text:
    SERVICE OF SUMMONS ON CORPORATIONS.
    Circuit Court of Lucas County.
    The State of Ohio, on Relation of Lyman W. Wachenheimer, Prosecuting Attorney, v. The Standard Oil Company of Ohio et al.
    Decided, October 5, 1907.

      Summons — Served in Quo Warranto as in Civil Actions — When an Alias Summons May Be Issued — Service 'on Agent — Recital in Return— Service on Railway Companies — Sections 5040 and 5041, Revised Statutes.

    1. A party upon whose pleading summons has been issued is not required, upon discovery that good service has not been made, to wait until the original summons has been returned “not summoned,” or some action has been taken by the court, before causing an alias summons to issue, but may proceed at once to secure service upon another writ within the life of the original summons.
    2. Where a summons is returned by the sheriff as having been served on A, “managing agent of said company in Lucas county,” and this is met by an affidavit by the vice-president of the defendant company, in which he states that A is not and never has been its managing agent, but is an agent in charge of a local station, and nothing is presented in support of the truth of the recital in the return of the sheriff, a court will rely on the affidavit and grant a motion to quash the service.
    3. A return which recites that summons was served on B, “assistant cashier and treasurer of the company,” is also open to a motion to quash, where met by an affidavit by B which removes the uncertainty as to whether he is the treasurer of the defendant company by stating explicitly that he is the “assistant cashier and assistant treasurer,” and the return fails to show absence from the county of all the chief officers and other officers named in the statute upon whom service may be made, or that the summons was left with B at the usual place of business of the defendant company, he being the person in charge- thereof.
    4. Service may be made in quo warranto precisely as in other civil actions; and where the defendant is a railway company, service may be had upon a ticket or freight agent of the company, notwithstanding the principal office and principal officers of the company may be within the county at the time service is made.

      L. W. Wachenheimer, Prosecuting Attorney, Frank Monnett and Hal De Ban, for plaintiff.

      Kline, Tolies & Goff, Wheeler & Bentley, Doyle & Lewis, J. O. Troup and Marshall <& Fraser, contra.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   This is a proceeding in quo warranto, brought by the relator against some fourteen or fifteen different corporations. It is charged in the petition, at great length and with great particularity, that these corporations have combined together to violate and have violated certain provisions of the so-called Valentine anti-trust law, and the prayer of the petition is: “ that defendants be adjudged to have forfeited and surrendered their respective corporate rights, privileges, powers and franchises and that they and each of them be ousted and excluded therefrom,” etc. Certain of these corporations are foreign corporations, and with respect to them the prayer is that they be denied the right and prohibited from doing any business in the state of Ohio and county of Lucas. The matter that we have to consider and pass upon now is certain motions filed by certain of tbe defendants to quash service of summons upon them. As to some of the defendants, there has been no attempt to serve them, and as to others of the defendants they have been dismissed from the case. The motions are with respect to the service upon the Standard Oil Company of Ohio, the Northwestern Ohio Natural Gas Company, the Toledo & Ohio Central Railroad Company, the Lake Shore & Michigan Southern Railway Company, Pennsylvania Railway .Company and the Hocking Valley Railway Company.

I shall speak first of the motion on behalf of the Standard Oil Company of Ohio. On behalf of this defendant, the motion is not only to quash the service of an alias summons, but to quash the alias summons on the ground that it was issued without authority of law. The first summons against this defendant was directed to the sheriff of Allen county, Ohio; and the return by the sheriff is to the effect that he served it by delivering a copy to “a representative of said company.”. Manifestly, this was not a good service. Upon this return coming to the attention of counsel for the plaintiff, a precipe was filed for an alias summons, which was issued to the sheriff of Lucas county. It is urged upon the authority of the case of Whitman v. Sheets, 20 Circuit Court Rep., 1, that the issuing of the alias summons was unauthorized. Our attention is directed particularly to Section 5040 of the Revised Statutes, which provides: “When a writ is returned ‘not summoned,’ other writs may be issued, until the defendant is summoned, ’ ’ etc. And it is urged, that since this matter of the issuing and service of summons is all a matter of statutory provision and authority, and there is no other authority than that found here for the issuing of alias summonses, that therefore an alias summons is not authorized until after the original summons has been returned, “not summoned.” Even the case of Whitman v. Sheets would not quite sustain that extreme view, for the reason that it is there held that after the court has decided that the service is not good, an alias summons may issue although there is no return upon the original summons of “not summoned. ’ ’

In the ease of Whitman v. Sheets, supra, the case of Williams’ Admr. v. Welton’s Admr., 28 O. S., 451, appears to have been entirely overlooked. In that ease service of an alias summons was made upon Mrs. Williams. The claim was made that the writ was void because issued and served within the life of another alias writ of an earlier date. Attention was called to this same provision of the code upon the subject of issuing alias writs. It was then found in Section 60 of the code. 1 read from the opinion, at page 470:

"It is argued that all process is the creature of the statute, and as there is no provision for issuing one writ before the other is returned, when directed to the same county, and as provision is made for more than one writ when the defendants reside in different counties, the maxim ‘expressio unius exclusio alterius’ applies.
‘' If this maxim is to govern in construing statutes relating to incidental remedies in all cases, it would lead us back to the era of technicality from which the code was intended to relieve the practice.
"No better illustration of this can be found than to apply this maxim to this section of the code. It provides for alias writs only when a writ is returned ‘not summoned.’ Therefore, if it is never returned, or is lost or destroyed, or filed without any return, no other writ can be issued, for ‘the expression of one thing is the exclusion of another,’ and as provision is made for other writs in a given case, it excludes the power to issue in all other cases not expressed.”

The court, while recognizing this maxim as being one of great value, held that it was not applicable to the case in hand, and the service was sustained. We are not satisfied at all' with the reasoning or conclusions of the circuit court of the third circuit in the case of Whitman v. Sheets, supra, a decision by a divided court, Judge Day dissenting. We think the reasoning and the principles applied in Williams’ Admr. v. Welton’s Admr., supra, apply to the case we have under consideration — that an alias summons might lawfully issue under circumstances like those I have mentioned; that when a party discovers that good service has not been made, he is not required to await the action of some court before he may proceed to correct this defect. If he were required to do so, it might well result, as we can all readily see, in very great inconvenience and loss, especially where the court to which the party must apply is not in session. We think that this should be so especially in a case where the service is attacked by the other party, so that the party attempting to procure service is apprised of the fact that there will be no acquiescence in 'the defective service, but that- the defendant will stand upon his rights.

As I have said, the motion on behalf of the Standard Oil Company of Ohio is, not only to quash this alias summons,'but to quash the service. We come now to a consideration of the question of the service of the alias summons. The return itself sets forth that it was served by- the delivery of a copy to II. A. Anderson, managing agent of said company in Lucas county. In support of the motion to quash we have presented to us the affidavit of M. F. B. Squire, as follows :

“F. B. Squire, being duly sworn, says that he is the vice-president of the Standard Oil Company of Ohio. Said corporation is a corporation organized under the laws of the state of Ohio and is located and has its principal place of business in the city of Cleveland, county of Cuyahoga and state of Ohio. And that at its said office in the city of Cleveland, can, and could at .the time of the issuing and pretended service of said summons, be found its vice-president, secretary and treasurer.
‘ ‘ That II. A. Anderson named in the return of said summons was not at the time of said pretended service or at any other time the managing agent of said corporation, but was an agent of said corporation in charge of the local station of said corporation at Toledo, Ohio. (Signed) F. B. Squire.”

It is urged on behalf of the plaintiff that we should not give weight or consideration to this affidavit, for the reason that it does not state the facts which would disclose whether Mr. Anderson was a managing agent or not; it is said that the statement that he was not managing agent is a mere conclusion. The same may be said of the return of the sheriff. The sheriff states boldly that he served this writ upon II. A. Anderson, who- was the managing agent. This affidavit traverses that return, and we think, coming from the vice-president of the company, who must know whether Anderson was or was not a managing agent, it should be considered, together with the fact that there is nothing here supporting the return of the sheriff — and it is not made under oath, but is something made, unquestionably, upon information in the nature of hearsay, that the sheriff relied upon and supposed to be true — we think that under those circumstances this affidavit should be regarded as refuting and overturning the statement of the sheriff to the effect that this man was a managing agent. In addition to this, the affidavit sets forth that the principal office and place of business of this defendant is in the city of Cleveland. Mr. Anderson was served by the sheriff here, in this county, and the affidavit sets forth that what the corporation has in this county is a local station, and that Mr. Anderson is in charge of the local station. These statements we think constitute primary facts which tend to support the general statement that Mr. Anderson’ was not the managing agent of the company. The affidavit, in short, is to our minds persuasive and we think reliable information to the effect that Anderson was- not managing agent, and, therefore, we ought to rely upon it, and we do rely upon it, and therefore the service of the alias summons upon this defendant will be quashed.

