text:
    REWARD FOR ARREST OF CRIMINAL.
    [Circuit Court of Sandusky County. ]
    Isaac Brown v. Commissioners of Sandusky County.
    Decided, January Term, 1903.

      Beward — For Apprehension of One Accused of Grime — Offered Under Section 918 — Not Payable to an Officer of the Laiv, When.

    It is contrary to public policy and the law of this state, and generally of other states, that an officer be paid a reward for the performance of an act which his duty as such officer requires him to perform; and where a sheriff of a sister state arrests a fugitive from justice at the request of the sheriff of the county in this state where the crime was committed, and performs no other duty than to go to the place indicated and make the arrest and hold the accused until the arrival of an officer from this state to whom the accused is surrendered, such sheriff does no more than is strictly within the line of his duty, and is not entitled to any further compensation that the fees allowed by law, and can not recover from the. commissioners of the county a reward offered by them under Section 918 for the arrest and conviction of such accused person.
    Hull, J.; Haynes, J., and Parker, J., concur.
   The plaintiff in error was also the plaintiff below. He was the sheriff of Kittitas county, in the state of Washington, and brought suit for $1,000, which he claimed he was entitled to as a reward offered by the commissioners of Sandusky county for the arrest of a fugitive from justice. The case was tried to the court and jury-and a verdict returned in favor of the defendants and judgment entered thereon. It is sought to reverse this judgment in this proceeding in error. The claim of the defendants is that Brown is not entitled to the reward, because whatever he did, he did as an officer of the law, as sheriff of the county of Kittitas, Washington; that he did nothing his duty did not require him to do, and that, therefore, he can not have nor claim any other compensation than his salary, or fees allowed him by law for such services. It is claimed by the plaintiff that the reward which was offered by the commissioners of Sandusky county, under Section 918, Revised Statutes, was a general one, open to any one who might undertake to discover and arrest the fugitive, and if he succeeded, that he was entitled to the reward, although he may have been an officer of the law.

It appears that in 1896 Jacob Hess was murdered in San-dusky county by Louis Billow; that he fled from the county and state, and on December 23, 1896, the commissioners of the county passed this resolution:

“Fremont, Ohio, December 23, 1896.
“Resolved, that we, the commissioners of Sandusky county, Ohio, offer a reward of one thousand dollars for the arrest and conviction of Louis Billow, under indictment for murder of Jacob Hess. All former offers of reward for said Louis Billow are hereby revoked.
“ (Signed): Henry Harmon,
“Christian Kiser,
“Elisha Hoee,
‘ ‘ Gounty Commissioners. ’ ’

This action was taken under Section 918, Revised Statutes, which provides:

“The county commissioners may, when they deem the same expedient, offer such rewards as in their judgment the nature of the case requires, for the detection or apprehension of any person charged with or convicted of a felony, and pay the same on the conviction of such person, together with all other necessary expenses, not otherwise provided for by law, incurred in making such detection or apprehension, out of the county treasury, and said commissioners may, when they deem the same expedient on the collection of a recognizance given and forfeited by such person, pay the reward so offered, or any part thereof, together with all other necessary expenses, and not otherwise provided for by law, incurred in making such detection or apprehension. ’ ’

The resolution, as has been stated, was passed in December, 1896. Nearly three years went by, -and in July, 1899, Billow had not been detected or arrested. About that time information came to the sheriff of Sandusky county that he was in Kittitas county, in the state of Washington; and thereupon a letter was sent by the sheriff of Sandusky county to the sheriff of Kittitas county, adressing him as sheriff, not by name, and notifying him that Billow, charged with murder in the first degree, was in his county, and requesting him to arrest Billow, and hold him until an officer came from Sandusky county to bring him back to the state of Ohio. The letter was not produced at the trial, but according to the testimony of Deputy Sheriff Harris, of Sandusky county, this letter notified Brown that Billow was at a place called Easton, in his county. The sheriff is not clear that the letter notified him in what part of the county Billow was. In the letter of the sheriff was enclosed one of the cards which had been used by the officers of Sandusky county, in sending out notices of the reward. One one side of the card was a picture of Billow and on the other side were the words:

“Arrest for murder, Louis Billow. Wanted in Fremont, Ohio; $1,200 reward for his arrest and surrender. Thirty years old, five feet eight inches high, sandy complexion. Weight 155 pounds. Good picture on the other side.
“L. C. McGormley,
“Sheriff Sandusky County, Fremont, Ohio.”

Plaintiff, on receiving this letter and card, went to Easton in his county and found Billow in a saloon; arrested him and. brought him to the county jail, and immediately notified the sheriff of Sandusky county that he had arrested the man and would hold him, or words to that effect; and the authorities of Sandusky county being satisfied that the man arrested was Billow, the sheriff sent his deputy, Harris, to the state of Washington to bring Billow back to Ohio. He took with him the necessary papers from the state of Ohio for the extradition of Billow. Pie found Billow in the custody of the plaintiff, as sheriff, and, after the proper proceedings had been had, with the deputy sheriff of Kittitas county, Washington, as his assistant, Harris brought Billow back to Fremont, and he was afterwards tried and convicted of murder in the first degree and, upon a recommendation of mercy by the jury, sentenced to the penitentiary for life. The deputy sheriff of Kittitas county, who came back with Harris, was paid his expenses and for his time in coming to Fremont. Afterwards he returned to Washington and came back to Fremont again to testify on the trial of the case and was paid for his time and expenses at that time by the county, these sums amounting in all to several hundred dollars. But the commissioners refused to pay Brown the $1,000 reward, or any part of it, and he brought his action to recover that amount.

It is claimed on the one hand, as I have said, that this reward as offered by the county commissioners, and as authorized to be offered by the statute, was open to any one who desired to avail himself of it, whatever official position he held. It is said there are no exceptions in the statute, but that the commissioners were authorized to offer such reward to any one, and that there are no exceptions in the resolution, and that, therefore, the plaintiff is entitled to avail himself of it and to recover.

On the other hand it is claimed by the defendants in error that it is contrary to law and to public policy to permit an officer to have a reward for performing such a service as this.

On the trial of the case certain statutes of the state of Washington were introduced in evidence. The testimony of Brown, who was not present at the trial, was offered in deposition. Deputy Sheriff Harris was called, and some other witnesses. The plaintiff did not testify in his deposition whether or not he had a warrant when he arrested Billow. But Harris testified that Brown told him that he did have a warrant; that he procured one before a justice of the peace, and with that in his hands made the arrest, and this was not denied. The court, in substance, charged the jury that if Brown performed these services in the arrest of Billow as an individual, he was entitled to recover, but that if he performed them as sheriff, and did only what he was required by law to do, he could not recover the reward, being entitled to no compensation for such services except his fees and salary. As the jury found against the plaintiff, we need not determine whether the law would permit him to claim the reward on the ground that he was acting as an individual, and not as an officer. But it is sufficient to say that we hold that under the testimony the jury were warranted in finding that the plaintiff was acting officially as sheriff, and that he procured a warrant, and acted under it and pursuant to it when he made the arrest.

In this state the law seems to be well settled that an officer, for the performance of services which it is his duty as such officer to perform, is not entitled to a reward; and that is’ held in most states. It is said by the court to be against public policy to permit an officer to accept any reward or compensation for such services, other than that given him by law; that it would lead to officers remaining idle and inactive, in the performance of their duties in matters of this kind until a reward was offered, and to other evils.

In a ease decided by the Superior Court of Cincinnati, at General Term, in 1856, this question arose something as it does in this ease, except that the reward in that case was offered by private citizens, and not by the public. The ease is Rea v. Smith, 2 Han., 193. The plaintiff in the case was a sheriff of Indiana and had arrested a fugitive from justice from the state of Kentucky, and brought suit for a reward that was offered by private individuals. The opinion of the court was delivered by Judge Storer, the other judges being Spencer and Gholson. The court say in the syllabus:

“1. A public officer, whose duty it is to arrest all persons charged with or suspected of the commission of crime, can not claim any other or further remuneration for his services than the fees allowed by law.
“2. Whenever an officer makes an arrest, he is supposed to be acting in his official capacity; and where he performs the duty of sheriff, believing he was acting within the authority derived from law, the court will not allow him to change his relation and assume that of a private individual.”

