text:
    INJURY TO A WORKMAN FROM LIFTING HEAVILY TO SAVE HIMSELF.
    [Circuit Court of Lucas County.]
    Patrick Scanlon v. Lake Shore & Michigan Southern Ry. Co.
    Decided, July 1, 1902.

      Negligence — Workmen Engaged in Raising a Heavy Weight — They Lift Unevenly, Causing the Weight to Slip — One Lets Go to Save Himself — And the Man Next to Him is Strained by the Double Weight thus Thrown upon Him.

    1. The occurrence of an accident does not raise a presumption of negligence', nor if a given piece of work is undertaken in an ordinarily prudent manner does it establish negligence to point out after the accident has occurred how it might have been avoided.
    2. Four men were attempting under the direction of a foreman to load upon a car a railroad frog, weighing 815 pounds. They stood two on each side. The frog was raised a little too high by the men on one side, causing it to slip toward the men on the opposite side, whereupon one of them loosened his hold in order to get out of the way, compelling his companion S to sustain the weight intended for both of them to prevent the frog from slipping further and crushing him. The severe strain injured him. Held: That in' as much as the task was a simple one, containing no element of danger not as apparent to the employe as to the employer, and is usually performed by four men, and the strain upon S was due to the action of his fellow employes, no liability attaches to the railroad company.
    Hull, J.; Haynes, J., and Parker, J., concur.
   Tbe action below was brought by Scanlon to recover damages for injuries which he claimed he had sustained on account of the negligence of the railway company. The case was heard by the' court and a jury, and, at the conclusion of the plaintiff’s testimony, on motion of defendant, the court directed the jury to return a verdict in favor of the defendant, and judgment in favor of defendant was entered upon that verdict. This action of the court is claimed .to have been erroneous, and it is sought to reverse the judgment.

The plaintiff was in the employ of the Lake Shore Company and had been for some twenty-one years at the time of his injury, which occurred in the early spring of 1899. He had worked in different capacities, and at the time of the injury was working as a section man and had been so employed for something over two years. He was engaged at the time of his injury in assisting in the lifting of a heavy east iron frog which they were attempting to load into a ear, called a gondola car, and it was alleged and claimed that the railway company was negligent in not furnishing a sufficient force of men and in undertaking to have this piece of iron loaded onto the car in an improper manner and in not furnishing a proper and fit car for the purpose. These are the three grounds of negligence that are complained of against the defendant railway company.

The piece of iron was lying by the side of the track, not far from the Lake Shore depot in the city of Toledo, at a place called the Middle Ground. Four men, including Scanlon, were called by-the foreman to load it in the car. There were on the car two other men who were there for the purpose of assisting in loading articles on the car, but who took no part in the loading of this piece of iron onto the car. The men rolled the piece of iron over the rail upon the track immediately at the rear of the car, the end-board of the car being pushed up a foot or a foot and a half so that this frog might be loaded in. After it had been rolled into the middle of the track they ended up the frog, lifted up one end and turned it over so that one end of it rested on the bottom of the car, the other resting in the middle of the track, and under the end which rested on the track was placed a block, so that it was lifted up a little in order that it might be raised better. After the frog was in this position the foreman inserted in some holes which were in the frog (perhaps left there for that purpose) some bolts, in order that the frog might be lifted with a pointed crowbar, the bolts being for the purpose of holding the bar and to keep it from slipping off the frog. After this was done the men took the bar and placed it under the bolts, two men taking hold of the bar on each side of the frog, Scanlon and a man by the name of Fanning being on one side and the two other men on the other side, and the foreman standing immediately in the rear. The men then undertook to lift up the end of the frog which was resting on the track and slide the frog into the car, one end of the frog resting on the car. Scanlon was faeiüg the car, and Fanning, who was on the same side of the frog with him, was with his back to the car and facing Scanlon, and the two men on the other side were in a similar position. “When the frog was lifted a short distance from the bed of the track (just how far does not appear exactly, but not a great ways) for some reason, probably because the side opposite to Scanlon was being lifted higher than the side he was on, the end of the frog which was resting on the car began to slip towards Scanlon and Fanning, and Fanning thereupon, according to Scanlon’s testimony, let go of the bar, which he was holding with Scanlon on that side of the frog, in order that he might get out of the way of the frog, which he feared would fall on him, and came around on the other side of the bar to get another hold. This, as was claimed, threw a large part of the weight of the frog upon Scanlon, at least the weight of half of it, and he complains that the weight was so great and he was compelled to lift so much that he sustained internal injuries, the rupturing and tearing away of the muscles of his abdomen. They let the frog down on the track as soon as they could and Scanlon found himself to have been injured. The top of the frog did not slip off the car, but slipped some inches towards the side of the car on which” Scanlon was.

This is a brief statement of the facts as disclosed by the record, and from which it is claimed there was evidence tending to show negligence on the part of the railway company, and that the ease should, therefore, have been submitted to the jury.

It is a well settled principle of law that an employe does not assume risks which are due to the culpable negligence of his ' employer, but that he does assume those risks which are fairly aud reasonably incident to the employment in which he is engaged and which are not due to the negligence of his employer. As stated in a case cited by counsel for plaintiff in error, Van Duzen Gas & G. E. Co. v. Schelies, 61 Ohio St., 298:

“A servant assumes only such risks incident to his employment as will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault contributed to the accident. ’ ’

It .is claimed by the defendant in error that the evidence offered by the plaintiff did not tend in any respect to establish negligence on the part of the railway company, that whatever dangers there were, or risks, in this employment were open and plain to Scanlon, and that he assumed them.

One' ground of negligence claimed was the kind of ear that was used in this work. It appears from the record that a flatcar or a box-car had ordinarily and usually been used in doing this kind of work (the loading of frogs of different kinds) theretofore. Scanlon testified that he helped to load frogs upon that kind of a car — into a-box-car, open at the side, and a flatcar, being so built that the frog might be loaded at the side. But Scanlon was not injured when he was getting this frog onto the track at the rear of the car; he sustained no injury on account of its being necessary to load this frog onto the end of the ear instead of the side, and the floor of the car itself does not appear to have been any higher than the floor of a box-ear, or of a flat-car, and when the end-board was raised (as it was in this case) we are unable to see how this car was unfit for this use or why it was not as well fitted for the loading of a frog into as a flat-car or a box-ear. The end-board was raised sufficiently high to clear the frog, and the difficulty seems to have been that the frog, for some reason, slipped or slid along the edge of the floor of the car, causing Fanning to let go, as has been stated, and resulting in the injury of Scanlon.

We are of the opinion that there was nothing in the evidence to show that there was any negligence on the part of the railway company in using this kind of a ear. They were not bound under the rules of law to use the very best appliances in the way of a ear; they were bound to use ordinary care, and if, at this time, they had a car of this kind which they desired to use for this purpose and if, for some reason, they did not wish'to use another kind of a car, or did not have the other kind at hand, we see nothing in that to constitute negligence on the part of the railway company; in fact, we are unable to see why this car was not as safe for the loading of this frog as a box-car or a flat-car would have been.

It is claimed further, that the force of men was insufficient to do this work. Four men were engaged in lifting the frog, which weighed about 800 pounds, perhaps exactly, 815 pounds. They seemed to have had no special difficulty in rolling it over the rail onto the track, nor in “ending it up” so that one end rested on the rear of the car and the other on the railroad track, in fact, there was no trouble until this occurrence; until the sliding of the frog and Fanning letting go of the bar as has been stated. Now it does not seem to us that such an occurrence as this was one that it had ever been the practice to have these men stationed that the railway company was bound to anticipate in the exercise of ordinary care. Four men were all, apparently, that could well use the bar that was placed under the frog, two on each side, and if the frog had not slipped there would have been no difficulty in lifting the end of the frog and shoving it into the car, and if one side of the frog had not been lifted higher than the other side it is pretty clear that the frog would not have slipped. And it does not seem to us that such an occurrence as this was a thing that could reasonably have been anticipated by the railway company. The foreman was standing immediately in the rear of the men and the frog, so that he might render assistance when the end of the frog was lifted — that he might assist in shoving it into the car. If Fanning had not let go, the weight of the frog would not have been thrown upon Scanlon as it was. It might not have been negligence in Fanning to let go; probably it was not, he seeing the frog slipping towards him, probably acted in a natural way in letting go of the bar; but, be that as it may, it appears that whatever did happen there was on account of the acts of fellow servants of Scanlon, whether it was negligence or whether it was an act of poor judgment, or whatever it may have been, his injury was due to the acts and conduct of the men, of the fellow servants who were assisting him. in the doing of this work. It is, of course, well established that an employer is not liable for injuries caused entirely by the negligent acts of a fellow servant.