We come now to a consideration of the service upon the Northwestern Ohio Natural Cas Company. This summons was issued to and was served by the sheriff of Lucas county. The return sets forth that it was served by delivery of a copy thereof to one R. J. Bui’khalter, “assistant cashier and treasurer of said company. ’ ’ Counsel for the relator rely upon Section 5401 of the Revised Statutes, contending that that is the section which provided for service upon corporations in cases of this character. That section provides that, under certain circumstances, service may be had upon the cashier or treasurer of a corporation; it nowhere provides for service upon an assistant cashier or assistant treasurer. This return, reading that the service was upon an “assistant cashier and treasurer,” it might be-thought that the word “assistant” qualified to word “cashier” only and not the word “treasurer.” It might be said that the return is not clear, but is ambiguous, but upon that subject we have the affidavit of Mr. Burkhalter himself, in which he says under oath “that he is now and has been for the year last past the assistant secretary and assistant treasurer of the Northwestern Ohio Na-tural Gas Company. He was never treasurer of said company. At the time of the service of summons in this case on affiant, M. B. Baly (which we think should be M. B. Daly) “was a vice-president of said company, and J. W. McMahon, superintendent, both residing in Toledo from April 28th to May 7th inclusive.”

The material part of this affidavit is that in which it states that Burkhalter was never treasurer of the company; so that the service upon him was not authorized, unless the return should show the absence from the county of all the chief officers and other officers named in the statute upon whom service might be made; and unless it should further show that the summons was left at the usual place of business with Mr. Burkhalter, he being the person in charge thereof. The return does not pretend to state anything of that kind. Upon this showing, we believe that we are bound to and we do quash the service of summons upon the Northwestern Ohio Natural Gas Company.

We come now to a consideration of the service upon the railroad companies — the Toledo & Ohio Central Railway Company, the Lake Shore & Michigan Southern Railway Company, the Pennsylvania Company and the Hocking Valley Railway Company. In some respects they are not precisely in the same class, but, for the present I shall deal with them as if they were; they are railway companies; the differences seem to be that the Toledo & Ohio Central Railway Company, an Ohio corporation, has its chief offices in this county, and the Pennsylvania Company is a foreign corporation, whereas the Lake Shore & Michigan Southern Railway Company and the Hocking Valley are Ohio corporations, but the Lake Shore & Michigan Southern and the Hocking Valley have their principal offices elsewhere — the first in Cleveland and the second in Columbus, Ohio. As I have said, counsel for the relator contend that service should be made as provided in the Code of Civil Procedure, or, specifically, as provided in Section 5041 of the Revised Statutes. In the eases of all these railroads, the return sets forth that service was made upon “a regular freight agent of said company; the president or other chief officers of said company could not be found by me in Lucas county, Ohio.” With respect to the Lake Shore & Michigan Southern Railway Company, there is on file an affidavit that stands unquestioned, that the.chief offices of said company are in Cleveland, and that service might have been made upon the chief officers there; and the same is true of the Hocking Valley Railway Company, only its chief office and situs is in Columbus ; and with respect to the Toledo & Ohio Central Railway Company, the fact that service could not be made upon its chief officers in Lucas county, is controverted by an affidavit.

If, however, service may be made under Section 5041, we are of the opinion that the return need not show that the chief officers could not be served. We think the statute provides for two methods of service upon railroad corporations, to-wit, it provides in the first part of the Section (5041) for a service upon corporations generally, in which case the return must show the absence of the superior officers, if the service is upon an inferior. But, following that provision, is this:

* * * “and if such corporation is a railroad company, whether foreign or created under the laws of this state, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon, the summons may be served upon any regular ticket or freight agent thereof; or if there is no such agent, then upon any conductor, in any county in this state in which such railroad is located, or through which it passes.”

And we think that under that provision service may be made upon such ticket or freight agent notwithstanding the presence in the same county of the superior officers of the company; we think that is the plain meaning of the statute.

. It was said, in the course of the argument, that we had decided differently in a certain case, which was heard some time ago and which counsel have since given us reference to, the case of Jones v. T. & O. C. Ry. Co., 20 Circuit Court Rep., 63. That is the only case of which we have any recollection bearing upon this question. This was a decision under Section 6478, applicable to proceedings against railway companies before a justice of the peace, and had no application to the ease under consideration. Counsel still think there is some other decision bear.ing upon the subject, but of that we have no 'recollection and counsel have not been able to find it.

It is argued by counsel for these defendants that service in quo warranto cases is to be made — or the return of service — is to be made somewhat differently from that in ordinary civil cases. The discussion has taken a wide range and we are satisfied that we can not do justice to the arguments of counsel upon this claim. Much of it seems to be applicable rather to the question as to whether the suit is properly brought in this county against certain of these companies. It seems to us, however, to bear upon the question of the method of service and of the return. That a suit may be brought in this county, under circumstances like those set forth in the petition, seems to be distinctly held in the case of Ohio, ex rel Ellis, v. King Bridge Co. et al, 7 C.C.(N.S.), 557. It is urged, however, that if the suit may be brought in this county, the summons nevertheless must be served upon the defendant corporations in the counties where they have their principal offices respectively — the situs of the corporations. We are referred to the rules laid down in 5th Ohio, at page 250, and then to the statutory modification of the laws thereafter made in 1838, and also to the later codification in 1878, and from the provisions found in these codes and in these rules of the court and in certain other statutes respecting the duties of prosecuting attorneys and the attorney-general, in quo warranto cases, counsel deduce the conclusion that the service must be made ás I have stated, upon the defendants in the counties where they have their main offices. I shall not undertake to refer to all of these statntes, nor to follow the reasoning of counsel on this line. It seems to us entirely clear that the rules laid down by the Supreme Court in 5th Ohio were abrogated and superseded by the provisions in the code of 1838 — found in 2 Swan & Critehfield, beginning at page 1264, on the subject of service of summons in quo warranto eases. Section 2 thereof provided:

.“Whenever any such information shall be filed, a summons shall be issued thereon, which shall be served and returned forthwith ; and whenever the same shall be returned served, the clerk of the court shall enter the defendant’s appearance.”

Then Sections 10, 11 and 12 contain specific provisions as to the issuing and service of summons in quo warranto cases; and these provisions differ somewhat — in some instances very widely —from the methods of service in ordinary civil actions. With respect to the place where the action might be prosecuted against a corporation, Section 9 provided that:

“Leave to file such information may be granted by the Supreme Court, in term time, or any judge thereof in vacation, upon the application of the prosecuting attorney of the county wherein the principal office or place of business of such corporation shall be, ” etc. '

Again, when the Legislature came to codify the laws in 1878, or to “Revise and Consolidate” as the act reads, by a statute found in Vol. 75, Ohio Laws, at page 597, the statute on the subject of quo warranto was brought into and made a civil action under the code, and it was therein provided, in Section 11:

“When the petition is filed without leave and notice, a summons shall issue, and be served as in other cases, ’ ’ etc.

We think that it is entirely clear that that means in other civil cases, and that the purpose of the statute was to provide for service being made in quo warranto eases the same as in other civil eases, to harmonize the law on the subject of service and to not have different methods of service in different forms of action. By this statute that of 1838 was repealed, and all of those special provisions contained in the statute of 1838 were wiped out, and we do not think this could have the effect of restoring any more ancient practice in any respect or degree. This statute further provides — differing, it will be observed, in some respects from the statute of 1838 — that an action may be brought against a corporation in a county where the corporation has a place of business. This provision is in Section 6768. Formerly it provided that an action must be brought in the county where the principal office or place of business of such corporation shall be. That may not bear very directly upon the question of the service of summons, however. If the action was properly brought in this county, as held in the case of Ohio, ex rel, v. King Bridge Co., supra, we think the summons may issue and be served precisely as in other civil cases, and, as I have said, we are of the opinion that the service may be made upon a ticket or a freight agent of a railroad company, though the principal office of the company and the principal officers of the company may be within the county at the time such service is made. We have nothing to say about the wisdom of such law, about the policy of the Legislature in adopting it, but that seems to be the plain provision of the statute as we understand it; and, entertaining these views, the motion to quash, as to the railroad companies, will be overruled.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO OPERATOR OF EMERY WHEEL.
    Circuit Court of Hamilton County.
    William Knapp et al v. Everett P. Holden.
    Decided, July 20, 1912.

      Assumed Risk — Employer Relieved from Liability for Alleged Negligence — Resulting in Injury to ■Employe at Work at am Emery Wheel — Section 6%45,

    An emery wheel is a “simple tool” within the meaning of Section 6245, and where the evidence discloses that the injured plaintiff had worked at an emery wheel for more than thirty years and at the particular wheel by which he was injured for two years, a motion lies to direct a verdict for the defendant.