The court, in the opinion, say on pages 399, 400:

“Can a public officer, whose duty it is to arrest all persons charged with or suspected of the commission of crime, claim any other or further remuneration for his services than the fees allowed by law?
“Our own Supreme Court, in Gilmore v. Lewis, 12 Ohio, 281, have authoritatively settled the question, and we would have been content to have referred only to the well considered opinion of Judge Wood, without any other examination of the law, did we not feel it to be our duty, when the obligations of ministerial officers, we fear, are not always clearly understood, and in many cases are but slightly regarded, to reaffirm what we believe to be sound law and equally sound morality, and thus vindicate the principles by which official conduct should be regulated, and the oppression, under color of law, redressed.
“It is contended, however, that the plaintiff in error, though holding the office of sheriff when he made the arrest, acted as a private person; that it was not his duty to apprehend a fugitive from the justice of another state, and can not therefore be subjected to the rule we have indicated.
“On referring to the Revised Statutes of Indiana, Vol. 2, pages 10, 11, we find the sheriff is declared to be a ‘conservator of the peace, and is bound to execute all process directed to him by legal authority, and pursue and commit to the jail of the county all felons. ’ The power thus conferred is certainly broad enough to authorize the apprehension of murderers or felons, whether the offense was committed in Indiana or Kentucky; and it is difficult for us to perceive how the duty could be denied by the officer in every proper ease, whether the accused person was a fugitive or a domestic felon. An admission of the contrary doctrine would change the character of the sheriff front that of a high public functionary, to whom the largest powers have been confided for the preservation of the public peace and the protection of private right, to the passive condition of an agent, acting only as he may be directed by the magistrate or the court. We can not so regard the question. Whenever an officer has made an arrest he is presumed to have acted in his official character; and where, as in the present case, he performs the duty of a sheriff, believing he was acting within the authority he derived from the law, we can not permit him to change his relation as an officer, and assume that of a private individual. He might well have arrested without warrant, upon probable cause of suspicion, if the necessity of the case required it, and he would have been protected if the accused should afterward have been discharged.”

The case of Gilmore v. Lewis, 12 Ohio, 281, is referred to by Judge Storer. The syllabus in that case says:

“A reward offered for the apprehension of a thief, and money, can not be claimed by a constable who arrests the thief by virtue of a warrant delivered to him for that purpose. ’ ’

The court say in the opinion on page 286:

“But public officers, on whom the law easts this duty, from whom it requires exertion, and to whom it affords adequate compensation, occupy different ground.”

And on page 287, referring to tbe claims of counsel for tbe constable:

“But it will be seen that his view of the ease can by no means be sustained. It is not the case made by the declaration. The promise of the reward, as laid, is for the apprehension of the thief and money; and this arrest of the thief, and seizure of the money, are averred to have been made by the plaintiff by virtue of a warrant delivered to him as constable. The promise is therefore illegal and void. True, it is stated the plaintiff searched out the thief, and ascertained where the money was, and made oath on which the warrant issued; but for this service no promise of reward is laid. It is for the apprehension of the thief, and seizure of the money; and as this was done in virtue of his office, the plaintiff must be content with his legal fees, and the reflection that he has done the state some service.”

The question is discussed at some length in Throop on Public Officers, Section 485. The author says:

“ It is evident from what has been heretofore said, that where a reward has been offered by the public authorities or by an individual, for a service which is within the line of the officer’s duty, he can not claim the reward, although he may have performed the service.”

A case is cited from the Supreme Court of the United States, which seems to be contrary to these authorities and to the weight of authority as laid down by the courts of the different states (United States v. Matthews, 173 U. S., 381). By act of Congress the attorney-general was authorized to offer a reward. The syllabus is short, I will read it:

“The authority conferred upon the attorney-general by the act of March 3, 1891, e. 542, 26 Stat., 985, to offer rewards for' the detection and prosecution of crimes against the United States, preliminary to the indictment, empowered him to authorize the marshal of the northern district of Florida to offer a reward for the arrest and delivery of a person accused of the committal of a crime against the United States in that district, the reward to be paid upon conviction; and a deputy marshal, who had complied with all the conditions of the offer and of the statute, was entitled to receive the amount of the reward offered.”

A majority of the court in this case held that the deputy marshal, having performed the service, was entitled to receive the reward. Two of the justices, Harlan and Peekham, dissented' generally from the opinion of the majority “upon the ground, as stated on page 389, in the report,”, that—

“The offering or payment of a reward to a public officer, for the performance of what was at all events nothing more than his official duty, was against public policy, and the act of Congress authorizing the attorney-general to offer and pay rewards, did'not include or authorize the offer or payment of any reward to a public officer under such circumstances. ’ ’

Justice Brown concurred in the judgment, upon the ground, as stated by him, that the deputy marshal was not paid directly by the government of the United States, but was paid by the marshal himself, and therefore did not come within the general rule prohibiting an officer from receiving such rewrard.

It seems to us that the law of this state, and the law generally in other states, is against the proposition that an officer may receive a reward for the performance of an act that his duty as such officer requires him to perform. When this statute, Section 918, Revised Statutes, was passed by the Legislature, this was the general law of the land, as it is now. And when this resolution was adopted by the board of county commissioners of Sandusky county, there was impliedly excepted from its provisions officers who did nothing more than perform the duties of their offices.

The plaintiff had no knowledge that Billow was within his county or state until he was notified by the sheriff of Sandusky county. He had done nothing; had expended no time nor money in the work of detecting or apprehending Billow pursuant to this reward, and when' he was advised by the sheriff of San-dusky county that Billow was within his county, and, according to the witness, Harris, notified at what point he would be found in his county, he simply,' as sheriff of Kittitas county, Washington, went where Billow was and arrested him, and thereupon notified the authorities of Sandusky county that he had arrested Billow, and held him in custody until the officer came from Ohio to take him back to Sandusky county. Plaintiff stands no differently, it seems to us, than if the sheriff of Sandusky county, instead of writing to him, had sent an officer to Kittitas county, or had gone himself and verbally notified Sheriff Brown that Billow was at Easton in that county, and requested him to arrest him, as the sheriff of that county, whose duty it was to arrest all violators of the law, and to execute any warrant that was lawfully placed in his hands, and if pursuant to such request he had gone before a justice of the peace and had sworn out a warrant, and with that in his hand had arrested Billow and turned him over to the sheriff of Sandusky county. It would be contrary to the law of this state, as we understand it, and contrary to public policy, to hold that a sheriff for performing such a service might recover a reward of $1,000 or any other sum. Brown acted entirely as an executive officer, strictly within the line of his duty as such officer. He performed no duty as a detective in ferreting out the criminal, or in ascertaining his whereabouts.

Kinney, O’Farrell é RimelspacK, for plaintiff in error.

.George H. Withey, for defendants in error.

We are of the opinion that the judgment of the court of common pleas was right, and, therefore, it will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    REFUSAL TO STOP ELECTRIC CARS AT DESIGNATED STOPPING PLACES.
    [Circuit Court of Cuyahoga County.]
    John Lockyear v. William Covert, Marshal of the Village of Euclid.
    Decided, November 30, 1903.

      Electric Gars — Power of Municipalities Under the Code — to Compel Gars to Stop on Signal.

      A municipality is empowered by paragraph 9 Section VII of the Municipal Code to prescribe by ordinance that it shall be unlawful for those in charge of an electric car to fail or refuse to stop such car at any regular stopping place, when signalled so to do by persons desiring to board said car or to alight therefrom.