It is urged that the company ought to have had men on the rear of the car to take hold of the frog and prevent it from slipping, in case anything of this kind occurred. It does not appear there; it does not appear that there had ever been an accident of this kind before. It was an ordinary, simple piece of work, the picking up of this piece of iron, this iron frog, ending it up and shoving it into the car — as simple a piece of work as loading a timber onto a wagon, or a log onto a sled or the loading of any other heavy object into a vehicle; and the company seems to have proceeded, as it seems to us, in a way that a person of ordinary prudence would have proceeded, and we think that there was no evidence offered tending to show negligence on the part of the company in this respect. Four men seem to have been ample to roll the frog onto the track and seem sufficient to end it up and to have been strong enough to put it into the car. The trouble came from the frog slipping and sliding as these men lifted it. That was something that could have been anticipated by Scanlon as well as by the railway company. Injuries are liable to happen to men when they are engaged in work of this kind, but if that is as apparent to the employe as it is to the employer, if the employe has as much knowledge of the danger as the employer has, the employer is not liable if something of this kind occurs without negligence on the part of the employe.

This question is discussed in a Michigan ease, Nephew v. Whitehead, 123 Mich., 255 (81 N. W. Rep., 1083), a case where the facts were quite similar to the facts here. The syllabus is:

“An employe, experienced in handling heavy objects, can not recover against his employer for injuries received by being struck by an iron beam which he was assisting to unload from a wagon on which he had helped to load it; the operation being a simple one, and the employer having no knowledge of danger that the employe did not himself possess.”

The court say, in the opinion ;

“The raising was done by six men standing alongside of the beam behind the wagon, who lifted the beam until it was even with the top of the wheel, and then pushed or threw it over. The beam rested, perhaps momentarily, on the wheel. Being thus at an angle with the length of the wagon, the beam, in falling, cleared the wheels. Plaintiff was one of the six men thus employed. They all stood on the side of the beam opposite to the direction in which it was to go. The beam was lifted to the top of the wheel, but as it was pushed over, plaintiff, in some way unexplained by the evidence, was struck by the beam and injured. The beam went beyond the wheel, as it was intended. The plaintiff brought this suit to recover for the injuries thus received. The circuit judge directed a verdict for the defendant. The plaintiff brought the case here by appeal.
‘ ‘ If the plaintiff can recover in this ease, an employer of labor would be liable whenever an accident occurred. The operation to be performed was a simple one. With the experience plaintiff must have had in handling heavy objects, he must have known as much about the danger involved in the unloading of these beams as any one.” (Citing authorities). “We do not deem it necessary to discuss the case.”

Scanlon, although he testifies he had never assisted in lifting a frog as large as this one and did not know the weight of this frog, still was an experienced railroad man and had worked for the railway company for some twenty-one years and had had experience in lifting frogs of the same character, though perhaps not quite so large, but it is clear that he knew that a chunk of iron of the size of this one was heavy and that it would require rather heavy lifting, and it would be apparent to any one that if, in the course of lifting such a piece of iron onto the car, one of the men should let go of the bar, as happened in this case, that it would throw the weight upon the man who still retained his hold upon the bar. This was something liable to occur. The proper carrying on of the work depended, as it always does, upon each man who was engaged in it performing his part. One of the risks that the employe takes is that his fellow servants— fellow employes — who are without any authority over him, will do their duty in the carrying on of the work.

It seems to us that this ease comes fairly within the principle of the case decided by the Supreme Court of Michigan to which I have referred. The transaction here, as in that ease, was a simple one — the loading of an object' onto a ear; and, unfortunately, in the doing of it Scanlon was injured, but without, so far as we can see, any negligence on the part of the railway company.

Orville S. Brumback, for plaintiff in error.

Emory D. Potter, for defendant in error.

In this case, as in many other cases, it is easy after the injury has been done to point out how it might have been avoided. If there had been men on the ear, taking hold of this frog so as to prevent its sliding, perhaps Scanlon might not have been injured. Still he might, for he was injured by reason of Fanning letting go of the bar, but Fanning let go of the bar on account of the frog’s slipping, as it was said. Although we may look back at the occurrence and see how it might have been avoided, that does not necessarily show that the railway company was guilty of negligence in not providing the means for avoiding it. If appliances were always provided so that an accident could not happen, of course no one would ever be injured. But accidents do occur in the performance of work of this kind and men are injured without any negligence on the part of any one. The mere fact that a man is injured does not show that any one has been guilty of negligence.

We have examined the testimony in the ease offered by the plaintiff with a great deal of care and given consideration to the authorities and arguments urged by counsel for the plaintiff in' error, and we are unable to find that the court erred in directing a verdict for the defendant.

The third ground of negligence, already discussed without mentioning it specifically, that the frog was not being raised in a proper manner, I need not discuss further. It seems to us that the work was being carried on in a proper manner and in the way that men of ordinary care and prudence would have carried it on, and that which occurred was an accident, and can not be denominated anything but an accident. Unfortunately, Scanlon was injured on account of it. We are unable to see any liability on the part of defendant, and the judgmnt of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    QUESTIONS OCCURRING AT A TRIAL FOR. HOMICIDE.
    [Circuit Court of Lucas County.]
    Albert Wade v. State of Ohio, and Benjamin E. Wade v. State of Ohio.
    Decided, October 22, 1903.

      Criminal Law — Confession of Defendant — Whether Made Voluntarily Shown at a Subsequent Trial of a Confederate — Dying Declaration —Statement not Made in View of Death, but Death Foliotoed— Res Gestae — Statement by Accused Before Grand Jury — Facts Justifying a Verdict of Qttilty of Murder in the First Degree.

    1. A confession is voluntar}', and is competent evidence against the person making it where it appears that no threats or promises were used in obtaining it, and that before the making of the confession the person to whom it was made, who was not an officer, informed the accused that he had no power to grant him immunity from punishment, but that if he wished he could speak.
    2. 'Where a man charged with murder voluntarily goes before the grand jury and makes a statement of what he knows about the case and after-wards, during the trial at a preliminary examination had in the absence of the jury to determine the circumstances under which such statement was made and whether it was voluntary, testifies that his statement before the grand jury was true, and it was shown had been made with the knowledge, consent and under the advice of his counsel, evidence of his statements made before the grand jury is competent evidence against him upon his trial.
    3. A verdict in a homicide case will not be set aside and a new trial granted on the ground that newly discovered evidence shows that a person who had been in the penitentiary was seen in the neighborhood at about the time the crime was committed, where there is no evidence that such person was implicated in or connected with the crime or had any knowledge of it.
    4. Declarations made by a person shortly after an assault in which she received injuries which caused her death are not competent as dying declarations upon the trial of her assailants, where it does not appear that at the time of making such declarations she knew or believed that she was about to die.
    6. Declarations made by the victim of a homicide some time after the assault which caused her death, at a house sixty rods distant from the scene of the crime, narrating certain facts in regard to the assault, are not part of the res gestae and are not competent evidence upon the trial of her assailant-.

      Hull, J.; Parker, J., and Haynes, J., concur.
   The cases of The State of Ohio v. Albert Wade and of The State of Ohio v. Benjamin E. Wade, while not heard together, were heard one immediately after the other, and will be decided together. The two plaintiffs in error, defendants below, will be referred to here as the defendants. They were jointly indicted in 1902 by the grand jury of Lucas county for murder in the first degree. The charge was that these two defendants, together with Benjamin Landis — who was jointly indicted with them — while perpetrating a robbery, murdered one Katherine Sullivan. The defendants were tried separately and found guilty of murder in the first degree and sentenced to death. Petitions in error were filed in this court by each of the defendants to reverse that judgment.

The crime was alleged to have been committed in the evening of April 14, 1900, near the westerly limits of the city of Toledo, at or near a small place called Trilby. At that place lived Katherine Sullivan, and her sister, Johanna Sullivan, was visiting her at that time, in the little house where Katherine lived, some six or seven miles from this court house. They were elderly women — maiden ladies — and at this time were living there alone. At about 8 o’clock on the evening of April 14, 1900, being the night before Easter Sunday, Katherine Sullivan, the one who died, appeared at the house of Henry Wendt, a neighbor who resided about sixty rods from her house. She was badly injured, had been beaten about her head and body, and blood was flowing from her wounds; her clothing and her hair were saturated with it; her limbs still partially bound, and she was still partly gagged with strips of table-cloth. She called for help, and Mr. Wendt went out into the yard and brought her into the house. She was laid upon the floor, being in great agony, a physician was called, treatment given her, and some time the following morning she died. A postmortem examination revealed many wounds on her head made with a blunt instrument, causing injury to the brain, which produced death. Her body was bruised, and her jawbone was broken, and there were two wounds in her throat, probably produced by the ends of the broken bones.

