully and maliciously did, aid, abet, procure, counsel and incite him, the said Homer Morrison, to said arson in manner and form aforesaid to do and commit. This count charged the defendant with aiding and abetting Homer Morrison in the commission of the crime of arson and the offense in this count is referred to as the same offense set forth in the first count in the indictment, but the date mentioned here is October 8, 3 894, while the date in this first count is mentioned as the eighth day of October, 1804, It is claimed that this shows that two offenses are contained in this indictment and further that it makes the indictment bad for duplicity and indefiniteness, inasmuch as these two dates are used — in the one count 1804 and the other 1894. The first count in the indictment, which made the crime in 1804, was quashed by the court and the defendant was tried upon the second count. We are of the opinion that the court did not err in overruling the motion to quash the second count of the indictment upon the motion of the defendant. It is clear upon the face of the indictment on record that the date in the first count of the indictment, 1804, was a mistake. The defendant himself, according to the record, was about thirtjr years of age at the time of the trial and it is very evident that ■there was no intention of charging him with committing a crime fifty years or more before he was born. It is clear that this date in the first count of the indictment charging him with the commission of this offense as principal was a mistake and under the statute in this state was not to be regarded as prejudicial to the defendant. Revised Statutes, 7215, besides providing a large number of things which shall not be regarded, uses these words:

“No indictment shall be deemed invalid * * * for any * * * defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’

Although the second count refers to the first, still it is charged clearly in the second count as Octobér 8, 1894, and there can be no doubt that the defendant understood that that was the date upon which the crime was laid that he was to answer for, and clearly he could not have been misled in preparing his defense. After this motion was overruled, the defendant demurred to the indictment and this demurrer was. overruled by the court of common pleas and this, it is claimed, was error.

It is claimed by plaintiff in error that the indictment does not charge any offense, under the law of this state, against the defendant, and by defendant I mean the defendant below, in that it does not charge the defendant with burning a completed and finished building, but does charge that, he burned a certain building ; to-wit, a certain building, then and there being in the course of construction, and then and there designed to be thereafter used as a dwelling-house, then and there not completed, then and there being the property of one Martha Page, of the value of $50 and more.

It is said that under the statute of this state, to constitute arson, the building destroyed must be a completed and finished building; that this indictment showing upon its face that the building was not completed or finished, did not constitute a violation and did not contain sufficient allegations to constitute a violation of the arson statute against the defendant. It is very clear to us, however, that the indictment was sufficient upon demurrer, at least. It does not state what the building lacked; it does not state wherein it was unfinished. It states that it was a building then and there intended thereafter to be used as a dwelling-house, then unoccupied, unfinished and incompleted. For aught that appears upon the face of the indictment, it might simply have lacked one window,, or the glass in one window or mare, or the steps, or the paint, or one chimney, or many and many other things that might be mentioned. It is, of course, clear, if the building only lacked one of these small things to make it absolutely complete, that it would still be called a building, and properly so, in an indictment.

After the evidence for the state was in, and during the entire trial, the defendant claimed that the structure, as shown upon the trial of the case, was not a building within the meaning of the statute, and a motion was made to bring a verdict in favor of the defendant, and, in connection with the ruling upon the demurrer, that may as well also be discussed.

As I say the defendant claimed that the evidence did not show that the building destroyed was a building within the meaning of the statute. The arson statute, Revised Statutes, 6831, provides that whoever shall maliciously burn or attempt to burn any dwelling-house, kitchen — and then follows a large number of other buildings — etc., of the value of $50 or more, shall be imprisoned in the penitentiary, etc., and the question is whether the structure shown in this case comes within the definition of “any other building.” It is claimed by plaintiff in error that this means a completed building. There is no provision in the statute for an unfinished building, and until it is complete, ready for occupancy, or substantially so, it can not be regarded as a building; that up to that time it is claimed that whatever of material there is .in the structure can only be regarded as personal property, or as property which will come within the statute against the malicious destruction of property, which is another and distinct statute.

The evidence in the case shows that the structure was owned by Martha Page; that she was constructing a dwelling-house; that it had proceeded so far that the foundation was laid, the house was inclosed. It was constructed of building block as it was called. The house was inclosed; the roof was on; it was lathed; the floors were laid; the steps leading up to the house had not been constructed; the stairway on the inside of the house had been partially constructed; the doors were not in; the windows were not in; the house had not been plastered, the chimneys had been built and the furnace set up, and the door frames and window frames put in. This was the condition of the structure at the time it was burned, for there is no question made in the record but that the house was burned by someone.

Many authorities are cited for plaintiff in error to sustain his contention that the building or structure in this condition could not be regarded as a building. I shall not undertake to review any of the authorities that were cited. In some states it appears there are statutes providing for the burning of unfinished buildings — separate statutes, distinct from statutes making it a crime to burn a finished building. We have no such statute or statutes in this state and this indictment must stand, if it stands' at all, upon Revised Statutes, Section 6831, from which I have read, and if this structure comes within any part of the statute, it comes within the words ‘ ‘ other buildings. ” As I have said in speaking of the demurrer, if the house only lacks some small and insignificant thing from absolute completion, it would seem to be clear that it would still be called a building, and we would not say that a structure intended for a house was not a building because it lacked one chimney, or a part of the doors, or a part of the windows, as I have suggested. The question is, if there can be any question: When does a structure, if at all, cease to be mere building material, and become under the law a building? Counsel for plaintiff in error claims that this does not occur at any time until the building has been substantially completed. Some of the cases cited seem to sustain this contention.

Arson, at common law, included only the burning of a dwelling-house, but to this has been added, from time to time, the other classes of buildings and structures until now, in our state, it is plain that the statute is intended to cover every kind of a building, and after describing a great number of buildings it adds these general words “any other building.” The question is one not entirely free from difficulty and there are no decisions in this state directly in point, but it seems to us that when a building is in the condition that this budding was in, and when it has assumed the character and proportions that this building had assumed at the time of the fire, that it may be, and should be, within the purview of this statute, called a building. It is true, as urged by counsel for plaintiff in error, that the mere pile of material lying upon the ground does not constitute a building and so not within any statute, but where a structure has been erected, designed and intended for a dwelling-house, and has reached the stage that this _ one had w-ith its foundation, with its inclosure, its side walls all up and the roof upon it, the lathing upon the inside, the stairway up, although it still lacks the doors and windows, the plastering and the outside steps, it seems to us that structure, within the meaning of the statute, .is a building.

It may be added further that the partitions had all been constructed in this house, and lathed, and the rooms .inclosed, and it was in such condition as to offer shelter there for human beings, for beasts, for animals or for property. It was not a dwelling-house, as it had never been occupied by a human being, but, in common language, it would seem to us as though any one speaking of such a structure wou’d speak of it as a building; that it could not well be described in any other way. It was not entirely finished, it was not completed, but the object of the arson statute is to protect buildings, if they may be properly called buildings, from being destroyed by fire. The burning óf a building which has once been occupied by human beings, has always been regarded as a crime of a very strong character. The burning of a dwelling-house in former times in England was a capital offense, and to bum any kind of a building has always been regarded as a crime of a very serious nature and punished by very heavy penalties, and we think that this statute should be so construed as to protect a structure of this kind, and we are of the opinion that this structure had reached that stage where it could be called a building.