      Marvin, J.; Hale, J., and Winch, J., concur.
   The plaintiff in this ease files his petition setting out that he is now in the custody of the defendant as a prisoner; that the defendant holds him under a warrant of arrest issued by the mayor of the village of Euclid.

The offense charged against the plaintiff in the affidavit upon which the warrant was issued is a violation of Section 2 of an ordinance of said village passed September 28, 1903, which section reads:

“Section 2. It shall be unlawful for any person or persons in charge of any electric street car or cars running upon any street or avenue within the limits of said village of Euclid, to fail or refuse to stop such car or ears at any regular stopping place or places when signalled so to do by persons desiring to board said car or ears, or to alight therefrom.”

The facts alleged in the affidavit are:

“That on or about the 9th day of November, A. D. 1903, at the village of Euclid, in said county and state (Cuyahoga county, Ohio), one John Lockyear, in the capacity of conductor, was in charge of the electric car then running within the limits of said village upon one of the public streets thereof, to-wit, Euclid avenue, so called; that at said time and place said John Lockyear was signalled to stop said ear at a regular stopping place in said village, to-wit, stop No. 10, by said S. C. White, who desired to board said car, and that he, said Lockyear, then and there failed and refused to stop said car when signalled so to do by said White.”

The allegation of the petition is that the section of the ordinance hereinbefore quoted is absolutely void for the want of authority on the part of said village council to pass the same.

When the case was presented to us in open court, it was stated by counsel for the plaintiff that the only purpose for the bringing of the action was to have an adjudication by this court upon the question of the authority of the Council to pass this second section of the ordinance. It was there stated that no question was made as to the formalities necessary to make the ordinance valid nor as to the sufficiency of the affidavit or warrant.

Somewhat to our surprise a brief was filed by the plaintiff since the hearing of the case in open court, discussing other questions, but we regard them as wholly immaterial in determining the case now before us. We think a determination of the one question, which it is said was the only one sought to be made, is a complete determination of the rights of the plaintiff in this proceeding.

The only question necessary to consider in the case is whether under the statutes of the state, the council had authority to pass Section 2 of the ordinance under which the plaintiff was arrested.

Paragraph 9 of Section 7 of the Municipal Code, which is the section conferring powers upon municipalities, provides that the council shall have power—

“To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery-stable purposes; and to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways, and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway ears within the corporation. ’ ’

It was conceded upon the hearing but that for this last clause “to regulate the speed of interurban, traction and street railway ears within the corporation” the council would have authority, under the earlier part of the section, to pass the ordinance in question. Ravenna v. Penna. Co., 45 O. S., 118.

But it is said that this last clause clearly indicates that the authority is not given because the Legislature in express terms by this clause provides that the council may regulate the speed of these cars, and that this clause is entirely surplusage, if, by the earlier part of the section, the authority to require cars to stop at any fixed place or places is given. This contention is not sound. But for this last clause it might very well be claimed that the council would have no authority to fix a maximum rate of speed for cars passing through the municipality upon railroads constructed upon their own private right of way, and for the purpose of giving such authority this clause may well have been added.

Squire, Sanders & Dempsey, for plaintiff.

Kaiser & Gannon, for defendant.

We hold that the municipality was authorized by the statute hereinbefore quoted to pass the section of the ordinance under consideration. The petition of the plaintiff is, therefore, dismissed, and he is remanded to the custody of the defendant.


text:
    BUILDING ASSOCIATIONS.
    [Circuit Court of Hamilton County.]
    Martha N. Miller v. The Highland Avenue Loan & Building Company of Cincinnati, Ohio.
    Decided, January, 1904.

      Foreclosure — Of a Building Association Mortgage — Form of Pleading— Permitting the Talcing of Judgment for the Amount Which Has Become Due at the Time the Judgment is Entered.

    In a suit by a building association to foreclose a mortgage where the prayer includes “that an account be taken,” it is not necessary that a supplemental petition be filed in order that the judgment may be rendered for the amount due at the time the decree is entered, rather than the amount due at the time the petition was filed.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The original action in this ease was commenced to foreclose two mortgages to the defendant loan and building company, the defeasance clause of each providing that if the mortgagor shall' ■pay or cause to be paid to said company the dues, interest, premium and fines, the mortgage to be null and void.

The petition alleged that there was due on the first mortgage the sum of $1,569.03, and upon the second mortgage the sum of $1,998.70, making a total of $3,567.73. The amount found due upon the mortgage was $4,195. The proceeds of sale on the mortgaged premises amounted to $3,740; after paying the taxes and costs, there remained of the proceeds' $3,206, which was applied on the indebtedness, leaving a balance due of $940, for which judgment was rendered against the defendant below, Martha N. Miller.

Chas. B. Wilby, for plaintiff in error.

Harry B. Weber, contra.

It is claimed the court erred in rendering this judgment for the reason that it is in excess of the amount claimed to be due in the petition, and that no supplemental petition was filed setting up the additional amount.

It is not contended that the court could not have rendered the personal judgment for the amount claimed to be due under the prayer of the petition, which is as follows:

“"Wherefore, plaintiff prays that the equity of redemption of the said defendant in said premises set forth in the first and second causes of action herein be foreclosed, that an account be taken, and that it may have judgment against said defendant, Martha N. Miller, for the amounts found due on its first and second causes of action respectively; that said premises therein described may be sold free of all claim of the defendants herein, and that the proceeds of said sale may be applied to the payment of the amounts due plaintiff, and for such other and further relief as is proper.”

But the claim is that there was no foundation in the petition for the judgment rendered. The loan and building company did not ask judgment for the amount due at the time of the filing of the petition, but prayed judgment for such amount as the court found to be due, and if the allegations of the petition authorized the court to find the amount due at the time of filing the petition, the same allegations as to interest, premium and fines, authorized the court to find the amount that had become due subsequent to the filing of the petition. And this is the meaning of the prayer that “an account may be taken” — that is, that the court ascertain from the facts stated in the petition the amount due at the time of the rendition of the judgment. It was therefore unnecessary to file a supplementary petition, no new facts had arisen, and every fact necessary to determine the amount that became due after the filing of the petition was . averred. If authority was necessary, we think the case comes clearly within the case of McHenry v. The Batavia Building & Loan Company, 17th Circuit Court, 206.

Judgment affirmed.


text:
    TERMINATION OF POLICY OF BENEFICIAL INSURANCE.
    [Circuit Court of Lucas County.]
    Barbara Foxhever v. The Order of the Red Cross et al.
    Decided, October 26, 1901.

      Insurance — In a Beneficial Order — Cancellation of the Policy in an Informal Way — Acquiescence of the Insured Therein — Bight to Change Beneficiary Malees Policy a Part of the Insured’s Estate— Members of the Order Not Within Section 5242 Barring Testimony of Adverse Parties — But Widow Within That Class.

    1. Section 5242, providing that a party shall not be permitted to testify where the adverse party claims as heir, grantee, etc., renders incompetent the testimony of a widow who has sued a beneficial order upon a policy of insurance upon the life of her husband; but members of the order are not debarred by this statute from testifying as to matters occurring in the lodge room when the decedent was present.
    2. Where the right exists in one insured in a beneficial order to change the beneficiary under his policy, such policy up to the time of , his death constitutes a part of his estate. It follows therefore that admissions or declarations made by the insured and affecting the policy may be offered in evidence against the beneficiary in an action on the policy.
    3. Failure by a beneficial order to observe the formalities perscribed by its constitution as to the suspension of members and cancellation of their policies, renders such action illegal; but a member who ceases after such action to pay his dues, or to attend the meetings of the order, or to recognize himself in any way as a member thereof, will be held as a matter of law to have acquiesced in the action taken.
    4. In an action brought by the widow on a policy terminated in an irregular way, but in the cancellation of which the husband must be held to have acquiesced, it is not error to direct a verdict for the defendant order.
    Haynes, J.; Parker, J., and Hull, J., concur.
   A petition in error is filed bere for the purpose of reversing the judgment of the court of common pleas in an action that was brought against the Order of the Red Cross et al by the plaintiff for a death loss.

