text:
    TITLE TO CANAL LANDS LEASED TO A RAILWAY COMPANY BY A MUNICIPALITY.
    Circuit Court of Franklin County.
    The State of Ohio, ex rel Wade H. Ellis, Attorney-General, v. The Cleveland Terminal & Valley Railroad Company and The Baltimore & Ohio Railroad Company.
    Decided, October 12, 1909.
    Quo Warranto — Attacking Authority of a Railway Company to Occupy . Canal Lands Leased from a City — Title—Parties—Abandonment—■ Limitation of Grant — Words and Phrases — 6!) O. L., 1S2.

    1. The act entitled “an act to authorize the city of Cleveland to enter upon and occupy a part of the Ohio canal,” passed April 29, 1872 (69 O. L., 182), does not authorize the conveyance'of a fee simple estate by the Governor of Ohio to said city'of Cleveland; but only the right to occupy the lands therein described for the purposes specified, or similar purposes. State, ex rel Atty.-Gen'l; v. P.\ G. G. <€ St. L. Ry., 53 O. S„ 189, followed.
    2. In an action in quo warranto, brought by the Attorney-Genei-al against said railway lessee and its successors and assigns, to oust the same from said premises, the city of Cleveland is not a necessary party.
    U. G. Denman, Attorney-General, John A. Alburn and David K. Watson, for plaintiff.

      Kline, Tolles & Goff, F. A. Durban and Robert J. King, for defendants.
    Quo warranto.
    The Attorney-General,’ for the purpose of testing the right of the defendants' to occupy a strip of land about three miles long included in that part of the Ohio canal which the city of Cleveland was’authorized by the act of April 29, 1872 (69 Q. L. , 182) to occupy and use for certain purposes hereinafter set forth, filed his petition in quo warranto.
    After alleging the corporate existence of defendants, the petition stated that, on and prior to the 29th day of April, 1872. the state of Ohio was the owner in fee simple of that "part’ of Hie Ohio canal in the city of Cleveland which is the subject of controversy; that on. the 29th day of April, 1872, the General Assembly passed an act providing “that authority and permission shall be granted, in the manner hereafter stated, to the city of Cleveland to take, enter upon, improve and occupy, as a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city may determine,” such portion of the Ohio canal as is described in said act, which act provided, among other things, that upon the fulfillment'of certain conditions “thereupon the Governor on behalf of the state * ® ' * shall execute and deliver to the city of Cleveland, a grant of all the interest of the state in that part of said Ohio canal herein described, to be forever used and occupied by said city, as its council shall determine, for any or all of the purposes before mentioned”; that, pursuant to the provisions of such act, the Governor on the 31st day of October, 1879, executed and delivered to the city of Cleveland his deed for such lands; that, at a regular meeting of the city council of the-city of Cleveland, held on the 3d day of November, 1879, such deed of the Governor was accepted by such city council in behalf of the city of Cleveland; that, prior to the acceptance of such deed, to-wit, oil the 26th day of October, 1875, the city of Cleveland entered into a contract by which said city agreed with the Valley Railway Company “that it would execute to said company a lease of all the lands granted to said city by said act of April 29, 1872, as soon as title to said lands should be conveyed to said city by the state of Ohio”; that the city of Cleveland, by its city council, on the 24th day of March, 1879, by resolution recounting said contract between said.city and the Valley Railway Company, instructed its mayor and city solicitor to obtain the title to said lands conveyed, by said act of April 29, 1872, and to arrange for the lease of said lands to the Valley Railway Company; that said city, through its council, at the same meeting of said 'council at which the city through said council accepted said grant from the state of Ohio, to-wit, the meeting held by said city council on the 3d day. of November, 1879, by ordinance instructed the mayor of said city “to execute in due form of law a written lease to the Valley Railway Company of the lands and premises set forth and described, for the period and upon the terms and conditions expressed in the copy of such lease submitted by the mayor' to' the council October 20th, 1879, as amended and approved hy the council at that date”; that, in pursuance'of such ordinance and on the day following its- passage, to-wit, on the 4th day of November; 1879, the mayor of said city for and in behalf of said city, duly executed and delivered to the said the Valley Railway Company, in consideration of the sum of $265,000 in the first mortgage .gold bearing' bonds of said the Valley Railway Company, payable twenty-seven years from the 15th day of June, 1879, a lease for ninety-nine years, for railroad purposes, of all lands granted to said city of Cleveland by said act of April 29th, 1872, with the exception of certain small portions of said lands described in said lease, with the proviso that “it is hereby expressly understood and agreed that, in case there is hereafter any failure in said title to the lands hereby leased, or in the authority of said city to lease .the same for the purposes herein stated, the’ said city shall not he liable to said company for any damage caused by said failure”; that said lease was approved by said council on the 10th day of November, .1879; that immediately after the execution of said lease' said the Valley Railway Company took possession of all said lands so leased, and that all said lands have ever since been used hy said’company and' its successors for railroad purposes; that, by reason of the sale of the property of the Valley Railway Company on the 27th day of September, 1895, and subsequent sales, agreements and transactions, the defendant companies are now occupying and using, for railroad purposes, all of said lands conveyed to .said the Valley Railway Company in said lease of said’ city; that the city of Cleveland has never occupied nor used any portion of said lands conveyed by said lease for any purposes except for the laying therein of gas and water pipes or for sewerage purposes; and that said city has abandoned and forfeited the use of all said' lands so leased except for laying therein gas and water pipes and for sewerage piu’poses; that the state of Ohio has been before, on and since the 29th day of April, 1872, and now is the owner in fee of such lands and entitled to the full use and possessi on of the-siune; “that the state of Ohio has never, directly nor indirectly, in any way given or granted, or permitted to be given or to be granted, to either of said defendants, any right, title ox-interest whatever in or to any of said lands”; that-the city of Cleveland had no right, power or authority to grant said lease, or to permit the use for railroad purposes of any of said lands so leased and so occupied by defendants; that said use of said lands by defendants “was and is inconsistent with the use gi’-anted to the city of Cleveland by the state of Ohio, and in violation of the rights of the state and in contravention of law; and that defendant companies have been and are now, in occupying and using said lands for railroad purposes, usui-ping and unlawfully-exercising and using rights, privileges and franchises in violation of the rights of the state of Ohio and in contravention of law.
    Plaintiff therefore prayed that defendant companies be ousted from exercising such rights, privileges and franchises and that they be compelled to remove all their tracks, side-tracks, switches, depots, buildings and all other property of whatsoever kind belonging to them, from all lands described in the said act of April 29, 1872, and for other relief.
    •The act of April 29, 1872, the deed of the Governor, the lease of the city of Cleveland to the Yalley Railway'Company and the ordinances of the city council above mentioned were set forth in full in plaintiff’s petition.
    Dustin, J.; Sullivan, P. J., and Allread, J., concur.
   The facts in this case are strikingly similar to those involved in the case of State, ex rel, v. P., C. C. St. L. Ry., 53 O. S., 189; and the remedy sought is the same. Hence, the demurrer to the petition must be overruled on all points, except as to want of parties, upon the authority of that case, unless it shall appear that the differences between it and the one at bar are such as to call for the application of other principles.

In that case the city of Cincinnati, by legislative enactment (60 O. L., 44), and by gubernatorial deed executed and delivered pursuant thereto, had been granted the x-ight to “enter upon, use and occupy as a public highway and for sewerage purposes” a certain portion of the ca.nal lands of the state, After accepting the same, -the city, without permission of the state, granted the P., C. C. & St. L. R. R. Co. the right to wholly occupy a part of said lands for tracks and stations, and such occupancy continued for more than twenty years. In 1895, the then Attorney-General brought an action in quo warranto against the railway, alleging an unlawful use of rights and privileges in the occupancy of said premises; also, that to that extent, there was an abandonment by the city of the rights granted to it by the state. The court entered a decree for the relator, holding that the defendant had no rights in the premises, its pretended grant from the city being invalid for want of necessary power to make the same.

In the case at bar the same kind of an action is brought by the Attorney-General against the defendants, alleging that they wholly occupy certain canal lands in the city of Cleveland, granted to said city by the state for “a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city may determine. ’ ’

Pursuant to the legislative act (69 O. L., 182) authorizing the grant, the Governor made a deed to .the city for the land described. On the very day that the deed was accepted the city of Cleveland leased the premises to defendant, the Cleveland Terminal & Valley Railroad Company, for ninety-nine years, renewable forever,-and received therefor the sum of $265,000 in bonds. The railroads built tracks and made other improvements thereon, and have ever since wholly occupied said lands for railway purposes.

It is claimed on behalf of the state that the city of Cleveland forfeited the l-ands by abandonment of the uses for which they had been granted, and that defendants, the railways, have no rights whatever thereon. On the part of the railways it is claimed that ‘ ‘ all the interests ’ ’ of the state were granted to the city which thereby became the owner in fee of the premises, and could lawfully lease the same.

In the legislative act pertaining to the transfer of the canal l-ands at Cleveland, certain words and phrases in addition to those in the Cincinnati case, are relied upon to create a fee simple estate. In the Cleveland legislative act the word “take” is added to a similar clause found in the Cincinnati act; providing that the city of Cleveland may “lake, enter upon and occupy,” etc.