There is a ease cited by defendant in error for the state, which sustains us in this view, and is clearly, it seems to us, in point with this case. In Clark v. State, 69 Wis., 203, the court say in the first paragraph of the syllabus:

“A structure in course of erection, and intended for a dwelling, which, though unfit for the purpose for which it is ultimately designed, and not occupied as a dwelling, is yet so far completed as to be used temporarily for the shelter or occupation of man or .beast, or for the storage of tools or other personal property for safekeeping, is a ‘building,’ within the meaning of Section 4409, Revised Statutes, and the felonious breaking and entering the same in the night time is burglary. ’ ’

In this ease the building intended for a dwelling-house was in the course of construction and a room in it had been partitioned off and designed for the purpose of storing tools in that room, and it was held by the Supreme Court that this constituted burglary. The court say, on page 205:

“It appears that the building broken into in this ease was erected upon -a stone foundation, was intended for a dwelling-house, and was in the process of construction. The walls or sides were up, and the roof was on. The windows and doors had not been put in, though some of the windows were boarded up. A temporary room had been partitioned off in the basement; the basement walls forming two sides, the other sides being closed up with boards, with a door which was locked with a padlock. This room was intended for storing the tools of the workmen while at work on the building. The outside window of the basement was covered with boards. A temporary floor had been laid, from which the basement was reached by means of a ladder. There was a chest of tools on this temporary floor. ’ ’

And further on, on page 206 the court say:

“Now, the contention of the learned counsel for the plaintiff in error is, that breaking and entering a structure in the process of construction, as the building in question was described to be,'is not included within the statute. It will be observed the provision quoted makes the breaking and entry in fhe night time of ‘any office, shop, warehouse, or other building not adjoining or occupied with any dwelling-house,’ with intent, etc., one grade of burglary. But it is said a structure which is unfinished, unfit. for occupation for the purpose for which it was designed, is not a building, within the meaning of the statute. But, on considering the objects of the. statute, we are fully satisfied that the word ‘building,’ as used therein, does not necessarily mean a structure so far completed as to be in all respects fit for the purpose for which it w.as intended. It doubtless does mean an edifice or structure erected upon land, and so far completed that it may be used temporarily or permanently- for the occupation or shelter of man or beast, or for the storage of tools or other personal property for safekeeping. Webster defines the word ‘building’ as ‘a fabric or edifice constructed; a thing built.’ Worcester defines it, ‘a structure or edifice’; the Imperial Dictionary, ‘a fabric or edifice constructed for use or convenience, as a house, church, shop.’ In La Crosse & M. Ry. v. Vanderpool, 11 Wis., 121, Mr. Justice Paine says: ‘The well understood meaning of the word is a structure which has a capacity to contain, and is designed for the habitation of man or animals, or the sheltering of property.’ In this case the structure was intended for use and occupation as a residence when completed. Now, to hold that it was not a building does not satisfy the definition of the statute, because it is unfinished, not perfect for the purpose for which it was designed eventually to be used, would be giving the statute a stricter construction than we were disposed to place upon it. We are rather'inclined to hold that the Legislature intended to include in the term ‘building’ a dwelling-house not completed, but in the condition in which the one in question was, and in which tools and other articles of personal property were or might be temporarily stored or left for safekeeping. The language is broad enough to include such an edifice, and we think does include it. "

The court then review and discuss some of the authorities cited by counsel for plaintiff in error, and say, page 208:

“These cases furnish but little aid in the construction of our own statutes, for it is obvious, as Mr. Bishop remarks, that the word ‘building’ in a statute^will almost always depend for its meaning, in some degree, on the particular subject, and. its connection with other words (Statutory Crimes, Section 292). And while, as the assistant attorney-general suggests, it may be difficult to say at what time a structure in process of construction presents such a degree or state of completion as that it may be described as a building in the sense of the statute, still we think the edifice in question may be properly denominated a building, within the meaning of Section 4409. In the connection in which the word is used it can not import a finished structure ready for use, as a residence, for the words are, ‘any other building not adjoining or occupied with a dwelling-house.’ The -other building was a structure different from a dwelling-house, as those words were used in this and the two preceding sections. We think the provision was intended to include any building not within the curtilage, in which property might be stored, or men o,r animals sheltered. There are oases which show that the word is often used in statutes in that case. In Rex v. Worall, 7 Car. & P., 516, an unfinished building, intended as a cart shed, which w,as boarded up on all its sides, had a door with a lock to it, and the frame of- a roof, with loose gorse thrown upon it, but not thatched, was held a building. In Queen v. Manning, L. R., 1 Cr. Cas., 338, an unfinished house of which the walls were built and finished, and the roof on and finished, considerable part of the flooring laid and the internal walls and ceilings prepared ready for plastering, was held to be a building. This shows that a building, as the word is often used, does not necessarily imply a completed structure.”

The house cited by the Wisconsin court was very much like the house in question in this case as to its condition. It seems to us that it would be putting too strict a construction upon this statute to hold that the structure, in the condition that this house was, was not within the provisions against arson in this statute. There being n-o case directly in p-oint in this case, we are at liberty to follow the rulings in other states or lay down such a rule as seems to us proper, and we think that the reasoning of the court in this Wisconsin case is sound. Whether the structure had reached that stage where it might -be called a building or not was a question of fact, and in this case it was 1-eft with the .jury to decide whether it was a building -or not. And it is complained that the court erred in its charge to the jury in saying that if the house was inclosed and the roof on it might be regarded as a building and should be so held by them. It is possible that this definition of the court was a little too narrow. That may have been, but we would not reverse the judgment in this ease if we were of the opinion that that was possibly a definition too narrow, and what the court said to the jury, it seems to us, should be read in the light of the undisputed evidence in the case, and we, therefore, hold that there was no error prejudicial to the defendant in what the court said to the jury.

A plea of former acquittal was filed by the defendant and demurrer was filed, and that demurrer was sustained, and this is claimed to have been erroneous. It appears that the defendant had been indicted at a former term of the court of common pleas of this county for arson, and in that indictment he was charged with burning a dwelling-house the property of one Martha Page, the saíne structure as this structure here covered by this indictment. The record shows that a verdict of “not guilty” was returned in that case, it is said upon the instructions of the court, and the defendant was discharged. It is said that the former acquittal is a bar to this prosecution. We are of the opinion that the ruling o'f the court was correct. A former acquittal is not a bar unless he was acquitted of the same offense with which he is charged here. He was charged in the former indictment with burning a dwelling-house, it never having been inhabited by human beings, and for that reason he was not guilty of that offense.

He is charged here not with burning >a dwelling-house but with burning a building, designed thereafter to be used as a dwelling-house, which constitutes another and different offense. I will cite a few authorities: 3 Cyc., 987; 2 Am. & Eng. Enc. Law (2d Ed.), 928; Commonwealth v. Hayden, 150 Mass., 332; People v. Handley, 93 Mich., 46.

The court in the last ease say in the syllabus:

“The acquittal of the charge of burning a dwelling-house is not a bar for a trial for the same offense providing for the punishment of one who shall willfully and maliciously burn any building other than a dwelling-house. ’ ’

That case seems to determine the question here. I might add to what I have already said that if this indictment, upon which he was convicted, had simply described the structure as a building, and had not described it as an unfinished and incomplete building, that probably would have -been sufficient to decide the question whether it had reached such a stage of construction that it could be called a building. A man can not be convicted of arson unless he burns one of the structures named in the statute or some kind of a building.

It is urged that the conviction of the defendant was against the weight of the evidence and that the court erred in its charge to the jury. The record shows that the defendant was charged with aiding and abetting Morrison in the crime, and he was convicted largely upon -the testimony of Morrison. The record shows that this structure had. been built at the village of West Unity, this county, and on the evening of October 8, about 9 or 10 o’clock, -it was burned. The defendant was not arrested for some years afterward. Morrison was the principal offender, He was a witness in the case, and, according to his testimony, he suggested the burning of this house.

The defendant at that time was a young man about -twenty-years -old. He and Morrison were and had been friends, quite intimate friends for quite a long time, and according to the testimony, Morrison, it seems, was not on friendly terms for some reason with Mrs. Page, the owner of this property, or her husband. He testified that on the evening that the fire occurred the defendant was at his place of business in West Unity, and that when they locked up this place he suggested to the defendant that it would be a good night to burn this building, and the defendant agreed. He testified -that after going to his own house, going in and getting a bottle of coal oil and a candle, they went to this house, going upstairs, setting, the candle on the floor, and sprinkling coal- oil on the floor and shavings, then both went to Morrison’s house and went to bed. Soon after the house took fire, the alarm was given and the house practically consumed.