George Foxhever, on September .3,1888, had received from this order a certificate for the payment of $1,000 upon his death, he directing that it should be paid to his wife. He continued to be a member of the order down to 1894, when some events occurred which, it is claimed, changed the conditions of affairs between him and the defendant, and by which he ceased to be a member of the order. Some eight or nine months after that he died, and subsequently his wife brought suit against this order for the recovery of this sum. Upon the trial of the case in the court of the common pleas, at the close of the testimony, the trial judge directed a verdict for the defendant company. In doing so he followed, as he states, the rulings of this court iii the ease of Dimmer v. Catholic Knights, 22 C. C., 366.

The testimony shows that Foxhever remained a member of the order until November, 1894. At that time it is claimed on behalf of the order that they had discovered that he had made a misrepresentation in regard to his age at the time he became a member of the order, he having stated at that time to be forty-nine years, when in fact, as the order claimed, he was fifty-nine years of age, the rules and regulations of the order prohibiting the taking of any person as a member of the order over fifty-one years of age. Upon the discovery of this fact, Mr. Foxhever being present at a meeting of the order (whether sent for or not does not clearly appear, but the testimony shows that he was present) his attention was called to it, and apparently for the purpose of taking some steps against him leading to his expulsion. It was stated to him that they desired to inquire into it, and he replied, according to the testimony of sundry witnesses, varying some in form or phraseology, but agreeing substantially in the main points, that he was “no chicken,” and that they “might go to hell.” They all agree on the last clause. That seemed to impress them very forcibly. And he turned and walked out of the room and never appeared there again.

Thereupon a resolution was offered and seconded and carried, and evidence was taken, upon which the order unanimously resolved to expel him for the reason that he had misled them and misrepresented his age at the time he became a member of the order. They directed the scribe, I think they call him, to notify Foxhever of the resolution that they had passed after he had left the room, and he accordingly addressed to him a postal card notice to his house.

Foxhever lived eight months after that, but paid no attention to the order. They sent him no notices, and he paid no dues, and made no inquiry; in fact he was utterly silent from that time forth until the time of his death. After his death, as I have said, the widow brought this suit.

By the terms of the constitution of the order the assured had the right to name the beneficiary under his certificate or policy, and he might change it from time to time as he saw fit. It remained under his control until he ceased to be a member, or until his death. Foxhever never made any change. The original order was payable to his wife, and he never made any change in regard to it.

Some of the questions that have been argued here are important and interesting, and we have discussed them at considerable length in our consultation room.

The first is as to the admission of testimony of members of .the order who were present at the meeting of November 16 in regard to what transpired there and what was said. It is claimed that inasmuch at these members were liable to pay at each death a certain amount of money to make up the sum that vas payable to the beneficiary, they were interested parties to the question; that as members of the corporation they were interested to the extent of their liability, at least to pay the amount of $1,000 to this plaintiff. It is claimed that while they are not parties to the action, at the same time they come within that provision of the statute that provides that an interested party shall not testify, and that the spirit of the statute should be applied wherever the facts of the case require it. The plaintiff is Barbara Foxhever, and some question was made whether she comes within the clause of the statute (Section 5242, Revised Statutes) that provides that the defendant shall not be permitted to testify where the opposite party claims by or through a deceased person. We are of the opinion that she does come within that classification, because she takes under this certificate by the appointment of the husband, by his authority and by his right as a member of the order, and that it may, therefore, properly be said that she claims by or through her husband.

So far as the' right of these other persons to testify is concerned, the question is interesting, and is one that has never been passed upon by the Supreme Court of the state. Indeed it is not very often raised. The only time we have had any question like it come up was when objection was made to the officers of a corporation testifying in regard to a contract that had been entered into with a deceased person, the suit being brought by the administrator, and in that case we refused to allow the officers of the corporation to testify, holding, in effect, that they were the real parties in interest, the persons who had made the contract and were interested; that they were members of a corporation doing business, of course, under a name that the statute permitted them to assume, and under which they could be sued and could sue by; but inasmuch as they were the persons who had made the contract, that they ought not to testify, the lips of the other party being silenced by death. That is as far as we have gone, and that is as far, as at-present advised, we think we ought to go. We are of the opinion that the interest these parties had in this matter ought not to prevent the members of that body from testifying as to matters that occurred within the lodge room at the time that the deceased was present and with the deceased.

This, society was made up of persons who gave very little attention, apparently, to the orderly conduct of their business. Perhaps they are engaged in vocations and duties that led them to be loose in methods of business. There are rules adopted &y the body which govern it, and these rules provide for the manner in which a person may be expelled for violation of rules of order, or for a misstatement of his age in becoming a member of the order:

“Section 86. * * * Members who shall be found guilty of knowingly obtaining membership in this order through fraud, such as concealing age, or any bodily or mental infirmity which would debar them if known, or of falsely answering questions on their medical examination, shall upon conviction thereof be suspended from the order and shall not be reinstated or again received as members. Any member charged as above shall be entitled to a fair and impartial trial.
‘ ‘ Section 89. Any member shall be entitled to a fair trial for any offense involving fine, reprimand or suspension (except for non-payment of dues, death assessment, and for gross offenses committed in open commandery). No member shall be put upon trial unless charges, duly specifying the offense, so as to fully apprise them of the nature thereof, and enable them to prepare for defense, shall be submitted to the commandery in writing, signed by a member of the order. Such charges shall be referred to a trial committee of three members. And in case such committee or any member of it shall be challenged for cause, such challenge shall be tried by commandery, and if the challenge is sustained another member shall be appointed to act in his place,” etc. ,

They are to keep minutes, report to the commander, and the commandery are to decide upon the charges. The same section provides:

“If the accused refuse or neglect to stand trial when personally summoned, the committee shall report him or her guilty of contempt of the commandery, which report shall be conclusive as to guilt, and the penalty shall be at once fixed by the commandery, which shall take effect at the expiration of two weeks, unless an excuse is tendered for such absence which shall be satisfactory to the commandery.”

It will be observed, as I have stated, that this proceeding was not gone through with. The trial court held that the proper proceedings had not been taken to expel him, but that under the decision in Dimmer v. Catholic Knights of America, 22 C. C., 306, the question would properly arise as to whether or not, under the law of the land and upon the facts of the case, he had not acquiesced in his expulsion, although it was not properly made, and whether or no he did not cease to be a member of the order.

There is another question that arises in the case. It will be observed that the lodge did act upon the statement made by the accused at the time that he was spoken to by the commander at this meeting on November 24. They took it practically as a confession, an admission that he did misstate his age at the time of obtaining his certificate. The question arises as to whether, if that were true, if he did admit that fact, that that could or should affect the rights of his wife — whether, in short, his admissions in her absence could cut off her rights. Cases were cited (and I suppose there can be no question as to the law) where a policy of insurance is issued in the ordinary form, even although it be made with the wife as beneficiary, ior the wife to be paid' a certain sum upon the death of her husband, that she has a right in that policy which can not be cut off by the admissions of the husband; but it is claimed that this class of policies stand on an entirely different ground; that by the terms, as I have stated, of the constitution, the husband in this case has a right to change the beneficiary and name some other person at any time he sees fit to do so, and his right to do so has been recognized by the Supreme Court of Ohio, although he must do it in pursuance of the constitution and by-laws of the order. There are a variety of decisions in the United States upon this question. We are cited by counsel to Niblack Benefit Societies, Section 377, and to Beache Benevolent Societies, Section 460. In Niblack there are some reference to cases, one in Indiana, in which it was held that the admissions of the husband could not be received to cut off the wife’s rights, and in another state (Illinois) it was held that they could be; the line of argument in Indiana being that while the husband had the right, he had not exercised it during his lifetime, and, therefore, the right remained in the wife, and so long as he had failed to exercise and change it, that any admission that he might have made affecting the policy could not cut off her right. In Illinois the court held that so long as he had the right, as he did, to at any time change the name of the beneficiary under the policy, that the policy remained as his — part of his estate, his property, his to do with as he chose, —and for that reason any admissions, or declarations, or statements he might make affecting that policy during the time that he so held it (of course, being during his lifetime) might be offered in evidence as against the beneficiary under the policy. We are inclined to think, and we will so hold in this case, that the latter view is the correct one, and that the declarations made by Foxhever during his lifetime might be received in evidence for the purpose of affecting the validity of the policy.