We think .that word applies no more to a fee simple than to a qualified fee. The grantee, in either case, is authorized to take possession, which is the right referred to.

The words “or other purposes” are introduced after the words “public highway,” so that it reads, “that authority and permission shall be granted * * * the city of Cleveland to take, enter upon, improve and occupy as a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city may determine, all that part * * * in so far as the same is owned and held by the state.”

We think it is clear, under the authorities (cited by plaintiff) that the words, “or other purposes,” mean simply other similar purposes, and that the title is not enlarged into a fee simple by such language, but includes only other uses (if any there be) by the city, some of which are named in the next clause, viz., " laying gas and water pipes."

If a fee simple had been intended by the use of the phrase "or other purposes,” there was no need to add the provision as to gas and water pipes, which seems to have been dozie either for illustration or further specification.

Nor does the phrase “in so far as the same is owned and held by the state,” enlarge the grant. It is rather a limitation, as not including the rights of canal lessees.

Nor does the clause, “as the city council of said city may determine ”; for that in our opinion, only gives the council the right to select from the purposes mentioned, or similar ones.

As for the deed, of course it could not rise higher than its source, the legislative act. What general words it may contain must be limited by the phraseology of the act, of which the defendants must be held to have had due notice at the time of acceptance..

But, it is claimed that the Cleveland transaction was a. purchase, and thereby differed essentially from the Cincinnati case.

It is true that the city of Cleveland obligated itself to make certain expenditures to connect the canal with the Cuyahoga river and to keep the river dredged to the lake. But that is presumed to have been a proper compensation for the title it was receiving.

All other questions raised by the demurrer are, we think, covered and settled by the Cincinnati ease referred to, except the one as to want of proper parties. As to that it may be said that the court does not think the city of Cleveland, under the allegation of abandonment, is a necessary party to the controversy; blit if defendants desire to have it bound by the judgment, whatever it may be, for their ultimate protection, it may be made a party on. their application, and served with process.

Demurrer to petition overruled.


source: Caselaw Access Project

license: Public Domain

text:
    BOARDING A CAR IN MOTION.
    Circuit Court of Richland County.
    The Ohio Central Traction Co. v. H. Walter Mateer.

    Decided, September 8, 1908.

      Negligence — In Attempting to Board a Car which was Still in Motion_ Judgment not Sustained by the Evidence,
    A judgment for damages in favor of an intending passenger, who was injured in an attempt to board a car, is not supported by the evidence, where it appears that the attempt to board the car was made and the injury occurred before the car had been brought to a standstill.

      Cummings, McBride & Wolfe, for plaintiff in error.

      Brucker & Cummins, contra.
    Taggart, J.; Donahue, J., and Craine, J., concur.

       Affirmed by the Supreme Court without report, Mateer v. Ohio Central Traction Co,, 81 Ohio State.

   The plaintiff filed his petition in the court of common pleas, alleging in substance that on the 13th day of October,-1903, the defendant operated and controlled an electric railroad, -running from the city of Bucyrus to the city of Mansfield; that along its way and a few miles from Mansfield, there was a platform used by the defendant for passengers desiring to get off and on the defendant’s cars; that on the 13th day of October, 1903, at about 7 a. m., the plaintiff went to this platform for the purpose of boarding one of defendant’s cars on its way to Mansfield ; that when the plaintiff saw the ear coming, he signaled the motorman to stop; that the motorman saw the plaintiff standing upon the.platform and slackened the speed of his car, and that when the rear end of the car reached the platform the brake was on. and the car moving slowly and apparently about to stop, and that the plaintiff, believing that the ear would stop, took hold of the handles on the rear- of the car and was about to step on, when the motorman so negligently and carelessly operated said car that it gave ft sudden jerk and started ahead rapidly, thereby throwing the plaintiff off of the platform and on to the ground, and injured him to his damage in the sum of $10,000.

To this petition an answer was filed, practically admitting all the averments in the petition, excepting that it denied any negligence or carelessness on the part of the defendant or the motorman operating the car, or that the ear was suddenly started forward or jerked, and denying that the plaintiff was injured to the extent claimed in the petition. The answer also alleges contributory negligence on the part of the plaintiff.

A reply was filed in which each and every allegation in the answer was denied. A verdict was returned in favor of the plaintiff. A motion for a new trial was overruled and judgment rendered on the verdict.

A petition in error was filed in this court, and on a former hearing the judgment of the court of common pleas was reversed, for the reason that the court of common pleas erred in overruling the defendant’s motion made at the close of plaintiff’s evidence to direct the jury to retuín a verdict for the defendant. Thereupon error was prosecuted to the Supreme Court, which reversed the circuit court and remanded the case, for the reason that this court erred in reversing the common pleas for refusing to direct a verdict, the holding of the Supreme Court being to the effect that where a motion is overruled- at the end of plaintiff’s evidence, and the defendant thereafter introduces evidence in the case, the court must look to all the evidence,in the case for the purpose of determining whether or not a ease had-been made, which would justify the court below in submitting it to the jury.

This case is now back to this court for the purpose of determining whether or not, taking all of the evidence, there was a. case made against the defendant. We have examined all of the evidence presented in the bill of exceptions, and find no testimony offered in defendant’s behalf which supported or tended to support the allegations of plaintiff’s petition.

On the question of liability, practically the only difference between the plaintiff and the defendant was as to whether or not the motorman was careless and negligent in jerking the car or starting it suddenly forward whilst the plaintiff was getting on.

.The. .testimony in behalf of the plaintiff was to the effect that the motorman was -trying to stop -the car and had not succeeded in doing so, and that the car was running very slowly and that just as he was about to step on the car and after he had taken hold of the handles of the car, the -car started suddenly forward with a jerk. The testimony of defendant’s witnesses is to the effect that the car was running at probably four or five miles an hour when the plaintiff attempted to get on it; that the rails Avere slippery and the motorman was doing all he could to stop the car.

If the contention of the defendant is correct, there certainly could be no liability, and if the' contention of the plaintiff is correct, then likewise there can be no recovery. It Avas the'duty of the defendant to stop its car to alloAv passengers to get on and off, and no passenger is required to get on or off a car AAdiilst it is in motion and if a passenger attempts to get off or on a car AAdiilst in motion, he does so at his peril.

If the plaintiff can recover, it must be by reason of the violation of. some duty owing by the defendant to the plaintiff. The motorman had a right to run that ear and jerk it as he pleased, so far as the plaintiff was concerned, so long as-the plaintiff Avas not a passenger' on that car. Of course if the motorman kneAV that the plaintiff was attempting to get on the car whilst in motion, or by the exercise of ordinary care could have known the same, or if it had been the custom of the plaintiff to board the car whilst in motion and the motorman knew that, then the defendant would owe the plaintiff a duty and would have to exercise such care in the operation of his car as not to injure the plaintiff.

We think that in this case where the plaintiff having undertaken to get on the car whilst in motion, and whilst the motorman was attempting to stop the ear, the plaintiff did so at his peril and can not recover from the company for any injury sustained to him.

We think that from the pleadings and evidence in this case the verdict is not sustained by any evidence and is contrary to law, and the judgment of the court of common pleas should be reversed and the petition of the plaintiff dismissed. The journal entry may be prepared in accordance with this holding and exceptions will be noted for the plaintiff.


text:
    PROSECUTION UNDER. THE ROSE LAW.
    Circuit Court of Delaware County.
    Daniel Lynch v. The State of Ohio.

    Decided, January, 1909.

      Keeping a Place wh&re Intoxicating Liquors were Sold — Prosecution for, Under the Rose Laio — Evidence as to Result of Local Option Election — 99 O. L., S3.

    1. An affidavit charging the keeping of a place where intoxicating liquors were sold, furnished or given away on a designated day, is sufficient to sustain a prosecution under the Rose county local option law.
    2. Proof of one unlawful sale is sufficient to sustain a conviction under such a charge; and the affidavit need go no further than to aver an unlawful sale, leaving it to be developed by the evidence in what respect the sale was unlawful.

      3. The provision of Section 1 of the Rose law, making a certified copy of the result of a county local option election sufficient proof of the holding of such an election, is not exclusive; but any evidence from which the fact may be deduced that such an election has been held is sufficient to sustain a prosecution for violation of the act.
    4. It is not error to admit the statement of a witness that “a police officer told him when he obtained liquor in dry territory” if no disclosure is made by the witness as to the place where the liquor was obtained or the person who sold or furnished it.

      Marriott & Freshwater, for plaintiff in error.