The defendant testified that he w,as at Morrison’s place of. business with Morrison and after leaving there Morrison went away for about half an hour, leaving him, the defendant, outside of Morrison’s house; that he waited there until Morrison returned. He claimed that he had no knowledge of what Morrison was doing or what he intended to do, denies that he had ever talked with Morrison about this matter, and say that he had nothing whatever to do with it. Mrs. Morrison testifies that Morrison and the defendant came to their house about 10 o’clock that night, took off their shoes, and went upstairs to bed. She says that she detected a strong odor of coal oil soon after they came into the house, and she spoke to them that night, and Morrison said that they had been in an alley where there were some barrels and perhaps they contained coal oil. After they had both gone to bed, the alarm of fire was given and the defendant went to the fire; after the fire was over, they came back and he remained there that night and part of the next morning. lie testified that nothing was said about the fire between him and Morrison the next morning.

It went to the jury upon tire testimony which I have just given and they found the defendant guilty.

The Supreme Court of this state has held that a man may be convicted upon the uncorroborated evidence of an accomplice. The court charged the jury, we think, correctly under this decision of the Supreme Court, that if the jury believe the testimony of an accomplice, although it was uncorroborated, it was their duty to convict. That merely means to say to the jury, that if they believe the testimony of an accomplice, when he says and swears that the defendant took part with him in the commission of the crime, it is their duty to find him guilty. It follows, of course, that it would be their duty to so find him, so we see no objection to the charge of the court.

There are states where it is provided by statute that a man shall not be convicted on the uncorroborated testimony of an accomplice. That is not true of this state. It was for the jury to say under the circumstances whether the testimony of Morrison was true. He described in detail the commission of this crime.

It appears from the undisputed evidence in the ease that Morrison and this young man were quite intimate friends — we think had often ridden about the country together in the daytime and I think sometimes in the evening, and that they were together a great deal. There .is a hint in the testimony that Morrison was visiting a young person in the neighborhood some three miles away, a fact which he wished to conceal perhaps from his wife, and this young man would -aid him in that he would wait around and then go into the house with Morrison, after he had returned from the visits, making it appear that he and Morrison had been away together. I only speak of this as showing the intimacy which existed between them. He was with Morrison the afternoon of the day the fire occurred. He was with him in the evening at his place of business. He went from there with him to his house. He testifies that Morrison went into his house, as Morris on himself testifies, when he got the bottle of coal oil and the candle. He says Morrison asked him to wait for him, but Morrison went away remaining about half an hour. Where Morrison went after going away and leaving him there does not appear from the testimony of the defendant.

There is .no denial of -the testimony of Mrs. Morrison, who was a witness in the case, as to the shoes of Morrison, and she thinks of the defendants smelling of coal oil when they came in that night.

The fact that nothing was said between Morrison and the defendant about this fire the next morning at breakfast, as the defendant testifies, is a significant fact. If the defendant was innocent of any connection with this crime; it is strange that he should sleep in the house that night, eat breakfast there and perhaps dinner, and nothing transpire between him and Morrison in regard to it. It seems to us that, under this testimony, the court would not be warranted in finding that the verdict was not sustained by the evidence.

Arson is one of those crimes where there are usually but few, if any, eye-witnesses, committed usually in the darkness of night, and testimony which leads to conviction is usually circumstantial. While we have in this case these circumstances, we have also the testimony of Morrison, who swears positively to the defendant’s connection with the commission of the crime. Nothing appears in the record to show any feeling of hostility or enmity on the part of Morrison toward the defendant. No reason appears why he should swear this young man into the penitentiary unless what he tells is true. It is true that he had been indicted for this same offense, but he was also indicted and convicted for other offenses, and was serving a term of imprisonment in the penitentiary at the time he testified in this case. It may have been, it is urged by counsel for plaintiff in error, that to testify in this, case against the defendant would aid him to secure a pardon or relief in some manner. But the circumstances in this case stands out strongly that the defendant in -this case, against whom he testified; was his friend, against whom he had no enmity and with whom he had been on the most intimate and friendly terms.

This whole question was submitted to the jury. They were better able than we are to hear the testimony and determine where the truth lay as between the defendant and Morrison, who gave his testimony against him. It is one of these eases that, under the law of the state, wrns submitted to the jury, and they have determined, after hearing the evidence, that the defendant is guilty as he stood charged in the indictment. We have reviewed the record with care, and find no errors in it to his prejudice. The judgment of the court of common pleas will therefore be affirmed.


text:
    AUTHORITY OF MAGISTRATE TO RE-SENTENCE AFTER. TIME.
    Circuit Court of Cuyahoga County.
    George Yocheim v. The State of Ohio, and Thirty-five Other Cases.
    Decided, June 7, 1909.

      Grirndnal Law — Magistrate’s Judgment Reversed for Error in Sentence —Authority to Re-Sentenoe after Time.

    Upon reversal by the common pleas court of the judgment of a justice of the peace in a criminal case for error in the sentence alone, and remand for re-sentence, the justice has authority to re-sentence, notwithstanding the time has elapsed, after the trial, within which judgment must be rendered. Derby v. State, 6 C. C. — N. S., 91, overruled in part

      E. J. Albl, E. Sutherland and Joseph Bloch, for plaintiff in error.

      U. G. Denman, Attorney-General, and C. P. Hine, contra.

      Winch, J.; Henry, J., and Marvin, J., concur. •
    Error to the Court of Common Pleas.
   The only question in these cases is whether in a criminal case tried before a justice of the peace, upon reversal by the common .pleas court for error in the sentence alone and remand for re-sentence, the magistrate has authority .to so re-sentence, the time having elapsed after the trial within which judgment must be rendered.

We consider discussion of this question foreclosed by the precedent set by the Supreme Court in the case of Carey v. State, 70 Ohio St., 121, 127, where the judgment entered reads :

“Judgments of the circuit court and the court of common pleas, and of the mayor’s court reversed and cause remanded to the latter court for sentence.”

The common pleas court in these cases did exactly what the Supreme Court did in the Carey case, and in following the'practice thus established we can not say that it was wrong.

So far as the case of Derby v. State, 6 C C—N. S., 91, is in conflict with this conclusion, it is overruled.

Judgments affirmed.


text:
    POSSESSION UNDER. CONTRACT OF PURCHASE.
    Circuit Court of Hamilton County.
    Sarah Cowen v. John R. McGoron.
    Decided, November 6, 1909.

      Forcible Detainer — Evidence as to Title — Extent to which the Question of, may be Drawn into the Case — Contract of Purchase — Ejectment.
    1. In an action in forcible detainer before a justice of the peace, it is competent for tbe defendant to offer in evidence a contract of purchase for tbe purpose of showing the nature of his possession.
    2. A showing of possession under a contract of purchase is a complete defense to. an action in forcible detainer; and for failure to perform some of the conditions of the contract the plaintiff must have resort to a suit in ejectment.

      Wm. A. Stark, for plaintiff in error.

      A. W. Bruck, contra.

      Giffen, P. J.; Swing, J., and Smith, J., concur.
   The original action of forcible detainer was commenced by John R. McGoron against Sarah Cowen, who, prior to October 4th, 1905, had been his tenant; but on that date they entered into a written contract of sale of the premises, under which she paid large sums of money to the plaintiff and made some improvements upon the premises. She thereby ceased to be a tenant, and her possession thereafter was referable to the contract of purchase.

This contract was offered in evidence, not for the purpose of trying the title to the premises, but for the purpose of showing the nature of defendant’s possession. To some extent the title was thereby drawn in question; but this is permissible under the cases of Brown v. Burdick, 25 O. S., 260, at 270; Trustees of Burten Township v. Tuttle, 30 O. S., 62, at 66.

If, as claimed by the plaintiff, some of the conditions of the contract had not been performed by the defendant, an action in ejectment should have been commenced in the court of common pleas; where the equities, if any, of the defendant could be determined. Her possession as purchaser was a complete defense to the action of forcible detainer, and the justice erred in rendering judgment for plaintiff instead of defendant.