0. 8. Brumbach and C. A. Thatcher, for plaintiff in error.

Kohn <& Northrup, for defendants in error.

Such being the condition and position of affairs, did the court err in directing- a verdict by the jury for the defendants? As I have stated, this declaration was made, which I will not repeat, in the presence of the lodge. From that time forth he never recognized the lodge in any manner or form, by any payment of dues, or anything else. It seems to us that that act was a clear and well defined admission that the charge that was made against him by the commander at that time was true; that he had made a false statement at the time that he became a member; and then he used very abusive language towards the lodge and the person charging him with the offense. It seems to us that that is a very full and complete confession of the charge which was made against him. I-Ie ceased from that time forth, as I have said, to make any demand of the lodge, to go near the lodge, to ask for any explanation about any dues, or to in any manner or form recognize himself as a member of the lodge, up to the time of his death. And we think under the rules that were laid down by this court in Dimmer v. Catholic Knights, supra, which Avere, as we think, sustained by authority, in which case a very full opinion was. delivered by Judge Hull, with a citation of the authorities, that the court was authorized, upon the admitted facts of the ease, to direct a verdict in favor of the defendants.

We have therefore concluded, upon a careful investigation of the case, that the judgment of the court of common pleas ought to be affirmed, and it is so ordered.


text:
    FRAUDULENT TRANSFER OF SECURITIES BY AN INSOLVENT CORPORATION.
    [Circuit Court of Cuyahoga County.]
    W. D. Sayle, Receiver of the Superior Street Savings & Banking Company, v. The Guarantee Savings & Loan Company et al.
    Decided, November 23, 1903.

      Receiver — Of Insolvent Corporation — Has the Same Power to Maintain Suit — Accorded to a Receiver of a Dissolved Corporation— May Sue in his Own Name — Transfer of Securities by an Insolvent Corporation — Fraudulent as to Creditors — The Law of Corporations.

    1. A receiver of an insolvent corporation may commence and maintain a suit to set aside a fraudulent transfer of securities and the recovery of possession thereof, and he may maintain such an aetion in his own name; all the authority in that behalf accorded to a receiver of a dissolved corporation is possessed by a receiver of an insolvent corporation.
    2. A transfer of securities by an insolvent corporation is fraudulent as to its creditors, when the fact of insolvency was known to the manager who made the transfer for the corporation, and the said manager also had knowledge that the claim, in satisfaction of which the transfer was made, was fraudulent.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Appeal by J. B. Livingston and F. L. Taft, trustees.
   The plaintiff in this action was appointed by the Court of Common Pleas of Cuyahoga County and duly qualified as receiver of all of the assets and property of The Superior St. Savings & Banking Company, which is a corporation organized under R. S. Section 3797, in an action brought against said savings and banking company by a creditor of said company.

By the order appointing such receiver he was authorized in express terms “to bring all suits necessary in any court having jurisdiction thereof, for the collecting of debts and the prosecution of any suits or the defense of the same as may be necessary in the proper discharge of his duties herein.” This appointment was made on the 23d day of August, 1901.

The defendant, The Guarantee Savings & Loan Company, is a corporation organized under R. S. Sec. 3836-1.

Subsequent to the bringing of the present action, by proceedings properly had in the Supreme Court of Ohio to oust the said savings and loan company from its franchise and wind up its business, the defendants, Frederick A. Taft and J. B. Livingston, were appointed and qualified as trustees of the property of said loan company.

Prior to the appointment of the plaintiff as receiver as hereinbefore set out, to-wit, on'the 14th day of August, 1901, The Guarantee Savings & Loan Company, hereinafter called the loan company, brought two suits against The Superior St. Savings & Banking Company, hereinafter called the banking company, in the court of common pleas of this county. In each of said actions the said loan company caused a writ of attachment to be issued against the said banking company, commanding the sheriff to levy upon all the assets of said banking company. No bond was given for such attachment in either of said actions, but assurance was given to the clerk that proper bond would be given. The writs were issued, the levy made and a keeper put into the possession of the property of the banking company at its bank.

The first of these two suits was brought upon two certified cheeks of the banking company, each of which checks was for $11,000, and purported to be signed by one W. E. Cunningham, and made payable to the order of J. A. Blodt, who was the secretary and general manager of said loan company, and which by said Blodt had been endorsed to said loan company. Said checks each bear date August 7, 1901. The certification of these checks purported to be made by the said banking company and was signed by Frank S. Miller, who was the secretary of the said banking company.

The other suit was for the sum of $50,834.35, claimed to be due to the said loan company on an open account-for deposits made by it with the said banking company.

Immediately upon the levy of those attachments the said banking company through its said secretary, Miller, and its president,----Tait, had a meeting with the said Blodt and others representing the said loan company, and effected a settlement of the two suits, by which the said banking company gave to the said loan company its note for $17,925, to secure the payment of which the said banking company then delivered to the said loan company as collateral securities a considerable amount of commercial paper and other securities, all set out and named in the petition herein.

The present suit is brought to set aside this transfer of securities and to recover possession of the same by the. plaintiff. In his petition the plaintiff alleges that such securities were obtained by the said loan company in fraud of the said banking company, and especially in fraud of the creditors of said banking company, it being alleged that said, banking company, at the time of the transfer of said securities to said loan company, was hopelessly insolvent and was indebted to a large number of creditors and in a large amount. The facts constituting such fraud claimed by the plaintiff are set out fully in the petition. These facts as established by the evidence we find to be:

Neither of the two cheeks hereinbefore mentioned were ever signed by the said "W. E. Cunningham. That fact was well known to the said Miller at the time he certified they were good, as secretary of said banking company, and was also known to the said Blodt when he accepted them. There was no indebtedness of the said banking company to the said loan company or to the said Blodt represented by or justifying the giving of any such checks to the said loan company. The entire transaction of the making of such checks, to which in fact the name of Cunningham was forged, was a scheme got up between Miller and Blodt for the purpose of making it appear that the said loan company had assets which in fact it did not have, and the only thing which the said banking company received for said checks was the notes of the said Blodt, who was hopelessly insolvent, and well known to the said Miller to be thus hopelessly insolvent, and the transfer to said banking company of certain stocks and obligations by the said Blodt which were known by the said Miller and the said Blodt to be valueless.

The other suit brought by the loan company against the banking company was equally without foundation. The apparent indebtedness of the banking company to the loan company on its boobs, appearing to be for deposits made by the loan company with the banking company, represented no money actually deposited, but only notes given either by Blodt in his own name or by him in the name of the loan company. The entire plan of making it appear that the banking company was indebted to the loan company was a fraudulent scheme devised by Blodt and Miller for the purpose of making fictitious assets for the loan company that it might be able to pass the examination made by the state officers whose duty it was to make investigation of the affairs of the loan company, and the suits were brought at the instigation of these state officers, who insisted that these apparent assets of the loan company must be converted into money. When the settlement of these suits was made, Miller, as well as Blodt, as has already been said, had full knowledge of the groundlessness of these claims. Tait, the president of the banking compay, gave practically no attention to the business of the bank but left its management almost exclusively to Miller. When the agreement to settle the suits was made Tait was without knowledge of the fraudulent character of these claims, though before the actual transfer of the securities was made he may have had knowledge of the fact that these cheeks were given and certified without proper consideration. As we view the ease, however, it is immaterial whether Tait had such knowledge or not. If he and the officers of the banking company other than Miller were without knowledge of the fraudulent character of the claim, the question might arise in a proper ease whether the banking company could maintain an action to set aside this transfer of securities, but that question need not here be determined.