      Eugene S. Owen, contra.
    The plaintiff in error was arrested and tried before the mayor of the city of Delaware, Ohio, on an affidavit charging the unlawful keeping of a place where intoxicating liquors are sold in violation of Section 6942, Revised Statutes.
    It is contended by counsel for plaintiff in error that the affidavit is not sufficient in law to charge an offense under, any of the statutes providing against the sale of intoxicating liquors, the claim being that in order to constitute á person' a keeper of a place where intoxicating liquors are sold in violation of law, the affidavit or indictment must allege that the party accused was a keeper of such a place from a date stated in the affidavit or indictment to the date of filing the affidavit, or to some other date subsequent to the date charged; that a single sale does not make the place a nuisance, or the seller a keeper within the meaning of the act, but that a series of sales is necessary. And further it was contended that, in order to bring the prosecution within the Rose county local option law, it is necessary for the affidavit or indictment to show that an election had been held under the provisions of the statute, and that a majority of the voters voted in favor of prohibiting the sale of intoxicating liquors within said county, and that the affidavit in this case was insufficient because it did not contain such an allegation.
    Counsel for the state on the other hand contended that it does not require a- series of unlawful sales of' intoxicating liquor in a particular place by the accused to constitute him a keeper of a place where intoxicating liquors are sold in violation of law, citing Village of Belle Center v. Walsh, 24 W. L. B., 1.76, and Volk V-, Village of Westerville, 3 N. P. — N-. S,, 241.

      In support of the claim that it is not necessary to allege in the affidavit and prove at the trial that an election had been held, resulting in a prohibition of the sale of intoxicating liquors within the county, it was argued that the court should take judicial notice of things which are public in their effects and relations and ought to be known within its jurisdiction, citing Black on Intoxicating Liquors, Sec. 102, p. 136, where reference is made to Rauch v. Comm., 78 Pa. State, 490; Combs v. State, 81 Ga., 780; 8 S. E. Rep., 318.
    Donahue, J.; Taggart, J., and Shields, J., concur.

       Affirmed by the Supreme Court without report, Lynch it, States 81 Ohio State.

   This proceeding in error is prosecuted to reverse the judgment of the mayor of the city of Delaware, finding the plaintiff in error guilty of a misdemeanor, and adjudging him to pay a fine.

The first contention is, that the affidavit filed with the mayor in this case is defective and does not state a crime under the laws of Ohio.

It is contended that if the prosecution is under Section 6942 of the Revised Statutes of Ohio, that the affidavit should state the dates from which and to which the defendant was keeping a place where intoxicating liquors were then and there sold in violation of law.

We are of the opinion that this prosecution is under Section 6942 of the Revised Statutes of Ohio, as amended, 99 Ohio Laws, 1908, and as that section now reads the gravamen of the offense is keeping such a place. And if on or about the 12th day of December, A. D. 1908, the defendant was then and there the keeper of a place where intoxicating liquors were sold, furnished or given away in violation of law, he was guilty of the offense under this section of the statute, and the affidavit is sufficient.

It is further contended that the mere showing of one unlawful sale is not sufficient evidence to warrant the mayor in finding the defendant guilty. We think that question has been disposed of corrreetly in the case of Volk v. Village of Westerville, 3 N. P.—N. S., 241, and particularly at 244.

It appears that the Circuit Court of Franklin County, in unother ease of the same title, held that the proof of a single sale was sufficient, without proving a series of sales.

Iii the case of Village of Belle Center v. Levi Welsh, it was also held by the court, to which an application was made for leave, to file a petition in error (24th Bulletin, page 176), that under the section as it then read, that a single sale was sufficient to warrant a conviction.

It is also contended by plaintiff in error that an attempt is made here to prosecute for a violation of the Rose local option law, and for that reason neither the affidavit nor the proof is sufficient.

It is not important what law is violated in.the sale of- intoxicating liquors under a charge of this character. It is sufficient for the affidavit to state the sale was unlawful, and then in the hearing of the case proof can be offered that the sales were made on Sunday, to a minor, or person in the habit of becoming intoxicated, or in territory where the sale of intoxicating liquor is prohibited, or any other reason that renders- the sale unlawful. So that, when the state came to offer this evidence in this prosecution it could show that under the provision of the Rose local option law the sale of intoxicating liquors was prohibited in Delaware county.

It is conceded, however, that the proofs failed to show, that the sale of intoxicating liquor-s were prohibited in that co.unty by reason of -an election held under the provisions of the Rose local option law. And looking to the evidence offered by the state it would seem as if there were a defect in that behalf. True, it is provided in the Rose local option law that a copy certified by the clerk of the court of common pleas- showing the result of such election, provided such a result shows a majority of votes against the sale of intoxicating liquor as a beverage, shall be sufficient evidence to make a prima facie case; but we take it that this is not exclusive, and that any other competent evidence may be offered.

In this whole record, the question of whether the sale of intoxicating liquors were prohibited in Delaware county under the provisions of this -act does not seem to be mooted. Time, the plea of not guilty puts in issue every material allegation of the affidavit, but in the trial of this case questions were asked by counsel for the state, as well as by counsel for the defendant, indicating that the sale of intoxicating liquor as a beverage was at the time of the alleged offense prohibited and unlawful, and, in fact, some of the answers fixed the exact date when the provisions of that law came into operation in that county.

It is true that some of this evidence would have been incompetent had objections been made thereto; but no such objection was made, and, therefore, the admission was not prejudicial error. And particularly is this time in the evidence of the defendant himself. lie testifies that he has sold no whisky to anybody since the local option law went into effect in Delaware and on page 14 of the bill of exceptions it appears from- his evidence that local option went into effect in that county the ‘last of October or the first of' November of that year. So that, we think the evidence was sufficient for the mayor to find that the sale of intoxicating liquors in Delaware county was at the. time charged in this affidavit prohibited and unlawful, and that' this sale, if he found such a sale had been made, was an unlawful- sale, and that the defendant by reason thereof was guilty as charged in the affidavit.

Some objection is made to the testimony of the chief of police, and particularly-to that portion where he undertakes to tell what officer Vining told him; but it appears that what the officer said to him was not repeated by the chief of police, but that he merely says that the officer told him where he got it, but he does not say what the officer told him, or from whom the officer said he received the half pint of whisky that was offered in evidence. AVc think there was no error in the admission of that evidence, or in the refusal of the court to strike it out.

Ending no error apparent in the record of this .ease prejudicial to plaintiff in error, the judgment of the mayor is affirmed, with costs. The cause is remanded for execution. Exceptions of plaintiff in error are noted.


text:
    APPOINTMENT OF DEPUTY CORONER. FOR. CUYAHOGA COUNTY INVALID.
    Circuit Court of Cuyahoga County.
    R. C. Wright, as Auditor, etc., v. Robert Droege.
    Decided, November 15, 1909.

      Constitutional Law — Local Conditions' — Not a Ground for General. Enactments witliO'iit Uniform Operation• — Office and Offioers — Section 1209a.

    That part of Section 1209a, Revised Statutes, providing for the appointment of a deputy coroner in all counties containing a city of the first class of the second grade, is unconstitutional in that it is an enactment of a general nature without uniform operation throughout the state.

      J. A. Cline, County Prosecutor, W. D. Meals and Fielder Sanders, for plaintiff in error.

      Mooney & Mahon, contra.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the Court of Common Pleas.-
   The only question in this case is the constitutionality of so much of Section 1209a of the- Revised Statutes as reads:

“And the coroner in all counties having a'city of the first class of the second grade may appoint a' deputy coroner,-who shall have power to do and perform all duties imposed by; law upon the coroner of said county in his absence, -at a salary not to exceed $1,500 per annum.” * * *

This statute wms enacted prior to the enactment of the present municipal code, and at a time when by the statutes of'Ohio there was a classification of cities. The only city of the gradé and class named in this statute is the-city of Cleveland, and therefore the -only county affected by it is Cuyahoga county.

It is urged on behalf of the plaintiff in error that this enactment contravenes Article II of Section 26 of the Constitution of the state of Ohio, which reads:

“All laws of a general nature shall have a uniform operation throughout the state.” * * *

The petition in this ease sets out that the city of Cleveland has a population composed largely of foreign born people; that it is a large city; that crimes of violence are frequent therein; that deaths from violence are greater in number in said city than in other parts of the state, and various other facts, which it is claimed on the part, of the defendant in error, .render legislation in regard to the coroner’s office and assistants to the coroner proper for Cuyahoga county that would not be proper for any other part of the state.

We do not understand that these facts affect the question of whether the provisions of the statute under consideration are of a general nature. We have examined the carefully prepared brief of the defendant in error, but wc are not in accord with the conclusion reached in such brief.

Especial attention is called to the language of the first clause of the syllabus in the case of State, ex rel, v. Spellmire et al, 67 Ohio St., 77, which reads:

“Whenever a law of a general nature having a uniform operation throughout the state, can be made fully to cover and provide for any given subject-matter, the legislation, as to such subject-matter, must be by general laws, and local or special laws can not be constitutionally enacted as to such subject-matter.”

Applying this doctrine to the case at bar, it seems clear that, the enactment under consideration is in contravention of this provision of the Constitution. The subject-matter of conducting public offices is surely of a general mature, and an enactment' might very easily be made providing that in all counties having such characteristics, as it is said in the petition herein Cuyahoga county has, there should bo a deputy coroner.

The result is that we reach the conclusion that there was error in the judgment of the court of common pleas, and the judgment is reversed, and proceeding to enter the judgment here which the court of common pleas should have entered, the petition of -the plaintiff below is dismissed.


text:
    PROXIMATE CAUSE OF A CAR. RUNNING AWAY DOWN A GRADE.
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. Maggie Durack, Administratrix.
    Decided, July, 1909.

      negligence — Death of a Traction Car Conductor in a Collision — Proximate Cause — Charge of Court■ — Error—Burden of Proof.

