text:
    CRIMINAL LAW — FORMER JEOPARDY — INDICTMENT.
    [Lucas (6th) Circuit Court,
    June 16, 1906.]
    Haynes, Parker and Wildman, JJ.
    Ed. Horner v. State of Ohio.
    1. Demurrer hot Necessary to Raise Question oe Sufficiency of Plea in Bar.
    Where one who has been indicted for a crime interposes a plea in bar to the indictment and a replication is filed thereto, the court may pass upon the sufficiency of the plea in bar. where the question is raised in such a state of the pleadings and a demurrer is not necessary.
    2. Plea of Former Jeopardy must set forth Former Indictment.
    A person indicted for an offense who pleads in bar that he has been before indicted, tried and acquitted for the same offense, must set forth in such plea the former indictment to enable the court to determine whether or not an offense was legally charged. The fact that Rev. Stat. 7258 (Lan. 11012) does not specifically provide for setting forth the indictment will not relieve the pleader of this necessity.
    8. Court will not Take Cognizance of Former Proceedings.
    Where a defendant has been tried before a jury upon an indictment and is again prosecuted upon a second indictment to which he pleads in bar the former indictment and trial, the court will not take judicial cognizance-of the proceedings under the former indictment in passing on the plea in bar to the second.
    4. Prosecution on Indictment for Larceny of Property of one Person not Former Jeopardy on Prosecution for Larceny of Property of Another.
    A person indicted and brought to trial for an offense alleged to be the stealing of the property of one “John W. E.,” may be recognized to appear before the next term of court and the jury discharged without prejudice to the prosecution under Rev. Stat. 7303 .(Lan. 11057), where-the evidence adduced shows that the property was in fact that of “Joseph W. E.” and not of “John W. E.” Such proceedings will not constitute an acquittal which will render a plea of former jeopardy good as against a subsequent indictment for stealing “Joseph W. E.’s” property.
    5. Under Rev. Stat. 7258 (Lan. 11012), Court may Pass on Sufficiency of Plea of Former Jeopardy and Need not Submit Issues to Jury.
    Where a plea in bar has been interposed to an indictment setting up a former acquittal of the same offense and a replication filed thereto has raised issues as to the record of the former trial, etc., the court may pass upon the sufficiency of and overrule the plea in bar, and it is not the court’s duty to submit the issues arising under the pleadings tO' the jury under Rev. Stat. 7258 (Lan. 11012).
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    J. P. Crawford, for plaintiff in error:
    The trial court had no right to follow Rev. Stat. 7303 (Lan. 11057)-as the section applies to cases where a mistake has been made in charging-the proper offense in the indictment. In the case at bar the offense was. grand larceny and was so charged in both indictments. There is a dis-tinetion between charging the proper offense, an'd charging the offense properly.
    The trial court should have followed Rev. Stat. 7216 (Lan. 10970).
    The Supreme Court of Ohio has held in Mulrooney v. State, 26 Ohio St. 326 and State v. Buechler, 57 Ohio St. 95 [48 N. B. Rep. 507], that the name of the owner of the property described in an indictment, is a description of a “matter or thing therein named or described” and therefore (Rev. Stat. 7216; Lan. 10970) clearly applies.
    The record does not show that the trial court found that the variance was “material to the merits of the case or prejudicial to the defendant.”
    The trial should have proceeded, and the issues submitted to the jury upon the evidence, and there could have been a legal acquittal or conviction. Mead v. State, 26 Ohio S.t. 505.
    Identity is a fact to be determined by the jury. It is for the jury to say whether the person intended to be described in the indictment and the person described in the proof are one and the same person. In other words whether the variance is a mere mistake in name or is a mistake as to the person. Mead v. State, 26' Ohio St. 505.
    The court of its own motion and'without the consent of defendant discharged the jury during the progress of the trial. This operated as an acquittal. Mitchell v. State, 42 Ohio St. 383; Hurley v. State, 6 Ohio 399; Mount v. State, 14 Ohio 295; Poage v. State, 3 Ohio St. 229; Baker v. State, 12 Ohio St. 214; Dobbins v. State,. 14 Ohio St. 493; Steiuart v. State, 15 Ohio St. 155; Hines v. State, 24 Ohio St. 134. 1 Bishop, Cr. Law Secs. 1015, 1016.
    L. W. Wachenheimer, prosecuting attorney, for defendant in error.
   WILDMAN, J.

In this ease plaintiff in error was indicted, tried and convicted upon a charge of stealing money from one Joseph W. Emery. The indictment asserted the sum of' money stolen to be $128 and the jury by its verdict found him guilty of stealing the sum of $100. The only claim of error is involved in the assertion of a former acquittal under a plea in bar by the defendant below and the action of the court thereon. The defendant filed the following plea in bar:

“The said Ed Horner in his own proper person comes into court, and, having heard the said indictment read, says that the said state of Ohio ought not further to prosecute the said indictment against him, the said Ed Horner, because, he says, that heretofore, to wit, at a term of the court of common pleas in and for the county of Lucas in the state of Ohio, of the January term of 1906,” (which I should say was a term prior to the one in which the indictment upon which he was tried and convicted was found) “the grand jurors of said county, duly impaneled and sworn, presented their indictment against him for the same offense as is charged in the present indictmentthat said defendant was duly arraigned in said court on said indictment and pleaded not guilty thereto. That in the April, 1906, term of court, said cause was set for trial and thereupon a jury was duly impaneled and sworn in said cause in said court, and the state adduced all its evidence against said defendant and rested its case. And the court thereupon, of its own motion and without the consent of the defendant, and without finding a sufficient reason therefor, discharged said jury and remanded said defendant to jail. The larceny set forth in said indictment is the same larceny as that set forth in the present indictment and the offense in the former indictment is the same identical defense as that set forth in the present indictment. Defendant has therefore been acquitted of said change. The said defendant therefore prqys> that he may be dismissed and discharged from the premises in the present indictment specified.”

To this plea the state replied, saying, “that there is no record of any acquittal of the said defendant for the offense charged in the indictment herein.” There follows a general denial of each and every allegation of the defendant’s plea.

In our code of criminal procedure the statute as to pleas in bar is embodied in Rev. Stat. 7258 (Lan. 11012), which reads:

“The accused may then offer a plea in bar,to the indictment, that he has before had judgment of acquittal, or has 'been convicted or pardoned, for the same offense; to this plea the prosecuting attorney may reply that there is no record of such acquittal or conviction, or that there has been no pardon; the issue thus made shall b.e tried to a jury, and on such trial the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record, or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.”