It is urged on the part of the defendant that this action could not be maintained by the plaintiff unless it is such an one as could have been maintained by the banking company itself. We hold this claim not to be well founded. It is true that no statute in Ohio in terms authorizes the bringing of such action by the recei /er. Section 6343 provides that such an action may be brought by a creditor and by an assignee; and Section 6140 provides for the bringing of such action by an executor or administrator.

Prior to the enactment of this last section it had been held in the casé of Benjamin v. Le Baron’s Administrator, 15 Ohio, 518, that such action could not be maintained by an administrator. The reason for the holding is that the administrator or executor is the personal representative of the decedent or testator, and, therefore, without special authority he could bring no action which he, whom such executor or administrator represents, could not have brought. In this case, it is true the suit was for the recovery of personal property, as in the case under consideration. On page 526 this language is used by Judge Read in the opinion:

“We hold that the administrator can only maintain such action as the intestate might, if living. He represents the intestate; he steps into no other right. As between the fraudulent vendor and vendee, the transfer is good. Such conveyances are void only as to creditors. This is the well-settled doctrine in Ohio. Hence, as between the vendor and vendee in this case, the vendor had no rights, and of course his administrator could have none.”

It is well settled that one who conveys his property away for the purpose of defrauding his creditors, can not maintain an action to have the property conveyed back to him, because, being guilty of a fraud in thus 'transferring his property, he must abide the consequences of such fraud. The executor or administrator is not a representative of the creditors of the decedent, but of the heirs and legatees, and they are entitled to no greater rights than the decedent himself. A receiver, however, is the representative of the creditors. The property is placed in his hands that it may be preserved and distributed to the creditors. The statute, as has already been said, provides for the bringing of such an action by the assignee, who is no more the representative of the creditors than is the receiver, yet the claim is not without force that since the one is named in the statute and the other is not, that the statute meant to make a distinction between them as to the right to bring a suit. No good reason seems to exist why the representative of the creditors, by whatever name he is designated, should not have the right to bring such suit as the creditor himself might bring.

In the case of Monitor Furnace Co. et al v. Isaac Peters et al, 40 O. S., 575, it is held that it is the duty of a receiver who was appointed for a dissolved and insolvent corporation to bring suit to set aside conveyances fraudulently made. The language' used by Judge Nash in the opinion, on page 583, is:

“It is the right and duty of the receiver of a dissolved• and insolvent corporation to pursue after and recover property which has been fraudulently conveyed before the dissolution.”

To the same effect is the case of The Smead Foundry Co. v. Chesbrough, 16 Cir. Ct. Reports, 783.

It is urged, however, that these cases differ from the one at bar in that the receiver in each of these cases was for a dissolved corporation appointed under E. S. Section 5587, and that his powers are found in E. S. Section 5590. Section 5587, paragraph 5, provides in what cases receivers may be appointed, in the following language:

“In the eases'provided in this title, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights. ’ ’

And Section 5590 provides:

“The receiver shall have power, under the control of the court, to bring and defend actions in his own name, as receiver, to take and keep possession of the property, to receive rents, collect, compound for, and compromise demands, make transfers, and generally to do such acts respecting the property as the court may authorize.”

Paragraph 6 of Section 5587 provides for the appointment of receivers in all other eases where receivers have heretofore been appointed by the usages of equity.

The receiver in this case was appointed for an insolvent corporation. By the usages of equity receivers have been so appointed time out of mind, so that it would seem that whatever actions a receiver appointed for a dissolved corporation might bring this receiver might bring.

In Whittlesey v. Delaney, 73 N. Y., 571, the first paragraph of the syllabus reads:

“An action to set aside and vacate a judgment against a corporation on the ground that it was obtained without consideration, by collusion with the officers of the corporation, and in fraud of creditors, may properly be brought in the name of and by a receiver of the corporation.”

In Section 72 of Smith on Receiverships, this language is used:

“The power of the receiver to sue in his own name has been recognized however where the order of court so directs, or the statute so authorizes. But in the absence of such power he must sue in the name of the person or corporation over whose property he is appointed. * * *
“Where a court of chancery in the order of appointment confers power on the receiver to sue, he may do so on the principle that the receiver is, by operation of law, subrogated to all the rights of the real party in interest. ’ ’

We are aware that many cases are reported which hold that a receiver in a case like this can not maintain the action in his own name. We hold, however, that this action can be so maintained. We see no reason why a receiver appointed for a dissolved corporation may under our statutes bring such action unless the receiver of an insolvent corporation may also maintain the action.

This brings us to a consideration of the question whether under the facts in this case the transfer of the securities made by the banking company to the loan company upon the settlement of the suits brought by the latter against the former, was fraudulent as to creditors of the banking company. That the latter wras .insolvent at the time of the transfer can not be doubted; that such insolvency was known to Miller, the manager, is equally certain; that Miller knew that there was no just claim upon the certified cheeks and upon the greater part of the open account is absolutely certain. The reason why he should be in a hurry to settle these cases is not difficult to find. He had committed a wrong which might very probably subject him to a criminal prosecution, and he was, of course, anxious to get into his hands these checks which he had certified and which, though purporting to be drawn by Cunningham, he knew were never signed by him. The evidence shows that immediately upon getting these cheeks into his hands, he did what he might very naturally be expected to do, destroy them.

Carpenter, Young & Stocker, for plaintiff.

Smith & Taft, for defendants.

As to the bank account, as has already been said, the greater part of it was made up of an apparent indebtedness to the loan company which in fact only existed because of notes which Blodt had given, he being, as Miller doubtless knew, entirely without security other than absolutely worthless collaterals.

Without going further into a discussion of the facts in the case, we hold that the plaintiff is entitled to have the securities which he seeks transferred to him upon his transferring to the trustees of the loan company the collaterals which he by his petition tenders to them. A decree may be drawn accordingly. As to the further judgment in the case, it will be as the judgment was in the court of common pleas.


text:
    ONE INDICTED FOR ROBBERY MAY BE CONVICTED OF POCKET PICKING.
    [Circuit Court of Lucas County.]
    Harry Brown v. State of Ohio.

    Decided, March 13, 1903.

      Criminal Law — Statutes Based Upon the Doctrine of, Included Offenses Constitutional — Degrees of Crime — Pocket Picking Included in Charge of Robbery — Notice to the Accused of Crime Charged— Cross-Petition in Error by the State Necessary, When — Sections 6818 and 7316.
    1. The constitutionality of statutes permitting a jury to convict of an offense not charged in the indictment, hut which is of a lower or inferior degree is well established.
    2. tt is not necessary that crimes should be divided into degrees in order that they may come within a statute, such as Section 7316, authorizing a jury to find the defendant guilty of an attempt to commit the offense charged in the indictment; and inasmuch as the offense of pocket picking is the same as that of robbery, except that it lacks the ingredient of force or violence or putting in fear, and one indicted for robbery can be convicted of pocket picking.
    3. A defendant indicted for robbery and convicted of pocket picking can not complain that he was not notified of the charge against him in the indictment.
    4. A reviewing court can not consider a complaint by the State that the trial judge erred in taking from the jury the question of a defendant’s guilt of the crime of robbery, and the permitting of a verdict to be returned of guilty of pocket picking, where no cross-petition in error has been filed by the State.
    Hull, J.; Haynes, J., and Parker, J., concur.

       Motion for leave to file a petition in error overruled by the Supreme Court.