      Matthews <& Matthews, for plaintiff in error.

      G. M. Gist, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   The court below erred in not sustaining the motion made at the close of all the evidence for a verdict in favor of defendants. •

The evidence shows the emery wheel which the defendant in error was operating to have been a “simple tool” and one with which he was familiar. Pie had worked upon this wheel for two years and had been an emery-wheel worker for over thirty years. Under such state of facts Section 6245, General Code, does not apply.

The third defense of the answer was fully sustained by the evidence and such evidence' bars recovery.

Judgment reversed and judgment given for plaintiffs in error.


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    INCOMPETENT EVIDENCE AT A CRIMINAL TRIAL.
    Circuit Court of Hamilton County.
    Louis Smith v. State of Ohio.
    Decided, August 3, 1912.

      Criminal Law — Admission of Guilt to Magistrate Conducting Preliminary Examination Competent at Subsequent Trial — Evidence as to ' Letter Written by the Defendant.

    1. The testimony of the magistrate, before whom the accused was brought for his preliminary examination, that he privately admitted his guilt, is competent evidence at his subsequent trial before the common pleas.
    2. A letter written by the accused to the prosecuting witness is not competent evidence against him, but where he failed to take the stand and deny its authenticity and his guilt was established beyond a doubt by competent testimony and his own admission, the judgment finding him guilty will not be reversed.

      Dudley P. Wayne, for plaintiff in error.

      Thos. L. Pogue, Prosecuting Attorney, contra.'
    The plaintiff in error was convicted of larceny in the theft of jewelry from the residence of Miss Bertha Oettinger, where he had been employed to repair some window screens. His preliminary examination occurred before Justice Muller, who testified at the trial in the common pleas that Smith admitted to him that he took the jewelry.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   We can not see that it was error for the trial court to. have admitted the evidence of witnesses as to the admission by Smith of his guilt made at the time he appeared before the examining magistrate.

The admission of the letter written to Miss Oettinger was not in accord with the rules of evidence, but in view of defendant’s admissions and other convincing evidence we think this was not reversible error. The defendant did not embrace his opportunity to deny having written the letter. Although that omission should not weigh against him, we must decline to reverse the case for such error alone when the competent or admissible evidence in the case clearly establishes guilt beyond a reasonable doubt.

Judgment affirmed.


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    FORM OF VERDICT IN REPLEVIN.
    Circuit Court of Licking County.
    Fred S. Sperry v. Edward Allen.
    Decided, October Term, 1912.

      Replevin — Failure to Assess Value of Property Taken — Renders Verdict Irregular, When — Section 12059.

    A verdict wbicb. does not assess the value of the property replevined, in an action in which a redelivery bond has been given, does not conform with the statutory provisions with reference to the redelivery bond, and the entering of judgment on suca a verdict constitutes reversible error.

      Carl Norpell and C. N. Moore, for plaintiff in error.

      A. A. Stasel, contra.
    Powell, J.; Voorhees, P. J., and Shields, J., concur.
   This action was in replevin. Plaintiff in error was the owner of a judgment against B. J. Smith and M. A. Smith, and on the 10th day of June, 1910, caused an execution to be issued on said judgment to the sheriff of this county. The sheriff levied the same upon a stock of groceries and meats in the village of Utica, Ohio, as the property of said judgment debtors. On the 13th of June, 1910, Edward Allen, defendant in error, commenced an action in replevin against the sheriff, William Linke, and replevined the stock of groceries, meats, etc., from him. Shortly afterwards, .Fred S. Sperry, the execution creditor, was substituted for the sheriff, and gave a redelivéry bond and took possession of the goods replevined. Said bond was offered in evidence; it is attached to the bill of exceptions as an exhibit, and was given under the provisions of Section 12059 of the General Code.

The case was tried to a jury, resulting in a verdict for the defendant, Allen. A motion for a new trial was filed; a bill of exceptions was taken, embodying all the evidence, and the case is brought to this court for reversal of the judgment of the court below. Numerous errors are assigned, but the principal errors relied on are as follows:

1st. Error in tbe exclusion of testimony offered by the defendant below, and the admission of testimony against the objection of the defendant below, now plaintiff in error.

2d. Error in the charge to the jury.

3d. Because the verdict is against the weight of the evidence.

4th. Because of misconduct of counsel for the plaintiff below.

We have examined the record carefully in reference to all the errors assigned, and especially in reference to the errors urged to the court and insisted upon in the argument of counsel. While there may have been error in the admission of certain testimony, as claimed by counsel for plaintiff in error, yet we think that it was not such error as would work to the prejudice of the plaintiff in error, and would not justify a reversal of the judgment. Neither do we think that the court’s charge is open to serious objection, or that the same was erroneous.

It is strongly urged that the verdict of the jury is against the manifest and overwhelming weight of the evidence. We are of the opinion that while the evidence was probably open to suspicion, and was such that the jury could readily and easily have brought in a verdict for the plaintiff in error, instead of for the defendant in error, yet we think that it was such a ease and the evidence was such that it was peculiarly within the province of the jury to determine. We do not think it is so manifestly against the weight of the evidence that a reviewing court would be justified in disturbing the verdict and judgment of the court below.

Again, it is urged strongly that, because of the misconduct of counsel in making certain statements to the jury relative to evidence that had been adduced upon the trial, error prejudical to the rights of the plaintiff in error was committed, and that the judgment should be reversed upon this ground. While we think that counsel probably exceeded the limits of proper discussion, and made statements in his argument to the jury which could not be borne out by the evidence, yet, because the particular statements complained of would only go to the argument of opposite counsel, in relation to a certain book that was offered in evidence, by and with the consent of counsel for plaintiff in error, we think that this alone would not justify the court in reversing the judgment of the court below.

It is, however, assigned as error that the verdict of the jury was irregular and was not in conformity to law. The provisions of Section 12059, providing for the execution of a re-delivery bond, provide that the same shall be conditioned that, in case the judgment be against him (the defendant below, now plaintiff in error) he will return the property taken, or pay the value assessed, at the election of the plaintiff, and also the damages assessed for its taking, detention and injury, with costs of suit. In other words, the defendant in error would have the right, under the conditions of this bond, to demand that the property taken and returned to the defendant, Sperry, after the execution of the re-delivery bond, should be returned to him after the verdict and judgment in his favor; and, in addition, he would have the right, under the terms of this bond, to collect whatever damages might be assessed.by the jury for the taking and detention of such property.

The verdict of the jury in this case was as follows:

“We, the jury in this ease, being duly impaneled and sworn, do find that, at the commencement of this action, the plaintiff had the right to the property in the goods and chattels in the petition described, and was entitled to the possession thereof, and we do assess his damages against the defendant, Sperry, by reason of the premises, at $665; and we do find the value of the property, at the time it was delivered by the sheriff to the defendant, at the sum of..................dollars. ’ ’

It will be observed that the jury does not assess any value to the property replevined, and does assess damages against the defendant, Sperry, in the sum of $665.

We think that this verdict is not sustained, as the same is returned, by the evidence adduced. This verdict, we think, is irregular, and is not in conformity with the requirements of the statute; that, by the terms of this verdict, as applied to the redelivery bond, the plaintiff in replevin, defendant in error, could demand from the defendant, Sperry, the goods replevined; and, in addition thereto, he could collect, as damages, the sum of $665.

We do not think that such is the meaning of the statute, and that the jury, in the return of this verdict, did not return it in compliance with the requirements of the statute, and left the matter open and uncertain.

For these reasons, and because it can not be determined from the evidence itself what the rights of the respective parties to the suit are, we think the judgment of the court of common pleas ought to be reversed, and a new trial granted. .

We have examined the record in reference to all the errors assigned, and do not find any other error in the record which we think would justify a reversal of the judgment of the court below;,but we do think that, considering the uncertainty of the rights of the parties, under the verdict as returned by the jury, the judgment should be reversed.

The judgment of the common pleas court is reversed. Exceptions noted. The cause will be remanded to the court of common pleas for new trial, and other proceedings according to law.


text:
    LIABILITY FOR SICK BENEFITS.
    Circuit Court of Hamilton County.
    The American Assurance Company v. Jesse H. Dickson.
    Decided, November 23, 1912.

      Insurance — Offer to Pay Only a Part of © Claim Amounts to a Rejection of the Whole Claim — Construction of 'Provision as to Total Disability Under a Policy Providing for Sick Benefits.

    1. Acceptance of proof of disability on tbe part of a policy bolder and treatment of such proof as final, with an offer to pay a certain amount thereon but less than tbe amount claimed, constitutes a rejection of tbe claim by tbe company, and suit instituted thereon after such rejection is not prematurely brought.