The plea in bar and the replication having been filed, a hearing was had, as stated in the journal of the court:

‘ ‘ This cause came on for hearing upon the plea in bar of the defendant, Ed Horner, to the indictment herein and the replication of the prosecuting attorney thereto, and was argued by counsel and submitted to the court. And upon consideration thereof, the court doth find the said plea to be insufficient and the allegations thereof not shown to be true and doth overrule the same, to which action of the -court the defendant by his counsel then and there excepted. And “thereupon the said defendant, being present in court with his attorney, waived the reading of the indictment against him and pleaded not guilty to the said indictment. Thereupon a jury was impaneled and ¡sworn, a stenographer was ordered to report the evidence herein at the request of both sides and the trial began. ’ ’

•And the entry further recites the fact of the trial and the rendition of a verdict.

At first blush it might appear that the issue presented by the plea in bar’ was one solely for the jury and that no statutory power was given to the court to pass upon the sufficiency of the plea. But, while no provision is found in the criminal code for either demurrer to the plea or any other method of obtaining the judgment of the court upon its sufficiency, it is distinctly held in the case of Hurley v. State, 6 Ohio 399, that a court did not err in sustaining a demurrer to a special plea in bar in a criminal case, where the court deemed the plea insufficient and where it was in fact so. And in the case of Gormley v. State, 37 Ohio St. 120, it was held:

“A plea of former conviction which is insufficient in matter of substance, does not raise an issue for. a jury, but may be adjudged insufficient on demurrer.”

It is the policy of the law to take cognizance of defects in an indictment whether a demurrer is filed thereto or not, if those defects are such as to render the indictment insufficient, as not charging a crime. Of course as to mere matters of indefiniteness, where the statute provides that by failing to file certain motions a defendant shall be deemed to have waived his rights, the court could not on the trial of the ease stop the introduction of evidence or instruct the jury to find a verdict for the defendant because of such defective indictment. It is analogous to the conditions that arise under the code of civil procedure. Questions as to jurisdiction of the subject-matter, and the sufficiency of the facts to constitute a cause of action, may be raised at any stage of the trial, or even in arrest of judgment; whereas matters of mere form cannot so be presented, but they must be called to the attention of the court in due season. If this plea in bar was insufficient, and if the court ■could so have adjudged it on demurrer, we have no doubt that the court would be equally justified if the questions were submitted to the court as to the sufficiency of the pleadings, in determining it without n demurrer; that is, in examining it to ascertain whether there was any proper issue to go to the jury.

Examining this plea in bar, we-find that it alleges that the defendant bad been put upon trial at a former action upon an accusation of the same .offense. But it is not alleged that the charge was made in proper terms of law so that a conviction could have been had. The plea says that an indictment was found; it does not say that it was a valid, indictment — that it was sufficient in its terms as charging an offense properly, nor does it embody the'indictment in the plea so as to apprise-the court of its terms. The plea further says that the court discharged the jury without sufficient cause, but what the cause was is not stated. Now, to hold that it was the duty of the court to send such issues as these to - a jury, would be to require the court to instruct the jury to-pass upon the sufficiency of the court’s action and upon the validity of the former indictment. As to the identifying of the offense a question of fact might be presented; but the sufficiency of the indictment, or its insufficiency, would be a question of law, to be determined by the court, and the sufficiency or insufficiency of the court’s reason for discharging the jury, after it had been impaneled and sworn, would be a question of law to be addressed to the court rather than to the jury. Now, in order that the court might be apprised of the exact condition of the former record, the plea in bar should be so explicit that the court could pass upon the matter. Possibly in this case everything was shown to the court to enable the court to do it when the plea in bar and the reply thereto were submitted to the court for its action; there is no bill of exceptions to show what was shown to the court. There is nothing to show of what the court took cognizance in passing upon the sufficiency of the plea. The court either had the former record or the court did not have it at the time when the court adjudged the plea in bar to be insufficient. Assuming for a moment that it was not produced — as it does not appear in the plea — we must examine some of the authorities to determine whether it was requisite that it should be shown to the court.

In the case of Foster v. State, 39 Ala. 229, it was held:

“In a plea of I former conviction or acquittal, it is necessary to set out the record, or at least the indictment. ’ ’

In the case of Smith v. State, 52 Ala. 407, it was held:

“A plea of former acquittal interposed as to one offense, based on. an acquittal on a trial for another -charge, must set forth, among other things, the indictment on which such trial was had.”

In the ease of Evans v. State, 54 Ark. 227 [15 S. W. Rep. 360], the court held:

“A, plea of former conviction is insufficient which does not verify the alleged conviction by the record, nor allege that it was for the same offense the second prosecution was intended to punish.”

The plea here does allege that it .was for ¡the same offense, but it does not verify the statement by any production of the record.

In the case of Washington v. State, 35 Tex. Crim. App. 156 [32 S. W. Rep. 694], it appears that:

“Appellant was convicted of assault with' intent to murder, and given two years’ confinement in the penitentiary, from which conviction he prosecutes this appeal. It appears from the record that appellant shot one Edwards, missed him, and killed one Black. Appellant was tried and convicted of the murder of Black. He was then placed .■on trial under this indictment for an assault with intent to.kill and murder Edwards. He attempted to plead in bar of this prosecution the judgment of conviction for the murder of Black. If the plea had been in proper form, containing what the law requires, it would have been a good plea in bar to the prosecution for this assault to murder, because everything that was done by the defendant, all of the unlawful intents and purposes which went to make up a case of'assault to murder, were utilized in the murder case. The state excepted to the sufficiency of the plea, and the court sustained the exception. It is well settled that a plea of former conviction or acquittal must contain the indictment, the verdict of the jury, and the judgment of the court. This record does not contain the indictment, nor the conviction and judgment, and there was no error in sustaining the demurrer to the plea.”

And the court add, a little lower:

“This record, as above stated, does not contain in any part thereof the indictment nor the judgment in the murder case, and we cannot determine from this record whether the conviction was had upon a valid indictment, or whether judgment was ever rendered upon that conviction. ’ ’

In further support of this position reference should be made to the citation of counsel for the state: 1 Bishop, New Crim. Proced. Secs. 809, 810, Subd. 2, p. 474; and also Bishop, Dir. & Forms Sec. 1043, p. 593. “How is a record fact to be alleged?” Sec. 93, p. 43.

It is said by counsel that Laning’s Form Book has a form of plea in bar like the one in the present case. We have not had access to that. It is proper to note that these forms should be taken in both of these works for just what they are worth, as the opinions of compilers or bookmakers; but after all, they must be. based upon correct principles and be properly supported by authority, to justify their use a.s authority to the court.

Our judgment is, that this plea in bar- should have contained the indictment; but whether it should have contained also a copy of the journal, to show the action of the court, upon the former trial in discharging the jury from further consideration of the case; whether that journal would have disclosed a sufficient reason therefor, it is unnecessary for us at present to consider. It is enough to say that the plea, in bar should have set forth the indictment upon which the former partial trial was had.