    1. Where the question of negligence on the part of fellow-servants- in charge of a runaway car has been eliminated, and no other rea- • sonable inference as to why the car started down the grade can be drawn from the- testimony, it may be„ assumed that the brake shoe shown to have been loose was the proximate cause, and a judgment for damages recovered by the administratrix of the conductor of the car in front who was killed in the resulting collision will not be set aside for insufficient evidence.
    2. But an instruction to the jury, which excluded all consideration ol' contributory negligence although pleaded as a defense and supported by some evidence, constitutes prejudicial error requiring a reversal of the judgment:

      Kinkead, Rogers & Ellis, for plaintiff in error.

      D. V. Sulphin and W. A. DeCamp, contra.
    The intestate, a traction ear conductor, was killed while adjusting’ his trolleys by a run-a-way car which came down the grade behind him. At the first trial the administratrix recovered a judgment of $6,000, which was set aside by the circuit court. The traction company was not satisfied, however,.with.a reversal, but asked for judgment in its favor, and prosecuted error to the refusal of the court to grant such a judgment, with the result shown by the opinion in 78 Ohio State, p. 2á3. At the second trial in the common pleas the administratrix recovered a judgment for $10,000, to which error was prosecuted in the present case.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   Although the plaintiff in her amended petition sets forth several acts of negligence, the only one relied .upon at the last trial is stated as follows:

"Through the negligence o£ the defendant company or of some.of its employes whose duty it was to inspect, repair and see that the machinery and appliances of such car were in proper condition, the brake, brake-shoe or shoes of said car No. 9 had become out of repair and worn so as not to be fit for the purpose for which such brake or brake-shoes are applied; that by reason of said defect in said brake, brake-shoe or shoes,'said car No. 9 broke away and caused injury to plaintiff’s intestate in the manner above described.”

In support of the alleged error in overruling defendant’s motion at the conclusion of the evidence for an instructed verdict, counsel for plaintiff in error say in their brief:

"There-was a failure on the part of plaintiff below to prove that the loose brake shoe was the proximate cause of the injury.”

The charge of negligence was not thus limited to a loose brake-shoe,- but embraced: any and all defects of the brake itself; .and the experts called by the defendant were careful to assume that the other essential parts of the brake were in good order before stating that one .defective brake-shoe would not lessen the efficiency of the brake on a so-called McGuire truck. No one will deny that the natural, laws upon which they based their conclusions are. invariable, or that a, brake designed and constructed in accordance with such laws will work in obedience thereto; hut it nmst he admitted, that the practical application of .these laws in the construction of a machine is as variable and erring as human judgment itself. Hence the principle upon which a.eerr tain type of trucks is constructed may insure efficiency in braking apparatus, and yet a particular truck may, because of the human factor in its construction, he faulty and variable in its operation. When therefore the motorman of car No. 9 reported to' his superintendent that the car was a little hard to stop and that the brake was bad, it does not necessarily follow that his testimony is of no value, because the only apparent defect is .one loose shoe, and because the laws of physics prove, that .this defect in a type, not in the particular brake, is immaterial. The superintendent himself apparently approved the judgment of the motorman that the brake was bad, when after three warnings at intervals of a half JiQur or more., consented to give him another car; but whether this be so or not, it was his duty to inspect or cause to be inspected the defective brake and ascertain whether it was safe for further use.

The cpiestion of negligence of a' fellow-servant being eliminated by the testimony of the motorman and conductor of car No. 9, the probability that the defective brake caused the car to start down the grade on which it ivas standing is stronger than any other that has or can be suggested from the evidence. It is not' a mere conjecture, but a reasonable inference from all the- evidence. Schoepper v. Hancock Chemical Co., 113 Mich., 582; Cincinnati Traction Co. v. Holzenkamp, 74 O. S., 379.

This view of the case was probably entertained by the Supreme Court when they said (78 O. S., 243) :

‘ ‘ From this statement of the case we are inclined to think that the plaintiff in error obtained from the circuit- court more than its dues.”

Whether this be true or not the law and evidence of the case as now presented convinces us that the court below did not err in overruling the motion or in refusing a new trial for insufficient evidence. The court did err, however, in giving special instruction No. 1 requested by plaintiff, because it excludes ail consideration of contributory negligence, although pleaded as a defense and supported by some evidence. The very place where the. decedent was standing, while adjusting the trolley .wheel, was necessarily one of danger, and required of him proportionate care to avoid injury. ' Whether his failure, if any, to exercise ordinary care contributed directly to his injury was an issue that should have been submitted to the jury. The same error'occurs in the general charge. ' ■

The special instruction was faulty also in assuming that, the company was negligent in failing to take the ear out of service when it was discovered that the brake-shoe was defective. The-same error appears in special instruction No. 4 and in the general charge. The general charge contains the following instruction:

“Every employer must give his employes reasonably safe appliances with which to work and a reasonably safe place wherein to work. The company however is not an insurer of the lives of its employes,”

This instruction violates the rule stated in Railway v. Frye, 80 O. S., —. notwithstanding the qualification that the company is not an insurer. The court erred also in defining “burden of proof.” . The first special interrogatory which the court refused to submit to the jury is indefinite as to the time, and the refusal was not prejudicial.

We-are not unmindful of the gravity.and importance of the case especially to the widow and orphans; but the errors pointed out are of that substantial nature which prevents a fair trial, and we are constrained therefore to again reverse the judgment and remand the case for a new trial.


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    QUESTIONS ARISING ON SETTLEMENT OF AN EXECUTOR’S ACCOUNT.
    Circuit Court of Ashland County.
    In the Matter of the Exceptions to the Account of George A. Ullman, Executor of the Estate of Mary F. Freer, Deceased.

    Decided, October, 1909.

      Estafes of Decedents — Exceptions to Account of Executor — Certification of, to the Common Pleas Court — Repairs Made by Executor to ■ Property Devised — Additional Compensation — Counsel Fees for Defending MEll — Liberal Allowance for Successful Defense where the Contract was for a Contingent Fee — Authority of Executor to Employ Counsel for Other Matters — Division of Expense — Form of Order to Distribute — Jurisdiction—Section r>85.

    1. Where a probate judge has any interest whatever in a controversy, whether financial or otherwise, he is authorized under Section 535, Revised Statutes, to certify the case to the common pleas, either on motion of the parts interested or acting sua sponte.

      2: An executor has authority to make needed repairs on a building specifically devised with the direction to turn the property over to the devisee at any time after one year from the death of the testator, but such repairs should only go to the extent of keeping the property in as good condition as the executor found it.

      •3. If an executor defends in an action to set the. will aside, and the action results in sustaining the will, he may be allowed a reasonable amount for counsel fees in that behalf, and where his contract with counsel was on the basis of a contingent fee the allowance will be made more liberal because of that fact.
    1. The fact that an executor is a man of affairs with business experience and ability does not afford ground for denying to him the aid of counsel in the settlement of the estate.
    5. An order to an executor with reference to the distribution of the • fund in his hands should merely direct him to pay it out in accordance with law and the provisions of the will; any further direction as to whom the fund is to be paid' is inoperative and void.

      C. H. Workman, W. S. Kerr and George J. Fry, for exceptors.

      J. P. Seward and C. P. Whibigler, contra.
    Voorhees, J.; Taggart, P. J., and Donahue, J., concur.

       Slightly modifying and affirming In re Estate of Mary F. Freer, 9 N. P.—N. S., 12.

   This action had its origin in the probate court of this county, where exceptions were filed to the account of George A. Ulhnan, executor of the estate of Mary F. Freer, deceased, and on motions of the parties excepting to said account the probate court certified the account and exceptions thereto to the common pleas court of this county. Error is prosecuted from common pleas to this court.

The first cpiestion presented by counsel for plaintiff in error is that the probate court had no authority upon the motion presented to certify the same to the common pleas'court, and that by reason thereof the common pleas court acquired no jurisdiction thereof, and that -any finding and'judgment of the common pleas court in relation thereto is- erroneous and void for want of jurisdiction.

We are of the opinion that this objection to the jurisdiction of the common pleas court is not well taken, and that the probate court under the provisions of Section 535 of the Revised Statutes of Ohio had authority to certify the same to the common pleas court. A part of the section above referred to is as follows :

“In all other matters and proceedings, pending in any probate court, which would properly be disposed of or decided therein, but in which the probate, court thereof is interested in any manner whatever, as an attorney or otherwise, or in which he is .required to be a witness to a will, such probate judge shall, upon a motion of a party interested in such proceedings, or upon his own motion, certify the matters and proceedings to the court of common pleas.”

Counsel for the- executor contends that the probate judge must be interested as an heir, or at least have some financial interest in the result of the matter pending in his court, and that mere prejudice and bias on his part would not be sufficient reason, or that any other interest, except a financial interst or as an attorney, would not be a sufficient reason for certifying the cause to the common pleas court. We think it clearly appears here that whenever he has any interest whatever, whether it be financial or otherwise, that the statute authorizes him upon the motion of the party interested to certify the cause to the common pleas court, or even without such motion if the judge of that court knows he is interested in the cause, then it is his duty to so certify it sua sponte.

