author: Haynes, J.

text:
    (Sixth Circuit—Erie County, O., Circuit Court
    May Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    Edward Bennett v. The State of Ohio.
    1. While some courts have allowed the defendant a large latitude in cross-examination, the general rule is that he must not go into these matters which are purely matters of defense.
    2. On the trial of a felony the accused has a right to be present in court, when any proceeding, of whatever nature, except the secret deliberations of the jury, are taken in his case.
    8. The accused is entitled to have the deliberations of the jury continue undisturbed and uninterfered with, and it is error for the judge, during the enforced absence of the accused, to hold a conversation with the jury which might influence their verdict, and prevent the defendant from having a fair trial in the case.
    4. The presumption of law is that where error has intervened in a criminal case, it is prejudicial to the defendant.
    5. To authorize a verdict of murder in the second degree, it must be affirmatively shown by the State, that there was at the time the blow was given an intent existing in the mind of the accused to kill the person whose life was taken; and that he not only delivered the blow with intent to kill, but did it maliciously.
    Error to the Court of Common Pleas of Erie County.
   Haynes, J.

In this case a petition in error is filed for the purpose of reversing the judgment of the court of common pleas.

It appears from the record that Edward Bennett, at the January term of the court of common pleas for this county, was indicted for, “ That he did unlawfully, purposely and maliciously kill George M. Sullivan, then and there,” being an indictment for murder in the second degree under the statutes of the state of Ohio. The case was tried by a jury, and a verdict was rendered finding the defendant guilty of murder in the second degree, in manner, and form as he stands charged in the indictment. Thereupon a motion for a new trial wras interposed, setting forth a large number of alleged errors which it was said had occurred at the trial of the case. That motion coming on for hearing was heard and overruled, and it was assigned for error here that the court erred in overruling the motion for a new trial. The petition in error having been filed, the case came on for argument, here, and has been argued by counsel, and three points are alleged as the main points of error in the case.

The first is that the court erred in the admission of certain evidence, or rather in refusing to admit certain evidence. More strictly, that it erred by refusing to allow counsel for the defendant to propound certain questions to witnesses upon cross-examination, which it is claimed by counsel were matters they were entitled to call out on cross examination of the State’s witnesses. The second is, because of the alleged irregularity in the proceedings of the court, which I will refer to at more length hereafter; and the third is,that the verdict is not sustained by sufficient evidence, and is contrary to law.

In regard to the first error, we will say briefly, that the matters that were sought to be brought out on cross examination were not so strictly within the matters subject to cross-examination as to call for any action on the part of this court. Very much must be left to the discretion of the trial judge. There has been some difference of opinion and some variety of practice in this state, as to the extent a party may go in cross-examination, and while some courts have allowed the defendant a large latitude in cross-examination, the general rule has been that he must not go into those matters which are purely matters of defense, and the court following that rule of practice, based his decision upon it. The matters that were sought to be brought|out were afterwards brought out in proper course, on examination of witnesses on the stand, and the defendant had the benefit of the testimony of those witnesses. In the action of the court in that regard we see no ground for error, and no injury to the rights of the defendant.

The other two questions are matters of great importance, and matters to which we have given our attention at length and very earnestly. We have made a very careful examination of the testimony in the case. The alleged irregularity of the court is set forth in the bill of exceptions, commencing on page 649, of the bill of exceptions and reads as follows:

“ And thereupon, at 1 o’clock and 29 minutes, on the afternoon of said day, to-wit: the third day of February, 1894, the said jury retired to their room in charge of the sheriff, for deliberation, and said defendant, Edward Bennett, upon the retirement of saidjury, was immediately, to-wit: at 1:30 p. m. of said day, under the order of said court, taken by the officer thereof, to the county jail and committed thereto as a prisoner in the custody of said sheriff, and thereafter, on the same day, to-wit: at the hour of five minutes to five o’clock in the afternoon, the said Edward Bennett, at that time being confined as aforesaid a prisoner in said county jail, and having no notice thereof, and neither one of his attorneys being present in court, or having any notice of the same, said court ordered said j ury again brought back into open court, which was done accordingly; and thereupon, in the absence of said defendant, who wms so confined in the county jail as above stated, and in the absence of his said counsel, neither one of whom was present in court, or in the court-house, said court interrogated and communicated with said jury as follows, to-wit :
“ ‘ Gentlemen, I have called you in on my own account. I cannot get away to-night, unless I go very soon, and I would like to know the state of your deliberations, and whether you are likely to arrive at a verdict soon. Are you likely to come to a verdict within the next fifteen minutes?’
. “And thereupon, the foreman of said jury, to-wit: one George Krapp, said to said court in answer to said interrogatory, as follows, to-wit:
‘“Indications point that way/
“And thereupon said court further said to said jury, as follows, to-wit:
“ * I do not want to hurry you up unnecessarily, but I cannot get home at all for Sunday, unless I go very soon, and it is that I want to inquire about. I called you in for that purpose. If you are likely to come to a verdict you may retire again and resume your deliberations. Be as expeditious as you conveniently can/
“ And thereupon said jury, under the order of said court, were again taken in charge by the officer thereof, and again retired to their room for further deliberation.
“ Neither the said defendant, Edward Bennett, nor his counsel, nor either of the same having any notice or knowledge whatever that said proceedings, as above set forth, were had by said court and said jury, but the said defendant during all of said time, was confined as a prisoner in the jail of the said county, as above stated.
“And at fifteen minutes past five o’clock, in the afternoon of the same day, said jury announced that they had agreed upon their verdict herein, and were thereupon again brought into open court by the officer thereof, with the verdict, which was returned and read in the presence of said defendant, and said jury was polled at the request of defendant’s counsel, and each of the same answered that the same was his verdict. And the jury having found the defendant guilty of murder in the second degree, in manner and form as he stands charged in said indictment, the defendant within three days thereafter made a motion for a new trial,” and so forth.