The judgment of the court of common pleas affirming the judgment of the justice of the peace will be reversed and the cause remanded to that court with instructions to reverse the judgment of the justice. A like judgment will be entered in the case of Green v. McGoron, No. 4803.


author: Day, J.,

text:
    APPEAL FROM THE DECISION OF A CANVASSING BOARD.
    Circuit Court of Delaware County.
    Emmet Wickham v. George Coyner.
    Decided, 1902.

      Elections — Temporary Change of Residence — Right of Voter to Have Vote .Counted — Affiliation with Political Party not Evidence that the Vote of an Elector was Cast for that Party — Naturalization— Rule Determining the Residence of Students — Presumption as to the Legality of a Ballot — Time Necessary to Gain Residence After Majority — Legislature Without Power to Impose an Educational Test — Section 2966-31.

    1. Presence for a temporary purpose does not secure the right to vote, and absence for a temporary purpose does not forfeit the right.
    2. The right to have a legal ballot counted is the right of the voter who casts it; and after it has been deposited in the box, the act or omission to act of no officer can deprive the voter of this right, so long as it is reasonably certain that the ballot remains unchanged.
    3. The fact that a voter affiiliates with a particular party can not be considered as sufficient evidence of how he -cast his ballot for any particular office, when the matter is in issue in an election contest.
    4. A contestant having proved that a certain voter who was an alien could not have been naturalized, on account of minority under the general provisions of the naturalization laws within one year before the contested election, is not bound to negative the exceptional circumstances under which the naturlization of such voter might have been effected at an earlier time.
    5. There is no special rule for determining the residence of students for election purposes; the same rules that determine the domcile of other persons apply to them.
    6. The fact that a student voted raises a presumption of the legality of his ballot and of his innocence in casting the ballot, which presumption overcomes the presumption that the domicile given on the matriculation card of such student continues until affirmative evidence of a change is given.
    7. A person during minority has not the capacity to change his domicile, and a student domiciled outside the state must remain in Ohio one year after attaining his majority in addition to the necessary intent to change his domicile to acquire a residence for voting purposes.
    S. Under the Constitution the Legislature has no right to require "voters to possess an educational qualification, and any act of the Legislature which has such effect, or which would prevent the judges of election from assisting other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the constitutional right of the voter. Serrible.

    Mooney, J.; Sullivan, J., concurs; Day, J., dissents.
   This is a proceeding to contest an election of a common pleas judge, brought under act 89 O. L., 363 (Section 3014-1, Revised Statutes). Emmet M. Wickham, the con-testor, in his petition states that the first subdivision of the sixth common pleas judicial district of Ohio is composed of the counties of Delaware, Knox and Licking; that the said county of Licking at the last federal census had the largest population of .all the counties of said subdivision; that at the general election held on November 5th, 1901, there were four candidates in said subdivision for the office of judge of the court of common pleas in said judicial district, two of whom were to be elected; that one Charles W. Seward and the said George Coyner, who is a resident of said county of Delaware, were such candidates on the Republican ticket, and one John Davis Jones and said Emmet M. Wickham were such candidates on the Democratic ticket; that on November 12, 1901, the canvassing board of said Licking county found and certified that the said Charles W. Seward had received for said office 12,527 votes; that the said George Coyner had received for said office 12,274 votes; that the said Emmet M. Wick-ham had received for said office 12,206 votes; and that the said John Davis Jones had received for said office 12,129 votes; and said canvassing board then- found and declared as the result of said election that the said Charles W. Seward and the said George Coyner were elected such judges as aforesaid.

Emmet M. Wickham appeals from the finding and decision of said canvassing board and contests the election of said George Coyner to said office .and avers that the said George Coyner did not receive the number of legal votes, so found by said canvassing board, but a much less number; that said Emmet M. Wickham received a much larger number of legal votes than the number so found by said canvassing board and a much larger number of legal votes than was received by the contestee, the said George Coyner, and that, therefore, the contestor was and is duly and legally elected to said office of judge of the court of common pleas instead of the said George Coyner; and .for grounds of such contest the contestor alleges the following facts:

First. In' Scioto township and in Berlin township, Delaware county, there were cast for said contestor and not for said contestee, twenty-five legal votes, which votes the judges of election of said township failed and refused to count for said contestor.

Second. In each and every of the following precincts, townships, and wards there were cast and counted for said George Coyner, none of which were counted for said Emmet M. Wick-ham, fifty illegal votes by persons who then and there did not possess the qualifications of legal voters of said election, viz.: in ■the townships of Brown, Orange, Radnor, Delaware county; in the first, second, third, fourth, fifth and sixth wards of the city of Delaware, Delaware county; in the township of Granville and in' the village of Granville, Licking county; in the townships of College, Hilliar and Liberty, in Knox county.

Third. In Galena precinct, in Berkshire township, Delacoun.ty, there was counted for contestee and not for contestor one mutilated and fraudulent ballot.

Fourth. In the township of Brown, Delaware county, the judges of election conspired together- to assist the inmates of the county infirmary to cast their-ballots; that said inmates were not, under the law, entitled to be so -assisted; that notwithstanding said fact, assistance in the marking of ballots' was rendered by said judges, pursuant to, their said conspiracy, and that all said inmates had their ballots marked and counted by said judges for said contestee .and not for said contestor; that in said township said contestee had counted for him 172 votes; that said -action of said judges rendered the election in said township illegal and void, and that that number of votes should be deducted from the votes cast for the contestee, or that, if said election in said township was not rendered wholly illegal and void, each ballot marked by the judges for said infirmary inmates was fraudulent and illegal, and that forty votes should be deducted from the total vote cast for said contestee.

Fifth. That there was a large number of disputed ballots returned in each of the three counties to the deputy state supervisors of elections, which should be counted for said contestor and not for said contestee, and were not so counted for contestón

To this petition the contestee answers and denies all grounds of contest set out in the petition and further answering says:

First. That the iegal qualifications of all persons voting at said election in the several precincts named in the petition were passed upon by the judges of election and that the right of said persons to vote is, therefore, res adjudicada.

Second. That in Orange township, Delaware county, there were cast and counted for said contestor twenty illegal votes.

Third. That in the first, second, third, fourth and sixth wards in the city of Delaware, Delaware county; in the township of Granville, and in the village of Granville, Liberty Union, Jersey, Newark, Licking and Hopewell townships; in the first, second, fourth and seventh wards of the city of Newark, Licking county; in the townships of College and Liberty, in Knox county, each, there were cast and counted for said contestor twenty illegal votes.

The contestor, by reply, denies all the affirmative allegations contained in the answer of the contestee.

The rights of the parties to this proceeding require an examination of the law of the state as to the qualifications of electors; the preparation, reception and counting of ballots; the proceedings incident to the preservation of disputed or doubtful ballots; and the rules of procedure in contests of elections. First, as to the qualifications of electors, Section 1, Article Y of the Constitution of the state provides:

“Every white male citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elector and be entitled to vote at all elections.”

And by Section 6 of the same article—

“No idiot, or insane person, shall be entitled to the privileges of an elector.”

The color qualification is now abrogated by the fourteenth and fifteenth amendments to the Federal Constitution.

The qualification of residence is the one most frequently questioned in the case at bar. From the constitutional provisions quoted, it appears that while the term of residence within the state is fixed by fundamental law; and the term within the counties, wards or townships is left for legislative regulation, yet the character of the residence within the state is- in no manner distinguished from the residence within the several subdivisions of the state.

The Legislature is not authorized to require another or different character of residence within the subdivisions than is required by the Constitution within the state.