The next contention of counsel for the executor is, that the •common pleas court erred in refusing to credit him with the expense of certain repairs that were put upon what is known as the Freer Block. The common pleas court in its finding, held that the executor was entitled to credit for all necessary repairs, to keep and maintain the biulding in as good condition as it was at the time of the death of his testator, but that he was not warranted in making any permanent improvements upon the property. The Freer Block was specifically devised, and the testa-, tor had the right to turn it over to the devisee any time after a year from the death of the testatrix, and compelled to turn it over within five years, so that it could not be to the interest of the estate he represented to make any permanent improvements.

The rule of law adopted by the court in the disposition of this exception to the account is, we think, the correct one, but from the evidence in this ease we are not authorized in saying that the court erred in the application of this rule to any one item. It is clearly evident that there Avere a large number of repairs made upon this building that Avere in the nature of betterments, or Avhat might be termed “permanent improvements,” and not merely the necessary repairs to keep the building in as good condition as he received it. In other words,'the repairs are largely in excess even of'what a tenant for a térm, or for life would be required to place upon the-property in order to protect the remainderman. From the evidence presented, the common pleas court fairly and reasonably separated and distinguished the repairs for which -the executor ought to-be allowed credit, from those that he was not authorized to make, and the judgment of the common pleas court in that behalf is affirmed.

The next objection urged upon our attention is the claim for additional compensation allowed to the executor. Under the terms of the will the executor was entitled first to ten per cent, of the appraised value of the estate, and for services after one year it was provided by the will that he should have reasonable compensation: The evidence in this case does not' fully disclose what would be reasonable compensation. The executor himself did not testify. His reasons for not testifying are not. important in the review of this case, but the fact remains that the court beloAv was wholly Avi-thout the ,aid of his testimony in determining the full value of the services he rendered. True, there is some evidence shoAving the extent of the estate, the different parcels of real estate operated and managed by him,- rents collected, etc., but the common pleas court Avas not otherwise advised as to the time required by the executor in doing and performing’ these services, so that its estimate of th? value of such services was and is as fair as any court could make in view of the evidence offered, and perhaps more than this court Avould alloAV without specific evidence-directed to the extent and value thereof. .The judgment of the court in that behalf is affirmed.

The next contention of counsel for the executor is, that the common pleas court erred in the allowance of credit to -this executor for fees paid to attorneys who AA^ere employed by him in the settlement of this estate and in the contest of the will. It is insisted that the executor had no authority to employ- counsel or to expend money of the estate in defense of the will; and that therefore the court ought not to have allowed him credit for any fees paid counsel for such services, but AAnth that contention this court does not agree. It is clearly -the law in this state that under ordinary circumstances an executor is not called upon to make such defense, whether he was required to do so in this case is not important; the-fact remains that he did defend the will when it was attacked, and as a result thereof the will was sustained, and it is clearly the law of Ohio that if an executor does defend against a contest of a will and such suit results in the sustaining of the will, that he may be allowed a credit of a reasonable amount for counsel fees expended by him in the payment of counsel employed to defend such will, and we think in this particular case, where this executor was practically a trustee, and clothed with some extraordinary powers in addition to ordinary duties of executor, it was perfectly proper and right for him. to intervene, and that the benefitted parties should have been compelled to contribute to the payment of the expense thereof, either out of the estate generally, or in any other equitable way that the- court may direct. True, if the will had been set aside, then the executor would have no funds of the estate in his hands for the payment of such expense and he must lose the amount, unless he contract with his counsel that nothing is to be paid unless the will is sustained, and that would be true in this case, notwithstanding it appeared by the terms -of the will that he had some powers in the nature of an additional trust, beyond the ordinary powers and trust of an executor, for if the will had not been sustained then all such -provisions would have fallen with it.

In this particular case, however, the allowance to the executor generally out of the estate for money paid by him as attorney fees in the contest of this will results in placing the entire burden upon the residuary legatees. True, it appears that the residuary legatee is the one most vitally interested in the sustaining of this will, and it does also appear that that residuary legatee, to-wit, Ashland county, through its commissioners, failed and neglected to aid the estate or encourage the executor in making this defense, and their conduct in that behalf does not commend 'them very favorably to the consideration of this court. Yet, notwithstanding that we do not think it equitable that the en- • tire costs of this contest should be paid by them, but all the interested parties should have been compelled to contribute there- . to in equitable proportions, and the executor ought to have intervened with a motion to that effect in the probate court, before distribution. True, the expense of attorneys in the settlement of an estate must be paid out of the residuary fund.' It is only to the extraordinary expenses in the contest of a will that the devisees and legatees under the will should have been compelled to contribute, and we take it from the state of this record that the executor himself was interested in the sustaining of this will financially, as well as otherwise, and that being true, the probate court or the common pleas court settling this account would not be required to allow him as a credit the full amount of the attorney fees, hut might allow him such part and parcel thereof as would seem to he just and equitable.

This court is of the opinion that the fees charged by counsel and paid by the executor were not exhorbitant or unreasonable, but, on the contrary, were fair, just and equitable; and particularly is that true in relation to the fees paid for the contest of the will, for as we have already stated counsel might not have received anything at all for their services in case the will had not been sustained. Therefore, in view of such contingency, it is not unreasonable that the amount for which counsel would be. willing to contract would necessarily be larger than if the fee were to be paid in all events. This record shows that the contract of one of the counsel at least employed in the contest of the will was made with the understanding that if he was unsuccessful in sustaining the will that nothing was to he paid, if he was successful then the full amount was to be paid. • •

It is further contended by counsel for the exceptors that this executor being a man of affairs, possessing good business ability and experience, ought not to have employed counsel in the settlement of the estate, but that be should have attended to these matters himself and that he was perfectly competent to do so. We think that contention can not .be sustained. New business men are qua'ified to settle an estate without legal advice, for the settlement of an estate- is outside of ordinary business transactions and many questions arise that are difficult for lawyers to determine. So that it is only a wise and necessary protection to employ counsel to assist in tbe settlement of an estate, especially such an one as this. Not only is that true, but the will directs the executor to employ counsel and directs who he shall employ, but it was no longer possible to employ the person designated, and therefore' the executor was authorized to use his own best judgment in determining who should take the place of counsel designated in the will.

■ Coining now to the consideration of the amount allowed by .the common pleas court as a credit to this executor for the attorneys fees paid by him in the settlement of this estate and in the suit to contest this will, we are of the opinion, from the evidence contained in the record, that the common pleas court ■erred in fixing the amount thereof, and that the amount so fixed by such common pleas court is against the manifest weight of the evidence. We are not unmindful of the fact that whatever is allowed comes out of the residuary fund, and therefore -we are not disposed to allow the full amount, of these counsel fees, although, as we have heretofore stated, we are of the opinion that they were just and reasonable, and we think the executor ought to have credit for a larger sum than that given him by the common pleas court. . This- residuary legatee will receive from the estate pei’haps over fifteen thousand dollars in money and a farm of nearly a hundred acres, almost within the city of Ashland, and while it is suggested that the appraisement of this farm was about eight thousand dollars, and the common pleas court speaks of it as about that, yet we think it clearly evident that the farm is easily worth an amount equal to the amount that will be paid in money, so that it receives something like thirty thousand dollars out of the estate, or nearly one-third of the whole. Notwithstanding the commissioners absolutely refused to assist in the defense of the will, they are now willing to take the full benefits derived from such contest. The fact that the attorney fees for contesting this will can not now be distributed and assessed against all of the interested parties, as well as this residuary legatee, and that the executor did not attempt to protect himself in that behalf, and the further fact that a portion of these fees should be borne by the executor himself in view of his financial •interest in sustaining the will, we have reached the conclusion ■that the executor should be allowed credit for the further sum .of . two thousand dollars to the amount allowed by the common p’eas court. That is to say, he will be allowed a further credit of one thousand dollars additional on the amount paid to Judge McCray, making a total of $2,000 credit to the executor for counsel fees paid to him, and $1,000 credit for attorney fees paid to Senator Patterson, making a total credit of $2,500 on account of attorney fees paid by the executor to him, and the judgment of the common pleas court upon these exceptions will'be modified, so as to allow such further credits and as so modified will be affirmed.

We also note that the common pleas court ordered and directed the executor to pay the residue of the fund in his hands to the commissioners of Ashland county. We think such an.order is not authorized by law, but that it should be an order directing him to pay the balance of the fund in his hands according to law and the will of Mary F. Freer.

The Supreme Court of Ohio, in the 62 O. S., page 41, announces this rule of law:

“The probate court has not jurisdiction, in making an order of distribution under Section 524, Revised Statutes, to determine the. person to whom distribution is to be made, and the amount going to each, but its power is exhausted in that particular when, upon final settlement of the account of the executor or administrator, it enters a general order of distribution.”

This, we think, was all the order that the common pleas court should have made in that behalf and any other or further order would be misleading, inoperative and void, and the judgment in that behalf is modified so as to require the executor to pay the funds in his hands, according to law. In view, however, of the directions of the will of Mary F. Freer, deceased, and with this modification above mentioned, the judgment of the common pleas court is affirmed and cause remanded for execution. Exceptions of all parties are noted.