   The plaintiff in error was indicted by the grand jury of this county for the crime of robbery, and was put on trial. At the conclusion of the State’s testimony his counsel made a motion that the jury be instructed to return a. verdict of not guilty, for the reason that the State’s evidence had failed to establish the crime of robbery, in that violence, or force or putting in fear had not been established by the evidence. The court held, upon this motion, that the State had failed in this respect to establish the crime of robbery, but that there was included within the offense of robbery the crime of pocket picking, and -overruled the motion. No evidence was offered by the defense, and the court submitted to the jury the question as to whether the defendant was guilty of pocket picking. The defendant was found guilty by the jury of that crime and sentenced to the penitentiary. It is to reverse that judgment that a petition in error was filed in this court.

It is claimed by the plaintiff in error that under the indictment charging him with robbery he could not be convicted of the crime of pocket picking, as it is called in the statute; that this is another and a separate and distinct offense, described in thu1 statute, and that before the defendant could be put upon trial or convicted of it he must be indicted for that offense, either by a separate indictment or by a separate count in the indictment-, and that the court therefore erred in submitting the question to the jury as to his guilt of pocket picking. It is claimed that the defendant should have been discharged.

The jury were instructed by the court to return a verdict of not guilty as to the crime of robbery, which was done, and a verdict of guilty returned as to the offense of pocket picking.

The question raised is whether the offense of pocket picking is so included within the offense of robbery as to come within Section 7316, Revised Statutes, which provides for the conviction of an attempt to commit a crime and for the conviction of a crime of a lower degree where the evidence is insufficient to warrant the jury in convicting of the degree charged in the indictment.

The statute under which the defendant was indicted and prosecuted is Section 6818, Revised Statutes, which provides that:

“Whoever by force or violence or by putting in fear, steals and takes from the person of another anything of value, is guilty of robbery, and shall be imprisoned in the penitentiary not more than fifteen nor less than one year; and whoever otherwise than by force and violence or by putting in fear, steals and takes from the person of another anything of value shall be deemed, guilty of pocket picking, and shall be imprisoned in the penitentiary not exceeding five years nor less than one year. ’ ’

As I have said, the defendant, Brown, was indicted under the first part of the statute, charging him with robbery. There was no count charging him with pocket picking.

It is claimed by the State that the defendant was properly convicted of pocket picking under Section 7316, Revised Statutes, which provides as follows:

“Upon any indictment the jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense; 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. ’ ’

It is claimed by the State that the charge of robbery, as contained in the indictments, includes the offense of pocket picking ; that the offense of pocket picking is an offense of a degree inferior to that of robbery. It is claimed that robbery contains all of the ingredients or essentials of pocket picking and one additional ingredient, to-wit, force or putting in fear, and that they differ only in that respect. On the other hand it is claimed by the plaintiff in error that they are two separate and distinct offenses.

The doctrine of included offenses was recognized by the law before the passage of this statute. It was a part of the common law of the land that a defendant might be convicted of an offense of a less degree than the one with which he was charged, if the one was properly included in the other. So this statute is in a sense only declaratory of the law as it stood before its enactment. In Stewart v. State, 5 Ohio, 241, it is stated in the syllabus:

“Indictment for assault with intent to kill, party may be convicted of assault and battery, or assault alone.”

Judge Lane, delivering the opinion of the court, on page 242 said:

“It is assigned for error that the court refused to charge the jury that in an indictment for an assault with intent to kill they might find him guilty of simple assault and battery, without any such intention; and in charging that in this case, if the jury found him guilty at all, it must be guilty of the whole accusation.
“A doubt has been- raised whether the bill of exceptions is taken to the refusal to charge, as well as to the actual charge; but a majority of the court believe it is, although somewhat informal, sufficiently applicable to both.
“We are all of opinion that the charge was erroneous; that a jury may find a verdict of guilty for part, and acquit for the residue; that where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit him for the graver offense and return him guilty of the least atrocious. The cases and examples are collected in 1 Ch. Cr. Law, 638, and there is no foundation in this country for the distinction made in England on this point between felonies and misdemeanors; for here an indictment for the higher offense rather adds to than subtracts from his privileges.
‘ ‘ Still we can not say that the defenedant might not be prejudiced by his instruction, and therefore the judgment must be reversed. ’ ’

This question of included offenses is discussed in 1 Bishop Cr. Law: ■

“Sec. 794. Where offenses are included one within another, as before explained, a person indicted for a higher one may be' convicted of any below it not merged in that for which he is indicted, unless the allegation should happen to be in a form not charging the lower.”
‘ ‘ Sec. 1054. Where crimes are so included within one another that a higher comprehends whatever a lower one does and more, as previously explained, a conviction for any higher one bars a prosecution for any lower; since, if the defendant is guilty of all, he is necessarily so of each particular part. It is believed that there is no exception to this rule. In general, the same consequence follows an acquittal; because generally there can be a conviction for the lower on an indictment for the higher. But the effect of an acquital is not like that of a conviction, universally so. ”
“Sec. 1055. * * * Robbery and larceny, being both felonies, and the latter included in the former, an acquittal for robbery will bar an indictment for the larceny of the same things. And equally an acquittal for the larceny will bar the robbery indictment.”

The doctrine of included offenses and the constitutionality of statutes permitting a jury to convict of an offense not charged in the indictment but which is one of a lower or inferior degree and included in the greater, seem to be well established by the authorities; but it is claimed here that the offense of which Brown was convicted is not properly one of a degree inferior to and lower than the one charged in the indictment. It is said there are no degrees of robbery in this state; the crime is not divided into degrees — first, second, and otherwise, as is the crime of homicide. The elements of robbery, the ingredients, are laid down by the Supreme Court in Matthews v. State, 4 Ohio St., 539, 540, where it was said in the syllabus:

“It is essential that an indictment for robbery should contain a substantial averment of the intent to steal and rob.”

On page 541 of the opinion Judge Bartley, in the opinion, said:

“Three ingredients are essential to constitute the crime of robbery:
“1. The use of force and violence, or the use of means whereby the injured person is put to fear.
“2. A taking from the person of another of money, or other personal property.
‘ ‘ 3. An intent to rob or steal. ’ ’

The crime of robbery, then, consists in taking from the person of another, with force or violence, or by means whereby the injured person is put in fear, money or other thing of value, and this must be accompanied with an intent to steal; and if any one of these ingredients is lacking, the crime of robbery does not exist.

Formerly the crime of pocket picking was not known to the law as a separate and distinct offense, and if a man was in-dieted for the crime of robbery, and any one of the elements necessary was lacking, lie could not be convicted of the crime of robbery, and he could only be convicted, if at all, of the offense of larceny. This statute (Section 6818, Revised Statutes), however, provides for the additional offense of pocket picking as follows:

1 “And whoever otherwise than by force and violence, or bv putting in fear, shall steal and take from the person of another anything of value, * * * shall be deemed guilty of pocket picking, and shall be imprisoned in the penitentiary not exceeding five years,” etc.

So that the offense of pocket picking is the same as that of robbery, except that it lacks one ingredient, to-wit, that of force and violence or putting in fear. The crime of robbery, as defined by the statute, exists whenever one by force or violence or putting in fear steals and takes from the person of another anything of value. The amendment to the statute defining the crime of pocket picking was intended to cover the case of larceny from the person where the element of force and violence or putting in fear was lacking, and to make that offense a felony or penitentiary offense, instead of a mere larceny.

It is not necessary that crimes should be divided into degrees, in order that they may come within a statute, such as Section 7316, Revised Statutes. Where one crime is of a more atrocious or heinous character than another, if one is properly included within the other, then the one may be said to be of a higher degree than the other, as larceny is included, or may be included, if property is taken, in the crime of burglary. Assault and battery is included in the crime of robbery, and one may be convicted of assault and battery who is indicted for robbery. It has been held in People v. Jones, 53 Cal., 58, that robbery includes larceny. The syllabus of the case is:

“The crime of robbery includes that of larceny, and under an indictment for the first offense the jury may find the defendant guilty of larceny, if they entertain a reasonable doubt as to which of the two offenses he was guilty of. ’ ’

In the opinion the court say :

“It is obvious from the foregoing definition that an indictment for robbery must aver every fact necessary to constitute larceny, and more.
“The jury may find a defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the .indictment. And as there was some evidence tending to show that the crime was merely larceny, the defendant had the right to insist on the instruction he requested the court to give.”