Johanna Sullivan, the other sister, about the same time Katherine reached. Wendt’s house, appeared at the house of Mr. Giles Pelton, another of her neighbors. She also had been beaten and wounded very seriously about the head and body, and was also covered with blood; and was partially bound at this time with strips of table-cloth. She was taken care of by Mr. Pelton, and soon after the neighbors were aroused and the Sullivan house visited. The kitchen of the house was found to have been the place where the murderous assault was committed. There were pools of blood upon the floor; blood dashed against the walls of the kitchen, and possibly some of it on or near the ceiling, a pool of blood being on the floor near the stove, where it afterwards appeared that Katharine fell. Two bloody clubs were found in the kitchen, made of green wood — the green limbs of trees, apparently — heavy and tough. They were covered with blood. They had been cut fresh and the bark peeled off, and were about the size of a policeman’s club or “billy.”

Some time later these defendants, while in the penitentiary for another offense, were indicted for this crime. They were indicted in 1901 or the early part of 1902. On account of some defect in the indictment they were again indicted in November, 1902. After the date of the homicide, the defendants, Albert and Benjamin Wade and Landis, had been sentenced to the Ohio Penitentiary for the commission of another crime — that of horse stealing — and were there together. Prior to the date of this homicide Benjamin Wade had been in the penitentiary twice. After coming out the last time he came to Toledo and there joined Benjamin Landis, in the fall of 1899, and for some time after — according to the testimony of Benjamin Wade given on his trial — he and Landis carried on a series of crimes in and about this county in the way of horse stealing, burglaries, chicken stealing and other crimes of that character. This was in the fall and winter of 1899-1900, during the few months before this murder was committed. A week or two before Katherine Sullivan was killed, Albert Wade, who was then at Kendalville, Indiana, and who had been in the penitentiary with Benjamin and Landis, came to Toledo at the request and solicitation of Landis and Benjamin Wade, they going to Indiana and ásking him to come to Toledo to aid them in their criminal enterprises that they were carrying on, he to receive a salary of so much per week, and his bnsinss to be that of disposing of, by way of sale and barter, the stolen plunder which they might accumulate. Nothing at that time, it is claimed, was said to Albert about any assault or robbery being contemplated upon the Sullivan sisters; and, yielding to their solicitations, contrary to the entreaties of his wife, Benjamin testified that Albert came with Landis and himself to Toledo, Landis returning upon a passenger train and the others upon a freight train; and about a week or so after that, this homicide occurred.

Considering first the case of Albert Wade, the brother of Benjamin, who was tried first below, it is claimed that error was committed against him in the overruling of a motion for a new trial on the ground of newly discovered evidence. An alleged confession of Albert Wade was admitted in evidence upon his trial over his objection — a confession made to Nicholas Miller, who had formerly been the Sheriff of Putnam County, Ohio. At the trial of Benjamin Wade, which followed that of Albert, Nicholas Miller, upon examination as a witness, it is claimed, disclosed that the confession of Albert Wade was made to him by reason of promises made and inducements held out to Albert Wade at the time he made this confession, and that was the chief ground urged for the granting of a new trial and for the reversal of the judgment by this court. There were other claims of newly discovered evidence that I will speak of later.

Nicholas Miller testified in the case against Albert Wade. He first met Albert in the penitentiary, although he had known Benjamin Wade before that time, and had seen him in different prisons and jails in northwestern Ohio. Benjamin and Albert were both in the penitentiary. Miller had heard of the Sullivan murder, and while he was sheriff of Putnam county, he met Benjamin Wade upon a train, Benjamin having been taken to some county to be a witness in a criminal ease; and Benjamin asked Miller to come and see him at the penitentiary when he came to Columbus, and told him that he would “give him the Sullivan job” — using that language — if he came; that there was money in it for him.

Subsequently Miller, whose term as sheriff had expired, went to Columbus, and called at the penitentiary and saw Benjamin, and talked with him, telling him that he was no longer sheriff, that he was not an officer, although he had been; that he had no power to promise any immunity or favor; that that could come only from the authorities of Lucas county, and especially from the prosecuting attorney. He had known Benjamin for a good while, however, and had seen him, and perhaps had had him in his custody once, and he advised Benjamin, if he was connected with the Sullivan murder, to tell all that he knew. At that time Benjamin asked Miller if he, Miller, thought he, Wade, was connected with the Sullivan murder, and Miller told him that he did. I am now speaking of Benjamin and not Albert, but this preceded the confession of Albert. Benjamin was doubtful whether the prosecuting attorney could grant immunity in a case of murder in the first degree, and disputed it, insisting that even if he did, the people would not submit to it. Miller insisted that the prosecutor had such power and discussed the matter with him. Benjamin seemed to understand the law, for he discussed it intelligently, and finally the attorney-general of the state was consulted, at the suggestion of one of these parties, he being mentioned in the discussion between Miller and Benjamin, and the attorney-general when consulted, stated that under the law the prosecuting attorney might grant immunity even in a case of murder in the first degree. Miller stated to Benjamin, however, that he had no power to promise him immunity; that that could only come from the Lucas county authorities. and that what he, Miller, wanted, as he put it, was “a land-mark” from one or the other of these men showing that they had knowledge of the Sullivan murder, in order that he might send for the prosecuting attorney and officers of Lucas county. Benjamin asked Miller whether there would be any difference in the immunity granted depending upon who told first; and Miller told him that in his judgment — and, perhaps, told him positively — that the one who spoke first would get the most immunity; told him that the authorities were anxious to convict Landis of this murder, and that if he and Albert told all that they knew, that in his judgment Benjamin would be let off with a light punishment, but with a somewhat longer term of imprisonment than Albert, and Albert would get off with very little punishment, but telling him throughout the conversation from time to time that this must all come from the officers of Lucas county; and when he told Benjamin that the one who spoke first would get the most immunity, Benjamin said he wanted his brother to speak first, as he had a family.

Then Albert came into the office — Miller suggesting to Benjamin that he bring Albert — and Albert was brought in and introduced to Miller by Benjamin. After Albert’s introduction to Miller there was a little further talk between Miller and Benjamin in the presence of Albert, but what that was is not clear from the record. Benjamin had brought Albert in, and he may have communicated to Albert what Miller had' said to him, but upon that the record is silent; and Miller then spoke to Albert and told him, that he had no power to grant immunity, but if he wished to speak he could speak.

The talk between Albert and Miller before the confession was very brief. It might almost be said that the presumption from this record is that Benjamin had communicated to Albert the substance of what Miller had told him, and the prosecuting attorney said, in argument, that it might be so considered

Finally Albert said “I saw the fatal blow struck.” Millei? said that is a “landmark,” and advised him to tell all, saying that he would send for the Lucas county officers; that he had sufficient warrant to send for them. One of the Toledo detectives had been to Columbus prior to that time, and the Wades had refused to talk with him.

Thereupon Albert made a statement to Miller in the penitentiary in regard to the crime — a confession — and he told about his going to Toledo from Indiana; and after he had been here a short time, towards evening on Saturday, the night before Easter, 1900, he said he hitched up the horse to the buggy and he, Landis, and Benjamin started for the country, going about, here and there; that they got out before dark in the neighborhood of the Sullivan house; that one of them, Landis, went over to the Sullivan house for matches; that before that time they had gone to the woods and Landis had put on a wig and a mask which disguised him, and which Albert said made him look “so funny.” He said that in the woods they cut two clubs and stripped the bark off of them. That about 7 o’clock, or earlier in the evening, the three, Benjamin, Albert and Landis, went to the house of the Sullivan sisters; that they pushed open the door; that Benjamin Wade and Landis — whom they called “Frank” — rushed in. One of the sisters was at the door — either Benjamin or Landis going first— which, perhaps, is not very clearly shown; that the sister who came to the door was stricken down with a club; the other one, following closely upon the leader, attacked the other sister— and a terrific struggle ensued between Katherine and the man who attacked her, and finally the other one came to his help, and she was struck senseless and they both lay upon the floor. Albert claimed that he, all the time, stood at the door, and not taking any part in the actual assault upon the women. He spoke of their terrible cries while they were being beaten and gave the whole story of the murder in detail.

Miller telegraphed, or telephoned, at once to the prosecuting attorney of this county, and he went to Columbus with another officer of Lucas county on the following day and they met the Wades, Albert and Benjamin. The prosecutor, who regarded Landis as the leader, stated to them that if they would tell all that they knew about this crime, tell the whole transaction, and tell the truth, that he would save them from the electric chair. This is not disputed. Thereupon both Albert and Benjamin refused to talk, refused to make any statement to the prosecutor. Benjamin insisted — he seemed to take the lead — that he should be given his liberty before he talked; that he should have absolute immunity; that he should be released and held only as a witness; that he should be allowed to visit his wife, or the woman with whom he lived, at Dayton; that his freedom should be given him before he made any statement as to this case to the authorities. The prosecutor told him that he wanted nothing but the truth — that he wanted “no lies” —and the Wades became somewhat angry and refused to make any statement of the case to the prosecuting attorney.