      2. In a policy providing for sick benefits, a clause reading that to constitute total disability the insured must be “strictly, necessarily and continuously within the house and there regularly and personally attended by a legally qualified physician,” does not bar recovery by an insured who, under .the advice of his physician, went out for air and to his physician’s office for treatment.

      Benton S. Oppenheimer, for plaintiff in error.

      Millard Tyree, contra.
    The plaintiff sued for $126 sick benefits, and was given judgment.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   Notwithstanding condition No. 11 of the policy of insurance sued upon in this ease providing that “Legal proceedings upon this policy shall not be brought until after three months from the date of filing final proofs at the home office of the. company, nor brought at all unless commenced within twelve months from the time when the right of action shall arise” the court is of the opinion that this action was not prematurely instituted.

The evidence discloses that the company accepted proof of loss from defendant in error, treated the same as final and offered to pay a certain amount thereon, but not the full amount claimed. This amounted to a rejection of the claim, and having thus determined, defendant in error was not called upon to delay his action further.

The construction placed by the trial court, in its charge to the jury, upon the clause in the policy relating to sickness indemnity (house confinement) we think was correct.

This clause provides as to total disability, that the insured shall be “strictly, necessarily and continuously confined within the house and there regularly and personally attended by a legally qualified physician, not to exceed a period of twenty-six consecutive weeks.”

The fact that the insured under the advice of his physician went out for air, and to his physician’s office for treatment, could not, we think, defeat his right of recovery within the meaning of this provision.

Any other construction would be unreasonable. The conduct of the insured in this respect in obeying his physician was essential to his recovery, and acting in good faith he is entitled to his indemnity.

Hoffman v. Home and Hospital Association, 128 Mich., 329; Scales v. Masonic Protection Association, 70 N. H., 490; Mutual Benefit Association v. Naucarrow, 18 Col. App., 274.

There being no error in the record the judgment is affirmed.


author: By the Court

text:
    RENTAL FOR. GAS AND OIL LANDS.
    Circuit Court of Licking County.
    The North American Oil & Gas Co. v. J. P. Drumm.

    Decided, October Term, 1912.

      Gas and Oil — Construction of Provision in Lease for Payment of Rental ' in Event of Failure to Sinlc Well Within Prescribed Time.

    A provision in a lease offgas and oil lands, that the lease shall become void in the event of failure to sink a well within a prescribed time, unless a stipulated rental is paid “annually thereafter until said first well is completed,” does not constitute a contract on the part of the lessee to pay the rental, but is a mere option to extend the lease by payment of cash rental if he so desires, and an action for recovery of rentals under such a lease will not lie.

      Fitzgibbon & Montgomery, for plaintiff in error.

      J. M. Swartz, contra.

       Reversing Drumm v. Forth American Oil & Gas Co., 13 N.P.(N.S.),

   By the Court

(Voorhees, Shields and Powell, JJ.).

This was an action in the court below in which the defendant in error, J. P. Drumm, sought to recover from the plaintiff in error certain gas rentals upon a lease given by him to the said plaintiff in error, on the 17th day of March, 1908.

The petition was filed in April, 1911. The lease sued on contained this condition: “Provided a well is not completed on said premises within one year from date hereof, unavoidable accidents or delays excepted, then this grant shall become null and void, unless party of the second part (being the plaintiff in error) shall pay, or cause to be paid, to the party of the first part at the rate of one dollar "per acre annually thereafter until said first well is completed.”

It is upon this provision of the lease that plaintiff seeks to recover the rentals due upon said land for the second year after the termination of such lease, provided the same would be termin Med except for the payment of such rentals as provided therein.' It is alleged that this lease would continue for one year from the date of its execution, within which time defendant below was to complete a gas well, and if not completed, then the provision above quoted was to operate and take effect.

The defendant below (plaintiff is error) paid the agreed rentals or forfeit for one year from the 17th day of March, 1909, to the 17th day of March, 1910; and it is for rentals claimed to have accrued from March 17th, 1910, to March 17th, 1911, that this action is brought.

The liability of the defendant below, or the plaintiff in error, depends upon the construction to be given to the provision of the lease above quoted. Does such provision constitute a contract on the part of plaintiff in error to pay such rentals, and thereby extend the life of the lease, if it is so desired?

We are of the opinion that the language of this lease does not constitute an agreement on the part of the defendant below to pay rentals; that it grants an option to such defendant to extend the life of the lease by paying the stipulated amount, but that it does not constitute an agreement on its part that it will pay such amount as rentals whether it desires to have such lease extended or not.

It was held by the circuit court of this county in the case of Levi Knowlton v. The Logan Natural Gas & Fuel Company, upon a lease containing a provision very similar to the provision in the lease under review, that the option was with the second party to continue the life of the lease by making such payment, and, in effect, that it was only a privilege reserved to it to extend such lease; and not an obligation assumed by it to pay rental that could be enforced in a suit for that purpose.

We think the proper construction to be given this lease does not sustain the judgment of the court below, and that the same should be reversed because of being against the weight of the evidence, and because of insufficient evidence to sustain the same.

The judgment of the court of common pleas will be reversed, and the case remanded to that court for further proceedings according to law. Exceptions may be noted.


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    INVALID PROCEEDINGS FOR ISSUE OF SCHOOL BONDS.
    Circuit Court of Auglaize County.
    L. W. Kattman for Himself and Others, Plaintiffs in Error, v. the Board of Education of the New Knoxville School District of Auglaize County, et al, Defendants in Error.
    Decided, November Term, 1911.

      Schools — Written Notice of Special Meeting — Necessary to Render Action Valid — Section 4751.
    Proceedings of a school board providing for an issue of bonds are invalid, where the action pertaining thereto was taken at a special meeting from which one member was absent, and no written notice of the meeting had been served on each member of the board either personally or at his residence or usual place of business.

      Hoskins & Stout and C. A. Stueve, for plaintiffs in error.

      Theo. Tangeman, Prosecuting Attorney, and Goeke, Anderson <& Musser, contra.
    Crow, J.; Donnelly, J., and Kinder, J., concur.
   An action is brought by Mr. Kattman and those for and on whose behalf he sues, and it sets forth certain proceedings re-suiting in'a proposal to issue two certain sets of bonds of the bonds of the defendant board of education.

By a concession of counsel for defendant in open court we are relieved of the necessity of making any reference to the $3,200 of bonds referred to in the petition and in the second defense to the answer. The facts, without going into detail, in the averments of the petition are substantially with reference to the other disputed matter, towit, the thirteen thousand dollars of school bonds, and are as follows:

On April 12th and possibly for some time prior thereto it was generally known, this in 1911, that it was proposed by the board of education of New Knoxville school district to issue $13,000 of bonds to provide for the erection of a new school house. There had been a mass meeting on the 12th of April, 1911, at which apparently it was generally known throughout that school district and especially within the limits of New Knoxville, which comprises the greater part of the district, that it was proposed to provide a new school house. The number of members of the board of education at that time was five. On the 12th, the five members held what might be called an informal meeting or caucus at which it was agreed that the board would take the necessary steps to provide for the issuing of the bonds. The evidence clearly shows, in fact it is not disputed, that there was no notice of the informal meeting of April 12th, but it was arranged that on the following evening the members of the board would meet as regularly as they then could and take the necessary preliminary steps leading up to the issue of the bonds. This was known to all the members, and on the night of the 13th a meeting was held at which all the members excepting one were present, and there by the unanimous action of those present the preliminary steps were regularly taken. Much of the petition and a great deal of the'arguments were devoted to a discussion of the limitation of the power of the board to issue bonds, the interpretation and application of the Smith one per cent, tax maximum rate and the time of the passing of the notices of the election, but the disposal we make of the case renders unnecessary any allusion to those features of this ease.

The validity of the meeting of April 13th is directly challenged. An. interpretation of Sections 4750 and 4751 of the General Code, in connection with the notice given, which will be later discussed, we think determines the proper disposition to be made of this case. ■

Section 4750 provides:

“The board of education shall make such rules and regulations as it deems necessary for its government and the government of its employes and the pupils of the schools. No meeting of a board of education, not provided for by its rules or by law, shall be legal, unless all the members thereof have been notified, as provided in the next section.”

Section 4751 reads as follows:

“A special meeting of a board of education may bé called by the president or clerk thereof or by any two members, by serving a written notice of the time and place of such meeting upon each member of the board either personally or at his residence or usual place of business. Such notice must be signed by the official or members calling the meeting.”

So that, by the direct language of Section 4750 a meeting, such as was had and at -which the preliminary steps were taken, the meeting' of April. 12, 1911, is prescribed.