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    POCKET PICKING AND ITS INCLUDED OFFENSE.
    Circuit Court of Franklin County.
    E. M. Whitten v. The State of Ohio.
    Decided, November 4, 1909.

      Criminal Law — Prosecution for Pocket Picking — What the Offense Includes and Does not Include — Charge of Court.

    1. An indictment charging the crime of pocket picking, where the property stolen is valued at $20, includes the offense of petit larceny; and a refusal of the court, upon request of the accused, to so instruct the jury is prejudicial error.
    2. ' But an indictment for pocket picking does not include either assault and battery or assault.

      M. B. Earnhart, for plaintiff in error.

      King & Game, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   Whitten, the plaintiff in error, was indicted and convicted of the crime of pocket picking. The property stolen was valued in the indictment and also in the verdict at $20.

Upon the trial, a special request was made by counsel for the accused that the court charge the jury that they might find the accused not guilty of the charge of pocket picking, but guilty of petit larceny. A similar request as to a verdict of assault and assault and battery was made. A motion for a new trial was overruled and sentence pronounced. A bill of exceptions was taken and error is now prosecuted here.

The only serious questions involved in the record here is whether petit larceny and assault and battery and assault are included offenses in an indictment for pocket picking.

It is settled in this state that where lesser offenses are embraced in the indictment, a failure of the court upon request of the accused to charge upon the subject of the lesser and included offenses is prejudicial error. Hanson v. State, 43 O. S., 378; Howard v. State, 25 O. S., 401.

The indictment contains a complete charge of larceny, and in addition a charge that the larceny was from the person of the. owner. The larceny is the foundation of the charge, and the taking from the person the aggravation of the offense.

Numerous authorities are cited holding that burglary and larceny may be charged in one indictment, and if so charged the conviction may be had of either or both.

Cases are also cited by counsel holding that an indictment for robbery includes larceny, and a conviction may be had for either.

No cases to the contrary have been cited by counsel upon these propositions.

There is no distinction, in our opinion, in principle between the charge of pocket picking and that of robbery and burglary and’ larceny in this respect.

The state must first prove the larceny, and then the aggravation that it was taken from the person or building. If the state fail in proof of the aggravation it may still have conviction of the included offense of larceny.

Blackstone in his Commentaries (Vol. 4, p. 240) styles larceny from the person or house as “mixed or compound larceny,” and says that it “has all the properties of the former (simple larceny), but is accompanied with either one or both of aggravation of taking from one’s house or-person.” And (p. 242) adds: “Larceny from the person is either by privately stealing, or by open and violent assault.”

In State v. Tofte, 59 Ks., 755, it was directly held that larceny is included in a charge of pocket picking. In the opinion, after quoting from Blackstone’s Commentaries, it is said:

“It would, therefore, seem that compound larceny is not in character or general definition in any wise different from simple larceny. It is different only in the aggravated circumstance of being committed in a house or from a person. "

In Fanning v. State, 12 Lea (Tenn.), 651, it was decided that a verdict of simple larceny was proper under an indictment for stealing from the person, which is the equivalent of pocket picking under our statute. In the opinion, it is said:

“But larceny is necessarily included in the offense of stealing from the person. Without this offense of larceny there could be no offense charged in the statute against stealing from the person. Tt is the larceny which makes it an offense, and the circumstance of its being committed by taking from the person aggravated it into a higher grade of offense. "

In State, v. Eno, 8 Minn., 190, it is laid down in the syllabus:

“Where the specifications in an indictment alleges a larceny from the person, the defendant may be convicted of a simple larceny.”

In the discussion of this question in the opinion, it is said:

“It is contended that in an indictment for larceny from the person, the defendant must be acquitted if that particular offense is not made out. To this we can not assent. Each of the several descriptions of larceny involve a simple larceny. The fact of its having been committed in a dwelling house or from the person merely goes in aggravation and increases the severity of the punishment. If the prosecution fails in establishing these circumstances, but proves the larceny substantially as charged, a conviction of the minor degree of the offenbe may be had. ’ ’

Upon this proposition no cases have been cited by counsel or found by the court to the contrary.

In the case of Brown v. State, 2 C. C.—N. S., 409, it was decided that pocket picking is included in a charge of robbery, basing both offenses upon larceny as the foundation. This case does not militate against but supports the conclusion that larceny is an.included offense in both robbery and pocket picking.

• It is urged that larceny should not be held an included offense because the maximum penalty is greater than in pocket picking. It may however, be.noted that in most cases of pocket picking the amount taken is small, falling. within the grade of petit larceny. The offense of pocket picking was, therefore, prescribed as a higher grade to meet the cases'.ordinarily arising where small amounts are taken from the person. No other plausible'reason can be given for its enactment.

We are not convinced, however, that the maximum penalty is the exclusive test as to included offenses. A more accurate test, and the one usually applied, is found in the essential ingredients or elements, of the respective crimes. An indictment for murder contains as essential ingredients malice and deliberation in addition to the unlawful billing. The elimination by failure of proof or otherwise of the distinctive essentials of the higher offenses reduces- the grade until the appropriate included offense is reached.

The case of Harris v. State, 57 O. S., 92, does not conflict with the view that larceny is an included, offense in a charge of pocket picking. The opinion concedes that larceny is involved in pocket picking, and this is equivalent to saying that it is an included offense. The matter decided ivas that a finding of the value of the property taken need not. be made to sustain a conviction of pocket picking. Pocket picking is not graded by the amount of property as in cases of larceny. The finding as to value is, therefore, not material as to the former offense, althoiigh it is as to the latter.

The court, therefore, held that the statute providing that in cases of “offenses against property by larceny” the verdict shall state the value, etc., applies only to larceny and kindred offenses, classified “as offenses against property.” This interpretation of the statutory phrase, ‘ ‘ offenses against property. by larceny,” harmonizes the statutes and carries out the evident legislative intent of meeting all cases where value determines the grade or affects the punishment. In our opinion, it does not follow from the mere classification of pocket picking as a crime against the person, that the rule of the common law as to the terms employed, as well as the plain scope of the statute defining the offenses, are .overthrown.

We are of opinion, however, that neither assault and battery nor assault, as criminal offenses, are included in an indictment for pocket picking. Assault and battery and assault as criminal charges imply an intent to employ some degree of force to the person or inflict some physical injury, and must be accompanied by menaces or threats of personal injury. These elements are wanting in a charge of pocket picking. If force is used the charged would be robbery. In pocket, picking the taking from the person does not necessarily imply that the property be separated from the person by force, nor that the actual person be invaded. The property may have been in the personal control and presence of the owner and taken by stealth, without injury to the person.

It is contended that in the indictment under consideration an assault is charged, and that although not necessary t-o the crime of pocket picking, yet having made the charge, it became thereby an included offense.

It is true that an assault is averred in the indictment, but one essential element to constitute the offense is lacking, to-wit: that the assault be accompanied by threats or menaces; and this necessary feature is negatived by the averment that the act characterized as an assault was committed without force and violence and without menaces or putting the party in fear.

The only error in the record, prejudicial to the accused, is, therefore, the refusal of the court to instruct as to the included offense of petit larceny.

The judgment and conviction is, therefore, reversed upon the ground stated and the cause remanded for a new trial.


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    DISMISSAL ON ERROR. FOR. FAILURE TO FILE TRANSCRIPT.
    Circuit Court of Hamilton County.
    Louis Loeb v. Kent & Kaufhold.
    Decided, June, 1909.

      Error Proceedings — Effect of. Failure to File Transcript Within Four Monihs from Rendition of Judgment — Jurisdiction.

      Bates & Meyer, for plaintiff in error.

      Klein & Stagman and James R. Jordan, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   No transcript of the final record or transcript of the docket or journal entries in this case was filed in this court until long after the four months from the rendition of the judgment complained of, and not for more than four months after the petition in error had been filed. This court therefore has acquired no jurisdiction to hear and determine whether the judgment is correct or not. 58 O. S., 221; 66 O. S., 356.

The action in this court should- he dismissed.


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    AS TO GENUINENESS OF PROMISSORY NOTES FOUND AMONÓ A DECEDENT’S PAPERS.
    Circuit Court of Muskingum County.
    Carrington T. Marshall, Administrator, v. John J. Thomas.
    Decided, October, 1909.

      Promissory Notes — Presumption as to Delivery and Consideration— Genuineness of .Signature — Testimony of Expert Witness ■ as to' Ilandwiiing — May Give Reasons for his Opinion on Examination in Chief, as Well as the Opinion Itself.

    1. Where a number of standards of handwriting have been admitted, in evidence for the purpose of proving the genuineness of a signature, it. is an abuse of discretion on the part of the trial judge amounting to prejudicial error to refuse to permit the jury'to take to their room all the standards so introduced as exhibits.
    2. An expert witness on handwriting should be confined to matters apparent on the face of the writing. He can not be permitted by argument or inference to draw conclusions as to matters not appearing on the face of the writing, and the value of his opinion will depend upon the clearness with which he demonstrates its ' correctness. ; ■ ■
    3. Where promissory notes are found among the papers of. a decedent delivery will be presumed; and nothing else appearing, the.form of such notes, stipulating that they were for value received,, is prima facie evidence of consideration.