In Commonwealth v. Prewitt, 82 Ky., 240, the syllabus contains this :

“Under an indictment for robbery the court erred in refusing to instruct the jury that the defendant might be convicted for simple larceny. Robbery being a higher grade of crime than larceny, under the criminal code, the former includes the latter. ’ ’

The court in the opinion say:

“The code provides, Section 262, ‘upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment.’ ”

On page 241, of the opinion, the court say:

“Out statutes do not undertake to define either robbery or larceny. For their meaning we must have recourse to the common law. Blaekstone defines robbery to the felonious and forcible taking from the person of another of goods or money of any value, by violence or putting him in fear. This is designated as mixed or compound larceny. Simple larceny is the felonious taking and carrying away of the personal goods of another. Choses in action, such as bonds, bills and notes, not importing any property in possession, were held not to be the subject of larceny. Hence our statutes making the taking of such thing larceny. The principal ingredient in each is the taking of the personal goods of another, without his consent, and with the intention on the part of the one taking to convert them to his own use. Larceny is the generic term, robbery being specific and of a higher- grade than simple larceny because of the element of force or fear entering into it; larceny is of a lower degree of the same offense as that charged in the indictment, and, therefore, punishable under the code, as quoted. The court below erred in not instructing the jury that under the indictment for robbery a conviction for simple larceny might be had.”

In State v. Graff,, 66 Ia., 482 (24 N. W. Rep., 6), the court hold, as stated in the syllabus, as follows:

“The crime of robbery (Code, Section 3858) includes the crime of larceny from the person (Code, Section 3905). Accordingly, an indictment for larceny from the person is sustained by evidence which establishes the crime of robbery.”

The defendant complained in this ease that if he was guilty of anything he was guilty of robbery, and the evidence showed that he was guilty of that; but the court say on page 483:

“All that can be claimed is that while the evidence established all the elements of the crime charged in the indictment, it proved one fact in addition thereto, and would have warranted a conviction of another offense if defendant had been accused of that offense. But this affords no ground for arresting judgment on the verdict. The court is warranted in pronouncing judgment on the verdict of guilty in any case in which the proof establishes all the elements of the crime charged in the indictment.”

In Stevens v. State, 19 Neb., 647 (28 N. W. Rep., 304), the fourth paragraph of the syllabus is as follows:

“A person charged- in an information with robbery may be convicted of larceny, as the greater includes the less offense.”

And this is discussed in the opinion. The court say on page 650:

“Objection is made that the court did not instruct the jury that they could find the plaintiff guilty of larceny, if the proof failed to show sufficient violence of putting in fear to constitute robbery. There is no doubt that a trial and acquittal for robbery is a bar to an indictment for larceny, when the property alleged to have been taken is the same (The People v. McGowan, 17 Wend., 386). In this ease it is said by Cowen, J., speaking for the court: ‘The first indictment, though for robbery, involved the question of simple larceny, of which the person under that indictment might have been convicted. ’ This is upon the principle that where several crimes are included, one within the other, a conviction of the higher bars a prosecution for any lower, since the greater includes the less.”

In 1 McClain, Cr. Laws, Section 484, we find this:

“As the indictment for robbery must allege everything necessary to constitute larceny, there may be a conviction for larceny under an indictment for robbery. So there may be conviction for larceny from the person.”

The case of Brown v. State, 33 Neb., 354 (50 N. W. Rep., 154), is directly in point. This is in the syllabus:

“Held: That the charge of robbery includes the offenses of stealing from the person without force and violence or putting in fear, and that under an information for robbery the accused may be convicted of stealing from the person.”

In that state there is a statute covering the crime of robbery and also one covering the crime of pocket picking. The last statute was as follows:

“Every person who steals property of any value by taking the same from the person of another without putting said person in fear by threats or the use of force and violence shall be deemed guilty of grand larceny, and shall upon conviction thereof be punished by confinement in the penitentiary for not less than seven years.”

The defendant asked the trial court to charge the jury as follows, which was refused:

“The jury are instructed that if you find from the evidence that the defendant took the property described in the information from Anna M. Kervan, against her will, but did not first put said Kervan in fear, and did not use any force or violence except such as constitutes the sudden snatching of said property from said Kervan, you will not be warranted in finding the defendant guilty as charged in the information, but may find him guilty of larceny.”

The court did give this instruction to the jury:

“It is permissible,'under this information, if in your opim ion the evidence justifies and warrants you in so doing, to find the defendant guilty of larceny from the person. The putting in bodily fear, or the use of force and violence, is not a necessary element in the crime of larceny from the person, but the felonious taking and carrying away from the person with the intent to convert property to his own use and against owner’s consent, are necessary.” * * *

The Supreme Court say in the opinion, pp. 357-358:

“The question of the validity of Section 113« was before this court in State v. Arnold, 31 Neb. 75 (47 N. W. Rep., 694), and the statute sustained. The latter statute was passed to reach the case of pickpockets, who, prior to the passage of the act, had comparative immunity from punishment (State v. Arnold, supra). Robbery is the felonious and forcible taking from the person of another goods or money of value by violence, or putting in fear (4 Black. Com., 243; 2 Bouv. Law Dic., 488). The crime of stealing from the person is not as heinous a crime as that, of robbery.; but it possesses some of the elements of robbery ; in other words, it is of the same nature, but does not go as far as robbery. To the extent of taking from the person of another money or other valuable things, both offenses are alike, and both are punishable in the penitentiary. The crime of robbery certainly includes the eipme of stealing from the person, and when such is the ease the jury may find the accused not guilty of the higher offense and guilty of a less one. There was no error, then, in giving and refusing the instructions referred to. There is no error in the record, and the judgment is affirmed.”

This case seems to hold squarely that the offense of stealing from the person is included in the charge of robbery, and that where one is indicted for robbery, he may be found guilty of pocket picking.

There are other authorities that might be cited, but these are sufficient, and they establish that the offense of pocket pick- . ing is included within the charge of robbery, and that it is properly denominated an offense of a lower degree or a less degree than the crime of robbery. It lacks the one essential element of robbery, to-wit, that of forge or putting in fear. It is, in fact, a crime of a less heinous character than that of robbery. It is punishable by a shorter period of imprisonment in the penitentiary. We think it may properly be called a crime of a nature similar to that of robbery — a crime against the person, involving the stealing of something of value from the person, but an offense of a lower grade or degree. This amendment relating to pocket picking was doubtless enacted by the Legislature to meet cases where persons were charged with the crim of larceny in the indictment, and the evidence failed to show the one element necessary to constitute the crime of robbery along with the other two, to-wit, that of force and violence. To meet such eases as that the Legislature made pocket picking a penitentiary offense, including it in the same statute.

Wertman <& Dickey, for plaintiff in error.

W. G. Ulery, Prosecuting Attorney, and J. H. Martin, for defendant in error.

The defendant can not complain that he has not been notified of the nature of the charge against him in such an indictment. He has been notified of the entire charge. He has been charged with the offense that he has committed, and with one element more. This could not mislead him. The fact that he was charged with taking property of value from the person of another, and also charged with taking it by violence or putting in fear, could not mislead him in making his defense or preparing for his defense. The two crimes are of the same essential character. They are both offenses against the person, and differ only in this element or ingredient of force or violence. We therefore are of the opinion that it was not error for the court to submit this question to the jury, and that the defendant could be properly convicted of the offense of pocket picking under the indictment charging him with robbery.

It is claimed by the State that the evidence contained in the record shows that the defendant was guilty of the crime of robbery, and that the court erred against the State in taking that question from the jury. No cross-petition in error has been filed by the State. Therefore it is not necessary for us to consider that question. We have not considered it, and do not pass upon it in the case.

For the reasons stated the judgment of the court of common pleas will be affirmed.