author: HALE, J.

text:
    NEGLIGENCE — MASTER AND SERVANT — CHARGE TO JURY.
    [Summit (8th) Circuit Court,
    April Term, 1902.]
    Caldwell, Marvin and Hale, JJ.
    India Rubber Company v. Vincent Anthony Tobin.
    1. Insufficiency of Instructions to Jury.
    A jury is not sufficiently instructed by referring them in a general way to the petition to determine “ what the allegations of negligence are and how to deal with them,” and permitting the allegations to go to them with equal sanction, under some general abstract propositions of law that apply to the relation of master and servant, without explanation of their application to the acts of negligence specified and in issue. .
    2. Rube as to Duty of Employe to Exercise Care.
    The fact that an employe in a manufacturing concern is in a sleepy and exhausted condition from overwork, while it may enhance the responsibility of the employer, does not relieve the employe from the exercise of ordinary care and prudence while operating a dangerous machine, nor excuse him from failing to take reasonable precautions for his own safety commensurate with the obvious and apparent danger to be apprehended.
    3. Assumption of Risk by Employe.
    No recovery can be had by an employe for injuries received while operating a machine not properly guarded, where it appears that such machine was in ordinary use in manufactories of the kind in question, that it was adapted to the purpose for which it was used, was in good repair, and that the employe had knowledge of its construction and operation. The employe, under circumstances, assumed the risk.
    Grant & Sieber, for plaintiff in error,
    cited:
    1. The amended petition upon its face does not entitle the plaintiff to recover.
    The allegations of overwork, and being too tired and sleepy “ to fully realize or appreciate ” the danger into which he voluntarily put himself, will not avail to dispense with the rule of law upon that subject. He was himself the sole judge of how far it was safe to tax his powers of endurance, and went beyond them, if at all, at his own peril: Coal Co. v. Estievenard, 58 Ohio St. 43-44 [40 N. E. Rep. 725]; Ferguson v. Cotton Mills, 61 S. W. Rep. 53 [106 Tenn. 236]; Yazoo City Transp. Co. v. Smith, 28 So. Rep. 807 [78 Miss. 140]; Ervin v. Evans, 56 N. E. Rep. 725 [24 Ind. App. 335]; Suter v. Lumber Co., 62 N. W. Rep. 927 [90 Wis. 118]; Truntle v. Woolen Mills Co., 58 N. W. Rep. 832 [57 Minn. 52]; Feely v. Cordage Co., 37 N. E- Rep. 368 [161 Mass. 426]-; Kelley v. Asphalt Co., 20 S. W. Rep. 271 [93 Ky. 363]; Barry v. Biscuit Co., 59 N. E. Rep. 75 [177 Mass. 449]; Kelley v. Woolen Co., 58 N. E. Rep. 182 [177 Mass. 128]; Carrington v. Mueller, 47 Atl. Rep. 564 (N. J.); Carriere v. McWilliams, 29 So. Rep. 333 [104 La. 333]; Jones v. Manufacturing & I. Co., 43 Atl. Rep. 612 [92 Me. 565; 69 Am. St. Rep. 535]; Worthington v. Goforth, 26 So. Rep. 531 [124 Ala. 656]; Detroit Crude Oil Co. v. Grable, 94 Fed. Rep. 73 [36 C. C. A. 94]; Helmke v. Tilmany, 8 Am. Neg. Rep. 172; Cunningham v. Iron Works; 43 Atl. Rep. 106 [92 Me. 501]; Gillin v. Railway Co., 44 Atl. Rep. 361 [93 Me. 80]; Hettchen v. Chipman, 41 Atl. Rep. 65 [87 Md. 729]; Swift & Co. v. Holoubek, 75 N. W. Rep. 584 [55 Neb. 228]; Lowcockv. Paper Co., 47 N. E. Rep. 1000 [169 Mass. 313]; Soutar v. Electric Co., 70 N. W. Rep. 796 [68 Minn. 18]; Ruchinsky v. French, 46 N. E. Rep. 417 [168 Mass. 68]; Smith v. Beaudry, 56 N. E. Rep. 596 [175 Mass. 286];- Worlds v. Railway Co., 25 S. E. Rep. 646 [99 Ga. 144]; Berger v. Railway Co., 38 N. W. Rep. 814 [39 Minn. 78]; Stuart v. Railway Co., 40 N. E. Rep. 180 [163 Mass. 391],
    In the light of these authorities we maintain that the pleading shows affirmatively that the risk complained of was conclusively assumed by the plaintiff, and that nothing alleged in the petition withdraws the case from the effect of the rule following from such assumption. The trial court, therefore, should have sustained the objection made to the introduction of any evidence.
    2. As to the distinction between assumption of risk, and the defense of contributory negligence, see Limberg v. Dumber Co., 60 Pac-Rep. 176 [127 Cal. 598; 49 D- R. A. 33], and 10 Am. Neg. Rep. 288. And the former need not be pleaded; but it is provable under a general denial: Baker v. Asphalt Co., 92 Fed. Rep. 117.
    3. As to assumption oí risk, in addition to cases cited above; Fricker v. Bridge Co., 9 Am. Neg. Rep. 194 and note; Benignia v. Pennsylvania Co., 9 Am. Neg. Rep. 196 and note; Cudahy Pack Co. v. Marcan, 9 Am. Neg. Rep. 670; Silvia v. Manufacturing Co., 59 N. E. Rep. 73 [177 Mass. 476]; Coal Co. v. Estievenard, 53 Ohio St. 43-4 [40 N. E. Rep. 725]; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886].
    4. Upon his own testimony, plaintiff below was not entitled to recover, and the court should have sustained the motion to take the case from the jury. Brown Oil Can Co. v. Green, 12 Circ. Dec. 510 (22 R. 518); Krause v. Morgan, 53 Ohio St. 26, 42 [40 N. E. Rep. 886]; Silvia v. Sagamore Co., supra.