It is very evident, to say the least, that the action of the court in bringing the jury in and havingthe conversation with them which it did, was an improvident act on the part of the court. The effect that is to be given to that action depends upon the principles of the law that are laid down by the Supreme Court of this state, and the general rules that should govern the conduct of jury trials. It is well known to the profession that the Bill of Rights of the Constitution of the State provides that the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in whieh the offense is alleged to have been committed ; nor shall any person be compelled in any criminal case to be a witness against himself, or be twice put in jeopardy for the same offense.

Some decisions have been made by the Supreme Court of this state upon the subject, and it may be well, perhaps, to refer to these for the purpose of refreshing our recollections as to some [of the principles laid down by the Supreme Court. I shall not attempt to refer to all of the decisions that have been made, but refer to one or two of the leading decisions.

In the case of Jones v. The State of Ohio, decided by the Supreme Court at the December term, 1875, and found in the 26 Ohio St. p. 208, the defendant was indicted for crime of murder in the second degree, and was afterwards found guilty of manslaughter, and sentenced to be imprisoned in the penitentiary.

On the trial, as the record shows, the case was submitted to the jury for their verdict at five o’clock in the evening, and the defendant was remanded to the jail of the county. At seven o’clock next morning the jury returned into court and requested further instructions on points material to the issue. Thereupon, in the absence of the defendant, who was still confined in jail, the court again instructed the jury on the points requested, “in tenor and effect as first charged.” Shortly afterward the jury again returned into court, and in the presence of the defendant, returned the verdict of guilty, as above stated. At the giving of the last instructions, one of the defendant’s counsel was present, and made no objection.

The record does not show the nature of the instructions given, further than that they were material to the issue.

By the reporter of the court, in his statement of the case, taken, we suppose, from the bill of exceptions, it is said that they were “in the tenor and effect as first charged.”

By the Court: “ We are unanimously of the opinion, that on the trial of a felony it is error to proceed, at any stage of the trial, during the enforced absence of the accused, save only in the matter of the secret deliberations of the jury, and perhaps in the hearing of motions after verdict and before judgment.

“ It was the right of the plaintiff in error to be present at each and every instruction given to the jury, as to the law of the case. This right was denied to him by reason of his imprisonment under the order of the court; and without inquiry as to the correctness of the instruction so given in his absence, it will be presumed that he was prejudiced thereby-

“ Nor was the irregularity cured by the presence of his counsel at the time the additional instruction was given, and his failure to make objections. The right of the accused to be present on the trial of such case can not be waived by counsel.”

In Cantwell v. The State, 18 Ohio St., p. 477, decided in 1869, the defendant had been indicted for grand larceny, had been placed upon trial, had been convicted, and a motion for a new trial was filed on the grounds that the court improperly overruled certain matters, and that the court permitted the jury to separate during the trial. This motion was overruled, and a new trial refused ; and the first three points that were made were overruled by the Supreme Court, and the question came on for hearing on the fourth or last point, that the court permitted the jury to separate during the trial.

It is proper to say that at that time the 164th section of the criminal code was in force, the criminal code of 1869, wherein it was provided, among other things, that “in the trial of felonies the jury shall not be permitted to separate, after being sworn, until discharged by the court.” The jury in this case was permitted to separate from Saturday until Monday, and separated, without being under the supervision of an officer, and were separated by the consent of the defendant and his counsel, as well as the counsel for the state. The Supreme Court say :

“ It may be regarded as an established principle in this state, that the defendant can not be prejudiced by his waiver of any statutory requisition in the prosecution of criminal offenses.”