In Sturgeon v. Korte, 34 O. S., 525, this article of the Constitution was under consideration by our Supreme Court. Boynton, J., at page 534, says:

“The word ‘residence’ as used in the Constitution, has substantially the meaning of habitation, domicile or place of abode. The law ascribes a domicile to every person, and no person can be without one.
“In Bell v. Kennedy, L. R. 1, H. L. 320, it was said by Lord Westbury, that domicile is the relation which the law creates between an individual and a particular locality or country. And by Judge Story, in his Commentary on the Conflict of Laws, that it is of three sorts: domocile of birth, domicile of choice, and that which results from the operation of law. Section 46.
“Domocile of birth remains until another is chosen, or where a person is incapable of choosing, until one results by operation of law. To acquire a new residence or domicile, where one is under no disability to choose, two things must concur, the fact of removal and an intention to remain. The old domicile is not lost nor gone until the new one is acquired, facto et animo. It is not, however, necessary that the purpose to acquire a new residence should exist at the -time of removal. It may be formed afterward. A residence may be acquired by one who has removed to a place for temporary purposes only, by a change of purpose, and an election of the new habitation or place of abode as his place of future domicile or home. * * *
“ ‘In a strict legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.’ ” Story, Conflict of Laws, Section 41.
“ It is not, however, necessary that he should intend to remain there for all time. If he lives in a place with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, and not as a place of temporary establishment, or for mere transient objects, it is to all intents, and for all purposes, his residence. Story, Conflict of Laws, Section 46; Bruce v. Bruce, 2 Bos. & Pul., N. R., 228; Sears v. Boston, 42 Mass. (1 Metc.), 250.
" These are well settled rules relating to the selection or change of residence, existing when the Constitution was adopted, and eonseqitently apply in all eases where a change of residence results from, or depends upon choice. * * * Residence resulting from the operation of law supervenes upon a disability to make choice. Minors being incapable of acquiring a domicile, retain that of their parents. * * * A person under the power and authority of another * * * is incapacitated to choose a residence.”

To a majority of the court, Judge Sullivan dissenting, it seems that the rules here laid down are so clear in their statements and so well supported by both reason and authority outside the state, that any investigation of cases in other states, however interestirfg it may be as a matter of legal study, is quite unnecessary to determine what the rules on Ohio are, determining whether a particular person has or has not a right to vote at a particular poll. There is no special rule as to students. Their residence is to be determined 'by the same rule as other persons.

It would be an endless task to state here at length the particular facts which we concluded to be of controlling effect in the case of each person whose right to vote has been called to the attention of the court.

We need only say that from all the evidence bearing upon the right of each person to vote, his right has been separately considered and determined. The statement of a few typical cases will sufficiently indicate the application of the rules of law to the cases in general:

Stanley C. Roettinger came from his parents’ home in Hamilton county to pursue his studies at the Ohio Wesleyan University. At the date of his matriculation he was a minor. He spends his vacations not at Delaware, but in the main at his parents’ home. When he leaves Delaware .at the close of each school year, he intends to return at the beginning óf the next school year to continue his studies. He has no business or occupation other than student and limits his stay in Delaware each year to the time school is in session.

He has formed no plans for the future. We are not informed as to the source from which his support is derived. When he arrived at his majority, his residence was at the home of his parents. To change this residence required an active intent upon his part. This intent is not shown by the facts in evidence. His attendance at school since attaining his majority is not different in any respect from what it was within his minority at Delaware. We are of opinion that his residence on November 5, 1901, was at Wyoming, Hamilton county, Ohio, and not at Delaware, and that his vote at Delaware was illegal.

John Eddy Austin attained his majority in July, 1901. More than one year prior -to that time he came to Delaware from his father’s home at Chattanooga, Tennessee. The father maintained his residence' in Tennessée continuously until the time of this trial. During the minority of the son, his residence continued in Tennessee by operation of law. He had not legal capacity to change from this residence to a new one of his choice. He did not become vested with a capacity to choose a residence until July, 1901.

If he then selected Delaware, Ohio, as his home, less than one year intervened before the election at which he voted. Hence lie did not possess the qua’ifieations of residence required by the terms of the Constitution and his vote was illegal.

Frank Whitehouse states-in his matriculation card, that his native country is England. lie was born in September, 1879. On or before November 5, 1901, he could not have been naturalized under either Section 2165 or 2167, United States Revised Statutes, for defect of age.

Upon this showing unexplained by him or by someone testifying to an exceptional state of facts, Mr. Whitehouse was neither an American citizen nor a legal voter when he cast his ballot. There are exceptional circumstances recognized by the statutes of the United States under which he could have been naturalized, but these exceptional circumstances are in the nature of provisos to the general section of the naturalization act; and it is not necessary that the eontestor here should negative the existence of facts which would bring Mr. Whitehouse within any proviso outside the ordinary provisions of the law.

C. M. Shaft came -to Delaware from Napoleon, Ohio, for the sole purpose of completing the business course. This, he believes will require about seven months’ attendance at the university. His stay at Delaware is without intent as to change of residence. His domicile thus clearly appears to have been at Napoleon in November, and his vote was illegal.

Richard Roe came to Delaware from Illinois and voted at Delaware in November. By action of the faculty in December he was requested to sever his connection with the school. He returned tó Illinois to his parents’ home and in correspondence claims that place his home and spoke of his returning to Illinois as an unexpected homecoming. We find on these facts that his vote at Delaware was illegal.

E. A. Hotchkiss is self-supporting. He came to Delaware intending to complete a course and work there mainly to increase his resources. He has an arrangement to stay in Delaware after completing his college course. He has an intention not to return to the place of his'former residence. His vote was legal.

Henry Graphius came to Delaware in September, 1901, from his parents’ home in Cincinnati. While at Cincinnati and living with his parents he paid them board. He is self-supporting and came to Delaware to work his way through and testifies that since September, 1901, he has- regarded Delaware as his only home. In September he formed an intention, after coming to Delaware, not to return to Cincinnati. He had attained his majority long before September, 1901. .Iiis vote was legal.

John Poland is married, not separated from his wife, and prior to September, 1901, resided in Franklin county, Ohio. Intending to move his family to Delaware county, he broke up housekeeping in Franklin county in September; went to Delaware county in that month, worked there, procured a dwelling for his family, and on October 11, 1901, he moved his family from Franklin county to Delaware county. His family was in transit until October, 1901, and until that date the change of his residence to Delaware county was not complete. His vote was illegal.

Banny Stull resided with his family in Knox county more than eight months prior to November, 1901. He surrendered the farm upon which he was living in the spring of 1901 with no intent to return to the farm. He took a cropper’s lease on a farm in Licking county and moved there with the then intention to remain only until the fall of 1901, and then to return to Centerburg, Knox county. He did return to Center-burg, Knox county, on October 15, 1901, and voted in Knox county. His going to Licking county was for temporary purposes only. His surrender of the house in which he resided in Knox county did not forfeit his residence in that county. ITe was a legal, qualified voter in Knox county. Under the facts as disclosed he would have been qualified to vote in Knox county, even though his family had not returned there before election. Presence for a temporary purpose does not secure the right to vote, and absence for a temporary purpose does not forfeit the right.

For the same reasons Lam A. Brandebury is legally qualified to vote on his "old ward” in Delaware.

The persons who were employed -in the construction of the electric railway in Orange township, Delaware county, were present in that township only for the purpose of railway construetion. The tents in which they were housed were of a character to indicate conclusively the temporary purpose of their stay in Delaware county.

None of these persons, so far as shown by the evidence in this case, were legal voters in Delaware county.

We find no defect in residence of any inmate of the Delaware county infirmary, and we are of opinion that Jacob Lumbert was domiciled in Brown township and properly voted there.

From the evidence we find affirmatively that the following students were legal, qualified electors: In Delaware [forty-two were named] * * *; Granville [eleven] * * *; Gambier [six]. * * *

The following named students voted for neither or for both of the parties litigant here, and for that reason their several qualifications were not considered by the court:

In Delaware [six were named] * * *; Granville [two]. * * *

Many persons whose residence is in question claimed their privilege as witnesses not to answer questions with reference to that fact. As to these persons, we have the evidence of their matriculation cards, which contain a statement of the former home of each matriculant, and the fact appearing, from the evidence, that these persons are all students at the place at which they voted.