    5. If the plaintiff below relied upon an order given to him to do a dangerous thing, then the superior had no authority to give it, and obedience to it was, of itself, contributory negligence on plaintiff’s part: Joswoyak v. Railway Co., 4 Re. 317 (Cleve. U. Rep.); Roul v. Railway Co., 11 S. E. Rep. 558 [85 Ga. 197]; Whatley v. Railway Co., 30 S. E. Rep. 1003 [104 Ga. 764]; Peirce v. Oliver, 47 N. E. Rep. 485 [18 Ind. App. 87]-
    6. If the plaintiff below relied upon his obedience to orders to justify the risk he took, it will not avail him in this case. Nor will his obedience relieve him from the burden of contributory negligence; Worlds v. Georgia Railway Co., 25 S. E. Rep. 646 [99 Ga. 283]; American Carbon Co. v. Jackson, 56 N. E. Rep. 862 [24 Ind. App. 390]; Newnom v. Telegraph & Tel. Co., 47 S. W. Rep. 669 (Tex. Civ. App.); Whatley v. Railway Co., 30 S. E. Rep. 1003 [104 Ga. 764]; East Chance Mining Co. v. Ames, 47 Pac. Rep. 382 [23 Colo. 167]; Turner v. Eumber Co., 26 S. E. Rep. 23 [119 N. C. 387]; Kansas & T. Coal Co. v. Reid, 85 Fed. Rep. 914 [29 C. C. A. 475]; Reed v. Stockmeyer, 74 Fed. Rep. 186 [20 C. C. A. 381]; Eeary v. Railroad Co., 2 N. E. Rep. 115 [139 Mass. 580]; Dougherty v. Iron & Steel Co., 60 N. W. Rep. 274 [88 Wis. 343]; Gavi-gan v. Railway Co., 67 N. W. Rep. 1079 [110 Mich. 71]; Writt v. Dumber Co., 65 N. W. Rep. 173 [91 Wis. 496]; Jones v. Railway Co., 31 S. W. Rep. 106 [11 Tex. Civ. App. 39]; Wilson v. Mills, 34 N. E. Rep. 90 [159 Mass. 154]; Hanson v. Hammell, 77 N. W. Rep. 839 [107 la. 171]; Lamson v. Ax & Tool Co., 58 N. E- Rep. 585 [177 Mass. 144]; Johnson v. Snuff Co., 41 Atl. Rep. 936 [62 N. J. E- 417]; Bonnet v. Railway Co., 31 S. W. Rep. 525 (Tex. Civ. App.); Demers v. Deering, 44 Atl. Rep. 922 [93 Me. 272]; Schroeder v. Car Co., 22 N. W. Rep. 220 [56 Mich. 132]; Sanborn v. Railroad Co., 10 Pac. Rep. 860 [35 Kan. 292]; Hurst v. Burnside, 8 Pac. Rep. 888, 893 [12 Ore. 520]; Richstain v. Mills Co., 32 N. E- Rep. 908 [157 Mass. 538]; Commonwealth v. Eeach, 36 N. E. Rep. 471 [160 Mass. 542]; Crowley v. Mills, 19 N. E. Rep. 344 [148 Mass. 228]; Williams v. Churchill, 137 Mass. 243 [50 Am. Rep. 304]; Sweeney v. Envelope Co., 5 N. E. Rep. 358 [101 N. Y. 520].
    7. The plaintiff below was guilty of contributory negligence. A large number of the cases already cited bear upon this point, and are, as we think, decisive of it. But we call attention also to the following: Coal Co. v. Estievenard, 53 Ohio St. 43-4 [40 N. E. Rep. 725]; Coal and Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]; Hesse v. Railroad Co., 58 Ohio St. 167, 169-70 [50 N. E. Rep. 354]; Brown Oil Can Co. v. Green, 12 Circ. Dec. 510 (22 R. 518); Worlds v. Railway Co., 25 S. E. Rep. 646 [99 Ga. 283]; Wabash Ry. Co. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576].
    8. As to misconduct of counsel in argument, we do not think that either the apology of the attorney, or the comments of the court cured the mischief which was intended and which was wrought. If counsel may use such highly prejudicial language in argument, and then by offering to “ take it back ” if mistaken, after it has found lodgment in the minds of the jury, then no abuse of the right of discussion is too gross to be successfully perpetrated. We have here brought on the record the entire transaction, and think we are within the rule laid down in Warder, B. & G. Co. v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97].

      9. As to request No. 16, which was refused, we consider it pertinent to a material point in the case, and it was not covered in substance by the charge as given: English v. Railway Co., 24 Fed. Rep. 906; Fritz v. Gas & FI. Fight Co., 56 Pac. Rep. 90 [18 Utah 493]; Gibson v. Railway Co., 78 N. W. Rep. 190 [107 la. 596]; Kansas & T. Coal Co. v. Reid, 85 Fed. Rep. 914 [29 C. C. A. 475],
    E. F. Voris, and Rogers, Rowley & Bradley, for defendant in error.
    Heard on Error.
   HALE, J.

The case of the India Rubber Company against Tobin, error to the court of common pleas. We have encountered much difficulty in determining what ought to be done under this record, but after as mature consideration as we are able to give it, we have reached the conclusion which I will announce.

Tobin was in the employment of the rubber company as an ordinary workman and was injured while in that employment. He seeks compensation of the rubber company for the loss he has sustained by reason of that injury, and says that it was caused by the negligence of the company, without his fault. The negligence charged, in substance, is, that this manufactory had, as a part of its machinery, a machine known as a washer> which consisted, in part, of massive corrugated iron rolls, less than three-quarters of an inch apart, at the end of which were large and powerful cogwheels by which these rolls were rotated ; that the defendant was guilty of carelessness and negligence in not having appliances for stopping the rolls of said washer when in motion, and in not providing any safeguards or appliances for preventing those near the washer from being drawn into and injured by them; that the plaintiff was, at the time of the grievances hereinafter specified, an employe of the said defendant, subject to the orders and directions of one Charles Wheeler, a foreman of said defendant, and superior of plaintiff; that said plaintiff worked on a machine called a calender, about three feet from said washer; that on or about April 17,1893, the said defendant had a large amount of work to do and was running its manufactory night and day, and said defendant carelessly and negligently did not at the time have a sufficient number of skilled operatives to run said calender without requiring the plaintiff to work much longer each twenty-four hours than he was able to keep fully awake, as defendant then well knew. It is then alleged that by overwork Tobin became so exhausted that on this morning in which he was injured he was so sleepy and so completely exhausted that he was Unable to take good care of himself, and being directed by this foreman, Wheeler, to wash his hands at this washer, — which is said to be dangerous machinery, — in performing that order, his hand was caught within the rollers and he received the injury that he complained of.

It will be noticed then that there are, in this petition, several distinct acts of negligence charged against this company.

Having read the pleadings to the jury, the trial court then said after stating some propositions of law applicable to the case—

‘ ‘ The pleadings, to which I have called your attention, present for your consideration and determination three principal propositions, which are as follows.
“ Was the defendant negligent in one or all of the acts complained of ?
“ If so negligent, was this negligence the proximate cause of the •injury to plaintiff of which he complains?
“ Did the negligence or want of care on the part of the plaintiff contribute to cause or produce the injury which he sustained? ”

Throughout this charge reference to the acts of negligence charged are only called to the attention of the jury by reference to the petition. No explanation of them, or what would constitute negligence in each particular case, is made except in a general way as follows:

“ Coming, therefore, to this case, you will first inquire whether the defendant was guilty of the negligence or some of the acts of negligence specified in the petition.”

There are quite a number of references throughout the charge in that general way, and the trial court permitted these allegations of negligence in the petition all to go to the jury with the equal sanction of the court as a ground of recovery on the part of the defendant in error. A glance at those would show that some of them at least could not be the basis of any recovery. A statement of these issues is followed by a number of abstract propositions of law, but without explaining to the jury the application to the particular facts of the case then on trial.

Our Supreme Court has, in a number of cases, referred to charges of this kind; and, in Coal Company v. Estievenard, 58 Ohio St. 43, 44 [40 N. E. Rep. 725], the court say : “ The charge of the court to the jury should not be as to abstract propositions of law, but should be confined to the law applicable to the facts of the case which the evidence tends to establish, and the attention of the jury should be called to the controlling point or points of the case, so that the verdict may not be founded upon unimportant matters.”