On the trial of Albert Wade this confession was put in evidence by the testimony of Miller; but what Miller said to Albert and said to Benjamin in regard to the immunity that they might get from the prosecuting officers of the state, in his judgment, was not in evidence, Miller not testifying to it then, but did at the trial of Benjamin Wade, which followed that of Albert; and the testimony of Miller at the trial of Benjamin Wade, in which he' testified to what he had said to Benjamin and Albert upon this occasion — the testimony of Miller at that trial was filed with an affidavit proving its authenticity, in support of the motion for a new trial of Albert Wade, on the ground of newly discovered evidence. There-were some other affidavits filed to support the motion for a new trial of Albert Wade, showing that there was a man in that neighborhood about the time of the commission of this offense, by the name of William Brandt, who had been in the penitentiary; but there was no evidence that Brandt had committed the crime. There was one affidavit showing that the lock on the small house or shanty, or shed, near the Sullivan home was of an old make which would be difficult to open— there being testimony tending to show that the murderers went to this little house and got into it to get some money. This affidavit was made to Mr. Pelton and was filed as newly discovered evidence.

Going back to the Miller affidavit, or the affidavit showing Miller’s testimony, in the Benjamin Wade trial, the question is, whether a confession made under those circumstances should have been admitted ? It might be said that this was not newly discovered evidence; that Albert had full knowledge of all this during his trial, and that he had sat there and could inform his counsel; and that upon the preliminary examination, before the confession was admitted, he might have gone upon the witness-stand in the absence of the jury and have testified; but we are not inclined to draw the lines very strictly upon this in a capital case, and are asked by the prosecution to consider this question in the light of all the testimony which has been gathered together either during or after the trial of Albert Wade.

A confession, to be admitted, under all the authorities, must be a voluntary one. If it is induced by promises made by an officer of immunity, or induced by threats or fear of injury emenating from an officer, it will not be admitted. If promises are held out and inducements made by those who are not officers and have no authority, then, whether the confession shall be admitted is a question of fact to be determined by the court — whether, under all the circumstances, the confession is voluntary or not. Or if in doubt, the court may submit that question to the jury with the alleged confession. The jury may be excluded, as was done in this case, by the court, and witnesses called before the trial judge to determine whether the confession was voluntary. And the defendant may call witnesses to show that it was not; and to exclude such testimony has been held error, and finally the question is decided by the trial judge under the evidence, as to whether the confession about to be offered shall be admitted or not.

A confession, if freely and voluntarily made, as laid down by all the authorities, is evidence of the highest character against the accused, if clearly proved, for it is his own statement of his connection with- the crime with which he is charged. He, of all others, knows whether the charge against him is true or false, and if his statement is freely and voluntarily made, no better or more convincing evidence can be brought before a court or jury. But confessions that are not voluntarily made, or are produced by threats, by fear or by hopes, are excluded, on the ground, as stated by Greenleaf, that they are probably not true. There is a temptation for the accused to state, even against himself, that which is not true, where he has been induced to confess by hope or fear or by threats. And as stated by the Supreme Court of the United States, another ground for the exclusion is, that it is a violation of and an infringement upon the fifth amendment to the Constitution of the United States, which provides that no man shall be required to give evidence against himself. For, if he is required or compelled by threats or induced by hopes to make a confession against himself, it is an indirect method of compelling him to give evidence against himself, when statements made under such circumstances are afterwards proven against him in court. But the fact that a confession is made to an officer does not exclude it under the law of this state. The fact that the confession, in his judgment, will be a benefit to the accused, or that it will be to his advantage to make a confession, does not exclude it. The fact that the statement was made to him by a private individual, not an officer, that it will be best for him to tell all, does not exclude it, if, after considering all of the evidence, the court can be satisfied that the confession was freely and voluntarily made.

A case in the 2d Ohio State, 584, Spear v. The State, discusses the subject of confessions. The opinion was by Judge Thurman. This is from the syllabus:

“No confession can be received in evidence in a criminal case, unless it was voluntary. ,
“A confession induced by hope or fear, excited in the mind of the prisoner by the representations or threats of any one, is not to be considered as voluntary.
“The question in every ease, where a confession has followed representations or threats, is, was it produced by them?
“This question is to be decided by the judge, if proof of the confession, when offered, is objected to.
“In deciding it he is to have regard to the following rule:
“If the representations or threats were made by, or in the presence of a person having authority or control over the prosecution or the accused, it is to be presumed that the confession was produced by such representations or threats, unless it appear that their influence was totally done away before the confession was made. If, on the other hand, the representations or threats were made by a person having no such authority or control, and not in such presence, it is not neessarily to be presumed that they induced the confession.
“In the latter case, the judge is to determine how the confession was produced by looking at the circumstances, among which are the strength or weakness of the prisoner’s intellect, his knowledge or ignorance.
“If satisfied, however, that the confession was produced by the representations or threats, the court can not receive it in evidence, because the prisoner had sufficient mind or knowledge to detect the groundlessness of the representations or threats; for the strongest mind is liable to be unhinged, and the question is not what the prisoner ought to have believed, but what he did believe ? ’ ’

This case really covers the whole law upon this subject in this state.

There is a general discussion of this subject in the first volume of Greenleaf on Evidence. In Section 219 the author says:

“The rule of law, applicable to all cases, only demands that the confession shall have been made voluntary, without the appliances of hope or fear, by any other person; and whether it was so made or not is for him (the judge) to determine, upon consideration of the age, situation, and character of the prisoner, and the circumstances under which it was made.”

In Section 229, Vol. I, Greenleaf says:

“Though it is necessary to the admissibility of a confession that it should have been voluntarily made, as before shown, without the appliances of hope or fear from persons having authority, yet it is not necessary that it should have been the prisoner’s spontaneous act. It will be received, though it were induced by spiritual exhortations, whether of a clergyman or of any other person; by a solemn promise of secrecy, even confirmed by an oath; or by reason of the prisoner’s having been made drunken; or by a promise of some collateral benefit or boon, no hope or favor being held out in respect to the criminal charge against him; or by any deception practiced on the prisoner, or false representation made to him for that purpose, provided there is no reason to suppose that the inducement held out was calculated to produce any untrue confession, which is the main point to be considered. So, a confession is admissible, though it is elicited by questions, whether put to the prisoner by a magistrate, officer, or private person; and the form of the question is immaterial to the admissibility, even though it assumes the prisoner’s guilt.”

And in this state a confession has been properly admitted, although it was procured by a deception in stating to the prisoner that his accomplice had confessed. In 18 Ohio St., 419, the syllabus is as follows:

“In order to exclude the evidence of confessions by the defendant in a criminal case, it is not enough to show that they were made to an officer having him in custody, and were induced by a false assurance that an accomplice had given information of the crime, if it also appears that nothing was said or done calculated to induce a hope of advantage from confession, or fear of harm from its refusal.”

The doctrine in this case runs contrary to the doctrine of a case found in Vol. 168, p. 532, U. S. Reports (Bram v. United States), where it was held that the court below erred in admitting a confession or statement made to an officer. The prisoner in that case was charged with the commission of a murder upon the high seas, and when the vessel reached Halifax he was imprisoned and finally taken before a police officer and stripped— or while he was being stripped of his clothing was interrogated. This question was asked the officer, who was a witness:

“What did you say to him or he to you?”
And the witness answered:
“When Mr. Bram came into my office I said to him: ‘Bram, we are trying to unravel this horrible mystery.’ I said ‘Your position is rather an awkward one. I have had Brown in . this office and he made a statement that he saw you do the murder. ’ He said: ‘He could not have seen me; where was he?’ I said: ‘He states he was at the wheel.’ ‘Well,’ he said, ‘he could not see me from there.’ I said: ‘Now, look here, Bram, I am satisfied that you killed the captain from all I have heard from Mr. Brown. But, I said, ‘some here think you could not have done all that crime alone. If you had an accomplice, you should say so, and not have the blame of this horrible máme on your own shoulders.’ He said: ‘Well, I think, and many others on board the ship think, that Brown is the murderer; but I don’t know anything about it.’ He was rather short in his replies.”
“Q. Anything further said by either of you?”
“A. No; there was nothing further said on that occasion.”

Held:

“(1) That this statement made by the accused to a police officer was evidently not a voluntary confession, and was not admissible in evidence against him; (2) that the objection to its admission having been twice presented and regularly allowed, it was not necessary that it should be renewed at the 'termination ,of the testimony of the witness.”