It is urged by counsel that the ease of Young v. the Village of Rushylvania, 8 C. C., 75, however, renders inapplicable the reasoning, rather renders inapplicable the provisions of Section 4750 of the General Code. This case is reported at 8 C. C., 75, and it should be stated was by a divided court, Judge Seney dissenting:

“A meeting of the village council consisting of,six members, was called by the mayor for October 29th. The members were all notified of the time, place and purpose of the meeting, which was to transact some particular business, ‘and for other business coming before the council. ’ The notice to meet does not appear to have been in writing. At the time and place fixed for meeting, the mayor and five members met and acted as a body and transacted business. Held: The meeting was-valid.”

The statute in -force and which was being analyzed and passed on in this ease, Section 1677, did not require that the notice should be in writing. It provided that the notice should be served personally upon the members of the board, such a notice as that could be served orally and hence the decision resting on that ground meets our approval, but there was absent from the statute under consideration in the 8 C. C., at page 75, any prohibition or any declaration of the invalidity of any such meeting so held. It has been the apparently continued effort of the law making body so far as the administration of the school laws were concerned, to throw such safeguards about the meetings that no meeting could be held unless notices thereof should be given in writing. That was not done, and in the view of the case that is such a material infirmity in these proceedings that the remaining steps, apparently regular and lawful, are of no force and can not avail as authority for the issuing of the thirteen thousand dollars of bonds. It may be said in passing that while it is not necessary for us to decide whether this notice was or- was not defective, we are inclined to the holding that it was defective in that it proposed, in the notice of the election, that' the issue of the bonds should be in conformity to Section 7625 of the Revised Statutes of Ohio at that time..

So that, without further comment we find for the plaintiffs. A decree will be entered accordingly, costs will be adjudged against the defendants and the injunction heretofore issued will be made perpetual, and execution is awarded for costs and the ease will be remanded to the court of common pleas for execution.


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    PROVISIONS FOR„ARTIFICIAL DRAINAGE.
    Circuit Court of Licking County.
    The Toledo & Ohio Central Railway Company v. The Board of County Commissioners of Licking County.
    Decided, October Term, 1912.

      Ditches — Action to Enjoin Levy of Assessment — Against Railway Right-of-way for County Ditch— Pleading — Benefits.
    Allegations by a railway company that its right-of-way has ample and sufficient drainage and the construction of a county ditch would be of no benefit to the company are good against demurrer in an action to enjoin the levying of an assessment against the company’s right-of-way for the construction of such a ditch.

      Kiblet & Kibler and Lewis, Finley & Gallinger, for plaintiff.

      Phil. B. Smythe, Prosecuting Attorney, and J. M. Swartz, contra.
   By the Court

(Yoorhees, Shields and Powell, JJ.).

The petition in this case seeks to enjoin the commissioners' from constructing a county ditch near or upon the right-of-way of the plaintiff company, and from collecting an assessment levied by said commissioners against the plaintiff for the construction of said ditch.

The grounds alleged in the petition upon which relief is sought are that the plaintiff’s grounds have ample and sufficient drainage without the construction of said ditch; that it would be of no benefit whatever to the plaintiff to have such county ditch constructed; that it has sufficient drainage upon lower lands adjoining its own, without the construction of any ditch, and also that the assessment made by the commissioners for the construction of said ditch was made according to the watershed drained, and not according to the rule of benefits.

We think the petition recites a cause of action. It is held in the 54th Ohio State, page 247, that:

“Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the cost and expense of a ditch necessary for the drainage of other lands, simply for the reason that the Surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.
“In making an assessment on lands benefitted by artificial drainage, the extent of their water shed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivable, and the benefits that will accrue to the lands from such drainage.”

We think that, under this authority, the petition is sufficient, and that the demurrer to the same should be overruled. Exceptions may be noted. Leave will be granted defendant to answer within thirty days.


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    ACTION FOR. RECOVERY ON ACCOUNT OF DEFECTIVE TITLE.
    Circuit Court of Cuyahoga County.
    Joseph Mathews v. Benj. D. Sylvester et al.
    Decided, December 2, 1912.

      Breach of Covenant — Warranty of Title Not Brolcen in the Absence of Eviction or Assertion of Paramount Title — Holder of Defective Title Without Remedy for Breach of Warranty, When — Importance of Adherence to Rule of Stare Decisis.

    An action for breach of covenant of warranty does not lie, where the owner of the outstanding interest has never threatened the plaintiff occupant with eviction, or disturbed his possession in any way, or asserted superior title, and the occupant has in no way recognized his rights in the property.

      F. A. Beecher and E. E. Brooks, for plaintiff in error.

      Tanney & Barber, W. J. Wilson and Morgan & Litsler, contra.

      Winch, J.; Marvin, J., and Niman, J., concnr.
    Error to the Court of Common Pleas.
   ■Plaintiff brought his action to recover for breach of covenants of warranty contained in deeds under which he claims title to certain premises in the township of Middleburg, Cuyahoga county, Ohio. He did not sue his immediate grantor, but directed his action against the predecessors in title of his grantor.

The amended petition sets forth the several conveyances in the chain of title, going back to the heirs of one John Philip G-uiger, who died seized of said premises, and shows that a one-fourth interest in the land inherited by certain grandchildren of said Guiger had never been conveyed by them, although the subsequent grantees.of the premises had conveyed the entire title with covenants of warranty.

It is further alleged that upon delivery of deed to him, plaintiff entered into possession of the premises, and it appears that he remained in possession thereof until he later sold them.

Plaintiff alleges that the defect in his title being shown by an abstract, which he ordered when he desired to sell his property, he was compelled at great trouble and expense to procure the release and quit-claim of the grandchildren of Guiger, owners of said one-fourth interest in his farm, and the estate of said Guiger being imperfectly settled up because his executor failed to give notice of his appointment as such,, he had to cure that defect at considerable expense; he further says that by reason of these troubles with his title he had to and did sell the premises for $3,050, though they cost him $3,600. The difference of $550 he claims as damages resulting from the failure of the defendants to warrant his title as they had covenanted to do. He also claims $225 for abstract' and attorney fees incurred in perfecting his title.

No eviction from the premises is pleaded. It is true that there is an allegation “that said defendants had not a good and sufficient title to said tract of land, and by reason thereof the said plaintiff was ousted and dispossessed of the same,” but this is argumentative and does not intend an actual eviction.

The issues being made up, the case came on to be heard before a jury, when the defendants objected to the admission of any evidence under the petition, and the plaintiff asking leave to withdraw a juror and amend his petition, his counsel, upon inquiry by the court, stated that he could not truthfully plead any facts to show that he had been disturbed in his possession of the premises described in the petition by anybody, and that nobody had ever made any claim to the premises adverse to his interest therein. In his opening statement to the jury, plaintiff’s counsel had stated that on discovering the defects in his title, he had asked the Guiger heirs who owned the outstanding interest in his property to give him quit-claim deeds thereof, and they had all voluntarily given him such deeds.

Thereupon the trial judge overruled plaintiff’s application for leave to amend his petition, and directed the jury to return a verdict for the defendants, which was done.

The errors complained of in this court require án inquiry into the nature of the action for breach of covenant of warranty.

Under the title “Covenants,” in 4 Enc. Dig. of Ohio Rep., 450, the law is stated as follows:

“A covenant of warranty is not broken until the grantee, his heirs or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them in a manner equivalent to eviction, by the setting up of a superior or paramount title.”

Numerous authorities are cited sustaining this statement, beginning with the case of King v. Kerr, 5 Ohio Reports, 155, and ending with Bank v. Parisette, 68 O. S., 450. An examination of these casses shows that they fully support the text.

In the case of Lane v. Fury, 31 O. S., 578, Judge Okey, who wrote the opinion, appears to admit that the court was going somewhat further in sustaining such actions than it had found it necessary to go theretofore, but all that is said in the ease is: “If the paramount title is so asserted that the grantee must yield to it or go out, he may purchase of the true owner, and this is an eviction which will constitute a breach of such covenant. Nor is it necessary that the paramount title be actually established by judgment or decree. What the law requires is that it be distinctly recognized. ’ ’

In the case at bar, the outstanding title, which was a cloud on plaintiff’s title, was never asserted against him. The owners of it voluntarily released all their rights to plaintiff, upon his request therefor. He never recognized their rights, nor yielded to them, nor was he even threatened with an eviction, or proceedings of any kind, by them.

It follows that the trial judge properly sustained an objection to the introduction of evidence under the petition, because it did not state facts sufficient to constitute a cause of action, under the law of Ohio, and he abused no discretion in refusing permission to amend the petition, for, on the statement of counsel for plaintiff, it plainly appeared that he would never be able to file a petition good in law, because he could never truthfully plead an eviction from the premises.