And on page 59 the judge, in delivering the opinion of the court, says : “ The defect in the charge, on the question of contributory negligence is, that it is, in the abstract, dealing with generalities, and failing to deal with the facts of the case as claimed by the parties. Defendant below, by its requests, urged the court to say to the jury that certain facts, if found by the jury, would prevent a recovery; but the court refused to say what acts on part oí plaintiff would defeat a recovery, and contented itself by telling the jury to look at all the evidence, to look at the knowledge of plaintiff, to look at his acts and conduct, etc., without telling them what use to make of such looking, or of the result thereof.”

The court, instead of the general propositions, should have called attention to the charges of negligence upon the subject of the machine, the washer, and explained to the jury if it was one in ordinary use in manufactories of that kind, and that the defendant in error had knowl-edgeof that fact, knew about its operation, it was one of the risks he assumed, and could not be considered by them in determining whether the defendant was responsible or not, that the fact whether they had a large number or small number of men had nothing to do with the negligence of the company while this defendant was washing at the washer ; and should have explained to the jury the effect of the exhausted condition and the bearing it had upon the questions at issue about which there was not a word said in the entire charge. The jury were permitted to find under this charge that the defendant company did not have men enough in its employment, and, therefore, responsible for this injury; that it did not have this washer properly guarded, and although the defendant in error knew all about it and assumed all risks of danger incident to its use, the company was responsible.

And it seemed to us that the jury were not sufficiently instructed as to the allegations of negligence by saying, “ I refer you to the petition to determine what the allegations of negligence are and how to deal with them, under some general propositions that apply to the relation of master and servant.”

Upon this subject of the overwork the attention of the court was called to it by requests, which were refused — the eleventh aqd fourteenth requests. The fourteenth reads : “ If the plaintiff, at the time of the injury, was in a sleepy or exhausted condition, that fact will not relieve him from the exercise of ordinary care and prudence while using a machine dangerous to operate, and such care and prudence must have been commensurate with the obvious or apparent danger to be apprehended from using the machine in question for the purpose for which he did use it; nor will such sleepy condition excuse him from failing to take reasonable precautions for his own safety while washing his hands at said washer.”

We think that charge should have been given. Whether his sleepy and exhausted condition enhanced the responsibility of the company in taking care of him, it did not excuse him from the exercise of ordinary care. It is barely possible that the charge covered this in a general way, that the defendant in error must be without contributory negligence himself, use all reasonable care to take care of himself, but on the effect of the particular condition he was in, nothing was said. We think the charge failed to get before the jury definitely the negligence charged in the petition, which could, under the facts of this case, have been made the foundation of a recovery.

Upon another subject the court charged the jury in these words : “ It is alleged in the petition, and evidence has been offered to you tending to show, that the plaintiff, at the time, or just before, he received this injury, was ordered and directed by the foreman, Mr. Wheeler, to go to this washer and wash his hands, and that in obedience to said order and command he went to the machine called a washer, and while so engaged his hand was drawn in between the rollers and crushed.”

“ On that subject the rule of law is this:
“ That one who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances have obeyed the order, provided he used ordinary care in obeying it.”

A correct rule of law in a proper case. But the trial court applied to the facts of this case the proposition that is stated in Van Duzen G. &. E. Co. v. Schelies, 61 Ohio St. 296 [55 N. E. Rep. 998]. This case is sometimes erroneously treated as stating an entirely new proposition recently discovered in fixing the relation between master and servant and the tendency is to apply it indiscriminately to all kinds and classes of negligence cases in suits by the employe against the employer.

The rule stated in that case has no application whatever to a transaction in which the employe is ordered to work in a place of danger, the risk of which he assumed in entering into his employment. It certainly is not negligence of the master to require or order the employe to work upon machinery, or in a place of danger, the dangers of which he assumed in his contract of employment. In such a case the servant, not the master, continues to take the risk of the danger. Now, in that case, on page 311, the court, in the opinion, says: “At the time the injury occurred, he (that is, the complainant) was in the employ of the defendant as a 1 vise-hand,’ and had been called by the foreman to assist in the adjustment of a portable gasoline engine with pump and circular saw attached. The saw was in motion at the time and not properly protected ; and he was ordered to adjust the shafting of the pump, which was close and next to the saw. He suggested that it was not safe to do so without stopping the saw. The foreman peremptorily renewed the order; he obeyed, his clothing was caught by the saw and he was seriously injured.”

As we understand it, as to the ordinary usual risks in the business in which the employe is engaged, there being nothing unusual, nothing out of the ordinary line, the rule there stated as to the orders of the master has no application; but if in the transaction between the master and the servant, either by what was said between them, or what was done between them, the fair inference is to be drawn that the master in that particular matter, and as to that particular act, assumed the risk of doing that thing, then he alone stands responsible and the employe is relieved, but it must relate to something out of the risk which the employe assumed in the nature of his employment.

An employe working at a machine dangerons in some respects» assumes the risk; and if he continues to work without any notification to the master, upon that machine, when out of repair, he still would take the risk of its danger, but if he calls the attention of his employer to the defects and is promised a repair and continues, then the fair inference between them is that the servant is relieved for the time being from the assumption of risk for which he otherwise would be responsible.

Now, in this particular case it is shown beyond any controversy that this washer was of the usual kind used and proper in a manufactory of this kind, adapted to the purposes for which it was to be used, was in good repair, that the employe had full knowledge of all its construction and its parts. It required no skill to ascertain, apprehend and appreciate the dangers connected with it; he had washed at this very washer in this way, as the proof shows, many times, and we are constrained to Say that he assumed, in this particular case, the risk and dangers connected with that employment and working about that machinery.

Again, in this particular case, the order that is shown in this proof was no more than a simple direction, if it existed at all, to this employe to go about the work in the usual way. It was a long time before- he could be got to say, while on the stand, that the order was to him to wash at this particular washer. In our judgment nothing more took place here than a simple direction in the usual and ordinary course of doing that business ; nothing to relieve the employe from the responsibility he assumed under his employment; and that the charge that I have read had no application whatever to the facts of this particular case.

The result of our investigation is that we hold that the charge of the court was misleading, and, therefore, erroneous; that the particular proposition of the charge that I have quoted as applicable to the case was erroneous; that the court erred in overruling the motion for a new trial because of the fact that the verdict is not sustained by sufficient evidence, and the judgment is reversed and case remanded to the court of common pleas for a new trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ATTORNEY’S FEES.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Harvey Meyers v. Mollie F. Pearce.
    Attorney’s Fees.
    Strict proof is required by law to establish a change of contract as to attorney’s fees, and when an attorney has contracted for a specific sum it is better that he should fail to recover the value of his services quantum meruit for want of sufficient proof of such change than that the credit and dignity of the legal profession be relaxed in this regard.
    Harvey Meyers, pro se.

    Hallam & Terrill, contra.
   PER CURIAM.

It appears from the record that Harvey Meyers rendered services to Mrs. Pearce, of great ability, courage and value, and that the same were successful, and if it were a question o'f quantum meruit the amount of the alleged contract would be inadequate and the amount retained by him reasonable. But that is a matter with which we are not concerned if there was a subsisting contract between Mr. Meyers and Mrs. Pearce.