For the contestar it is claimed that from the fact that these voters are students and from the presumption that the place of domicile shown continues until affirmative evidence of a change is given, that this evidence is sufficient to show that these voters are not residents of the wards and precincts in which they voted.

We are of the opinion that the fact that a person voted raises a presumption of the legality of his ballot and of his innocence in easting fhe ballot. It thus appears that the presumption of the continuance of domicile is in conflict with the presumption of the innocence of the voter.

In such eases, the .presumption of innocence overcomes the presumption of continuance (Lawson, Presumptive Evidence, 665, Rule 122, Sub-sec. D). And on such state of proof we must find in accordance with the presumption of innocence that such persons are legal residents of the precincts in which their several ballots were cast.

The fact that these students claimed their privilege is, for a reason hereinafter stated, not a matter of evidence tending to prove that the witness claiming the privilege was a non-resident; nor is the fact that the occupation of the voter is that of a student sufficient to overcome this presumption of innocence, for a ■student may have a domicile at the seat of the university.

The students who, in accordance with this rule, are held to be legal residents of the precincts in which they voted are the following:

In Delaware [twenty-eight were named] * * *; Granville [eleven] * * *; Gambier [eight]. * * *

The students who voted and whose right was questioned by either party, other than those above named, we find to have voted without legal qualification so to do. But, by reason of' defect of evidence -to the point, we are not able in many cases to find for whom many of them voted. There is some evidence as to the politics of nearly all of these voters and nearly all of them claimed their privilege when asked to testify as to their political affiliations in general or as to the candidates for whom they voted for common pleas judge.

The privilege not to answer is the privilege of the witness. ■ With the exercise of this privilege neither .of the parties litigant have, in legal contemplation, anything -to do. When a voter is called as a witness by the contestor and claims his privilege not to answer concerning his politics, it can not be inferred from that fact alone that such witness is a Republican; nor can the refusal of the witness to .answer the same question put by the eontestee give rise to the presumption or to an inference that such witness is a Democrat.

“If a witness declines to answer a question on the ground 'that his answer might criminate him, no inference of the truth of the matter inquired of may be drawn from that circumstance. " 1 Greenleaf, Evidence, Section 451; Rose v. Blackmore, R. & M., 383; Ohelin v. Kenderdine, 20 Pa. St., 354; Rex v. Watson, 3 E. C. L., 357.

And these witnesses not being parties, no inference can arise from -their failure or refusal to explain.

Nor, it seems to a majority of the court, Judge Day dissenting, can the fact that a voter affiliates with a particular party be considered as sufficient evidence of how the voter cast his ballot for- ,any particular -office, when the matter is in issue in an election contest.

It seems to a majority of us, that something more than political affiliation is necessary to be shown in such case. Political activity, enthusiasm for a political party at a particular election, declarations of the voter attending the act of voting, or other circum-' stances are necessary to be shown before a court can hold, as a matter of fact, that a voter supported a particular candidate; and this should be more particularly the case when, as in the case at bar, it seems that there was- quite a degree of independence manifested by the voters in their .support of the candidates for common pleas judge.

We do find from the evidence that the following disqualified voters east their ballots for George Coyner and not for Emmet M. Wickham:

In 'Delaware [fourteen were named] * * *; Granville [seven] * * *; Gambier [fifteen] * * *; three employes on the electric railway.

We find, too, that William Palmer, an inmate of -the Delaware county infirmary, was insane, and was not qualified to vote, and that he voted for George Coyner and not for Emmet M. Wickham.

The following students voted for- Emmet M. Wickham and not for George Coyner, and each of said voters were without legal qualifications:

In Delaware [seven were named] * * *; Granville [two]. * * *

We further find that the following persons, other than students, voted for George Coyner and not for Emmet M. Wickham, and that the said voters were each of them non-residents of the precincts in which they voted [four], * * *

We find that C. W. Sh-otboldt was- insane when he voted, but from the evidence we are not able to find -to whom his vote was cast for common pleas judge. This disposes of all cases of importance in this contest so far as the legal qualifications of the persons voting are concerned.

As to doubtful ballots certified to the board of deputy supervisors of elections: The purpose of the Australian ballot is to promote the purity of elections by securing absolute secrecy of the ballot, and such uniformity in the marking of tickets as will render it impossible 'for corrupt persons to discover, from an inspection of a ballot during the count, that any deal made has been carried out.

It is held practically by all the courts that when the statute prescribes a method for marking a ballot, -the observance of such method is mandatory upon the voter, and that any ballot not complying with the law must be rejected. In Ohio, it is provided that where a ballot is marked so that the intention of the voter may be ascertained, technical irregularities in marking it shall not vitiate the ballot; but it is believed that the ticket must be so marked and the intention of the voter be so manifested, that the ticket upon inspection .will not be so different in marking from tickets properly voted that one, by prearrangement with voters, could ascertain that an understanding with reference to the matter of voting had been carried out.

Of the “doubtful ballots” in Delaware county, the one ballot in Delaware precinct, Delaware township, should not be counted; the one ballot in Oxford precinct, Delaware county, should not be counted; the one ballot in Radnor precinct should be counted for George Coyner; the two ballots in Sunbury precinct, Berkshire township, should not be counted; the one ballot in Trenton precinct, Trenton township, should not be counted; ballot No. 1, in Marlbrough precinct, Delaware county, should not be counted; No. 2 is so marked as to be readily recognized by any one as different in marking from that required by the statute. The ballot should not be counted. It was, however, counted for Coyner, and should be deducted from his vote. The Genoa ballots are all unmarked and can not, therefore, be counted. The Scioto ballot was counted for Wickham, but by reason of a mark after the name of Overturf, was in our opinion mutilated, and should áot be counted.

Ballot No. 2 -does not vote for any candidate for common pleas judge, and can not be counted.

Harlan ballot, No. 1, both tickets marked, should not be counted.

The nine Liberty township ballots, which were not counted for any one, should be disposed of as follows: No. 1 should not be counted for any candidate for judge; No. 2 should be counted for Wickham and not for Coyner; No. 3 should not be counted; No. 4 should be counted for Wickham and not for Coyner; No. 5 should not be counted; No. 6 should be counted for Wickham and not for Coyner; No. 7 should not be counted; No. 8 should be counted for Wickham and not for Coyner; No. 9 should be counted for Wickham and not for Coyner.

As to Knox county: The doubtful ballots in this county, after reaching the hands of the board of deputy state supervisors of elections properly sealed up, were, through the desire of the board to add to their information, improperly opened. It is in evidence that the ballots, as attached to the depositions in this case, are in the same condition that they were when thus improperly opened.

• While the case is not free from doubt, we are of opinion in such state of proof that the ballots should be counted. The right, after all, to have the ballots counted, is the right of the voters who cast the ballots, and after a legal ballot' has been deposited in the box the act of no officer, or his omission to act, should deprive the voter of the right to have the ballot counted, so long as it is reasonably certain that the ballot remains unchanged and so can be counted for the candidates for whom it was cast. We think the evidence here fairly shows that these ballots have not been tampered with.

Exhibit A, ballot No. 1, should not be counted; the ballot is mutilated.

No. 2 should not be counted; it bears a distinguishing mark, a double X.

No. 3 is not voted for any candidate for common pleas judge.

No. 4 bears a distinguishing mark in that an X is marked before a blank space on one of the third party tickets. This ballot was counted for Coyner and should be deducted.

Ballot No. 5 is mutilated and should not be counted.

Ballot No. 6 should not be counted; the ballot bears a distinguishing mark the same as No. 4.

Ballot No. 7 is mutilated; the name of the Democratic candidate for respresentative is written in the space devoted to that office on the Republican ticket and the name of the Republican candidate for representative is erased, and the ballot is otherwise mutilated. This ballot was counted for Coyner and should be deducted from his vote.