The above is from the syllabus.

Mr. Justice White delivered the opinion of the court and discusses the question at great length. The majority of the court held that this statement of the accused, made under these circumstances to an officer who stated to him, substantially, that his suspected accomplice had told that he had seen him commit the crime, he being at the time in custody, should not have been admitted. Chief-Justice Fuller, Justice Brewer and Justice Brown dissent from this opinion, Justice Brewer delivering the dissenting opinion.

The circumstances of this case are different from that reported in the Supreme Court Report, at least in this; that the person to whom the confession was made here was not an officer; had no authority over the liberty of Wade — no authority to do him harm or to give him favors, and that fact Miller had expressly stated to the Wades before the confession was made. Nor do we think that the law as stated in the majority opinion in Brain v. U. S. is the law of this state.

We are of the opinion that under the law of this state and the general law of the land, the confession of Albert Wade made to Miller in the penitentiary was properly received by the trial judge and should have been admitted, even if this testimony as to Miller’s statement to the Wades, at the time of the confession, had been before the court. It was for the trial judge to say in the first instance, after he had heard all the evidence on this subject, in Albert Wade’s ease, whether the confession should be admitted or not. We consider the question in the light of the testimony of Miller at the subsequent trial of Benjamin Wade, and we hold that with that before the court the confession of Albert Wade would have been properly admitted. Miller testified in the Albert Wade case that he made no promises to Albert Wade, nor does he testify in Benjamin Wade’s case that he made any promises to Albert Wade — he says he did not. He had his talk in the first instance with Benjamin Wade and he stated to Benjamin that he could make no promises; he stated-what was usual and customary for the State to do in such a ease in the way of immunity, and Benjamin Wade seemed to be familiar with the rule — where a man “turned state’s evidence;” but Miller told them that he could not promise immunity; that he was not an officer and they must depend upon the action of the Toledo authorities for that. The evidence shows that when the proseuting attorney and the officer came to Columbus and offered immunity, if they would make confession and furnish evidence against Landis, that they refused to make a statement, and neither Albert nor Benjamin did testify in the trial of Landis. Albert seems to have been a man of sufficient intelligence to understand his situation. Both he and Benjamin Wade — and one of these men can not be discussed without the other, the cases are so connected — were anxious; they were afraid at that time that Landis would tell. This talking and this inclination to confess arose to a great extent from' information that they got from time to time that Landis was threatening to “turn up the Sullivan murder” — to put it in the vernacular of these men — and “put it on” the Wade boys, and they were anxious to be the first to tell.

Where a crime like this is committed, in the night with no eye-witness but the criminals themselves, if the statement of one of those who was engaged in the crime can be secured by the State by fair and legitimate means, it is the State’s duty and that of its officers to procure it. It is of the highest importance that the commission of such an offense be punished, and that no innocent man suffer, and we can have no higher guaranty that the guilty are punished than their own statements of their guilt, if they are freely and voluntarily made; and it appears to us that this confession is not open to the objection of the law that it was not a free and voluntary act of Albert Wade, taking into consideration all that occurred upon his trial, and taking into consideration further in his favor all that the records disclosed as occurring upon the trial of his brother, Benjamin Wade.

As to the other so-called newly discovered evidence in regard to William Brandt being seen in the nighborhood, that would not be sufficient to set aside the verdict; there is no evidence that Brandt was implicated in or connected with this crime, or had anything to do with it or knowledge of it.

Coming now to the case of Benjamin Wade — I may not touch upon every alleged error in these records and every point urged, but if I do not, it will not be because we have not considered them, for we have considered them all. The two chief grounds relied upon in this ease for reversal are: First, the exclusion of the testimony of Henry Wendt as to the state- meats of Katherine Sullivan, the murdered woman, made on the night that she received her injury; and, second, in the admission of the statement of Benjamin Wade made before the grand jury that returned the indictment in November, 1902.

First, as to the exclusion of this evidence. It was to Wendt’s house to which Katherine went after she recovered consciousness, perhaps an hour after the assault. Both of these women were unconscious for a time. Wendt was called as a witness and testified as to her condition and as to her cries for help. The defense called him as a witness when they came to offer their testimony and counsel asked him: “What did she say to you when she came there as to what had transpired at her house?” An objection was made to this question by the State and sustained by the court. Counsel for defense then stated: “We expect to prove that Katherine Sullivan came to Mr. Wendt’s house about 8 or 8:30 and said that two men assailed her and beat her; that if there had been only one, she could have handled him, but she couldn’t handle two; that she couldn’t identify these men because they had masks on their faces.” The objection was still sustained by the court.

It is claimed that this testimony should have been admitted, upon two grounds: that it was a dying declaration; and that it was a part of the res gestae. The ground most relied upon is the latter. It was not a dying declaration. A dying declaration is one made, as the courts say, in articulo mortis, and with the knowledge and belief that one is about to die. As stated by the Supreme Court in Robbins v. State, 8 O. S. Rep., 131:

“It is essential to the admissibility of dying declarations as evidence, that it should be made to appear to the court, by preliminary evidence, not only that they were made in articulo mortis, but also made under a sense of impending death, which excluded from the mind of the dying person all hope or expectation of recovery.”

There is no evidence here that Katherine Sullivan at this time knew or believed that she was about to die; she did not die until the following morning. The declarations to be admissible must be made, as the authorities say, under the awful circumstances of impending death, and when the party himself knows, or firmly believes that he is about to die, such circumstances being held to be equivalent to the binding obligation of a solemn oath; and the probability is that a person surrounded by such circumstances, about to be ushered into eternity, would tell the truth, that the probability is as great as it is where an oath has been administered. This statement was not made under such eircmnstances, ‘and was properly excluded.

It is urged that it was a part of the res gestae — a part of the things done upon that night. Things that are said, words that are spoken in such close connection with acts done that they are a part of them, are admitted in evidence; they are not excluded as hearsay; they are regarded as the instinctive outbursts of the mind, and are to be considered in connection with the things that are done and as a part of them, “res gestae” meaning “Things that are done”, as laid down in the law dictionaries. Anderson says in his law dictionary, page 887:

“Res Gestae. The circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. * * * The area of events covered by the term depends upon the circumstances of each case. * * * It is not possible to lay down a rule as to what is a part of the res gestae which will be decisive of the question in every case in which it may be presented by the ever varying phases of human affairs. Included in it are facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its true light and give it its proper effect. ’ ’

In Abbott’s Trial Brief, page 546, paragraph 266, the author says:

“The rule of the res gestae admits declarations made under the impulse of the occasion, though somewhat separated in time and place, if so woven into it by the circumstances as to receive credit from it.”

In Wharton’s Criminal Evidence, Section 262-3, there is a discussion of this question. At the beginning of Section 262 the author says:

“Bes gestae are events speaking for themselves, through the instinctive words and acts of participants when narrating the events. What is done or said by participants, under the immediate spur of a transaction, becomes thus part of the transaction, because it is then the transaction that thus speaks.”

It is claimed that this alleged statement of Katherine Sullivan was important because it is claimed that she stated then that there were only two men there, that two men assailed her; that she could have handled one, but not two, and that she could not identify these men. In our judgment, this declaration of Katherine can not be considered as a part of the res gestae. Those words were not the involuntary outburst of her heart or mind on that occasion. She was then in a house some sixty rods from the place where this crime had been committed about an hour before. Just how long she had been at Wendt’s house does not appear; or whether this statement was made in answer to questions or not, and it is a narration, at all events, of what had occurred. These were not word facts, or verbal deeds; they were not connected with the transaction itself. It is not an outcry that she made as she was being assaulted, crying out that two men were assaulting her. In our judgment this can not be considered as part of the res gestae. If she had stated on that occasion that Benjamin Wade was one of her assailants and struck her, that could not have been admitted as against Benjamin Wade; it would have been error; it would not have been a statement by her made under oath nor under the belief that she was about to die, and to have admitted it against Wade would have been error. And besides the statement itself, in the light of all the testimony in the ease, she might have made and been within the truth, as is shown by this record as claimed by the State. She perhaps only saw two men; one was outside. There were probably only two who committed the actual assault. She probably did not recognize them, as they all had masks on at the beginning, and, according to the testimony of Johanna Sullivan — the one who lived — the masks were not taken off until she and her sister both lay upon the floor, as they did, Johanna feigning death and having been pronounced dead by one of the murderers, and then, Johanna says, the masks were taken off and she recognized the defendants. So we hold that under the rules of law this testimony was not admissible. And, if it had been admitted, it would have been in the line of the truth of the transaction as she saw it, and as the State claims — for the evidence does tend to show as I have stated that but two actually committed the assault and one was standing at the door, and if admitted it would in fact have been corroborative of the State’s case rather than in opposition to its claims. So we hold that, upon the most liberal view, Benjamin Wade was not prejudiced by the exclusion of this testimony.