Mrs. Pearce says Mr. Meyers undertook to do this work for $500.

Mr. Meyers says that the $500 contract was subsequently by agreement abrogated. The burden of showing this change is on Mr. Meyers, and it is to the credit and dignity of the legal profession that the measure of proof required by the law is strict. It may even be that Mr. Meyers is right in this contention, but it is better that he should fail for want of sufficient proof than that there should be any relaxation in this regard. However this may be, this issue was fairly submitted to the jury under a proper charge and we cannot say that the verdict is so manifestly against the weight of the evidence as to call for a reversal.

Judgment affirmed.


author: VOORHEES, J.

text:
    CRIMINAL LAW — GRAND AND PETIT JURIES.
    [Wyandot (3d) Circuit Court,
    April Term, 1902.]
    Douglass, Voorhees and Donahue, JJ., of the 5th Circuit, sitting in 3d Circuit.
    Marsh Lindsay v. State of Ohio.
    1. Criminal Law — Murder—Grand Jury — Indictment—Plea in- Abatement
    Mere irregularities in selecting and drawing grand juries, which do not affect the qualifications of the jurors, must be taken advantage of, if at all, by challenge for cause, and cannot be made grounds to quash the indictment or be pleaded in abatement.
    2. Same — Indictment—Murder in First Degree — Premeditation not Necessary, When.
    In an indictment for murder in the first degree, when the act was unlawfully and purposely done in an attempt to rob, premeditation is not an essential element under Sec. 6808 Rev. Stat. Where the act or crime was committed by several persons, all being present at the time, it is not necessary when jointly indicted, for the indictment to set out which one of the defendants committed the act of killing.
    3. Same — Plea in Abatement — Insufficient, When.
    A plea in abatement set forth that defendant, while ignorant that any charge was made against him, was, under compulsion of a subpoena, brought before the grand jury, and there compelled .to be sworn, and without opportunity to consult or have the aid and advice of counsel, was required to, and did give testimony concerning the conduct of defendant in relation to a crime then being investigated against the defendant; that he was, by the prosecuting attorney and sheriff, required, against his will, to dress himself in disguise as the persons were dressed at the time the crime was committed; and while so dressed against his will, was required to talk, walk and exhibit himself in the presence of witnesses to enable them to testify before the grand jury as to his identification as one of the persons who committed the crime for which, he was afterwards indicted: Held, bad for uncertainty and insufficiency, because it does not allege that be claimed his constitutional privilege ,to refuse to answer such questions or to so dress himself in disguise; neither do these acts and facts furnish ground for quashing the indictment, without showing that he claimed bis constitutional privilege at the time.

      4. Same — Motion for Change of Venue'.
    Motion for change of venue is addressed to the sound discretion of the court and cannot be reviewed upon error unless there is a clear abuse of discretion*
    5. Same — Selecting, Impaneling and Challenging for Cause Petit Jurors in a Capital Case.
    When less than thirty-six of the petit jurors in a capital case report u nder fir» venire, the panel may be filled by special venire.
    8. Same.
    A juror, on examination on his voir dire, answered that, “I have talked and read about the other trials,” meaning trials of the codefendants of plaintiff in error “ I think I have an opinion as to the guilt of defendant from what I have heard talked; the opinion is with me still; it would require testimony to remove the opinion, and the opinion is against the defendant; that notwithstanding any bias, opinion or prejudice I have, I would render a fair and impartial verdict according to the law and evidence.” Held, that the acceptanee of such juror by the court is sufficient finding that the court was of opinion that the juror would render a fair and impartial verdict, and it was not error in refusing defendant’s challenge for cause.

      1. Same — Charge of Court — Jury Fixing Degree of Crime.
    On the trial of an indictment for murder in the first degree, charging the accused with unlawfully and purposely killing another while perpetrating or attempting to perpetrate a robbery, the jury must not be imperatively required to render a verdict for a particular degree of homicide, or acquit the accused. The instruction must be such as to leave the jury free to render such verdict and fix the degree of crime as their judgment and conscience dictate, after being fully instructed as to their duty.
    E. T. Dunn, John M. Winn and W. R. Hare, for plaintiff in error.
    Benjamin Meek, for defendant in error, cited:
    Indictment follows form approved in Blair v. State, 3 Circ. Dec. 242 (5 R. 496j.
    Deliberate and premeditated malice is not essential to be averred. Robbins v. State, 8 Ohio St. 131. ■
    1 The charge that the murder was committed by all five defendants without an allegation that one of them committed the crime is proper. Jones v. State, 7 Circ. Dec. 305 (14 R. 35).
    The act of one is the act of all jointly engaged in the unlawful act. Section 6804 Rev. Stat.; Stephens v. State, 42 Ohio St. 150.
    Sixth and seventh reasons assigned why indictment should be quashed contradict the record, and cannot be allowed. Turk v. State, 7 Ohio (pt. 2) 240.
    Question of defendant’s appearance before grand jury, etc., cannot be raised by motion to quash. Section 7249 Rev. Stat.; Underhill Cr. Ev., Sec. 27.
    Motion to quash is never granted except in very clear cases. Bushnell, Ex parte. 8 Ohio St. 599.
    ‘New grand jury may be summoned. Section 7203 Rev. Stat.
    An indictment presented by a new grand j'ury, selected and impaneled as provided for in Sec. 7203 Rev. Stat., without any objection from any one, will not be quashed or verdict of guilty on said indictment set aside solely on this account. McCarthy v. State, 3 Circ. Dec. 306 (5 R. 627); affirmed 27 Bull. 332 ; Sec. 5175 Rev. Stat.’
    Pleading that grand jury were not properly sworn is a mere conclusion, and it contradicts the record as the indictment itself avers, which is part of the record, that the jurors were properly sworn. Contradicting record is not allowed. Turk v. State, 7 Ohio (pt. 2) 240.
    Mere irregularities in drawing or selecting a grand jury or the want of record of such drawing and selecting, no objection being made as to their qualifications to act as such, cannot be taken advantage of by plea in abatement. Blair v. State, 3 Circ. Dec. 242 (5 R. 496).
    It is not necessary that the record of the court should show who or by whom, the grand jurors were selected and drawn. The legal presumption is that duty was regularly performed by the proper officers, but if not so done, it is not a valid objection to an indictment. State v. Thomas, 61 Ohio St. 444 [56 N. E. Rep. 276]; Huling v. State, 17 Ohio St. 583.
    Question of defendant’s appearance before grand jury, etc., cannot be reached by plea in abatement. Section 7250 Rev. Stat. See Stahl v. State, 5 Circ. Dec. 29 (11 R. 23, 35); State v. Easter, 30 Ohio St. 542, 550 [27 Am. Rep. 478]; Clark Cr. Proced., pp. 112,113.
    The allegations in the plea in abatement that the defendant was compelled to testify is a mere conclusion. The grand jury could not compel any one to testify before it. Section 7200 Rev. Stat.
    It is not necessary that the record should show that the grand jurors were qualified. Parks v. State, 4 Ohio St. 234.
    It is averred that the grand jury was not composed of men having the qualifications of grand jurors. This is a mere conclusion. Stahl v. State, 5 Circ. Dec. 29 (11 R. 33); 1 Bishop Cr. Proced., Sec. 884.
    Not necessary that the witnesses who testified before the grand jury be sworn in open court. Section 7199 Rev. Stat.
    This indictment is in strict accordance with the statutes and the form is approved by long usage and by the' courts. Blair v. State, 3 Circ. Dec. 242 (5 R. 496).
    In a murder case the jury has a right to determine the grade of crime. Section 7316 Rev. Stat.; Craig v. State, 49 Ohio St. 415 [30 N. E. Rep. 1120; 16 L. R. A. 358]; Dresback v. State, 38 Ohio St. 365; Adams v. State, 29 Ohio St. 412.
    See also Dick v. State, 3 Ohio St. 89; Howard v. State, 25 Ohio St. 399; Parks v. State, 3 Ohio St. 101; Barber v. State, 39 Ohio St. 660; Beaudien v. State, 8 Ohio St. 635 ; State v. Behimer, 20 Ohio St. 572; Marts v. State, 26 Ohio St, 162; Wroe v. State, 20 Ohio St. 460, 469 ; Adams v. State, 29 Ohio St. 412; Morehead v. State, 34 Ohio St. 212; Craig v. State, 49 Ohio. St. 415 ; Robbins v. State, 8 Ohio St. 181, 194; Dick v. State, 3 Ohio St. 89, 97.
   VOORHEES, J.