If the result here may seem hard to the plaintiff in error, he must remember that the trial court, as well as this court, is constrained to apply those rules of property which, through many decisions, have become fixed and known.

As said in the first volume of the published reports of this state (White v. Denman, 1 Ohio, 111) and repeated in the first volume after the adoption of the Constitution of 1851 (Kerr v. Mack, 1 O. S., 161), "the certainty of a rule is often more important than the reason of it.”

It is better that cases be decided according to fixed and well known rules than according to the conscience of the individual judge which tells him what is right or wrong in the particular case.

When the wholesome doctrine of stare decisis has kept the law unchanged too long, while civilization has progressed and outstript it, it is in the power of the legislative branch of the government to amend the law without impairing rights acquired under it. It is not for the courts to legislate.

Judgment affirmed.


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    PROSECUTION FOR SOLICITING AND ACCEPTING A BRIBE.
    Circuit Court of Franklin County.
    L. R. Andrews v. State of Ohio; and Isaac E. Huffman v. State of Ohio.

    Decided, November, 1912.

      Bribery — Competency of Evidence in Support of an Indictment for Soliciting and Accepting — Jury Experiment With Dictograph — -Current Records Which Are Admissible in Evidence — Misconduct of Jury — Misconduct of Prosecutor — Entrapment—Coercion of Jury— Withdrawal of Plea of Not Guilty.

    1. Where a plea of not guilty is withdrawn for the purpose of der murrer or the filing of a motion, its withdrawal is not absolute, but merely suspends the effect of the plea until the questions which have been interposed have been determined, and a determination adverse to the claim of the defendant restores the plea and the issue which it raised between the state and the defendant, and it is not error in such case to proceed with the trial without the entering of a second plea.
    2. Misconduct on the part of a jury can not be based upon the unsupported affidavit of one who obtained his information from a member of the jury.
    3. Moreover were it established by competent evidence that the jury in the present case experimented with and talked through a dictograph, which had been made an exhibit in the case and was properly in their possession, misconduct on the part of the jury would not be shown.
    4 It is competent to admit a- dictograph in evidence, with ah explanation of the scientific principles upon which it operates and a demonstration of the instrument in operation, notwithstanding the one so used was not the identical instrument used in the detection of the defendant.
    5. It was not error under the circumstances of this case to charge the jury that “a prosecuting attorney, whose attention has been called to any alleged criminal practice, is not acting without the pale of the law or of his duty in rendering assistance in the discovery of such criminal practice.”
    6. The record kept in a newspaper of the time and length of a base ball game 'is not competent as evidence, under the rule which permits a certain class of records'bearing marks of authenticity, such as market and weather reports, to be received in evidence.
    7. Inasmuch as in practically every trial counsel ask questions which call for incompetent testimony, it will not be regarded as misconduct so to do, where there is reason to believe counsel was honestly mistaken as to the- competency of the testimony he was seeking to bring out.
    8. So long as a prosecutor does not go outside of the testimony and make a plea to the passions and prejudices of the jury, he is not. guilty of misconduct, even though he may have used language which was extremely vigorous.
    9. It is not an abuse of discretion for a trial judge to keep a jury out for forty hours in an important case and then send them back to their room with an admonition as to the importance to all concerned that they should agree upon a verdict.
    10. It is not error to refuse to charge a jury in a criminal case “the reasonable effect of his (the defendant’s) good character and reputation is to raise a presumption that the defendant was not guilty of committing the crime with which he' is charged,” inasmuch as such a charge assumes that the good character and reputation of the defendant had been established.

      L. B. Andrews, Belcher ,cfe Connor, Con J. Mattern and Cyrus Huling, for L. E. Andrews.

      Andrews, Harlan & Andrews, for Isaac N. Huffman.

      T. 8. Hogan, Attorney-General, and E. C. Turner, Prosecuting Attorney of Franklin County, contra.
    Marvin, Wincb and Niman, JJ., of the Eight Circuit, sitting, by designation, in place of Dustin, Allread and Ferneding, JJ., of the Second Circuit.
    Niman, J.; Winch, J., and Marvin, J., concur.
    Error to Court of Common Pleas.

       Leave to file petition in error refused by the Supreme Court, December 17, 1912.

   These cases will be considered in their order.

In the first, L. R. Andrews, the plaintiff in error, was convicted in the Common Pleas Court of Franklin County under an indictment charging him with soliciting and accepting from one F. S. ITarrison, a bribe of $200 while said L. R. Andrews was a member of the Senate of the state of Ohio, with the intent and purpose that he might be influenced with respect to his official duty concerning a certain bill known as Senate Bill No. 256, pending in said Senate. The defendant’s motion for'a new trial having been overruled and sentence imposed, he prosecutes this proceeding in error to secure a reversal of the judgment of the court of common pleas.

The first claim of error to which we direct our attention is the contention of the plaintiff in error that there was an impaneling of the jury in his case and a trial had without an existing plea of not guilty.

The record discloses that on the 5th day of May, 1911, the defendant was arraigned and entered a plea of not guilty. The entry of this plea, however, concludes with the following language :

"And leave is granted the defendant to withdraw his plea of not guilty and file pleadings to the indictment. ’ ’

On the 9th day of July, 1911, the defendant withdrew his plea of not guilty and filed a motion to quash and a demurrer.

The language of the entry is:

"Now comes the defendant, L. R. Andrews, and by leave of court withdraws his former plea of not guilty heretofore entered herein, and is given leave to file a motion to quash, and demurrer, which are herewith filed.”

Subsequently, the motion and demurrer having been overruled, the defendant was placed on trial without another arraignment, and without another plea of not guilty being entered. This is said to constitute reversible error.

In our opinion, the case of Gormley v. The State of Ohio, 37 O. S., 120, is decisive of the question presented here. The language of the first paragraph of the opinion in that ease is as follows:

“A plea of not guilty was entered on an indictment, and subsequently leave was granted to withdraw the plea, ‘ for no other purpose’ than to enable the defendant to plead a former conviction. No order was made to strike the plea from tlie indictment, and the plea remained thereon. The plea of former conviction not having been sustained, the defendant was placed on trial without further plea, and convicted. Held: That such withdrawal of the former plea was not absolute, and when the plea of former conviction was disposed of, it was not error to try the case on such plea of not guilty.”

The plea of not guilty, made by the defendant when he was arraigned, raised an issue between him and the state of Ohio. The withdrawal of his plea was not absolute, but was for the purpose of enabling him to file a motion to quash and a demurrer, which could not be done as long as the plea stood. Such withdrawal suspended the effect resulting from the plea, but upon the overruling of the motion and demurrer, the effect attaching to the original plea‘of not guilty was restored. The issue then stood between the defendant and the state of Ohio as before the withdrawal of the plea for the purpose indicated..

This conclusion does no injustice to the defendant, who proceeded throughout the trial without interposing any objection to being tried without another plea being entered. To hold otherwise would permit a defendant to appeal to the indulgence of the court in obtaining leave to withdraw a plea of not guilty, to enable him to attack the indictment, and failing in his attack, to proceed to trial without objection and speculate on his chances of conviction or acquittal. Whatever may be the rule in other states, we think the case of Gormley v. State of Ohio, supra, states a just rule, and that the facts there were in effect no different than in this case.

The plaintiff in error also relies for a reversal on the claim that there was misconduct on the part of the jury in their de-, liberations in conducting an experiment with the dictograph, which., was, in evidence. The proof offered of the alleged misconduct is not of such character that it could be considered by the trial court in passing on the motion. It is well settled in Ohio as any proposition of law can be, that unless there is evidence aliunde, affidavits of jurors are not admissible to impeach their verdict. Hulet v. Barnett, 10 Ohio, 460; Farrar v. State, 2 O. S., 54; Kent v. State, 42 O. S., 426.

The law in this state on this snbjeet being as indicated, it is clear that the affidavit of one who obtains his information at second hand concerning the jnry’s misconduct from a juror himself can not be received to impeach the verdict. If this could be done, the rule itself, which is founded on considerations of public policy, would be of no avail to prevent the abuses it was intended to avoid. Such was the holding in Parker v. Blackwelder, 7 C. C., 140, where, in the opinion of the court, it is said:

“Affidavits of jurors can not be received after verdict to impeach the same, unless evidence aliunde is offered, and the affidavit of the attorney did not constitute a showing aliunde, because it simply contained a statement at second hand of what the juror himself testified to in his own affidavit, and the juror’s affidavit itself being incompetent, secondary proof of its statements would be likewise incompetent.”