Ballot No. .8 bears a distinguishing mark, the same as No. 4, and should not be counted. It was counted for Coyner and should be deducted from his vote.

Ballots Nos. 9 and 10 should not be, and were not counted.

Ballot No. 11 bears a distinguishing mark, the same as No. 4. It was counted for Coyner and should be deducted from his vote.

It is not certain to us whether ballot No. 12 was counted or not. In such state of the proof it must be presumed that the election officers did their duty and, because the ballot is mutilated, rejected it.

We find upon the evidence -that the Galena ticket referred to in the evidence bears a .distinguishing mark; that it was counted for Coyner and should be deducted from his vote.

In’Berlin township the claim is made by the contestor that certain tickets were marked for Seward and Wickham, and had an X mark in the circle at the head of the Republican ticket; that these ballots were counted for Coyner alone.

This is disputed by the contestee and evidence is adduced by each party in support of his contention. The question is one to be determined upon the weight of the evidence, and inasmuch as Judge Sullivan was not present when this testimony was received, the conclusion reached with reference to this matter is not participated in by him. Owing largely to the fact that the qualified denial' of the witness called to impeach the testimony of Delbert Mooney — and the general conduct of this witness upon the stand does not tend to the impeachment of Mr. Mooney — to the fact that an equal number of witnesses testified in behalf of the contestor and that the credit of none of these witnesses is called in question, and to the fact that the correctness of the count in Berlin township seems to have been since the election under discussion, for which, it would seem, there was no reason unless the contestor’s claim has some existence in point of.fact, we arrive at the conclusion that in this township certain ballots were improperly counted for George Coyner when they should have been counted for Emmet M. Wickham, and upon the evidence adduced to the point bearing upon the number, we conclude that eight ballots were so counted.

Those eight ballots should be added to the total vote of Emmet M. Wickham, and should be deducted from the total vote of George Coyner.

As to the conduct of the election in Brown township: We are satisfied from the evidence that the judges of election in Brown township assisted certain inmates of the infirmary in marking their ballots. One of these inmates testified on the trial in this case. It seems that he was upward of eighty years of age. He was not able to read, and while he was able, unassisted, to mark his ballot to vote a straight ticket, would require some assistance in marking a scratched ticket.

It is also in evidence that a blind man was assisted, and that one suffering from paralysis was assisted by the judges, and in general that no one asked for assistance in marking his ballot in Brown township who was not given such assistance.

It seems that the judges, one from each political party, assisted in marking, but all the judges in this township were friendly to the election of George Coyner as common pleas judge.

It is not in evidence that all the persons who asked assistance were persons who in accordance with the provisions of the statute, would be entitled to demand it. Nor does it appear that any one who was .actually assisted was a person who, under the statute, was not entitled to receive such assistance.

We are not unmindful of the provisions of Section 22, 98 O. L., 223 (Section 2966-37, Revised Statutes):

“Any elector who declares to the presiding judge of election that he is unable'to mark his ballot by reason of blindness, paralysis, extreme old age or other .physical infirmity, and such physical infirmity is apparent to the judges -to be sufficient to incapacitate the voter from marking his ballot properly, may, upon request, receive- the assistance, in the marking thereof, of two of the judges of election belonging to different political parties, and they shall thereafter give no information in regard to the matter ; but such assistance shall not be rendered for any other cause which the voter may specify and a presiding judge may require such declaration, of disability to be made by the elector under oath before him.”

Under the Constitution of the state, electors are not required to possess an educational qualification, and the Legislature has no power to require qualifications in addition to those named in the Constitution.

It is the right of the elector to vote a straight party ticket, and any legislation which has the necessary effect to require an elector to satisfy himself by easting a straight party ticket, and prevent or greatly hinder the casting a scratched ticket, would be súch an invasion of his rights as an elector as would render the_enaetment invalid.

Under the Australian ballot law an elector is handed a ticket with the names of all duly nominated candidates printed upon it. To select and vote for the different candidates without assistance requires at least the ability to read the names of the candidates; and to vote for any person for any office unless such person is a duly nominated candidate for such office, requires the added ability to write.

To place such a ticket in the hands- of an elector, to compel him to retire to a booth and prepare his ballot, without assistance, can not be considered in any light-other than a direction to him to read party emblems, to vote a straight ticket, and to deprive him of all -opportunity to vote for any candidate not upon the one ticket or the other.

In harmony with these views, we .are of the opinion -that if the case required it, we would hold that the direction that the judges should not render assistance -to voters other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the right of an elector to cast his ballot not warranted by the Constitution of the state,

But while the number of voters assisted in Brown township seems to have been large — the precise number from the evidence we are not able to determine — yet there is no proof -that any elector not within the terms of -the statute was- assisted, or that any elector was in any way impeded or controlled in the casting of his ballot; but that all ballots were marked and counted for the candidate for common pleas judge for whom the several electors desired to vote.

Under-these circumstances we find that there was no fraud or irregularity in the conduct of the election in this township that should cause the rejection either of the entire poll of the township or of any of the votes east for George Coyner.

It will appear from the foregoing that there should be deducted from the vote of George Coyner, student votes, fourteen in Delaware, seven in Granville, fifteen in Gam-bier, three employes on the electric railway, -the votes of William Palmer, John Poland, T. N. Dickson, and Frank and Able Wilson; total, forty-four votes.

There should also be deducted from ticket No. 2, returned as doubtful from Marlborough precinct, and ballots Nos. 4, 7, 8 and 11 in Knox county, and the Galena ticket, and eight votes improperly counted for Coyner in Berlin township; total deductions, fif-ty-eight; and that there should be added to Coyner’s vote the Radnor township ballot, one vote, making the net deduction from the C-oyner vote, fifty-seven.

The total vote as declared by the canvassing board is 12,274; deduct fifty-seven votes, equals 12,217, the true legal vote east for George Coyner so far as the. votes adduced on this hearing shows.

There should be deducted from the vote cast for Emmet M. Wickham, student votes, as follows: Delaware, seven votes; Granville, two votes; and the Scioto township ticket. Total deductions, ten votes.

There should be added to the vote for Emmet M. Wickham, ballots N-os. 2, 4, 6, 8 and 9, Liberty township, and the eight votes in Berlin township cast for Wickham and improperly counted for Coyner. Total additions thirteen, and the net additions three. The total vote for Wickham as found by the canvassing board is 12,206; add three, equals 12,209; the true number of legal votes cast for Emmet M. Wickham, as far as the evidence shows. Thus, the net majority for George Coyner over Emmet M. Wickham, for the office of common pleas judge, was eight votes, and so we find.

If the eleven votes referred to in the dissenting opinion be charged to the contestee, then, by a parity of reasoning, the vote of Long, the railroad employe, should also be so charged. This would make twelve illegal votes to be deducted from Coyner’s vote. In all fairness the seven employes of the railway should then be charged to contesto?, and should be deducted from Wick-ham’s vote. This would change Coyner’s majority but would not change the result.

The five votes referred to in the dissenting opinion were not charged to Coyner for the reason that as to these for want of evidence it could not be determined that these persons were illegal voters.

As to the entire sixteen votes referred to, the majority of the court simply hold, as we believe, in accordance with all the authorities, that the claim of privilege and the consequent refusal of a witness, not a party, to testify, is not in any manner or for any purpose to be taken as proof for or against either party to any litigation.

It is manifest that very many Republicans, on account of the known fitness and enviable record of Judge Wickham, voted for him for common pleas judge, and so, in the case at bar, mere proof of politics is more than ordinarily unsatisfactory as proof that the Republicans of the subdivision, and particularly of Delaware, voted for the Republican candidate, who was then without judicial experience.

Coming now to adjudge the costs in this proceeding, we are of the opinion that the questions here raised and now decided are of such public importance that the state should pay a large part of the costs incurred.

To us it seems just and equitable, under all the circumstances in this ease, that the costs of the clerk and sheriff of Delaware county should be paid by the eontestor in this proceeding, and that all other costs incurred should be paid from the state treasury, and it is so ordered.