There is a case in Massachusetts: Commonwealth v. Bosworth, 113 Mass. 200 [18 Am. Rep. 467], which, at first glance, would seem to run counter to the decisions to which I have made reference. The holding, as disclosed by the syllabus, is:

“When an inferior court has jurisdiction of an offense upon prop-, erty, if the value of the property does not exceed a specified sum, a. plea of a former acquittal of such offense in the inferior court is a good bar to an indictment for it in a superior court, although the value of the property is alleged in the indictment to be a sum exceeding the jurisdiction of the inferior court.”

It seems, from an examination of the case, that the indictment or the complaint was not embodied in the plea in bar in the second case; but a further examination and more critical one, shows also that a plea in bar, in Massachusetts, without containing the indictment, is sufficient by reason of the statutory form of the plea in bar in that state provided. Judge Gray says, p. 468:

“The defendant’s plea in bar of a former acquittal before the municipal court of Taunton, of the same offense for which he now stands indicted in the superior court, is in the form prescribed by Stat. 1864, e. 250, Sec. 4, and is therefore sufficient in form, without more fully setting out the record of that acquittal, or the facts relied on to prove the identity of the former offense with that now charged against him. ’ *

It might be urged with an apparent slight show of authority, that the court should take judicial cognizance upon the latter trial of what previously took place under an accusation of the same character and which the plea in fact has alleged to be for the same offense although upon an indictment rendered at a former term. There is a case in Texas, Foster v. State, 25 Tex. App. 543 [8 S. W. Rep. 664], in which it was held:

“Although a plea of former jeopardy and former conviction omits to set out the indictment and judgment referred to, and would therefore be fatally defective if both trials had been in different courts, such defect will not bar the defense of jeopardy and former conviction when both trials were in the same court, since the court takes judicial cognizance of previous proceedings in the case. ’ ’

An examination, however, of the case cited 'shows that the two trials were both upon the same indictment, so that the record of all the legal proceedings with reference to the indictment would apprise the court fully of all that had taken place upon the first trial. I will not stop to read from the case any further than I have done.

We think that where a defendant has been tried before one jury, upon one indictment, is again indicted, and is tried upon the second indictment, it cannot be said to be the same case; nor can the court in the second prosecution take judicial cognizance of the proceedings in the first.

It is claimed that the statute of Ohio relieves the defendant from inserting in his plea in bar the indictment, or any portion of the record under which the former conviction or acquittal occurred. The statute, Rev. Stat. 7258 (Lan. 11012), says:

“The accused may then offer a plea in bar to the indictment, that he has before had judgment of acquittal, or has been convicted, or pardoned, for the same offense.”

But we are not of opinion that in the use of this general phraseology the legislature contemplated the omission of the ordinary requirements of a plea in bar. It was simply placing in the statute a provision as to a plea already recognized in criminal law, merely providing that one accused may properly set up a former acquittal, or a former conviction, in bar of a prosecution for the same offense. There is no attempt apparent in the section to define what shall be the proper form of such plea. We have found in Gormley v. State, 37 Ohio St. 120, and Hurley v. State, 6 Ohio 399, the two eases to which I have made reference, that it was the duty of the court to pass upon the legal sufficiency of the plea in bar. The court in this case did so and announced its decision, and thereupon, it is said, overruled the plea. The defendant then entered a plea of not guilty, and, the jury being impaneled, the case proceeded to trial and a conviction was had as heretofore stated.

Now, if counsel are correct in their contention that this plea in bar and the reply thereto presented an issue for a jury, and that it was the duty of the court to send the whole matter to the jury to determine the issues of law as well as the issues of fact, a question might still be urged as to whether some further duty did not devolve upon the defendant in order to preserve his rights under the plea. In Rev. Stat. 7258 (Lan. 11012), to which I have already referred, in the latter part of the s'ection, it is provided:

‘ ‘ The issue thus made shall be tried to a jury, and on such trial the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record, or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of' the offense.”

We have here no bill of exceptions showing what evidence was offered to that jury which was impaneled and sworn. There is no statement in the record that the jury was impaneled and sworn simply to try the defendant upon the issue as to whether he was or was not guilty as-charged in the indictment, and our judgment is, that even if it was the duty of the court — which we do not find — to send any matter concerning the former trial to the jury for its consideration, after the court had considered the plea to be insufficient, under those circumstances we think that in order further to preserve his rights the defendant should have followed the requirements of this section of the statute and produced the record of the former claimed acquittal and should have offered proof that he was the same person charged in the record; and then he might have introduced such other evidence as would have been proper in order to establish the identity of the offense, all this being denied by the reply.

It is said in the petition in error that,

“Said court erred in not submitting the issues joined on said plea in bar and replication of defendant in error to a jury.”

We find no request that the court should do so, and no exception to the court’s not doing it. Presumably, if it was a proper issue to go to the jury, the court, if the request had been made, would have granted the request and have submitted the issue to a jury. All the presumptions are in favor of the correctness of the rulings of the court below, and in the absence of any showing of what was done by counsel or by the court, further than is disclosed by the journal entry before us, we are unable to say that the court did not have sufficient ground for the action which was taken in holding, in the first place, that the plea was insufficient and, in the second place, in submitting the case generally to a jury for its consideration. No instruction was requested, from the court that the jury should find, first, as to whether or not the claims made in the plea in bar were true. There is nothing expressed in this statute that the same jury may not try both issues— it may or it may not. It is not necessary in our view of the case to enter upon an inquiry as to the legal scope of the jury’s duty. But, as I have already said, there is nothing in the record or the statute to show that this jury was charged with the sole duty of determining the guilt or innocence of the defendant. <

We might go still further and examine the record which has been handed up and consider the statements of counsel upon both sides as to what took place upon the former trial. We do not think that the record of the former trial has any proper place here, but the plaintiff in error has seen fit to submit it for our consideration and under those circumstances we have examined it. We have listened to the statements of counsel, that the first indictment charged the stealing of money of one John W. Emery instead of that of Joseph W. Emery, as in the second indictment. The written record does not fully apprise us as to whether it was a mere mistake in the name of a person who was really sought to be described as the owner of the money stolen, or whether it was a mistake in charging the wrong person as the^owner, but we are informed by counsel that there were in fact two men— •one named John W., and-the other Joseph W., and that in the first .indictment the charge was really of stealing the property of John, while in the second indictment it was for the stealing of the property ■of another man, Joseph. Now, if all that be so, we think that an ■acquittal or conviction for the stealing of the property of one would not be a bar to a subsequent prosecution for the stealing of the property of the other. It would require different proof; it would require different evidence as to ownership; and, having these views, we think that the judge upon the first trial was justified in taking the action which he did -when it was discovered that the ownership was not in the person who had been named in the indictment as the owner. We think that a proper ease arose for the application of Eev. Stat. 7303 (Lan. 11057).

“If it appear at any time before verdict that a mistake has been made in charging the proper offense in the indictment, the jury may be discharged, without prejudice to the.prosecution, and the accused, if there is good cause to detain him, may be recognized to appear at the next term of the court, or, in default thereof, committed to jail; and in :such ease the court may recognize the witnesses for the state to appear ;at the same time and testify.”