In our opinion, if there was competent evidence that the jury did experiment with the dictograph while considering the case, no misconduct could be charged to them on account thereof. There would certainly be no impropriety in the jury examining the instrument and talking through it, since it was an exhibit in the ease and properly in their permission. S

Another ground of error relied upon by the plaintiff in error is that his conviction can not be sustained because, as he contends, the evidence show a case of entrapment to which the state was a party, and that the crime of which he was convicted was originated by detectives acting in conjunction with the legal representatives of the state.

Inasmuch as this question was before this circuit court and the Supreme Court in the case of Rodney J. Diegle v. The State of Ohio, and was there decided adversely to the contention of the plaintiff in error here, we deem it unnecessary to consider the numerous authorities bearing on this subject in other jurisdictions. The unreported case of Fox v. State, to which our attention has also been called in the brief filed by the state in the Supreme Court in the Diegle case, shows that the Supreme Court, in a case that arose long prior to this one, refused to interfere with the conviction of one who had much stronger ground to complain of entrapment than has the plaintiff in error.

It is contended on behalf of the plaintiff in error that the court erred in the admission of testimony, and our attention is specifically directed to that part of the testimony of the witness, \ K. M. Turner, during which he was permitted to make experií ments before the jury with a dictograph, different from the one ■ used in the Chittenden Hotel when the evidence of the alleged ‘bribing of the plaintiff in error was secured and under different ‘circumstances.

This witness testified that he was the inventor of the dictograph. Tie described it as an instrument that is supersensitive as to sound; that it would take up a minute sound, magnify it and make what would otherwise be an inaudible sound, audible. He testified at considerable length as to the construction' of the dictograph and the scientific principle involved in its operation, and on request of the prosecuting attorney that permission-be given to make an autoptic profference of the scientific principle involved in the dictograph before the jury, the witness was permitted to make the experiment or demonstration complained of.

Since the dictograph is an instrument of recent invention, and the scientific principle on which it operates but little understood, it was proper for the state to have the instrument explained and the principle on which it operates demonstrated. This could be done with an instrument different than the one used in the alleged detection of the plaintiff in error as well as with that one, and we are of opinion that the court committed no error in permitting the witness to' explain, by actual demonstration, the -^scientific principle on which the instrument operates.

It is further contended by the plaintiff in error that the court erred in charging the jury.

In one part of the charge the court said:

“A prosecuting attorney whose attention has been called to any alleged criminal practice, is not acting without the pale of the law or his duty in rendering assistance in the discovery of such alleged criminal practice.”

It is urged that this portion of the charge introduces into the case an issue that did not exist; that it was nowhere shown that the plaintiff in error was suspected by the prosecuting attorney or any one else of any criminal practice.

We think, however, that this correctly states the law, and there was sufficient evidence before the jury to make it a proper proposition to include in the charge.

In another portion of the charge, the cour.t said:

“In considering the law with reference to the rights of the state to ferret out and detect crime, the law makes a distinction, as a matter of public policy, between measures used purely to lure and entrap a person into crime on the part of the state,itself, from those necessary for the detection and punishment of some corrupt and criminal private purpose on' the one hand, and an artifice used to detect public officials suspected of being engaged in the solicitation and acceptance of bribes which vitally affect the public welfare.”

Complaint is made of this that it not only is open to the objection urged against the language used in that part of the charge already considered, but also that it establishes a rule of law to govern one class of individuals different from that in which it is generally applied to all other classes of individuals.

We do not consider the objection well taken. This part of the charge, as well as the other part considered, is closely connected with question of entrapment, and when the Supreme Court passed upon the question of entrapment, it must necessarily have sanctioned the principle of law embodied in this language of the charge.

It is strongly urged by the plaintiff in error, as a ground for reversal of the judgment of the court below, that the verdict is not sustained by sufficient evidence and is against the manifest weight of the evidence.

It would be profitless for us to review in detail the evidence resulting in the conviction of the plaintiff in error. It is sufficient to say that a consideration of the evidence convinces us that we would not be justified in interfering with the verdict and judgment on this ground.

We have carefully considered all the errors assigned in this proceeding, and find no error prejudicial to the plaintiff in error.

In the second of these cases Isaac E. IRuffman, the plaintiff in error, was also convicted in the Court of Common Pleas of Franklin County, of accepting a bribe while a member of the Ohio State Senate.' He was sentenced to three years imprisonment in the penitentiary, and by this proceeding in error seeks a reversal of the judgment against him.

It is contended on his behalf that the court made many erroneous rulings on questions of evidence prejudicial to him during the course of the trial.

Our attention is specifically directed to the refusal of the trial court to permit the defense to read in evidence certain portions of the record of the case of The People of the State of Illinois v. August H. Unger, Francis Wayland Brown and Frank H. Smiley, a criminal case in which the Frank IT. Smiley mentioned was the detective who testified on behalf of the state in the case before us.

It appears, however, that the part of the record of that ease ruled out by the court pertained not to Smiley, but to the other defendants therein, who were in no way connected with this case. It was ruled out by the trial court on the ground that it was no part of the record of the Smiley case, and in our opinion the ruling was correct.

Another ruling complained of is the refusal of the court to allow the defendant to introduce in evidence the record of the case of State of Illinois v. Bernstein et al, in which the said Frank H. Smiley, referred to as a defendant in the other criminal ease in Illinois, was indicted in conjunction with others. This record sought to be offered in evidence, however, did not purport to be a record of a convinction, and was, in fact, nothing more than a record of an indictment.

We think that the court committed no error in excluding this record. The witness Smiley, or Harrison, as he was otherwise known, admitted on cross-examination the fact of his indictment, and the defendant, therefore, obtained the benefit of whatever was damaging to the credibility of this witness, without reference to the indictment itself. The indictment created no presumption of guilt on his part, and the record thereof was not competent evidence to impeach his character and credibility.

The plaintiff in error complains also that the court refused to receive in evidence a record kept in the office of a newspaper of Columbus, of the time and length of a baseball game played in Columbus between the Columbus and Milwaukee baseball teams on April 27, 1911.

One of the questions in issue between the state and the defendant was as to the time when the defendant was in the Senate smoking room. The defendant’s witnesses claimed it was from 5 to 6 o’clock p. m. and that the committee with which the defendant met did not convene until about the conclusion of the baseball game. The record of the time and length of the ball game, which was offered and ruled out, was offered for the purpose of fixing the time of the meeting of this committee.

We are unable to discover any principle on which such record would be competent. As pointed out by the trial court in his ruling, there is a rule of the law of evidence which permits certain classes of records that bear a certain authenticity, such as market reports, weather reports, and those that are prepared by the class of persons skilled or acquainted with the subject, to be received in evidence. The report or record under consideration clearly does not belong to this class.

Complaint is also made by the plaintiff in error that Senator Reynolds, a witness for the state, was asked on re-direct examination by the prosecuting attorney, whether or not he had ever heard the claim, prior to the first Huffman trial, that Huffman was in the Senate chamber until six o’clock or after on April 27, 1911, and that over the objection of the defendant he was permitted to answer.

Reference to the cross-examination of Senator Reynolds shows that he was asked numerous questions by counsel for the defendant on the subject of when he first told the facts to which he had testified on direct' examination to any one. The question to which objection was made was apparently asked by the state for the purpose of giving an opportunity to the witness to explain why he had not made known his story at some earlier time. If any inference was to be drawn unfavorable to the witness, and favorable to the defense, by reason of the fact that he had not told his story, which bore upon the alibi of the defendant, it seems clear to us that the state had the right to show by the answer to this question, which was answered in the negative, that the witness had never heard of the claim asserted by the defendant prior to this first trial, and the_ court committed no error in his ruling on this question.

We have carefully examined the numerous other errors complained of in the admission and rejection of evidence, and our conclusions with respect to these rulings is that the court committed no error prejudicial to the defendant in his ruling.

Another ground of error insisted on by counsel for the plaintiff in error is based upon the alleged misconduct óf the prosecuting attorney. One act of misconduct charged against him was the asking of Senator Dore, a witness for the defense, on cross-examination, the following question:

“Senator, you have just been re-examined on your calling of Senator Huffman before that investigating committee, and what you were investigating, and I will ask you if you brought in witnesses before that committee to prove particular charges against Senator Huffman as to having accepted $250 from Charles Salen to vote on Section 15 of the Central Board bill.”

The witness answered that he did not.

Counsel for the defendant interposed a protest against the conduct of the prosecuting attorney in asking this question, insisting that he was embodying in his question an insinuation prejudicial to the. defendant which had no basis in fact. The court very promptly instructed the jury in clear terms not to consider assumptions, and arguments of counsel in the progress of the trial.

The question was not a proper one to ask, but in practically, every trial counsel ask questions which call for incompetent testimony. It is not necessarily misconduct to do so. Counsel may be honestly mistaken in asking a question calling'for incompetent testimony.