      Carrington T. Marshall, for plaintiff in error.

      Winn & Bassett, contra.
    Voorhees, J.; Donahue, J., and Taggart, P. J., concur.
   This action is brought.by the plaintiff in error as administrator of the estate of Sarah E. TIolden, deceased, upon two promissory notes,- with warrants of attorney attached, both,-, bearing date September 21, 1898, due one year after date, copies of which with warrant of attorney are attached to the original petition. -

The defendant in error answers, setting up-two defeuses-.The first defense, after making certain admissions, denies each and every allegation contained in the first cause of .action; and further denies that he ever executed and delivered to said Sarah IT Holden or to any one for her the alleged promissory notes set forth.in the petition; and„as, a second, defense, to each of said notes'pi cads want of consideration.

The files or transcript do not show there was any reply to this answer of the defendant, hut the case was tried to a jury, and the evidence was received hearing upon the issues made in the case as if a reply were filed, so Ave assume that there was a reply, and the issues property joined between these parties.

The.- cause Avas submitted to a jury and -resulted in a verdict, for the' defendant. -Motion for a 'neAv trial Avas filed-and overruled, and error is prosecuted to this court to rev'erse the 'judgment of the court beloAAq and various grounds of'érror' aré assigned in tlfe petition in error for a reversal of the-judgment:

Without setting forth the numerous errors complained' of in the’/petition in error, the principal ones Avhicli we will consider are, errors, in the admission of evidence on, behalf of the, defendant; error in the court’s refusing to alloAV all the exhibits that had been admiteed by the court below as standards of the genuine signature of the defendant in error to'be taken'by the jtiry to their room.for. deliberation; that the verdict of.the jury is against the weight of the evidence and is not .-supported by., the: evidence, and is contrary to law- The main ---contention in the'case'centers upon the question as 'to whether or'liotthe court eorréd in its order refusing' to áíloAv all the’ exhibits.’ that had been admitted by the court beloxv as standards of the genuine signature of the defendant to be taken by .the jury to Their- room AA^hen they -retired to deliberate upon their verdict. We will consider this question first:

A large number, fifty or more of signatures and writings, admitted to be the genuine handwriting and signature of the defendant, Avere introduced in evidence and used as- standards of comparison Avith the- alleged signatures to the 'notes- set forth in the -petition.

At the 'trial, the court did not limit in any way the number of standard signatures that could or should be used for the purpose of comparison. These standards were all used'on the'trial in,the' examination of expert witnesses as standards 'of-'comparison with the tÁA’O notes iif'spit. On the conclusion of the charge, the court ordered that only two of the standards should go with the jury in its deliberation. Afterwards, the court permitted two other standards to be selected for that purpose, and such selections were made, and these exhibits with the notes in suit were taken by the jury to its room during its deliberation.

The' plaintiff in error took exceptions to the' order of the court, limiting the number of exhibits' or standards that should thus be taken by the jury.

The general rule as to what papers may be taken by thé jury rests in the descretion of the court;, and it is only when there has been an abuse of this discretion, the judgment will be reversed. ’ ’

In considering this question, the nature of the issue involved is important, namely: Where the genuineness of the handwriting of a party is challenged, the jury have the right to make comparisons between the standards and the writing in dispute. We have no doubt that the court may limit in a reasonable degree the number of genuine signatures or writings to be used as standards of comparison; and if the court had so limited the number in this case it would come within the sound discretion of the court; but after the court admits such standards or exhibits in evidence, it has no right to withdraw any portion of theni'from the jury or to refuse to' permit it to have all the standards so admitted to be used in comparison with the disputed signature.

When standards are thus admitted, if the jury takes any part of them it should take all, and when the court orders that only a part can be taken it is an abiise of discretion prejudicial to the parties concerned. It may be illustrated in this way: The court on the trial of any issue may reasonably limit the number of witnesses to be used upon any one issue involved in the suit, bid after the court has permitted evidence to go to the jury on any such issue either by the testimony of witnesses or by other evidence, it would have.no right to say to the jury or direct' that certain testimony or a certain number of witnesses only are to be used in its consideration of such issue. It is not necessary to cite authorities as to the right of the jury upon a question of handwriting, to make comparisons between the disputed handwriting and that which is admitted to be the genuine handwriting; of.the alleged.maker of the disputed signatures; and the-jury may decide by comparison the issue between the parties.

Returning to the .question of the court refusing to permit the jury to have all the exhibits that had been received .in evidence as standards, of., comparison with the signature in controversy, it .was held in the case of Rainford v. People, 61 Ill., p. 365, to be error for the court to allow the jury to take out a part of the-evidence without taking all. Applying this principle -here, the cou.rt was in error when he directed that only a certain number of exhibits that had been introduced in evidence as the genuine handwriting or signature of the defendant in error should be taken by the jury to its room. The jury examining and comparing the signatures of only a part of the standards with the disputed signatures would reason with one another as to why they should have a part of the admitted signatures and the others- were excluded from their consideration. Their minds would naturally be impressed by the rejection, and unconsciously form conclusions from the refusal to permit them to bave all of the exhibits. .Little do we know the secret and insiduous manner by which impressions are produced on the mind,, or how slight the operating cause may ho. . : • . , .

We think, a sound discriminating discretion was not exercised in permitting only a part of the admitted standards to he taken by the jury when they retired to consider, weigh and determine upon the testimony and evidence in the case.

In refusing to allow the jury to have all the admitted standards there was prejudicial error in this ease, unless the other contention of the defendant in error was established, namely, that the notes were without consideration and were never in fact delivered to the payee named therein.

1st. Were the notes without consideration?

2d. Were the notes delivered to the payee?

The form of the notes, stipulating that they were given for value received, nothing else appearing, if the notes.were genuine, would.be prima faicie evidence of consideration.

Delivery, is in general presumed from possession of a bill or note. So,, where a note was found .-among-the papers- of a deceased payee, its proper delivery is to be presumed (Holiday v. Lewis, 4 Hun., p. 478). But if a note were found among papers óf a deceased person who is a stranger to the note, and the representative of the deceased person makes no claim to it, no delivery to the payee will be presumed, and delivery actual or constructive must be shown. Blanchard v. Sheldon, 43 Vt., p. 512.

The evidence in this case shows that these notes were found among the papers of the deceased, Sarah E. Holden. Being so found them proper delivery is to be presumed until the contrary is- shown.

It is also urged in argument by' the plaintiff in error, that there was error in permitting the expert witness, George’ W. Wood, to give his reasons.for opinion he had formed as to the signatures in question on his examination in chief, the contention being,'that his reasons for his opinion or judgment should be tested by cross-examination.

Wé do not agree with this contention; yet, we think it is proper and perhaps necessai’y in this ease for the court to say something as to the examination in chief of an expert witness on handwriting, before he can be permitted to give ah opinion, where his only knowledge is gained, from a comparison of ácíiiiitted genuine writing with the writing of the disputed instrument; or, in other words-, where the knowledge of the expert is gained from a comparison of admitted genuine writing with the writing in dispute. '''

In the case of Koons v. The State, 36 Ohio St., p. 195, the court laid down this formula, -as being requisite for the qualification of an expert witness to give an opinion: “It must appear before such opinion is called for, that the witness has formed, or is then able to form an opinion upon the matter in question.”

With the contention of the plaintiff in error, that the court erred in permitting the expert Wood in his examination in chief to give his reasons for the opinion or judgment he had formed we do not agree. In Kieth and wife v. Lothrop, 10 Cushing, p. 453, the court say at page 457 that “the witness Smith who was called as an expert was rightly allowed to.give his reasons for the opinion that he expressed.” This point was adjudged in Commonwealth v. Webster, 5 Cush., p. 301; and in Collier v. Simpson, 5 Car. & P., p. 73, Tindel, C. J., ruled, "that counsel might ask a witness Avho Avas called to testify as an expert, ‘his judgment and the grounds of it. ’ The value of an- opinion may be increased or diminished in the estimate of the jni'y by reasons given for it.”

"It is proper on the examination of an expert, even on his examination in chief, to require him to state the reasons'for his opinion, so that the jury will be enabled to estimate the value of his testimony.” People v. Shattuck, 109 Cal., p. 673.

In examining the testimony of the expert Wood, Ave think some parts of his testimony are objectionable, on the ground that his opinion is formed or based upon argumentative statements, mere inferences and speculation. When an opinion is speculative and theoretical only it should not be received; such statements are not Avithin the domain of expert testimony.