The case of Mitchell v. State, 42 Ohio St. 383, we think does not ¿apply to this case, because there a conviction of the offense of an assault could have been shown by evidence adduced on either trial or under either indictment. It was not so here. The finding of a person guilty under one indictment would not be equivalent to finding him guilty under the other, unless the variance was a mere immaterial one — one not tending to the prejudice of the defendant — a variance as to names but not as to persons. The court on the former trial found that it did tend to prejudice the defendant. The defendant was urging the mistake in the indictment as a ground for his discharge, and the court would not have been justified in discharging the jury on the former trial if it were an immaterial variance and one that did not tend to his prejudice. The court must have found that it was a material variance, and, so finding, deemed it a case for the application of this-statute. There was an attempt to charge a proper offense but there-was a mistake in charging it, because it was charged to be committed against another person than the real owner of the money. Ownership was a material fact in the indictment. Under such circumstances the statute should be applied in order to prevent a failure of justice. If the contention of counsel is correct, that the jury, instead of being discharged should have been instructed to acquit, then on the assertion of such a mistake as this, there would be no possibility of convicting a man for a proper offense. We think, in view of all the circumstances of the case and 'all the considerations urged by counsel in argument, that it cannot justly be said that this defendant has been twice placed in jeopardy for the same offense.

Having fully considered the questions presented and naturally arising in the case, our conclusion is, that the judgment of the court below should be, and it therefore is, affirmed.

Haynes and Parker, JJ„ concur.


source: Caselaw Access Project

author: TAGGART, J.

license: Public Domain

text:
    CHARGE TO JURY — FALSE IMPRISONMENT.
    [Muskingum (5th) Circuit Court,
    October, 1905.]
    Donahue, McCarty and Taggart, JJ.
    Edward L. Tracy v. Edward Coffey.
    1. Omission in Charge to Jury not Reversible Error unless Objected to ob Omission Asked to be Supplied unless Charge Rendered Misleading.
    An. omission by a trial court from its charge to the jury of a rule of law favorable to defendant is not reversible error if the defendant fails to* call the court’s attention thereto at the time or requests such instruction to be added unless the omission renders the charge as given misleading.
    2. False Imprisonment — Officer must Release at Once on Discovery of His Mistake.
    In an action for false imprisonment, a charge that if defendant believed, or had good reason to believe, that a felony had been committed and that defendant was the man who had committed the felony, defendant might arrest him without a warrant but must release him at once on discovering his mistake, is a correct charge.
    8. Officer Detaining Plaintiff for Resisting Wrongful Arrest must Show Legal Authority to Detain — Belief of Person Arrested as to Character of Officer Question for Jury.
    Where an officer arrests a person whom he suspects to be guilty of a felony and the suspect resists such arrest, the officer may detain him in custody for resisting an officer, but, in an action against the officer for false imprisonment, the officer must establish affirmatively that he1 had a legal right to make such detention; that the resistance by plaintiff was knowingly and wilfully made, and any other facts showing that the detention was justified. Whether the plaintiff knew the defendant to be an officer or believed him to be a footpad or otherwise without authority to make the arrest is a question for the jury.
    [Syllabus approved by the court.]
    ERROR to Muskingum common pleas conrt.
    Winn & Bassett, for plaintiff in error.
    Andrews & George, for defendant in error.
   TAGGART, J.

Tbe action in which tbe judgment was rendéred (now sought to he reversed) was one for causing the false arrest and imprisonment of the defendant in error.

The record shows that the plaintiff below was a reputable citizen of tbe city of Zanesville, and on the evening of August 8, 1902, was going from the west side of the Muskingum river to the more central or business portion of tbe city. Tbe evening was dark and stormy and the plaintiff bad taken an unfrequented way to reach his destination.

The defendant below was the chief of police of the city of Zanes-ville and on the night in question he, in conjunction with two subordinate officers, was in search of two men, Stevens and Devine, who were charged with a homicide committed in Belmont county. One of the officers discovered Coffey and attempted to arrest him, but he resisted, and thereupon the other officer and Tracy came to the assistance of the officer with whom Coffey was struggling and overpowered Coffey and placed him under arrest. It was claimed by Coffey that the officers were in citizen’s clothes and there was nothing to apprise him of their character. It was claimed by the officers that they informed him that they were officers, and that he was under arrest; that he continued his resistance until struck by Tracy and compelled to yield to superior force; that they believed him to be one of the persons for whom they were making search.

The officers had no warrant to arrest Coffey or Devine or Stevens. After Coffey was struck by Tracy one of the officers recognized him, and informed Tracy that he was not one of the persons they were seeking and “that he is all right.” Thereupon Tracy ordered his officers to take ■Coffey to the city prison and lock him up and “put a charge of suspicion against him or hold him until we can investigate him. ’ ’ After the lapse ■of an hour or two Tracy goes before the police judge and upon consultation with him files an affidavit charging Coffey with “resisting an officer.” The next day Coffey is released from prison by Tracy on the promise that he will return the day following and answer the charge of resisting an officer. There is a dispute as to what actually took place before the police judge when Coffey appeared, but Coffey was set at liberty without any fine or costs imposed or he was otherwise held or punished. There is no dispute in this record as to the following facts:

First. The officers were not seeking to arrest Coffey.

Second. The officers had no warrant to arrest anyone.

Third. 'When the officers sought to arrest Coffey they were mistaken in the person of Coffey.

Fourth. During the melee, the identity of Coffey was discovered and his character as a peaceable citizen vouched for by the officer in the presence of Tracy.

Fifth. When the identity of Coffey was disclosed he was within the power of the officers and had surrendered.

Sixth. Thereafter Tracy ordered his officers to continue the detention and lock him up in the city prison.

Among the many errors set forth in the motion for a new trial and in the petition in error, the principal one is to the charge of court’to the jury.

It is urged that the charge does not correctly instruct the jury on the rule of. law in-respect to the- appearances of the situation as viewed by the officers, and the reasonableness or probable canses which induced Tracy to adopt the course of conduct he did pursue. That is, if the appearances justified him and he acted in good faith and under an honest belief that Coffey was resisting an officer, he had the legal right to arrest him without a warrant and detain him until a warrant could be obtained; and that charge failing to contain such instructions is misleading and erroneous.

It is to be observed that the plaintiff in error remained content with an exception to the charge as given; did not call the court’s attention to the omission to charge the rule of law now claimed and made no request for further instructions in that regard. If the rule contended for was material or involved in the case, it was the duty of the party excepting to call the court’s attention to the omission unless the jury was misled by the omission. Columbus Ry. v. Ritter, 67 Ohio St. 53 [65 N. E. Rep. 613].

Was the charge as given misleading, and did the trial judge err in omitting such an instruction? The court in its charge defined false imprisonment as follows:

“False imprisonment consists of an unlawful detention by one person of another. It is a trespass committed by one man against the person of another by unlawfully arresting him and detaining him without legal authority.”