Plaintiff in error was indicted, together with four others, at the April term of the court of common pleas ot Wyandot county, Ohio, on July 27, 1901, for the murder of William C. Johnson, on September 11» 1900. At said term plaintiff in error was tried and convicted of murder in the second degree, and sentenced to the penitentiary for life.

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

1. Irregularity in selecting a special grand jury.

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

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

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

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

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

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

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

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

We will consider the errors in the order named:

As to the impaneling of the grand jury.

The errors complained of as to impaneling the grand jury are irregularities only, and not objections to any of the panel as to their qualifications. Sections 5162 and 5167 Rev. Stat. provide for the selection, draw, ing and summoning of grand and petit juries.

Mere irregularities in selecting and drawing grand juries, which do not relate to or affect their qualifications as such, must be taken advantage of, if at all, by challenge for cause, and cannot be made grounds to quash the indictment or be pleaded in abatement. Huling v. State, 17 Ohio St. 583; Blair v. State, 3 Circ. Dec. 242 (5 R. 496). Affirmed by Supreme Court, 25 Bull. 388.

Technical defects in obtaining and impaneling a grand jury, which do not affect the competency of the persons to act, cannot properly be made the basis of a motion to quash the indictment or plea in abatement, but must, by express statutory provision, be availed of, if at all, by challenge before the jury is impaneled and sworn. Blaney v. State, 9 Circ. Dec. 616 (17 R. 486).

Section 5171 Rev. Stat. provides for the filling of the panel of a grand jury, and is not affected by Sec. 5167 Rev. Stat. Julian v. State, 46 Ohio St. 511 [24 N. E. Rep. 595]. Said Sec. 5171 Rev. Stat. is not repealed by the act of 1894 and 1895. Stahl v. State, 5 Circ. Dec. 29 (11 R. 23-33).

A special grand jury, assembled to consider one case, is not thereby prevented from investigating any matter which involves a violation of the criminal law of the state. Franklin Co. (Comrs.), In re, 6 Dec. 691 (7 N. P. 450).

Section 5171 Rev. Stat. provides that:

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

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

Section 5167 Rev. Stat., as amended February 23, 1889, 86 O. L. 51, relating to the drawing of grand and petit juries, * * * gives a rule for the filling of the panel for a petit jury, but does not relate to the filling of the panel for a grand jury. The latter is governed, as theretofore, by Sec. 5171 Rev. Stat.” Julian v. State, supra. This section (5171) is not repealed by the act of 1894, 1895. Stahl v. State, supra.

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

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

Is the indictment defective in form ?

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

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

In the ease at bar, the intentional killing of Johnson, by the defendant and others, while attempting to perpertrate a robbery, is a charge under the statute of the crime of murder of the first degree. Premeditation in such a case is not essential. Stephens v. State, 42 Ohio St. 150; Robbins v. State, 8 Ohio St. 131; Jones v. State, 7 Circ. Dec. 305 (14 R. 35).

It is alleged in the motion to quash, and also in the plea in abatement, that the act and crime complained of, were committed by all five' ■defendants, and that there is no allegation that the defendant committed it. They were all indicted together, and charged with the same offense-It is not necessary for the indictment in such case to set out which one •of the defendants fired the fatal shot. It was proper and sufficient to •allege that all five committed the unlawful act.

If the proof on trial showed that the five were together, and that ■only one of them did the act, and the others were present aiding and abetting him, they should be charged as principals.

We think the indictment is sufficient in form, and charges a crime of murder in the first degree, and it is not indefinite by reason of failing to allege which one of the five charged held the pistol or fired the fatal •shot.

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

It is contended that in this, the constitutional rights of the plaintiff in error were violated by his being so subpoenaed and appearing before the grand jury, and in being sworn and in testifying upon any matter connected with the crime for which he was indicted.

The plaintiff in error does not aver in his plea in abatement that he claimed his constitutional privilege to refuse to answer any questions or interrogatories, but his allegation is that he was required and compelled to and did make answers to all the questions put to him. This is a conclusion from the facts which he was requited to set forth in his plea and not the conclusions themselves.

He further contends that he was denied the assistance of counsel. The legal sufficiency of this plea in abatement is raised by demurrer by the state to the plea. The demurrer was sustained, and the defendant excepted.

This raises an important question as to whether or not a constitutional right of the defendant was violated in this regard. At the time he so testified he was not on trial. It is true Sec. 10, Art. 1, Ohio Const., provides: “ Nor'shall any person be compelled in any criminal case to be a witness against himself, or be twice put in jeopardy for the same offense.”

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

In People v. Lauder, 46 N. E. Rep. 956 [82 Mich. 109], it was held : That the constitutional rights of the respondent were not violated by his being subpoenaed and appearing before the grand jury, and being sworn, nor in testifying upon any matter, then under investigation, that did not criminate him, and, if he testified without objection, he was deemed to have done so voluntarily.

It was lurther held in the same case that the respondent, not having averred in his plea that he claimed his privilege, or refused to answer any interrogatories, but that he was required and compelled to, and did, make answer to the questions put to him, was a conclusion from the facts, which he was required to set forth, and not such conclusions.

It will be observed upon an inspection of the defendant’s plea in abatement, that he does not allege that he claimed his privilege, or refused to answer the interrogatories, or that he refused to dress himself in disguise, but his allegations are, that he was required and compelled to do so. This is pleading a conclusion instead of the facts, which he should have set up in his plea.

The court, in People v. Lauder, supra, page 957, on the sufficiency of a plea in abatement, uses this language:

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

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

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

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

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

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

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

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

Motion for change of venue.

This motion is attempted to be supported by affidavits that a fair trial for defendant could not be had in this county on account or prejudice. Counter affidavits were submitted by the state. On examination of the evidence submitted, we are of the opinion the court did not err in overruling the motion. Such motions are addressed to the sound discretion of the court, and unless there has been an abuse of discretion, there was no error in overruling the motion. Hotelling v. State, 2 Circ. Dec. 366 (3 R. 630).