In view of the nature of the examination of Senator Dore by counsel for the defendant, which seems to have suggested the question complained of to the presecuting attorney, it is likely that the question was put in the honest belief that the answer sought was competent. In any view of the matter, the instruction of the court must have removed any chance of prejudice resulting to the defendant by reason of the question having been asked.

It is claimed also that the prosecuting attorney was guilty of misconduct in the cross-examination of Senator McGuire, a witness for the defendant.

The prosecutor started to ask the question whether or not the witness, after his testimony in a prior trial of this case, had been branded by the papers all over the state in a certain way which the question does not disclose, because it was not finished. An objection having been interposed on behalf of the defendant, the court admonished the prosecuting attorney that the question was not proper.

And at another stage of the cross-examination, the prosecuting attorney asked the witness this question:

"Now any other part of this alibi that you know that you have not testified to yet?”

Objection was made to this form of question, and the court again ruled that it was not a proper form of question.

We think the rights of the defendant were protected by the ruling of the court on these objectionable questions, and that no prejudice resulted to the defendant therefrom.

The prosecuting attorney is also charged with misconduct in his closing argument in the use of the following language:

‘ ‘ Pretty soon if they beep on — if these crooks that employ lots of lawyers — the prosecuting attorney will have to sit back and wear kid gloves and play ping while they play rings around the state. This is the very thing that is running through this country now. Such damnable tactics have been played upon the courts and juries that the people are getting tired of it.”

And again:

“We talk about special interests — this country is now aroused as no country on God’s green earth was ever aroused before, about special privileges, that has gained its way in the halls of the Legislature. Plow has it done it ? By bribery. ’ ’

While the language used by the prosecuting attorney in his argument was vigorous, we are not convinced that it exceeded the legitimate bounds of argument. Pie had the right to discuss the evidence and draw all reasonable inferences therefrom favorable to his side of the case. He had the right to characterize, by proper language, the conduct of the defendant as disclosed by the evidence, and to denounce the offense with which he was charged. As long as the prosecutor did not go outside of the evidence and make a plea to the passions and prejudices of the jury, he was not guilty of misconduct even though his language was extremely vigorous.

We find no error prejudicial to the plaintiff in error in any of the conduct of the prosecuting attorney.

Complaint is made also by the plaintiff in error of certain portions of the charge to the jury. A part of the language objected to is substantially the same as that considered in this opinion in dealing with the Andrews’ case, and it is unnecessary for us to repeat our views on such portion of the charge.

Our attention is directed to the instruction given to the jury urging them to agree upon a verdict, if possible, and it is claimed that the court erred in these instructions.

After the jury had had the case under consideration for about forty hours, they were brought before the court and inquiry was made by the court if there was any probability of the jury being able to agree upon a verdict. One of the jurors responded that he nid not believe there was any probability of agreeing on a verdict; that they had tried- in every way, shape and form. The court thereupon said:

“It is customary for courts to inquire within a reasonable time if there is any probability of the jury agreeing. There seems to be some difficulty for you to agree in this case. The court urges upon the jury that since the trial of this case means a great deal to the state and the defendant, and the trial has been at a considerable cost to the county and to the defendant, the court urges you to make all reasonable effort to agree upon a verdict. You should consider that the case must at some time be decided ; that you were selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial and more competent to decide it, or that some clearer evidence will be produced on one side or the other, and with this view it is your duty to decide the ease, if you can conscientiously do so. You will again retire, gentlemen, and make a reasonable effort to agree upon a verdict. ’ ’

The length of time during which a jury can be held together for the consideration of a case before them, rests within the discretion of the trial court, and in the absence of an abuse of that discretion, no legitimate complaint can be based on the action of the court in keeping the jury together. Mitchell v. State, 42 O. S., 363; State v. McMillen, 69 O. S., 247.

Instructions similar to those given by the trial court in this ease have been approved in numerous decisions in other states: Pierce v. Rebfuss, 36 Mich., 52; State v. Gorman, 67 Vt., 365; Clinton v. Howard, 42 Conn., 294; Bannon v. State, 70 Wis., 448.

Reference to the opinion of this circuit court in the Diegle case shows that practically the same language was employed by the trial court in that case as was used by the court in this ease, and the propriety and soundness of such instructions must be deemed to have been approved both by this court and the Supreme Court.

One of the requests of the defendant to charge was:

“That the reasonable effect of his good character and reputation is to raise a presumption that the defendant was not guilty of committing the crime with which he'is charged.”

The court did not give this request in the language in which it is framed, but did charge the jury as follows:

“Testimony has been brought before you to show what the reputation and character of the defendant is for honesty and integrity. This evidence reflects,' among other things, upon the probability of the defendant committing any such offense as he is charged with here. In determining the guilt or innocence of the defendant, this testimony is to be considered by you with all the other evidence, and the weight to be attached to the fact of good behavior and reputation, like that to be attached to every other fact of the case, is for the jury alone to determine. ’ ’

It is contended that the court erred in not giving the request on this subject in the language submitted.

We are of opinion that the effect attaching to the evidence of the defendant’s good character and reputation was for the jury, and not for the court, and that the language of the request assumed, as a matter of fact, that-the defendant’s good character and reputation had been established. We think the trial court properly charged the jury on this subject, and that the defendant was not entitled to have the charge given in the exact language in which the request was framed.

The strongest contention made in this case on behalf of the plaintiff in error is that the evidence established for him a complete alibi, and that the verdict of guilty is therefore not sustained by sufficient evidence, and is against the manifest weight of the evidence.

The crime of which the defendant was convicted was claimed by the witnesses for the state to have occured in room 317 of the Chittenden Hotel, in the city of Columbus, on the 27th day of April, 1911, sometime between 5:45 o’clock and 6:30 o’clock on the afternoon of that day. The defendant produced the testimony of a number of witnesses tending to prove that during the entire period fixed by the state as the time of the defendant’s call at the Chittenden Hotel and the accptance of the bribe by him, he was occupied elsewhere. The evidence produced by the defendant tended to establish the fact that he was in a committee room at the State House until about 6 o’clock, and that from there he went to a restaurant, which he did not leave until about 6:45, and that after leaving the restaurant he went with his wife to his apartments in the Virginia Hotel.

We have examined all the evidence bearing on this defense with great care, realizing fully the importance of the correct determination of the question involved, both to the state, of Ohio and to the defendant. The alibi was assailed by the state, and we are impelled to the conclusion that it was not without flaws. The question was properly submitted to the jury, who had the opportunity of observing all of the witnesses who testified, and attaching such weight to their testimony as they believed proper.

We think the evidence on the subject of the alibi, as well as on the other issues involved, was such that the jury were justfied in returning a verdict of guilty, and we must decline, therefore, to interfere with that verdict on the ground that it is not sustained by sufficient evidence. .

We have examined all of the errors assigned in this ease, and find nothing prejudicial to the rights of the plaintiff in error. It follows from the conclusions reached in these cases that the judgment in each case must be affirmed.


text:
    INTOXICATION UNDER THE STATUTE.
    Circuit Court of Licking County.
    Al. A. Gard v. State of Ohio.
    Decided, October Term, 1912.

      Construction of the Act Relating to Being “Found in a State of Intoxication’’ — Proof Required to Convict- — Section 13194.
    The degree-of intoxication contemplated by the statute providing a penalty therefor is not established by proof of a flushed face, or the smell of liquor on the breath, or a disposition to talk freely or loudly, but refers rather to a condition in which control has been lost either of the faculties or the muscles of locomotion.

      McDonald & Moore, for plaintiff in error.

      Boderic Jones, City Solicitor, contra.
   By the Court

(Yoorhees, Shields and Powell, JJ.).

• The plaintiff in error was arrested upon a charge of being found in a state of intoxication; and, upon a trial had before the mayor of the city of Newark, was convicted. The case is brought to this court for review of the judgment of the mayor upon such trial.

There are various degrees of intoxication. The statute is that “whoever is found in a state of intoxication shall be fined five dollars.'’ The proof shows that the plaintiff, at the time of his arrest, had a flushed face; was talkative, talking loudly, and that his breath smelled of intoxicating liquors that could be detected three or four feet away. These are the only things that tended to show the truth of the complaint charged. We are of the opinion that the statute contemplates something different from what the proof shows; that while any sort of exhilaration from the use of intoxicating beverages might be termed “intoxication,” yet the statute contemplates that something more than is shown by the proof in this ease should be included in the charge made. “Whoever is found in a state of intoxication” would, by implication, mean that the party accused had lost control to some extent either of his faculties or possibly of his muscles. Nash’s Pl. & Practice, 5th Ed., Sec. 1719.

This court is of the opinion that the proof does not sustain the charge; that the judgment of the mayor is against the evidence, and against the weight of the evidence, and the same will be reversed and the prisoner discharged.

Exceptions may be noted.