And further in the charge the court instructs the jury as follows:

“If the officers believed or had reasonable ground to believe that a felony had been committed and that Devine or Stevens had committed the crime and that Coffey was either Devine or Stevens, they had a legal right to arrest him without a warrant, although mistaken as to the identity of Coffey. But it was the duty of the officers to release Coffey on discovering their mistake.”

These instructions are justified by the following authorities:

An officer who has arrested a party without process or on void process cannot detain him on valid process until he has restored such party to the condition he was in at the time of his arrest. The law will not permit him to perpetrate a wrong for the purpose of executing process, nor, to use process for the purpose of continuing an imprisonment commenced without authority and by his wrongful act. 6 H. L. Cas. 443; Hancock v. Gomez, 50 N. Y. 668.

As to the right of the officers to further detain Coffey and require him to answer-the charge of resisting an officer, we think the instructions to the jury were as favorable to the officer as he was entitled to. The court says:

“To constitute the offense of resistance of an officer, either under the state law or under an ordinance, the resistance or obstruction must fee knowingly and wilfully done. That is, if Coffey knew that the persons claiming to be officers, were officers and engaged in some official duty, and then knowingly and wilfully violated either the state law or the ordinance of the city, and the officer, Tracy, found the plaintiff in -the act of such violation, he could legally arrest him for such offense without a warrant and detain him for a reasonable time until a warrant could be obtained.”

The court thus submits to the jury the disputed question of fact whether Coffey knew the persons who were detaining him and their character, whether officers or footpads. If Coffey knew they were officers, under this charge, he was guilty of resisting the officers and his detention was legal; if he did not know their character he was not guilty qnd he was not lawfully detained.

The burden of proving the legality of the detention was on the officer, Tracy. He was required to show that such a state of facts existed as justified him in making the arrest, not that the appearances of things so justified him.

In the case of Reinhard v. City, 49 Ohio St. 257 [31 N. E. Rep. 35], the court says:

“In an action against the city by/the party arrested, to recover the money [deposited in lieu of bail] in which the legality of his arrest be-came a material issue, it was incumbent on the defendant, to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant, and that he did not detain the party arrested an unreasonable time before obtaining a legal warrant.”

On page 266, Judge Dickman uses the following language:

“Where no affidavit chárging the commission of an offense is filed with the magistrate, and no warrant or process is issued for the apprehension of the person charged, it will not be presumed, that an officer making an arrest acted under circumstances precluding the necessity of an affidavit and warrant. And in an action by the party arrested, in which the legality of such arrest is deemed a material issue in the case, it will not be incumbent upon him to establish that the officer was not, under the circumstances, authorized to arrest without warrant, but it will rather devolve upon those defending the officer to show, that such a state of facts existed as justified the officer in making the arrest without the previous issue of a warrant, and that he did not detain the arrested party an unreasonable length of time before obtaining a legal warrant.”

•But it -is not claimed that the detention and confinement was for •"the purpose of procuring a warrant for resisting an officer. All the parties to this transaction unite in saying that Coffey was held until the chief could “put a charge of suspicion against him,” which was subsequently changed to resisting an officer. He arrested him for committing a felony, under the mistake that he was either Devine or Stevens, and upon fully ascertaining that he had made a mistake he continues the arrest and locks him in prison to await a charge of “suspicion” and subsequently charges him with resisting an officer.

We think there was no place in the charge to the jury for such instructions. Had such a charge been given, it would have been erroneous, being a mere abstract statement and having no application to the facts in this case and not a correct statement of the law. We find no error in the charge of the court, and no errors in the record to the prejudice of the plaintiff in error, and the judgment is affirmed.

Donahue and McCarty, JJ., concur.


author: WILDMAN, J.

text:
    CONTRACTS — BAILMENTS.
    [Wood (6th) Circuit Court,
    May 4, 1906.]
    Haynes, Parker and Wildman, JJ.
    William A. Gills v. Simon George.
    ■CONTBACT BT WHICH Owner SELLS CATTLE TO FARMER AND AGREES TO REPURCHASE Same Cattle at Advanced Price Is Sale and not a Bailment Contract.
    A contract by the terms of which in the month of November A sells to B a certain number of cattle weighing an ascertained number of pounds, the price to be a stipulated price per pound, and by the terms of which also B sells back to A the same cattle at an increased price per pound, delivery back, to be made between May 15 and June 15 of the following year, when payment on the first sale shall be due, is a contract of sale and not one of bailment. Title passes on delivery to B in the first instance and does not revest in A until the ascertainment of the weight between the dates mentioned so as to determine the price. A loss by lightning before May 15 must fall on B and he is liable to A for the agreed purchase price after June 15.
    [Syllabus approved by the court.]
    J. 0. Troup, for plaintiff.
    Baldwin & Harrington, for defendant.
   WILDMAN, J.

(Orally.)

In the ease of Gills v. George a very peculiar question is presented for our consideration, and one with regard to which it is not strange that the minds of intelligent men may not be in unison.

The ease is presented upon the pleadings, an agreed statement of facts, and the ruling of the court below. It appears from the agreed statement that William A. Gills and Simon George, on November 3, 1904, entered into a transaction with regard to certain cattle. Gills was the owner of the cattle and they were delivered to the defendant, George., and a writing drawn between the parties, intended to be in duplicate. There is some slight variation in the phraseology, but they are substantially alike. The one before me reads as follows:

“November 3, 1904. W. A. Gills sold this day to Simon George, 22 cattle, weighing 20,259 lbs. at 3%c, to be paid for when taken back, 1905. Said George sells said cattle back to W. A. Gills, to be taken from May 15 to June 15, 1905, price 5 cents per lb. Said George is to shrink 3 per cent when taken up by W. A. Gills.
“(Signed) W. A. Gilds, SimoN GeoRGe.”

Each one of the duplicates, is signed by both parties. On May 14, 1905, the barn in which the cattle were, was struck by lightning and a large number of them were killed, and others' injured. The principal question here is, on which of the two parties the loss shall fall.

Let us analyze the first part of this contract to ascertain, if we may, to what extent it embodies an executed transaction between these parties; that is, a transaction executed on the day of the delivery of the cattle to George. Perhaps I ought to stop long enough, however, to say that there is some dispute as to whether this writing constitutes only one contract between the parties, or whether there are two separate and distinct contracts.

The defendant, George, insists that these cattle were left with him in bailment, to be cared for and fed, and finally returned at the period mentioned in the writing, and that the difference between the amount recited as the payment for the cattle by him and the price which he was to receive, was really intended as a compensation for the care which he was to give to the property. On the other hand, it is insisted that Gills actually sold the cattle to George; that that sale was completed, and that George thereby became liable to pay the purchase price of three and one-half cents per pound for the number of pounds SDeeified in the writing, to wit, 20,259 pounds.