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

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

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

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

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

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

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

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

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

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

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

In Goins v. State, 46 Ohio St. 457 [21 N. E. Rep. 476], the juror had conversed with the father of the deceased on the day of the tragedy, and with others who claimed to have been eye witnesses and described all about it, and the court, having put the question, whether, notwithstanding his opinion, he could render a fair and impartial verdict according to the law and evidence, and the juror answering that be could, the juror was not disqualified, or the reception of the juror was not'an abuse of the discretion lodged in the trial court to warrant a reversal of the judgment on that ground alone. It is not clear in the case at bar that the prejudice or opinion of the juror resulted from talking with any witness who professed to be acquainted with the facts, or that had any knowledge excepting such as was gained from newspaper reports, or in talking with persons who proiessed to know the facts.

Under these circumstances we do not think the trial court abused its discretion, in coming to the conclusion, from the whole examination, that the juror would, if selected, render a fair and impartial verdict. Such conclusion may be drawn from the fact that the court so accepted him. This court, in coming to this conclusion, believes that it is following the trend of decisions in Ohio, as found in McCarthy v. State, 3 Circ. Dec. 306 (5 R. 627); Blair v. State, 3 Circ. Dec. 242 (5 R. 496); McHugh v. State, 42 Ohio St. 154, 160; Doll v. State, 45 Ohio St. 445, 446 [15 N. E. Rep. 293]; Goins v. State, 46 Ohio St. 457 [21 N. E. Rep. 476] ; Jones v. State, 7 Circ. Dec. 305 (14 R. 35) ; Limerick v. State, 7 Circ. Dec. 664 (14 R. 207). To same effect are the following authorities out of the state: State v. Cunningham, 12 S. W. Rep. 376 [100 Mo. 382; 8 Am. Cr. Rep. 669]; State v. Sawtelle, 66 N. H. 488 [10 Am. Cr. Rep. 347].

Did the court err in its charge to the jury?

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

Among the propositions as requested and given, is the following:

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

II. Defines a reasonable doubt.

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

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

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

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

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

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

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

Section 7316 Rev. Stat. provides:

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

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

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

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

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

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

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

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

It appears from the fragmentary extracts of the argument, as shown by the record, that the prosecutor made allusion to conditions, blit the record is very indefinite as to just what was intended to be conveyed by the remarks made; for example: “ Why don’t they put Walker on the stand? The moment he put Walker on the stand and he swore he slept with George Ury, he would bring Miller to show it was he who slept with Ury.”

“ Shuck and his whole family say he was near the Johnson house on the sixteenth day of last September. ”

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

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

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

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

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

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

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

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


author: HAYNES, J.

text:
    TAXES — BOARDS OF EQUALIZATION.
    [Lucas (6th) Circuit Court,
    January Term, 1902.]
    Haynes and Parker, JJ.
    Birchard A. Hayes v. Joseph L. Yost, Treasurer of Lucas Co.
    1. Section 2807 Rev. Stat. as to Duties of Boards of Equalization.
    Section 2807 Rev. Stat., governing the equalizing of assessments and providing-that “ when any addition shall be ordered to be made to any list returned, under oath, a statement of the facts on which such addition was made shall be entered upon the journal of the board, is mandatory and must be strictly complied with. Ratterman v. Niehaus, 2 Circ. Dec. 673 (4 R. 502), followed.
    2. Board of Equalization — What Record Must Show to Increase Taxes.
    It is not sufficient merely, to state that an addition was made; or that the board, “taking into consideration evidence produced, ordered it made;” or that " on motion the amount set opposite the names of the following parties was-added to their personal returns, for the reason that the amount returned by the parties respectively was, in view of the facts established by the evidence presented to this board in regular session considered insufficient and below the actual value of the property owned or held by the parties; ” but the facts which concern the correctness and completeness of each separate item, which have been proved to the board by satisfactory evidence, should be stated, clearly so that the officer of the court, before whom may come the reviewing of the acts of the board of equalization, shall be able, on inspection of the record, to see whether the facts therein stated are such as justify the action of the board.
    S. Same — Personal Notice Required.
    The notice, which, under the provisions of Sec. 2807 Rev. Stat., must be given to all the parties interested before any addition is made to the list of the-personal property of such parties returned by the assessor or county auditor or any increase made in the valuation thereof, must be served personally by a proper person or officer, and proof made to that effect. Such service cannot be made by simply depositing a letter containing the notice in the post office, especially when not received by the party notified in time to obtain a-hearing at the time stated therein.
    Heard on Error.
   HAYNES, J.

In this case a petition in error was filed for the purpose of reversing the judgment of the court of common pleas. The original action was brought by Yost, treasurer, against Hayes, setting up that there was assessed against him certain personal taxes for certain years, to-wit: the years,' 1895, 1896, 1897 and 1898, and in certain amounts, and praying for a judgment aggregating $257.93. To this an answer was filed, setting up the fact that these taxes for these respective years were made up in part of certain penalties — and he proceeds to state that he made returns for these years of his personal taxes under Secs. 7, 8, 9, and made oath to them, and delivered them to fhe assessor. He states that these returns made by him were just, correct and true, and states the amount of the valuations that the return showed for each year respectively; and he says that the board of equalization for these years subsequently increased the valuation of the property without any evidence before them, without any proof that the original return that the defendant made was not correct, or that the defendant had any personal property, moneys or credit which were not included in said returns for taxation, and that said additions, and each of them, were made by said board without any statement of facts entered on the journal, upon which the additions were based or authorized. He makes further allegations as to the penalty on these returns, because they were incorrect and unjust. He further says that he had no knowledge of said several additions, or either of them, until long after the final adjournment of said board, in each of said years respectively. He asserts that he tendered to the plaintiff before the commencement of this action the sum of $173.12 in payment of the claims set up in the petition. The case was tried in the court below upon an agreed statement of facts, or rather I should say, that court was asked to separately state the facts and the conclusions of law, and the court found from the testimony as facts in this case as follows:

“ First: The defendant was, during the whole of each of the years 1895, 18&6, 1897 and 1898, a resident of the seventh ward in the city of Toledo, county of Rucas and state of Ohio, and in the month of April in each of said years listed personal property for taxation and made return thereof under oath to the assessor of said ward; that the total valuation of said personal property, as returned by said defendant, was, in 1894, $1,930; in 1895, $1,450; in 1896, $1,440; in 1897, $1,140; in 1898, $1,310, and that in each of said years said personal property was returned upon the following items and no others, as appeared on said returns and in Sec. 2737 Rev. Stat. of Ohio, to-wit, the sixth (including bicycles), the seventh, the eighth and the ninth.
“ Second: That in each of the years 1895, 1896, 1897 and 1898, the said board of equalization caused to be deposited in the post office at Toledo, postage prepaid, a notice, addressed to the defendant, at his residence, to appear before said board and show cause why his return of personal property should not be increased.
“ Third: That the defendant, because of temporary absence from Toledo, received each of said respective notices, so mailed in each of said years, after the said board had adjourned sine die for the year; but no other notice was ever given by the said board, or received by said defendant.
“ Fourth: That in the year 1895, said board of equalization added to the return so. made by the defendant the sum of $520; and that the statement of facts entered on the journal of the board, as to its reasons for such addition was as follows, and not otherwise.
“ The board having been in session daily since May 27, 1895, and after hearing and investigating all complaints made to them, ordered the following changes to be made, viz.:
“Ward. Name. Increased Dollars.
“ 7th. Hayes, B. A. $520.”