It is complained that the statement made by Benjamin Wade before the grand jury was admitted in evidence against him at the trial. The grand jury met in November, and it is claimed that this statement made before the grand jury was made because of the hopes and inducements and promises held out to him by various persons before he went into the grand jury room to testify. The grand jury met in November, 1902, over two years after this murder was committed. The talk to which I have referred, with Miller, had occurred at the penitentiary several months prior to that time. Wade had, on the next day when the prosecuting attorny came, refused to become a witness for the State unless he was given his absolute liberty. After being released from the penitentiary, having served out his time for horse stealing, he was brought to the jail of Lucas county. He was assigned as counsel, Mr. Mulholland and Judge Sala. An attorney from Findlay, Mr. Burket — who was interested in a murder case in another county that Landis had been implicated in or connected with in some manner with Marsh Lindsey, Ury and Foster — talked to him and urged upon him that it would be better for him to make a, full statement of the facts; and Miller, and perhaps others did the same, and when the grand jury met he indicated his desire to appear before it and make a statement. He was asked if he wanted to talk with Burket, and he said “No; why should I when I have counsel?” He talked with his counsel, Mulholland, fully in the county jail, and discussed the matter with him, and under the advice of counsel adopted his course.

The prosecuting attorney, in order that no possible advantage might be taken of defendant, then in prison, had a subpoena issued for Mr. Mulholland, his counsel, to bring him before the grand jury; and in answer to that subpama he came, and the prosecutor then informed Mr. Mulholland that his client wished to come before the grand jury and make a statement and that they wished to ascertain whether he had any objections. Mr. Mulholland said that he had told Mr. Wade to use his own judgment in the matter,. and when the officer went to the jail after Wade, he was found in consultation with his attorney, Mulholland; and with the advice that Wade got from Miller, from Burket and from his own counsel, and considering the question himself, he went before the grand jury; and there the statement was made to him by the prosecuting attorney that they were investigating his case, and that he might make a statement if he desired. Mr. Charles Sumner was then prosecutor. Wade was told that he could make a statement without questions being asked if he wished to, and he proceeded then to make his statement.

He made a statement as to his association with Landis in Toledo. He said he and Landis planned the crime two or three months before it was committed and went after Albert to help them ‘‘ do the job ’ ’; said that on the evening the crime was committed he was not living at Landis’ house, but that a few days before this crime was committed he had fallen out with Landis and left him and took no part in the crime; that on the evening that the murder was committed he came to Landis’ house; that Landis came in at about nine or ten o’clock at night and Albert was there, and Benjamin made some statement as to Landis’ bloody clothing and its being washed. He made a statement as to talks between him and Landis the next day, when an account of the crime appeared in the newspapers; that Landis told him and Albert at his house that the descriptions in the newspapers “tallied” with them and that they had better keep off the streets and away from his house; but Wade denied any guilty participation in this crime. He testified that on that night after Landis came in he became sick, or feigned sickness, and that he and Albert went after a doctor; that the doctor came and treated Landis, but that he and Albert went to a fire without going back to Landis’ house. These are some of his statements made before the grand jury. There was no admission that he had any part in or connection with the crime. There was no full statement of the truth, as had been asked by the prosecuting attorney at the penitentiary; it was an attempt simply to cast suspicion upon Landis; there was no positive evidence of Landis’ connection with the crime, but he attempted to exculpate himself. This can not be called “turning state’s evidence,” as the expression is, under a promise of immunity from the State, which the courts have held should be carried out. He has never testified to the truth of this transaction. He never admitted that he was a witness to the crime or had any active part in it, or gave any positive evidence against Landis as to the commission of this crime except these circumstances to which I have referred. It seems to us that he went before the grand jury voluntarily, under the advice of his own counsel; that every protection was given to him that he could ask; that whether it would be to his advantage or not to go there and make a statement as he did, was a matter for the determination of his own conscience and his own judgment, and was so determined by him with the aid of his counsel.

When this statement made before the grand jury was offered in evidence at the trial, upon objection being made, a preliminary examination was had, in the absence of the jury, to determine the circumstances under which he had made it and whether it was voluntary, and these facts were brought out, and in fact, he himself went on the witness-stand at this preliminary examination — the jury being absent from the room, as stated; and at that preliminary examination, when under oath upon the witness-stand, he testified that his statement before the grand jury was true from end to end. Benjamin Wade never claimed, either on the witness-stand or off the witness-stand, that anything that he said before the grand jury was untrue; that he had been influenced by fear or induced by hope or promises to make one misstatement in the testimony that he gave before the grand jury. So that one of the objections to receiving confessions that are induced by hope or fear, is eliminated here, to-wit, that one, mentioned by Green-leaf, that they are not probably true — for the witness here reiterated the truth of his statement and swore to its truth upon his own trial. It seems to us that it would be a strange doctrine of law that where a man is charged with murder, if he has voluntarily and of his own motion gone upon the witness-stand before the grand jury and testified as to what he knew about the case, and afterwards, freely, voluntarily and of his own motion again upon the witness-stand at his trial had testified that what he had stated before the grand jury was true and that all this had been done with the knowledge, consent and under the advice of his counsel — it would be a strange doctrine of law to exclude from the jury such a statement when the man was on trial. We think that this statement was properly admitted by the court. Benjamin Wade testified in his own behalf upon the trial to substantially the same effect as before the grand jury. Benjamin also asked for a new trial upon the ground of newly discovered evidence, and filed the affidavit of H. L. Ramsey as to statements made by him to Benjamin in jail in regard to promises made through him by the prosecuting attorney to Benjamin before he went before the grand jury, but this was not newly discovered evidence in any sense of the word.

Benjamin knew all about this, if it ever occurred, at the time of his trial, and was a witness himself and did not mention it. A party can not withhold evidence in this manner at his trial and after verdict against him ask a new trial so that he may offer it at a second trial.

There remains only one question: Whether the evidence proves these men to be guilty of the crime of murder in the first degree? And, after all, that is the question that towers above all other questions in a criminal case. Upon the whole record, the consideration of it from beginning to end, has the defendant had a fair trial? Have his rights been protected? Is he guilty under the evidence and under the law, of the crime with which he is charged? 'Johanna Sullivan, who was left for dead by the murderers, lived and testified to all the details of this transaction. She and her sister were about to retire, or soon to retire, it being about 7:30 in the evening, and people go to bed early in the country. They were to retire soon after supper; and as a preparation for that, her sister was about to go out to the barn to see whether the live stock was in proper condition to leave for the night. She went to the kitchen door and as she was about to go out she bid her good night — they seem to have been quite affectionate. Johanna undertook to open the door for Katherine, who was going out with the lantern. She found she was unable, for some reason, to get the door open, and finally Katherine took hold of it and pulled it open. They did not understand why it would not open as it was not locked; and as Katherine pulled it open from the inside, these three men appeared, and one of them, with his sleeves rolled up and a club in his hand pushed himself into the room and began an assault with a club upon Katherine. Another one came in after him and began an assault with a club upon Johanna, and Johanna testifies to this double assault; how her sister closed with one of the assailants and struggled with him near the kitchen stove, and struggled so that he finally called for help and the one who was beating her with a club and had knocked her down went to his aid, and between them they struck Katherine senseless. She told how they were bound hand and foot and gagged with strips of their table-cloth. She tells how she was struck until they thought she was dead, and one of them asked if she was dead, and the other answered that she was and struck her in the back with his foot and called her a vile name, saying that it was a good thing that she was dead. She states in detail what occurred when both were lying upon the floor apparently dead, and she testified that they took off their masks in the kitchen and she saw their faces. This scene seems to have made an impression upon her mind that time did not obliterate or make dim. She identified positively both of these men as being there in the commission of this crime; she identified both of them before they were brought to trial, when, for the purpose of ascertaining whether she could identify them, she was allowed to see each one of them with others and asked to “pick him out,” which she did immediately. She identified them the first time she saw them after the commission of the crime and when she saw them in the court room when they were on , trial, when she identified them again. It may be said that she might be mistaken. That is true; but the fact that she identified them outside of the court room and before the trial, when they were not in custody, and not in chains or handcuffs so there could have been nothing to indicate who the prisoner was, the fact that she identified them then, promptly, is strong evidence that she knew the men — that she was not mistaken. A neighbor woman, a Mrs. Brock, testified that she was near the Sullivan house late in the afternoon or early in the evening of the day of the murder and saw Albert Wade in the vicinity of the house, near a little stream. Benjamin Wade, on divers occasions made statements to different people, especially in jail and when he was a prisoner, that indicated that he had guilty knowledge of this crime — made them to Sheriff Cliff and to Miller, and to prisoners in the county jail — Iiageman, Hogan and others — made statements and partial confessions of his connection with and knowledge of this crime. Both Benjamin and Albert Wade made statements showing that Landis was one of those who committed this crime. Landis and Benjamin and Albert were engaged together in a partnership of crime in the city of Toledo just before the murder was committed. Benjamin testifies as to him and Landis riding around the city and in the country for miles in different townships, committing burglaries, stealing horses and other property and bringing it to a house in Toledo, where they lived, to dispose of it. They carried on a large business of this kind months before Albert came. I speak of this to show how intimately they were connected before this murder was committed. Benjamin and Landis had planned this crime long before it was committed, according to Benjamin’s evidence, and they concluded that it needed three men and went to Kendallville, Indiana, to get Albert to aid them in the commission of the crime. He came here knowing that he was brought here to take part in the commission of crime— that he actually knew that he was to be engaged in this particular crime is not shown. Benjamin says he did not; but that he was to become a partner in a criminal business he knew, and his wife plead with him not to come. Benjamin testified that Albert came on a stated salary that he was to receive per week for performing his part in the criminal enterprises in which they were engaged. Landis and Benjamin Wade had long lived lives of crime. Benjamin had been twice in the penitentiary; he had been confined in numerous jails. Albert had not lived such a life of crime, but had been in the penitentiary, and he came here, as I say, knowing that he was coming to aid in crime —Benjamin says to dispose of their stolen plunder as it was brought in by him and Landis. He consented to play his part in the commission of this murder after he reached here. While he may not have struck either of these women, according to his own statement he stood at the door. He was with the others in the woods when the fatal clubs were prepared with which the murder was committed; he was near the house, according to the testimony of Mrs. Brock, late in the afternoon. He knew what . was to be done; he knew what these clubs were to be used for. He heard either Benjamin or Landis say as they entered that house: “Your money or your life!” and finally: “Your money and your life!” as Johanna stated. Although he was not steeped so deeply in crime as were the other two, although his life had not apparently been given over to crime to such an extent as had theirs, yet he was a participant in this crime as well as they, equally liable under the law and before this court.