We do not deem it very important to discuss the question as to-whether there is one contract or two. My own judgment is, that there is but one contract, and that there would be but one contract if there’ were two writings, in one of which the obligation of Gills was stated and in the other the obligation of George, for it was but one transaction, no matter whether embodied in one writing or two. But the principal question is not thereby solved.

To determine the effect of the consummated transaction of November 3, 1904, and the intention of the parties as to a transaction in 1904, let us see whether the phraseology of the writing may not be, to some extent, simplified. It is to be noted that a definite number of cattle is mentioned; a definite weight in pounds, to be paid for at a definite price per pound; which is as much as to say that William A. Gills has sold this day to Simon George twenty-two cattle for the agreed price of $709.06, because this is the amount ascertained by computation to be the sum which, under those circumstances, and if there were nothing else in this writing, would unquestionably be due from George to Gills as the purchase price of the stock.

We are inclined to think that the mention of the number of pounds and the mention of the price per pound'does not change this rule. If it had been indefinite, if there were something to be ascertained by weighing or counting, or otherwise, so that it was not susceptible of mere computation to determine how much George was to pay, then an entirely different question would arise; but so far as we have proceeded with this contract, there is a statement that a sale was made of certain property at a certain definite price, and then we reach the provision as to the manner and time of payment. The writing says “to be paid for when taken back by Gills. ’ ’ That is to say, that when, in the subsequent provision of the contract, in the other transaction provided for by its terms, the same stock should be surrendered by George and received by Gills, that then George is to pay the $709.06, subject, however, to another provision, and that is, that he is to receive something from Gills, and the contract proceeds to tell what that shall be. It shall be an amount, not fixed and certain, not already determined, but it is to be determined by the weight of the cattle at the time they are so surrendered by George to Gills at a specified price per pound, subject to a shrinkage of three per cent of the aggregate weight of the cattle at that time.

Our judgment, without dwelling longer upon the first branch of this contract, is that, by its terms, the parties having used the word “sold,” a sale was effected, and George became the owner of the cattle. It is well argued by counsel that the use of the word “sold” in the first branch of this contract, and the word “sells” in the second, is not conclusive of the question as to whether this was a sale or a bailment. We agree with counsel on this point, but we are not disposed to reject words used by the parties to a transaction, if they throw light upon what was intended. We think that to construe this contract as defendant would have us construe it, requires the rejection of the word “sold” in one case and “sells” in the other, because, if counsel for defendant is right, there was no sale in the first place, and no agreement to sell in the other. Contracts are to be construed without the rejection or change of the phraseology-used by the parties, if it can be done without prejudice to the sense apparent from the entire writing.

Now, it has occurred to us that, although Mr. G-ills was a dealer m -stock, and Mr. George was a farmer, having land adapted to the grazing or pasturage of cattle, and, although it was intended that the identical cattle should be returned at the time stated, by George to Gills, still the question may have arisen as to who should stand the loss in case there should be any injury to the cattle while in possession of George; as, for instance, in case of some accident to them; or whose should be the loss in case of disease or death of a part or the whole of the herd. It is not probable that these parties had in their thoughts such an extraordinary event as that which did occur —the striking of the barn or place where the cattle were, by lightning, and the destruction of a large number of them; but it is altogether likely that Mr. Gills, the owner of the .stock, when he entered into this deal with Mr. George, desired that Mr. George should be accountable for the proper care and treatment of the .stock to prevent diseases, and also for care in their preservation as against any sort of danger. He was willing to rely, to a certain extent, upon the personal interest of George to preserve the stock and increase their weight by the treatment which he should give to them, and to induce the care of this stock by reason of such personal interest, and additional price per pound is stipulated as a payment to George upon redelivery or sale of the stock to Gills! But provisions in contracts that they should-be held at the owner’s risk, or that one party or the other shall suffer loss in case of destruction by fire, are not very uncommon in various classes of contracts, and here, if this had been a bailment, it would have been not unnatural to have a clause inserted as to who should ■suffer the loss, in case of disease or injury. The parties sought to provide, upon the question as to who should suffer in ease of loss, by an ■entirely different provision. They did not say that the defendant, George, receives the stock to hold and care for during this period, and is to receive certain compensation, and during that time they are to be held at the risk of the one party or the other, as regards injuries or otherwise, from the elements; but instead of that they provide that the transaction shall be a sale, and George shall become the owner, thus guarding Gills from loss, for, during the time, he would have no opportunity to ■.see that the cattle were protected from injury.

The question remains as to whether, by the terms of this arrangement, George resold to Gills the title then passing, or whether it was an executory sale, that is, a contract by which, when certain things were done, the title to the stock should pass to Gills. But now two things were left to be done. One was the delivery of the stock and the other was the payment of a price, which, before its payment, was to be ascertained by the weight of the cattle. It is not said in so many words that the cattle were to be weighed, but manifestly, there was no other manner by which the price of the cattle could be ascertained. It is not stipulated which party should weigh them, but they were to be in the care and control of George, and, so far as the form of this contract is concerned, he was to be the vendor; he was to sell the property back to Gills and was to receive for the property five cents for every pound, subject to the shrinkage of the aggregate weight of 3 per cent.

A large number of cases have been cited to us bearing upon the question as to the effect of such conditions in sales. The question has often arisen as to when a sale is executory and when one becomes executed, when the title passes.

At the time of this fire, May 14, the day before the beginning of the period during which the weight of the cattle was to be ascertained, and the stock turned over to Mr. Gills, the weight of the stock had not been taken. George was to be permitted to subtract from the price which he had agreed to pay as the purchase price of the stock when he received them, the price which would be due to him from Gills upon the reselling. His right was somewhat in the nature of a recoupment or counterclaim, which must be ascertained in some way before it could be subtracted from the amount which was at that time owing, though not yet due, from lim to Gills.

In Parker v. Davis, 6 Circ. Dec. 684 (13 R. 631), decided by this court while Judges Haynes, Scribner and King were upon the bench, Judge Haynes announcing the opinion. This was a sale of a certain stock of goods and chattels, and the price was fixed by an inventory taken, not entirely by the vendor but by third persons selected by both vendor and vendee, and it was held that when the price of the stock had been fixed by the taking of the inventories, and not before, the title passed. On page 689, Judge Haynes says':

"Without going through the charge of the court, it is sufficient to say that the court in our judgment, properly took this view of the case; that under this arrangement and agreement there must have been not only the inventory taken of the goods — the amount ascertained — but that the notes and mortgages must have been given, and everything must have been done between the parties, before the title would pass, c >• before there would be any risk in regard to tbe loss on the part of Davis. ’ ’

This was a sale by Parker-to Davis. Now, it has been somewhat of a question sometimes as to whether delivery is not essential to the passing of the title. We think, however, that under the decisions in Ohio this is not the rule, although there is some language in the case of Ormsbee v. Machir, 20 Ohio St. 295, which might tend to favor it. On page 306, however, the court substantially adopts the rule asserted by Mr. Benjamin in his work on “sales,” viz:

‘ ‘ ‘ When there has been no manifestation of intention, the presumption of law is, that the contract is an actual sale, if the specific thing is agreed on, and it is ready for immediate delivery; but that the contract, is only executory when the goods have not been specified, or if, when, specified, something remains to be done to them by the vendor, either to put them in a deliverable shape, or to ascertain the price.’ ”

Now, it will be noted here, as in very many of the cases cited, that the-expression is used, “where something remains to be done by the vendor,” and it is- not stated in this writing whether the weighing was to be done by the vendor or by the vendee. Presumably it was to be done by the vendor, because he was to have the care and possession of the stock,! but in the case of Parker v. Davis, supra, the inventory was not to be taken by either vendor or vendee, but it was to be taken by them conjointly through the medium of persons chosen by them both, and still the court held that the title would not pass until the completion of the inventory. Judge White, who gave the opinion in Ormsbee v. Machir, supra, on page 306-7, says:

“But in the present case, the plaintiffs engaged to deliver the corn, at a future time at a given place, and it was only to be paid for as fast-as delivered at that place. The payment and the delivery were to be concurrent acts. If there was no delivery, nor what was equivalent to- . a delivery, there was to be no payment. This consideration, in our opinion, repels the idea .of the property’s passing to the purchaser at the date-of the contract.”

I say that that tends somewhat in the direction of the holding that delivery was essential to the passing of the title as well as the inventory or weighing, but I hardly think that is the rule as generally held by the authorities of this state, or elsewhere. There is a case, Glidden v. Taylor, 16 Ohio St. 509 [91 Am. Dec. 98], which seems to hold to the contrary, and without stopping to read through them I might cite for such reference as may be proper the case of Bellefontaine v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321] and Bonham v. Hamilton, 66 Ohio St. 82 [63 N. E. Rep. 597]. Our judgment is that it is impossible to ascertain by any evidence in the case — it is not apparent from the agreed statement of facts — and in the nature of things it can hardly be ascertained now, what these cattle weighed on May 14. The ascertainment indeed was not to be made as of May 14; it was to be taken at some time between May 15 and June 15. It was during that period that the price was to be determined by the weight of the cattle, and nineteen of the cattle were destroyed upon the day before the beginning of the period. The price which was to be paid by George to Gills had already been settled as conclusively as if he had given a promissory note for the amount. In the first part of this contract we have words almost equivalent to a promissory note, except that the time of payment is not quite certain. The time of payment was to be between certain dates, and it was to be .at the time of the redelivery of the cattle to Gills, but there is no other condition annexed to the contract of George that he will pay the $709.06.

Now he would be entitled to apply as against the price which he was -to pay, whatever might become due from Gills to him upon return of the cattle, but he never in fact returns them. He does not surrender them to Gills; they are not taken back because he is not ready to deliver them. It may be no fault of his; he may have given them the best of care; it may have been an event which he could not help. One of the parties must suffer, and our judgment is that under the rules of law which pertain to a contract such as this, and a transaction such as has been disclosed to us, the loss must fall upon George — He had become the owner of the stock.

It does not answer this proposition to say that he had no power of «disposition. We think -that he had, subject to the right of Gills to sue bim for breach of the contract on his part to deliver the stock at the period mentioned. We think that they might have been subject to levy upon a claim against George during this time; that the title was in substantially the state in which it would have been if the herd had belonged to George in the first instance, and he had made the kind of a contract which he makes in the second part of this agreement with Gills. He was the legal owner of the stock. He made a contract that'at a certain time he would sell so many cattle, for a price to be ascertained by weight, to Gills, and before that time arrived, and while the stock still remained his property, this unfortunate accident occurred, and we see no way «out of the difficulty for him except to suffer the loss, which naturally falls upon him, under all the circumstances. We think that the judgment of the court helow, which adopted the other version of this contract, and treated this transaction as a bailment, should be reversed, and under the agreed statement of facts and the pleadings, that a judgment, should be entered in this court accordingly. It is, therefore, entered for the plaintiff, Gills, in the sum of $709.06 and interest.

Haynes and Parker. JJ., concur.


author: GIFFEN, J.

text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    June 2, 1906.]
    Jelke, Swing and Giffen, JJ.
    Estella R. Hieatt v. Susan W. Simpson et al.
    Doubtful Intention or Testatoe Construed most Nearly According to In-TENTION AND PURPOSE OF LAW OF INTESTATE ESTATES.
    A testator in his will provided that his homestead farm should go to his wife until his son, William, should become of age and then should go to William for life. After making other bequests, he provided that the residuum of his estate should be divided share and share alike among his . children for life, and, on the death of any child leaving a child or children, such share of such child of the testator should go to his child or children in fee. No express disposition was made of the fee of the homestead farm: Held, that the shares going in fee to the grandchildren of the testator referred to the shares of the children under the residuary clause and an only child of William took not the whole of the homestead farm in fee but his father’s proportion only under the residuary clause, this disposition more .nearly approaching the disposition which the law would make in the absence of a will. .
    [Syllabus approved by the court.]
    W. T. Porter, for plaintiff.
    Worthington & Strong, for defendants.
   GIFFEN, J.

This cause involves the construction of the will of William Hieatt and particularly as it affects the title to his homestead farm containing-167.76 acres. At the time of his decease, the testator owned a large-amount of personal and real property other than the homestead farm. The testator died in April, 1866, his widow, four daughters and one son. surviving him. The son became of age May 22, 1867, and died April 27, 1904, leaving the plaintiff, his only child, surviving him.

In the first paragraph of the will, the testator expresses an intention to dispose of all of his property. By item one he devises to his wife, in addition to other property, the homestead farm, until his son,, William, attains his majority, if she shall so long continue his widow and unmarried. And in case of the death of the son before his majority, then for and during her natural life. By item two he devises the homestead farm to his son, William, for life, in the event that he lives to be of age. By item three be bequeaths to each of his daughters the sum of $3,000 to be paid at their majority, or as soon thereafter as his wife may think best.

Item five which must determine the controversy is as follows:

“It is my will and I hereby devise and bequeath that all the rest and residue of my said estate, npt hereinbefore disposed of and remaining after the foregoing devises and bequests shall have been satisfied, be divided equally among all my children share and share alike to have and to hold to them and each of them for his or her natural life and no' longer. And after the death of any of my children his or her said share shall go to, and become the property of, his or her child or children in fee simple and forever, but if any of my said children shall dié without a child or children living at his or her death, then the share hereby devised to any such of my children so dying, shall fall into, and become a part of, the residuum of my said estate and be devised and distributed, as though it had never come to the said child so dying, among my other children for life and afterwards to their issue forever as hereinbefore just directed, as though the devise for life to any such of my children so dying had not been made. ’ ’

In the other items of the will, no disposition was made of the fee of the farm remaining after the life estate to his wife or his son, and hence the words “rest and residue of my estate” as used in item five must include the fee to the farm unless the devise of a one-fifth share for life to each of his children including his son, William, is repugnant to item second, which gives to his son, William, a life estate in the whole on his attaining his majority. This apparent incongruity presents the only real difficulty in the case.