The findings and orders for the years 1896, 1897 and 1898 are set out fully hereinafter:

“Eighth: That the defendant never brought any action under Sec. 5848 Rev. Stat. of Ohio against the plaintiff or any of his predecessors in office.
“Ninth: That before this cause was commenced, the defendant tendered to the plaintiff the sum of $173.12 in full payment of the claim set up in the petition, but that the plaintiff refused to receive the same.” ,

The court finds as conclusions of law :

“ First: That the respective statements of fact entered- on the journal of said board of equalization were in full compliance with the statutes.
“Second: That the respective notices mailed to the defendant were each hi full compliance with the statute.
“The court therefore finds that there is now legally due the plaintiff, Joseph E. Yost, the treasurer of Eucas county, Ohio, for the years 1895, 1896, 1897 and 1898 for personal taxes from the defendant the sum of $233.68, with interest at six per cent, from the date of this decree.
“ The court further orders said defendant to pay- said sum to said treasurer within ten days from date and upon failure thereof that execution may issue according to law.”

We are unable to agree with the court of common pleas in his findings in that respect. We find a case that has been decided by the Supreme Court of Ohio, Fratz v. Mueller, 35 Ohio St. 397, the first syllabus of which is as follows:

“ The board of equalization added to a sworn return of personal property for taxation, which included the monthly average value of goods and merchandise during the preceding year, an additional valuation to such monthly average, and entered upon its journal a statement, as the reason for such increase, that in -view of the facts, the return wa insufficient and below the actual value of the property : Held, that this was a sufficient compliance with the statute which requires a statement of the facts to be entered upon the journal of the board.”

It will be noticed in regard to the return in that action, that the plaintiff was a merchant and he made returns upon the list that was furnished to him, and that the list in regard to merchandise requires that he should give the average monthly value of goods and that was the only question that was before the board of equalization, so far as appears by the record; and the only question that was before the Supreme Court in the decision made by it, and the statement of facts entered upon the journal in that case, as was already stated, was as follows, p. 398:

“ On motion, the amount set opposite the names of the following persons was added to their personal returns, for the reason that the amount returned by the parties respectively was, in view of the facts, considered insufficient and below the actual value of the property owned or held by the parties:
“ Ward 19, John M. Mueller, 425 Front Street, Item^lO, $1,000.”

Now the board had a single question before it, and that was the average value of property under item 10, and the board held that the return was insufficient and below the actual monthly average of the property held by said Mueller.

Well, that was the ultimate fact proved in that particular case, the only fact. There was no question in regard to the other items. The board was not required to set out the evidence, but the ultimáte fact, and the ultimate fact found, was that the value was too low; under item 10 the merchant was required to return the average of all goods, etc. The board found that the actual monthly value was too low. It was said by the circuit court of Hamilton county in an opinion that the Supreme Court had gone to the utmost verge of the statute in that particular case. However that may be, tested by the rule as to the finding of facts, the entries made by the board on the journal of statement of facts in all except the last of these cases is wholly insufficient.

Now, in the above statement for 1895 the board say they heard and investigated complaints made to them and ordered changes to be made, no finding of facts whatever are stated. The charge seems to have been entirely arbitrary upon the part of the board.

In the next year the finding is:

“On July 25 the board commenced to hear the statements of all parties interested appearing before the board and taking into consideration other testimony produced, ordered the following changes to be made in the returns made by the assessors of the different wards and by incorporated companies to the county auditor.”

There is no finding of any fact, either in that year or the following, as to the items under either of these respective heads that he was ordered to and attempted to make return upon.

“ In the year 1897 said board of equalization added to the return so made by the defendant the sum of $400, and the statement of facts entered on the journal of the board, as its reasons for such addition, was as follows, and not otherwise: ‘ Resolved: That in view of said statement and upon other evidence satisfactory to this board, the following changes are hereby ordered made in the returns made by the assessors of the different wards of the city of Toledo of the personal property of the parties named below as set opposite their respective names.’ ”

“ In 1896 said board of equalization added to the return so made by the defendant the sum of $580, and the statement of facts entered on the journal of the board, as its reasons for such addition, was as follows, and not otherwise: ‘ On motion the amount set opposite the names of the following persons was added to their personal returns, for the reason that the amount returned by the parties respectively was in view of the fact established by the evidence presented to this board in regular session considered insufficient and below the actual value of the property owned or held by the parties.’ ”

Evidently they attempted to follow the last statement in the case decided in Fratz v. Mueller, supra, the only difference in the two cases being, in the one there was a single item, in the other they made an addition to four different items, not to the items themselves, but to the aggregate amount of all the items. They did not find, for instance, that the return of one item was too low, or the second item or the third or the fourth, or that there were any articles of property or items omitted; they only took the aggregate of the items and added to it a certain sum. The criticism made by counsel for plaintiff is that the parties should have stated whether the amount of the finding was on account of the low valuation or upon failure to return certain items that should have been returned under the statute, so that the party would have knowledge of the basis on which the board acted.

Now there is a reason in this thing. There is some sound sense in it. The party is required by the statute to make return under oath or affirmation- that when he makes that return, he has made it correctly; the county auditor is to place that amount on the tax duplicate and the party is to pay his taxes upon it. A board of revision is appointed — the board of revision attempts to add to his returns on the ground that they are incorrect in some form; they attempt to impose upon him additional burdens, which, in many cases, require a greater amount of taxes to be paid; in others, a less amount. We suppose the object and purpose of making the statement against whom changes are made is to enable parties to have an opportunity to rectify the change by such method as the law permits him to have and exercise for the correction of matters of that kind, by injunction or error or any other ma'nner of defense in a ■case of that kind. He being absent when the findings are made and •when the questionable matters were added, if the board undertake to make changes, it would seem just and right and proper that they should state the facts under which they act, so that the party may challenge their action if he desires to do so.

In Cooley Taxation (1 ed.), 256, the matter is discussed:

“ That is as to the right of a party to a hearing, the justice and equity of it is set forth there. The statute requires that the party shall have reasonable notice so that he may be present. It really amounts to a trial and the issue is whether the party has returned his property for the full amount; it ought to have some semblance of form and action that is required in an ordinary court of justice that rules against a man, for this really amounts to a judgment that he shall pay additional taxes.”

It is barely possible that the last statement of facts may be within the decision of the Supreme Court; we are, however, rather inclined .against that view; we think the board should have set forth the facts, whether the value was too low on any one of the four items, or whether the party had omitted from those items any particular article or thing that ought to have been returned.