Frank M. Sala, Frank Mulholland, Brand Whitlock and C. M, Milroy, for plaintiffs in error.

TF. G. Ullery, Prosecuting Attorney, and James S. Martin, Assistant Prosecutor, for defendant in error.

I hkve not mentioned all the facts, but enough, and in the face of confession after confession, in the face of positive identification by Johanna Sullivan, in the light of all the surrounding facts and circumstances, it seems to us that the guilt of these men was proved beyond all reasonable doubt; that there is no room for question. They have no reason to complain of the tidal that was given them, they were protected in all their rights, privileges and immunities and were fairly convicted of a murder as cold blooded 'and diabolical as any that ever stained the pages of the history of this country or of this state — a cruel, deliberate slaughter of a defenseless woman and an attempt to murder another, that they might gain for their reward a few dollars of the earnings and savings of these sisters.

The judgment of the court of common pleas in both eases will be affirmed.


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    MORTGAGE NOT CONSTRUCTIVE NOTICE.
    [Circuit Court of Cuyahoga County.]
    The Wood Sash, Door & Paint Company v. A. W. Burrows et al.
    Decided, November 23, 1903.

      Record of Duly Executed Mortgage of an Interest in Land Under Contract is not Constructive Notice to a Subsequent bona fide Purchaser of the Premises.

    Under proceedings for the sale of an entailed estate a trustee appointed by the court contracted to sell the premises to A, the contract being approved by the court; A mortgaged his equitable interest under his contract to plaintiff, the mortgage being executed and acknowledged, left for record and recorded, as required for deeds. Thereafter A assigned his contract to B and C, the court approved the assignment, the assignee complied with the contract, received the deed from the trustee which was confirmed by the court, and thereafter conveyed the premises to H without actual knowledge of the mortgage on the part of any of them. In an action to foreclose the mortgage. Held: That the mortgagee was not entitled to a sale of the premises.
    Winch, J.; Hale, & J., and Marvin, J., concur.
    Heard on appeal.
   Thomas Bolton died years ago leaving certain of his real estate entailed. His executor began proceedings under the statutes regulating the sale of entailed estates, pursuant to which the court appointed Charles C. Bolton trustee, with directions that he plat and sell said real estate.

On October 8, 1897, said Charles C. Bolton, as such trustee, entered into a written contract for the sale to the defendant, A. W. Burrows, of a certain lot in the plat which he had made. The price of the lot was $1,000 and the contract was signed by the parties to it and their signatures attested by two witnesses, but it was not acknowledged. This contract was reported to the court, duly approved and confirmed by it, ordered to be recorded on the records of said court, and thereafter duly recorded on said records.

Burrows took possession of the lot pursuant to the terms of his contract and began the erection of a dwelling house thereon. He had paid $300 on the consideration named in the contract, and expended $2,000 in the erection of said house, when, on March 3, 1898, being still in possession of said premises, he executed and delivered to plaintiff a mortgage on said lot to secure the sum of $580 due for material and supplies therefore furnished by it towards the erection of said house. Said mortgage was executed in all particulars in accordance with Section 4106, Revised Statutes, and was duly left for record with the county recorder on the day it was executed, and thereafter by him duly recorded.

After the delivery and recording of said mortgage, but on the same day, Burrows assigned his contract for the purchase of said lot to the defendants, Clark and Benton, and delivered possession of the premises to them. This assignment of the contract was reported to the court, approved by it and the trustee was ordered to carry out the terms of the contract with Clark and Benton upon their fulfilling their part of said contract. This they did, paid the balance of the purchase price due thereon, and received from the trustee a proper deed of the premises, which they duly recorded.

Thereafter Clark and Benton conveyed said premises for a valuable consideration by warranty deed to the defendant, Grace Heyner.

Neither Clark and Benton nor Grace Heyner had any actual knowledge of the mortgage to plaintiff until after the transactions above stated.

. Suit being brought by plaintiff to foreclose its mortgage, the only question presented for the consideration of this court is whether the record of said mortgage was constructive notice to subsequent bona fide purchasers of said premises without actual notice of the mortgage.

We think this case must be decided against the plaintiff upon the authority and reasoning of the case of Churchill v. Little, 23 O. S., 301, the syllabus of which reads as follows:

“When an executory contract for the purchase of land is assigned by the purchaser, either absolutely or as collateral security, and the assignee subsequently mortgages the contracted premises, the relative rights of the assignee and mortgagee are not determined by the fact that the mortgage was duly executed and recorded. In such case, and between parties thus situated, the act providing for the execution and recording of deeds has no application.”

When the above case was decided the statute regulating the execution of instruments for the conveyance of land included only instruments by which land should be conveyed or otherwise affected or incumbered in law. The court held that an executory contract for the purchase and sale of land is not an instrument of that character. That though it is a legal instrument and forms the basis of legal as well as equitable remedies, it does not convey, or purport to convey, or legally to incumber or affect any estate or interest in the land.

The statute now in force (Section 4106) provides how “a deed, mortgage, or lease of any estate or interest in real property” shall be executed, and there can be no question that the chapter of the statutes treating on conveyances and incumbrances makes no provision for the execution of land contracts.

In said chapter Sections 4133 and 4134 provide that all mortgages and all other deeds and instruments of writing for the conveyance or incumbrance of any lands, tenements or hereditaments, “executed agreeably to the provisions of the chapter, ’ ’ shall be recorded, etc.

There being no provision in the chapter regulating the execution of land contracts, it follows that such contracts are not entitled to record. The contract between Bolton, trustee, and Burrows was not acknowledged, in itself a fact precluding its record. The contract not being entitled to record, it follows under the decision in the Churchill case supra, that the mortgage, “the instrument by which the contract is assigned, stands necessarily upon the same ground.” Churchill v. Little, 23 O. S., 301-308.

Following the reasoning of the above case on page 310 of said report, if we are right in the above conclusion, the plaintiff, as well as the defendants, Clark and Benton, are to be regarded as the assignees of the equitable interest of Burrows, and, as such, they stand upon the same footing, with at least this _ difference, that the assignment to the plaintiff was prior in time.

“The general rule in such eases is, that he who is first in time is first in right, but this rule is not of universal application. In a contest between equities it is not allowed to prevail where it appears from any fact or circumstance in the case, independent of priority of time, that the holder of the junior equity has the better right to perfect his equitable title or interest by calling in. the outstanding legal estate. In such case he has the better equity. Prima facie, however, the assignee of an equity must abide the case with the assignor, and the superiority of the equity of the first purchaser is, in general, undeniable, unless he has been guilty of laches, which vitiate his title or deprive him of the right to enforce it against others who have been more vigilant.”