An expert can not testify that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort; he should be confined to matters apparent on the face of the writing, he may testify to the difference in the letters or words of the -writing or signature in dispute, similar characteristics or other matters as they may appear to him on the face of the writing, as for example, simulation, naturalness and the like, and may in a proper case give his opinion whether a given Avriting is a genuine or a feigned or forged signature. By comparison is meant the collation of writings in juxtaposition for the purpose of ascertaining by inspection if they were AATitten by the same person. Persons of experience and skill though previously unacquainted with the handAvriting in question may be allowed to depose as to appearances perceived by them, as to the resemblance or difference in ihe formation and appearance of the different letters or words, or even in the general appearance of different portions of the writing. Handwriting is an art concerning AAhieh the value of an opinion is susceptible of demonstration. The value of an opinion of a handAvriting expert must depend upon the clearness with AAhieh the expert demonstrates its correctness. That demonstration Avould naturally consist in the indication of similar characteristics or lack of similar characteristics between the disputed’writing' and the standards, and the valúe of the opiúi'on will' largely depend upon the number pf 'those' characteristics which appear, or .'are wanting. Thus, comparison is rated after the fashion of circumstantial evidence, depending for. strength upon the number, prominence and' consistency of the links in the chain. But "the rule, as to circumstantial evidence, will not permit one inference. to depend upon another inference in establishing the question in issue. Therefore, the expert, should be confined to matters apparent on the face of the writing, and not' by argument or inference draw conclusions upon matters not appearing upon the face of the writing.

As an example' of the violation of these principles- in the examination of the witness Wood, we will, give a single example, reading from the bill of exceptions, at the bottom of page 84:

.“Now, as a matter of comparing the handwriting in the two questioned signatures with the handwriting in the standards, the two exhibits numbered 49 and 50, as well as all of the other standards in evidence, there is just one logical conclusion to be arrived at, and that is, that whoever wrote these two questioned signatures held the pen in an entirely different way from the manner in which the pen was held in writing any of the standards in evidence. Now, as I have stated before, these two questioned signatures were unquestionably written with the pen held sidewise, pretty much after the fashion in which a stub pen is ordinarily held by writers who employ stub pens. Now that is not the case, nor was it the case in writing any of the standards. John J. Thomas, in writing his signatures as portrayed distinctly in all of his signature writing in evidence as standards, held his pep as writers, ordinarily hold their pen, with the pen facing the writer. Now that is distinctly portrayed by the shading in the downward strokes; the heavy strokes of John J. Thomas’ signature writing are made with the downward movement of the pen. In some of his signatures-, in some of the ..standard signatures in evidence, the heavy strokes' are much •heavier in some instances than the others. In many instances, they are. quite as heavy as some of the heavy strokes in these questioned signatures, but they are made in a different direction; they are made with a downward motion of the pen, or at any event they are not with the side motion of the pen, and therein is portrayed, in comparing the questioned signatures with the admitted signatures of John J. Thomas, an entirely different habit of holding the pen, and it portrays two extremes. There are just two ways in which a pen can be held, to extreme ways— two extremes — one with the pen facing sidewise, and the other with the pen facing the writer. Of course, there are different modifications, from one extreme to the other, but here we have, jn a comparison of the questioned signatures with the standard signatures of John J. Thomas, those two extremes.”

This -is only one illustration of the method of the witness arguing in support of his opinion without stating facts that are apparent from an examination of the writings themselves. It presents no question of science and involves no rule not subject to as many variations as there might be efforts at simulating writing. The care of one man is not evidence of the care which may be exercised by another in an effort to commit a forgery, any more than is the skill of one man in executing the imitation or disguise, evidence of the skill- of another. An expert can not testify that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort. These principles are well recognized by authority: Encyclopedia of Evidence, Volume 6, page 384, subdivision 3, and authorities there cited, and the Gordon case, found in 50 N. J. Equity, p. 397; s. c. 26 Atl., p. 264-268.

We appreciate the difficulty of establishing a definite rule for the examination of ah expert witness, to separate that which is argumentative, theoretical and speculative from that which is proper illustration, in pointing out the difference in the letter or words of the writings in the way of demonstration. We realize that the examination must be left largely to the discriminating discretion of the trial judge Avhen the testimony is being given..

Eliminating from the testimony of the expert witness Wood, that which would come under this rule of exclusion, we think the verdict of the jury is manifestly against the weight of the evidence, in finding that the signatures of John J. Thomas to Exhibits “A” and “B” are not genuine; on the contrary, the weight of t-hp testimony is manifestly in favor of their being genuine. The witnesses who testified to the. genuineness of these signatures were bank officials, men of long experienc in examination by comparison of handwritings, and the decided weight of the testimony is in favor of the genuineness of these two disputed signatures, and the jury has so disregarded the weight of the evidence in their verdict that'the court is forced to the conclusion that their judgment must have been influenced largely by the incompetent evidence given by this expert Wood in his argumentative and speculative way of supporting his opinion that the signatures of “A.” and “B” were not genuine.

We have examined the charge of the court and find no error in the charge, or in the refusal to charge as requested by the plaintiff in error, but for the reasons stated, the judgment is reversed with costs, and remanded to the common pleas for further trial and proceedings according to law.

Exceptions noted.


text:
    PROSECUTION FOR ABANDONMENT OF CHILD.
    Circuit Court of Cuyahoga County.
    A. J. Hirstius, Sheriff, v. Adolph Gottschalt.
    Decided, November 1, 1909.

      Parent and Child — Construction of Section 3140-2 — Making Abandonment of Minor Child by Parent a Felony — Order as to Provision for Child may be Modified — Habeas Corpus.

    1. An order made pursuant to Section 3140-2 requiring the father of an abandoned minor child to pay a’ certain sum periodically for the home, food, care and clothing of said child, and give bond therefor, may be modified at any time thereafter when changed conditions of the child require it, as well as when the father becomes unable to comply with the original order.
    2. It is unlawful, however, to arrest and confine such father, if not in default under the original order, until he has had opportunity to comply with any modified order that may be made.

      Estep & Gott, for plaintiff in error.

      Clifford Neff, contra.

      Winch, J.; Henry, P. J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   This is a proceeding to review the judgment of the common pleas court granting an application in habeas corpus for the release from custody of the defendant in error.

The record shows that on June 4th, 1906, Gottschalt was convicted in said court of the offense of abandoning his minor child, and thereupon and before sentence was ordered’ to pay to the clerk of the court for the home, food, care and clothing of said child the sum of $20 quarterly, beginning July 1,1906, until the further order of the court, and gave bond to comply with said order, as provided by law. •

Although Gottschalt fully complied with said order, without default, on the second day of June; T909, upon motion, ’ aif order was made in said court modifying the original order' and requiring Gottschalt to pay $3 per week, until the further order of the court, for the support, care, food, home and clothing of said minor. This order recites that it was made upon due notice to Gottschalt and that upon the evidence adduced the court for good cause finds that the allowance theretofore made, is now insufficient. The defendant was ordered to give a new bond conditioned that he furnish his child with necessary and proper home, food, care and clothing and abide the further order of the court and a capias for the defendant, was ordered.

Thereupon a capias was issued to the sheriff, plaintiff in error, who arrested Gottschalt and imprisoned.him. in the county jail, where he was held until released on his application here under review.

No breach of the modified order Was charged, nor had the defendant had time to become in default under it, at the time the capias was issued.

The statute under which Gottschalt was originally prosecuted is Section 3140-2, Revised Statutes, and that part of it hero involved reads as follows:

“Provided, however, if after conviction and before sentence, he shall appear before the court in which said conviction shall have taken place, and enter into bond, to the state of Ohio, in the penal sum of one thousand dollars, to the approval of the court as to surety, conditioned that he will furnish said child or children with necessary and proper home, food, care and clothing, or; if said child or children be in a county or district children’s home, that he will pay to the trustees of said home the reasonable cost of keeping said child or children while remaining in the same, to be fixed by the court as to the amount and times of payment, then said court may suspend sentence therein;
“And provided further, that upon a failure of said parent to comply with said order and undertaking, he or she may be arrested by the sheriff or other officer on a warrant issued on the precipe of the prosecuting attorney, and brought before the court for sentence, whereupon the court may pass sentence, or for good cause shown, may modify the order and take a new undertaking and further suspend sentence as may be just and proper.”

It is claimed that because the statute provides for a modification of the original order only in event the defendant fails to comply with it, it can not be modified under any other circumstances. We can not give assent to any such narrow construction. Manifestly the intention of the Legislature in authorizing a modification of the order, when the defendant is in default, was to give the trial judge an alternative, so that he would not have to impose sentence if the defendant failed to comply with the order, but could hear evidence as to his ability to comply with the order, and, if satisfied that the defendant was unable to make the payments, reduce the amount to be paid, instead of sending him to serve his sentence, where he would be unable to make any contributions to his child’s support.

We do not believe the Legislature intended to restrict that broad and continuing jurisdiction over the rights of children which the courts exercise with regard to their custody, in an enactment evidently intended to provide against their abandonment, and for their nourishment. See Hoffman v. Hoffman, 15 O. S., 427.

The prime object in this enactment is the good of the child. As it grows, its wants multiply, and as they multiply and conditions change, the courts have always given heed to the situation and modified their orders to suit the changed conditions. This necessary right to modify their orders affecting -children has not been taken from the courts by this legislation.

Further, the original order was before sentence, and “until the further order of the court.” The case is still pending for sentence and the court expressly reserved the right to modify its order. The doctrine of res judicata does not apply. The court does not appear to have abused, its discretion in the modification which was made on June 2, 1909. We therefore hold that said order is a valid order, and upon failure to comply with it, the defendant may be brought in for sentence.

The record showing that the defendant was not in default as to the latter order, when the capias was issued for him, his arrest and imprisonment were illegal, without warrant of law, and he was properly discharged upon his application. ■

Judgment affirmed.