Day, J.,

dissenting.

I do not concur in the general finding of the court in favor of the contestee. I am entirely satisfied, from careful consideration of such evidence and data, as the obstructive and suppressive methods pursued by many of the witnesses allowed the court to obtain, that the eontestor received a clear majority of the votes cast by voters having a legal domicile in the common pleas subdivision, composed of the counties of Delaware, Knox and Licking.

In addition to the illegal votes eliminated from the count, the court found eleven other persons who had cast illegal ballots, they not being legally domiciled in the township, precinct or ward where the ballot was cast, each one of whom, on being afforded an opportunity, refused to enlighten the court or to give any testimony concerning the material facts, if he voted at the November election, for whom he voted, or even to advise the court of the fact to which, if either, of the two political parties, presenting candidates for the office of common pleas judge, he was a member of, or affiliated with.

The refusal was based upon the ground — the alleged ground — that a truthful answer would have a tendency to incriminate.

It was clearly shown that each of them voted in the subdivision, at the election of November 5, 1901. It was also made to appear, by undisputed and competent evidence, that all of them were affiliated with and were classed and regarded by their fellows and persons interested in politics and keeping watch over the political field, as undoubted members of the party whose candidate the contestee was.

This fact standing alone, possibly, was insufficient, and did not to an absolute certainty, point to the candidate for whom the votes were cast; but in view of the fact that each of these persons, who alone knew the exact truth, and who, contrary to the good and wholesome advice given them by the chief officials of the university, to tell the truth and the whole truth, without fear, as there was no danger of prosecution, deliberately and persistently refused to aid the court to a right decision, in view of the presumptions arising from certain established facts, and of other facts appearing, including the conduct and demeanor of each of them in, the presence of -the court, and of their manifest desire to say only that which would benefit the contestee; I am of the opinion the evidence was of such consistence, significance and weight, as to justify and make imperative a finding that each and all of them voted for the contestee.

Five other persons voted, it was clearly made to appear, for the contestee; and I am of opinion that the evidence adduced concerning their former domiciles and the temporary character of their presence in the judicial subdivision, warranted and required the finding that neither of them were legally domiciled in the township or ward where the votes were east.

These sixteen votes, all of them, I think, should have been deducted from the total vote of the contestee.

In each case, however, the court was of opinion the evidence was not sufficient to establish the fact claimed, and the vote as canvassed and returned by the supervisors of the election, was, so far as these votes are concerned, not disturbed, but allowed to stand; and upon these grounds I base a dissent to the general finding in favor of the contestee.

In all other respects, I fully concur in the rulings and judgments announced.


text:
    CONVERSION OF COLLATERAL BY A BROKER.
    Circuit Court of Hamilton County.
    Charles J. Buddeke v. State of Ohio.
    Decided, January 8, 1910.

      Criminal Law — Stock Broker Charged with Embezzlement — Relation to his Client not that of Agent — Section 68J/2.

    Where a broker holds as collateral shares of stock belonging to a client, the relation between them is not that of principal and agent, but of debtor and creditor, and the conversion of the stock by the broker to his own use does not constitute embezzlement.

      Louis J. Dolle, Ulric Sloane and J. B. O’Donnell, for plaintiff in error.

      Coleman Avery, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Charles J. Buddeke was indicted and convicted under Section 6842, Revised Statutes, of unlawfully and fraudulently embezzling and converting to his .own use twenty-three shares of the capital stock of the Cincinnati Gas & Electric Co., which came into his possession and care by virtue of his employment as agent of one George Schulte.

The "record discloses that Charles J. Buddeke was a stock broker doing business as such under the name of Charles J. Buddeke & Company. On the 4th day of May, 1907, he purchased for and on request of George Schulte eight shares New York Central Railroad stock at 1.17 — $938. On the 9th day of May, 1907, Schulte transferred and delivered to Buddeke twenty-five shares Cincinnati Gas & Electric stock and obtained the following receipt :

‘ ‘ Cincinnati, May 9th, 1907.
“Received of Geo. Schulte Ctf. No. 26968 for 23 sh. Cin. Gas & Elec, stock as collateral on account.
" Charles J. Buddeke & Co.,
“Per T. J. Cooney.”

On the 15th day of May, 1907, Buddeke purchased for Schulte ten shares New York Central Railroad stock at 1.14 — $1,142.50. On June 5th, 1907, Buddeke purchased for Schulte twenty shares Toledo Railway & Light Co. stock. On June 6th, 1907, Schulte paid $132.50 on account. lie never had possession of the stock but paid interest on the account and was credited with dividends on the N. Y. C. stock. On the 16th day of June, 1908, Buddeke converted the twenty-three shares gas and electric stock to his own use.

The question to be decided is whether by so doing he was guilty of embezzlement, and the answer depends on whether or not he was acting as agent of Schulte with reference to the gas stock.

In purchasing stocks for Schulte, the broker, Buddeke, was undoubtedly acting as his agent; but that did not prevent him from assuming any other legal relation to the stocks purchased or the stock transferred as collateral, as, for example, purchaser or pledgee. If the broker has been instructed by his customer to sell the twenty-three shares of Cincinnati Gas & Electric stock and invest the proceeds in New York Central stock, but failed to do so and converted the gas stock to his own use, he would be guilty of embezzlement because he received and held the stock, until misappropriated, as the agent of his customer. So, likewise, had he received the money from the customer for a like purpose, and converted' it to his own use. The stock was actually received however ‘ ‘ as collateral on account, ’ ’ and for no other purpose. At that time the account stood George Schulte, debtor, to eight shares New York Central stock, .$938, and Charles J. Buddeke, doing business as Charles J. Buddeke & Co., was a creditor of Schulte in that amount. It was no doubt intended that the collateral stock should and it did cover not only the indebtedness existing at the time of the transfer but also any indebtedness subsequently incurred in the purchase of stock on Schulte’s account; but aside from that the relation of debtor and creditor already existing and the gas stock being transferred to protect him in that relation, the transaction was a pledge, and the stock never was received by Buddeke' as agent. The legal effect of the act and the legal relation of the parties thereto determines the capacity in which they act. When a broker advances money in purchasing stocks for and on the order of a customer, there is a promise, express or implied, to repay the same, the effect of which is to create a debt and the relation of debtor and creditor; and when the debtor delivers other stock as collateral security for the fulfillment of that promise, the creditor receives it, not by virtue of his employment as agent to purchase stocks, but by virtue of the debt created by contract, and to secure which it was given. Markam v. Jandon, 41 N. Y., 235; Hennequin v. Clews, 111 U. S., 676.

So was the duty of Buddeke to return the collateral stock to the owner, Schulte, when it had served the purpose for which it was pledged, and in no event to convert it fraudulently to his own use; but he can not be held to answer for a crime when there is a failure of proof of the essential element of the offense charged. Barber v. State, 39 O. S., 660.

We think that the court erred in overruling the motion made at the conclusion of all the evidence to direct the jury to return a verdict for the defendant.

The judgment will be reversed and the prisoner discharged.


text:
    AUTONOMY OF A RESIDENCE DISTRICT.
    Circuit Court of Cuyahoga County.
    W. D. Browning et al v. P. S. Westropp, as Mayor.
    Decided, November 15, 1909.

      Liquor Laws — Boundaries of Residence District — Remain as Constituted For Two Years — 98 O. L., 69.

      Smith, Taft & Arter and T. K. Dissette, for plaintiffs in error.

      Mathews & Argill and George W. Shaw, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Motion for leave to file a petition in error.
   In this case we hold that a residence district, so-called, created, under the Jones law, retains its boundaries for all purposes under the laws relating to the regulation of the liquor traffic until two years after a petition against the prohibition of the sale of liquor therein has been granted. A division of the territory of such residence district for municipal governmental purposes has no effect upon said district as to the force and effect of the liquor laws therein.

So holding, leave to file a petition in error is refused.