This matter has been up more than once in the circuit court of Hamilton county, and that court has apparently given the matter a great deal of attention and have made several decisions. I cite one decision, Ratterman v. Niehaus, 2 Circ. Dec. 678 (4 R. 502), there are half a •dozen cases consolidated. The syllabus is:

“ 1. Section 2807 Rev. Stat., governing the equalizing of assessments, which provides that ‘ when any addition shall be ordered to be made to any list returned under oath, a statement of the facts on which Such addition was made shall be entered on the journal of the board ’ is mandatory and must be strictly complied with.
“2. It is not sufficient, merely to state that an addition was made; the facts which have been proved to them by satisfactory endeavors, and •upon which the addition was made, should be stated clearly, so that the office or court, before whom may come the reviewing of the acts of the board of equalization, shall be. able, on inspection of the record, to see whether the facts therein stated are such as to justify the action of the board.”

There is quite a long decision upon the question and citation of authorities in regard to what constitutes a finding of facts under the decisions of the Supreme Court of this state. In the above case the judgment of the circuit court was affirmed by the Supreme Court. It was a judgment for the enjoining of the collection of the additional taxes.

Now in regard to the question of notice. These additions were made, as we understand, under Sec. 2807 Rev. Stat. There are several statutes in regard to equalizing boards in different cities and the provisions in regard to some matters in each are the same. I speak of this because I see there is a citation from a Cincinnati case which was under another statute in regard' to an increased amount on real estate.

Section 2807 Rev. Stat. is as follows:

“ The said boards shall hear complaints and equalize the assessments of all personal property, moneys and credits, new entries and new structures returned for the current year, by the township assessors and county auditors; and they shall have power to add to or deduct from the valuation of personal property, or moneys or credits, of any person returned by the assessor or county auditor, or which may have been omitted by them, qr to add other items upon such evidence as shall be satisfactory to the said boards, whether said return be made upon oath of each person or upon the valuation of the assessor or county auditor, but when any addition shall be ordered to be made to any list returned under oath, a statement of facts upon which such addition was made shall be entered upon the journal of the boards. Provided, that no such addition shall be made to such list returned under oath without the board having first given reasonable notice to the person or persons (if their residence be within the county) whose personal property is sought to be added to, or the valuation thereof increased, to appear before said board at a time and place to be fixed by said board, and show cause why such addition should not be made, or why such valuation should not be increased.”

It will be noticed that notice is to be given those who make returns under oath, who are residents of the county. Now it appears by the agreed statement of facts in this case that the written notice was deposited in the post office at some time, it is not stated when, directed to Mr. Hayes at his residence ; that he was temporarily absent from the city, so ‘he did not receive it, in each year, until after the board had adjourned. How long a time before adjournment that notice was put in the post office is not stated, nor perhaps is it very material; sufficient to know that by the ordinary course of business, the letter reached his house, but did not reach him until after the board had adjourned, until after his rights in the matters were foreclosed, so far as the board was concerned.

Now the question is as to the character of the service that is to be had on this notice. The statute provides that the party shall be given reasonable notice. He is to have a notice that is reasonable, notice as to the time and place so he may have an opportunity to appear. Notice is to be given to him.1 The court below found that a notice put in the post office directed to him was sufficient. We are unable to agree with the court in that respect, because we find decisions of the Supreme Court of this state and other courts that lead us to an opposite conclusion. And because, in reason, if he is to have notice it should be given to him in person, served upon him, so that the board, before it acts, may know that he has received it and'that it has jurisdiction over him.

In the cage of Moore v. Given,39 Ohio St. 661,the second syllabus says:

“ Where a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirements.”

And again in the decision of the case it was laid down as a positive rule of law. Now that statute was in regard to a partition fence, and the obligation of the parties to build a portion, and in case of any disagreement, a notice was to be served upon the parties by the township trustees, perhaps the commissioners to apportion the work.

The circuit court of Hamilton county had this matter again before it, under Sec. 2804 Rev. Stat., in regard to the action of the board of revision of real estate, but the language is the same in each. In the case of Perkins v. Zumstein, 2 Circ. Dec. 601, 602 (4 R. 371), that court says:

“ Section 2804 Rev. Stat., prohibiting the county and city boards of equalization from increasing the valuation of real estate, except on rea sonable notice to all persons directly interested, and an opportunity for full hearing of the questions involved, is mandatory, and must be strictly complied with,” and “ where no other kind of notice is prescribed in the statute, it must be actual notice.”
“ Notice of intent to increase valuation served on one owner of an undivided interest in real estate, will not bind any of the others.”

Now the court says in announcing the opinion in that case:

“ If the language of the statute were not sufficiently clear to show its mandatory character, there are abundant authorities so deciding. In Cooley on Taxation, page 287, it is laid down, ‘so all provisions designed to give the taxpayer an opportunity of a review of the assessments themselves, or on an appeal, are exclusively in his interest. Every notice which the statute provides for that end, whether by publication or otherwise, must be given with scrupulous observance of all its requirements. The notice cannot be shortened a single day without rendering it ineffectual; the presumption being that the law has made it as short as was deemed consistent with due protection. A published notice cannot be received as the substitute for a notice to be personally delivered to the party concerned,’ * * * and the same rule applies to any notice required by subsequent proceedings, and when a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice^ill alone satisfy such requirement.”

Citing cases as follows: Moore v. Given, 39 Ohio St. 661; 24 Me. 283; Roche v. Dubuque, 42 Ia. 250; Lagroue v. Rains, 48 Mo. 536; Powers’ Appeal, In re, 29 Mich. 504; Plumer v. Marathon Co. (Sup vrs.), 50 N. W. Rep. 416 [46 Wis. 163]; Rathbun v. Acker, 18 Barb. 393; St. Louis v. Goebel, 32 Mo. 295; 13 Hun. 211; 16 Eng. E. & E. 789.

Neither of these cases seem to have been taken to the Supreme Court; but the legislature, probably acting on the decisions of that court in regard to the provisions of that statute in regard to real estate, passed an act soon after that, found in 69 O. L. 175, providing for the service of notices in cases of this kind : (1) by delivering a copy thereof to the person or persons ^interested in said real estate, or by leaving such copy at the usual place of residence or business of such person or persons ; or if such place of residence or business shall not be found in the county ; (2) by delivering such copy to the agent in charge of said real estate to collect the rents thereof; or, if no such agent shall be found in the county, (3) by publishing thereof, inserted in a newspaper one time, etc., and that court has held since that time that these should come in this succession, first, giving the notice by delivering a copy to the persons interested, or, if that cannot be done, then the others in their order.

We, have examined this matter very carefully and come to the conclusion we have, both upon authority, and we think upon principle, that the service of notice under this statute should be made to the party personally; that there is no provision of law or principle of law that we find authorizing the making of service by simply depositing a letter in the post office addressed to the party. Of course if such letter was received by the party in time to obtain a hearing at the time stated in the notice and he appear, he would be bound by it. But it is incumbent upon the board itself to know that the paper has been received by the party and service has been made upon him in that respect. It should be served by a proper person or officer and proof made to that effect.

Holding these views, the judgment of the court of common pleas will he reversed, and this court proceeding to render the judgment that court should have rendered, judgment will be rendered for the amount only admitted to be due, and which had been tendered by the defendant.