Confining our inquiries for the present as to the relations of plaintiff to Clark and Benton, was plaintiff guilty of any such laches as to deprive it of the right to enforce its mortgage against them?

It seems that plaintiff gave no notice of its mortgage to Bolton, trustee, neither did it report the mortgage to the court and ask for its approval of this partial assignment of the contract to it. The record of the mortgage was certainly no notice, constructive or otherwise, to the court or to Bolton, trustee, if he may be called the vendor. The better view of the case is that the court, not the trustee or officer appointed by it to make sale, is the vendor; but assuming that Bolton, trustee, Avas the, vendoi’, there is no rule of law requiring a vendor to search the records for incumbrances by the vendee before deed is finally delivered pursuant to the contract.

Had plaintiff notified the trustee, actual knowledge of its claim would doubtless have come to Clark and Benton before the trustee accepted them on the contract with Burrows and before the court approved the assignment of the contract to them.

The plaintiff neglected to require Burrows to produce his contract with the trustee and deposit it with the mortgage; had this been done Burrows would haA^e been unable to assign the contract to Clark and Benton or they would have been put upon inquiry as to what had been done with the contract by Burrows.

Not only did plaintiff give the trustee and court no notice of its mortgage, but it at no time paid or offered to pay the balance due on the contract to the trustee.

Plaintiff took its mortgage as security for a pre-existing debt, and it would seem that by its laches it lost the better right it may have had by reason of its prior equity to perfect its title.

If then, as between plaintiff and Clark and Benton, the latter had the better right to call in the outstanding legal title, and did so, in how much better position is the defendant Grace Heyner, the present owner of the legal title, who is a bona fide purchaser for value and without notice of plaintiff’s claims.

It remains to consider the contention made by plaintiff that Grace Heyner holding a title coming through the proceedings of the court for the sale of an entailed estate, by the record of such proceedings was advised that Burrows at one time had an interest in the property by the way of executory contract, and so was bound to search the records for conveyances and incumbrances by Burrows during the time that he held such interest. In other words the plaintiff urges the application of the rule of notice from lis pendens.

As we understand the doctrine of lis pendens, a pending suit is notice to all the world during its pendency of rights claimed by parties to the suit. Grace Heyner bought long after final order regarding this property, and when the record of the suit had to be examined by her it showed that the court had approved a contract with Burrows; that he had assigned said contract to Clark and Benton; that they had succeeded to all of Burrows’ rights, had complied with the terms of the contract, became entitled to a deed and had received it pursuant to the court’s orders. She found an adjudication of the court and a decree transferring the title to the property from the Bolton heirs to Clark and Benton. Burrows was as much concluded by this decree as anybody could be. In one sense, as purchaser under the order of sale, he was a party to the ease and all his rights, including all rights granted by him during the pendency of the case, were judicially determined therein.

Gibbons, Dunning & Tracy, for plaintiff.

Arnold Green, Squire, Sanders & Dempsey, Henderson & Quail, for defendants.

Plaintiff acquiring its rights from Burrows during the pendency of this ease which was lis pendens to it, could have applied to the court for an adjudication of its claims. By failing to do so it is bound by the final decree in the case vesting the title in Clark and Benton.

We find there is no equity in plaintiff’s claim, and decree may be drawn accordingly.


text:
    STREETS, SIDEWALKS AND CURB LINES.
    [Circuit Court of Fairfield County.]
    Thomas B. Cox, Jr., v. City of Lancaster.
    Decided, January Term, 1903.

      Authority of Council to Prescribe Location of a Curb Line — afferent from that Fixed by the One Laying out the Subdivision — Ordinances — Resolutions.
    1. A resolution of a municipal council is effective to prescribe the portion of a street to be used as a sidewalls.
    2. Where one lays out a subdivision to a city in which he indicates the location of a street, and by a line on the plat also indicates where the curb shall be laid, and this plat is accepted by a general ordinance, the city is not barred from thereafter locating the curb' on a different line.
    Sibley, J. (orally); Voorhees, J., and Donahue, J., concur.
   I need not take time to refer formally to the pleadings in the case. This is an action in equity seeking to enjoin the defendant, Cox, from proceeding to lay down a curbstone on a street in the city of Lancaster, which he had dedicated. The contention of the city is that his act is in derogation of its rights, as exercised by the council, in determining where the curb line of the pavement should be located and the curbstone placed.

There is no dispute as to the facts. It appears from the records and the evidence that some time previous to this period Mr. Cox made an addition to the city. In the plat filed, he not only indicated the lines of the street in question, but marked •on the street a line for the pavement and showed where it should extend, and the curbstone line fall. On this line, afterward, and before the injunction was allowed he proceeded to put the curbstone.

This plat was accepted by an ordinance of the city, so as to make this a valid addition to the city of Lancaster. Nothing was specified in the ordinance in regard to the sidewalk. There is no claim here that the ordinance of acceptance was anything more than general in its terms. The contention by the defendant is predicated upon the proposition that an acceptance of the dedication, with the line of the sidewalk marked on the plat was tantamount to an action of the council making it the line of the walk. This is where the controversy lies in the first instance. Then it is further claimed by the defendant, that the resolution passed regarding the improvement of the street and marking out another curb line, varying a short distance from the one on the original plat of the addition, by not attempting to repeal or revoke what it is claimed was the effect of the former action, is void and of no effect; hence that it does not entitle the plaintiff to relief such as it seeks in debarring the defendant from laying the curbstone on the line of the plat.

I think this is a sufficient statement. I may say, however, there is no claim here that if the resolution had been an original action in the matter of establishing a sidewalk, it would not have been sufficient for its purpose.

This resolution of the council falls, as we think, in that class of municipal legislative action that may be done by resolution as well as by ordinance. It is of a permanent nature; it does not operate temporarily; it operates until some further action is taken to revoke it. It is local also, relating as it does to a street in one portion of the city. Hence, it comes within that policy of the municipal statutes of the state as to giving notice to those only who may be affected by that form or mode of action.

On the other hand, in the case of an ordinance, in order to render it effective for the purposes for which it may be designed, it must be published.

We think it was within the proper legislative authority of the council to prescribe the portion of the street which shall be used for a sidewalk, and that this resolution is effective for that purpose, if the contention with regard to the dedication, and the acceptance by the council, does not affect the resolution in consequence of its not having revoked the earlier action.

This depends, we think, upon a single proposition; that is, whether one who is to make an addition to a city, in which is included a street, can only dedicate a portion of his land for street purposes, or can dedicate it specially as a sidewalk. It is perfectly settled that a sidewalk is a part of a street, and that the control of the city council over the streets and sidewalks alike is plenary, without any limitation except such as is imposed on the general powers of the body.

How is it now under the statute in respect to a dedication? What may a man dedicate in a street? Can he so dedicate it as to determine what part shall be apportioned to the street, and'what to a sidewalk, thereby in effect doing for the street in respect to its improvement and use what the statute exclusively empowers the council to do? It is not contended by the defendant that this can be done against the will of the council. The proposition is that having accepted the dedication with a line marked indicating the sidewalk, this is equivalent to an act of the council approving what was done by the owner of the land in fixing that as the line of the sidewalk. But we do not reach that conclusion. The section in regard to dedication is Section 2597, Revised Statutes, as follows:

“Section 2597. When any person wishes to lay out a hamlet or village, or subdivision or addition to any municipal corporation, he shall cause it to be surveyed, and a plat or map of it made by a competent surveyor; in which plat or map shall be particularly described and set forth the streets, alleys, commons, or public grounds, and all in-lots and out-lots and fractional lots within or adjacent to such hamlet or village, the description to include the courses, boundaries and extent.”

To us it seems as if the full extent of the power of one making an addition has been exercised when he simply dedicates land for street uses. In order to make the contention of the defendant good, he must be able to go further than a general acceptance— must show an ordinance which in effect, if not in terms, makes it clear that the council in its action intended to make a line indicated upon the plat the line of its sidewalk in the division of its street.

Here the terms of the ordinance are general. The city council can not be barred from its right to control the streets, unless it has done something by ordinance which would require a revocation or repeal. Can it be said in reason, that simply because the party indicated on a plat, that which the law required him to make out, when there is no provision for his marking the line of a sidewalk, that the city council in accepting the street thereby fixed that line as the line of the walk? We think no such effect can be given to the acceptance unless the action of the council is definite and clear.

That does not so appear in this case. Therefore the defense sought to be made fails. Consequently the relief which the city seeks by injunction against further action in putting the curbstone on the line indicated upon the plat, rather than the line required by the resolution, should be granted.

The judgment of the common pleas court is therefore affirmed.