Plaintiff claims that the farm was already disposed of for life, and as this clause only purports to give a life interest, it refers to property other than the farm, and that William having a life estate in the whole farm, the plaintiff’s only child took the fee under the second paragraph of item five, while on the other hand the defendants contend that the “residue in my said estate” includes the fee of the farm, and that each child took a life estate in the one-fifth thereof, and the plaintiff one-fifth in fee simple.

There are several contingencies whereby William may have enjoyed a life estate in one-fifth and not in the whole. Had the widow of the testator remarried before the son, William, attained his majority, and William subsequent to that event and before attaining his majority, died, then he would have come into the enjoyment of a life estate in one-fifth of the farm without in any way conflicting with his estate for life in the whole at his majority. Again, he may have forfeited his estate for life in the whole by failure to pay the taxes, or the estate may have terminated otherwise before his death. In either event, he would take a life estate in the one-fifth under item five.

In aid of this construction of paragraph one of item five, we think the words “his or her said share” and “the share hereby devised,” as used in paragraph two naturally refer to that share devised in paragraph one.

This construction is also in harmony with the apparent intention of the testator to approximate an equal division of his property among his children for life with remainder to his grandchildren, per stirpes, and whatever doubt there may be as to the real intention should be resolved in favor of that which comes closer to the disposition which the law would make in the absence of a will.

Our conclusion therefore is, that the plaintiff took under the will an estate in fee in one-fifth of the farm and not the whole.

The demurrers to the answers will be overruled and a decree entered accordingly.

Jelke and Swing, JJ., concur.


author: HENRY, J.

text:
    FRATERNAL ORDERS — TRUSTS AND TRUSTEES.
    [Franklin (2nd) Circuit Court,
    1906.]
    Marvin, Henry and GifCen, JJ.
    New England Lodge No. 4, F. & A. M. et al. v. Rufus M. Weaver et al.
    1. Deed Conveying Dry Trust.
    Where a deed to a public officer in trust for certain unincorporated societies names the beneficiaries and employs words of perpetuity to convey the fee, but does not invest the trustee with any duty other than that of being the mere repository of the legal title, it is competent for such trustee to execute the trust at the instance of the cestuis que trustent by conveying such property to them or their nominee.
    2. Secession of Locai, Bodies from State Organization does not Vest Trust Property in Seceders.
    Where a grantor conveyed certain land to the governor of this state, in trust for the local organization of certain fraternal orders, the fact that such local bodies have seceded from the state organization which had chartered them, will deprive them of the right to enjoy such property, where their charters have been reissued to other bodies since the secession.
    [Syllabus approved by the court.]
    Appeal from Franklin common pleas court.
    T. J. Duncan, for plaintiffs.
    O. W. Aldrich and Allen Andrews, for defendants.
   HENRY, J.

This was a case involving a controversy between two organizations, ■each claiming to be the cestm que trust of land in the town of Worthing-ton, Franklin county, Ohio, which was conveyed in 1824 by one John Snow to Jeremiah Morrow, governor of the state of Ohio, and his suc•cessors in office forever, “for the use and benefit of New England Lodge and Horeb Royal Arch Chapter, Free and Accepted Masons, established in said town of Worthington.” This lodge and chapter were •established respectively in 1814 and 1816 by charters from the grand lodge and grand chapter of the state of Ohio, and they were incorporated under the laws of Ohio in 1887 and 1888. In 1891 the local bodies in Worthington withdrew from their respective state organizations aforesaid, by reason of requirements imposed by the latter upon them which they deemed to be unmasonic and a departure from the ■ancient landmarks of the order. The state organizations thereupon •demanded a surrender of their masonic charters, and this being refused, duplicate or substitute charters were issued to a small minority of the local bodies who had either not participated or not persisted in the revolt. The seceders remained in possession of the property in ■dispute; maintaining substantially their accustomed names, practices and corporate organizations, but no longer in subordination to the grand lodge and grand chapter of the state of Ohio.

In 1899, the' local bodies to which the duplicate charters had been issued, procured from Asa S. Bushnell, then governor of the state of Ohio, a deed of conveyance of the property in dispute to one Weaver •as trustee for their local lodge, — their local chapter having waived its rights thereto. Thereupon the seceders, being still in possession and claiming to be the true beneficiaries of the original trust, brought this •action to enjoin the record of said deed, to ‘have the same declared null •and void, and for general relief. The present governor of the state of ■Ohio, the recorder and auditor of Franklin county and the grantee of Governor Bushnell are made parties defendant.

The plaintiffs contend that the sole issue to be decided here is as to the validity of the deed from Governor Bushnell to Weaver. The defendants contend that a preliminary question is, whether or not the plaintiffs are the beneficiaries of the original trust, and if not, whether they have any standing in court to complain of the alleged invalidity of said deed.

On the part of the plaintiffs it is urged that this action is properly brought within the purview of Rev. Stat. 5779 (Lan. 9316) of Ohio, which provides that, “An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such'adverse estate or interest.” They further urge that the terms of the trust, as d.efined in the deed to Governor Morrow, are such as to devote the land in controversy to the uses thereby defined, in perpetuity, and that Governor Bushnell, therefore, had no right to alien the property to any person or for any purpose whatsoever.

Our examination of the deed to Governor Morrow and of the authorities cited to us convinces us that the original trust was nothing else than a simple or dry trust, created to obviate the difficulty of granting the land directly to two unincorporated societies for their joint use. The deed names the beneficiaries and employs words of perpetuity to convey the fee, but it does not invest the trustee with any duty other than that of being the mere repository of the legal title. It was, therefore, perfectly competent for the trustee to execute the trust at the instance of the beneficiaries by conveying it to them or their nominee.

We are, therefore, compelled, even on the plaintiffs’ theory of their case, to inquire next whether the alleged beneficiaries thus recognized by Governor Bushnell were the cestuis que trustent of the original deed to Governor Morrow. It is volear that Snow, the original grantor, sought to name as beneficiaries the local bodies thep established in Worthington in subordination to the state bodies then existing. It is equally clear that the plaintiffs have seceded from that relationship. They may have had the best of reasons for so doing, and their claims as to the action of the state bodies being a departure from the ancient landmarks may be perfectly true. But those are questions which they must work out through the organizations themselves. They were entitled to invoke the procedure afforded by those organizations for the relief of dissatisfied adherents. It is not complained that such procedure was not afforded, nor that they were denied the right to invoke-it. And we must, therefore, hold that the plaintiffs, having withdrawn from the organizations contemplated by the original deed of trust, are not entitled to the relief for which they pray.

Petition dismissed.

Marvin and Giffen, JJ., concur.