The court further remarked :

“ It was held by this court at the last term, in the case of Parker v. The State, before the code of criminal procedure was adopted, that it was error to permit the jury in a criminal case to separate, after they had retired to deliberate, even though counsel for the defendant consent to their separation ; and although it was not expressly decided in that case, it was strongly intimated, that the consent of the defendant himself would have left him in no worse condition, for it is said in the opinion : ‘ The plaintiff in error should not be prejudiced even by a personal consent, given under circumstances when it could not be withheld, except at the risk of exciting unkind feelings in the breasts of the jurors who held his fate in their hands.’ This accords with what is said by Bishop in his work on Criminal Procedure, to be the better doctrine, ‘the consent of the prisoner to a separation, which the general rules of law do not permit should never be asked of him, and if it be asked and granted, or even granted without being asked, it will avail nothing.’
“ But the errors alleged are predicated on the motion for a new trial, which was based on the 192d section of the criminal code, and it is claimed that, under the provisions of that section it was not erroneously overruled, for the reason that the defendant was not thereby ‘ materially ’ prejudiced in his ‘substantial rights,’ nor prevented from having a fair trial.”

That section, which is now section 7350, reads as follows:

“ A new trial, after a verdict of conviction, may be granted on the application of the defendant, for any of the following reasons affecting materially his substantial rights:
“ 1. Irregularity in the proceedings of the court, jury, prosecuting attorney, or the witnesses for the state, or for any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial, etc.”

The court discusses the latter clause in the paragraph of this section :

“ A violation of this right, (that is, this right to have the jury kept together") in permitting the jury to separate and mingle generally with the community, without the restraining supervision of the proper officer, might, at least, subject them to influences prejudicial to him. The statute secured him against this hazard. It does not leave the defendant to the difficult task of proving, when the jury have been permitted to separate, that they have been improperly influenced, or have, in fact, been subject to such influences; for, however much he may have been prejudiced thereby, from the nature of the subject, it might be impossible to be shown, since, for reasons of public policy, jurors are competent only as witnesses to sustain, and not to impeach their verdict. The permitting the jury to separate did, therefore, affect materially a substantial right of the defendant. The order of the court* permitting the separation, was a violation of this right. It must, therefore, be admitted that he was thereby prevented from having a fair trial; for that can not be a fair trial, within the meaning of the statute, in which the defendant has been deprived, by order of the court, of a material safeguard secured to him by its positive provisions. The consent of the defendant to the order, as we have seen, does not mend the matter; for, in a case like this, the refusal of such consent might be more prejudicial to him than the separation of the jury, the evil provided against by the statute.”

The court further say:

“We arrive at the conclusion we have in this case the more cheerfully, because, although it is not affirmed that all the evidence is set forth in the record; enough does appear to lead us to doubt that the defendant was properly convicted; and, therefore, in the absence of any other error appearing in the record, we may .veil apprehend that, by reason of the error complained of, the evils provided against by the statute may have influenced their verdict.”

It is proper to say Judge White dissented from the decision in that case, holding that the action of the court did not prevent the defendant from having a fair trial.

I have cited thus at length for the purpose of showing the general tenor and scope of the decisions of the Supreme Court. It might have been followed by other decisions in which the court have set aside verdicts where the jury have been visited by one of the judges who simply stated what the court had already said to them, and by other cases which are familiar to the profession. The general rule, we think, is clerly established, not only by the decisions of the Supreme Court of this state, but by the decisions of the courts of other states, and by the authority of legal writers of approved merit, that during all the proceedings of the court save and except when the jury are out for deliberation, the defendant has a right to be present in court when any proceedings, of whatever nature, are taken by the court in his case. The law is laid down so in Bishop on Criminal Procedure, cited here by the Supreme Court of this state, wherein that doctrine is broadly affirmed as a rule of criminal law to be followed by courts in criminal proceedings.

Giving this matter, now, a very careful consideration, and examining all the authorities that have been cited, and all we can find upon the subject, we are constrained to the conclusion that the court of common pleas erred in calling in the jury in the absence of the defendant, and in holding the conversation that he did hold with them at that time, which conversation is set forth in the bill of exceptions.

But that, of course, does not entirely decide the case upon that point, for, although it may have been an irregularity in the proceedings of the court, the question still remains whether it was such an irregularity as prevented the defendant from having a fair trial. That point has given us, perhaps, more trouble than the main question, but it will be seen from the decisions that I have cited — it will be seen as fully, perhaps, in many other decisions I have not cited, but which we have examined — that the courts are very jealous in regard to any violations of these rules, and they do not cast upon the prisoner or the defendant in the case the burden of showing that he has been prejudiced.

For the reason stated- in the case I have just read, it might be a very difficult thing for him to do, and if the jurors themselves are not allowed to testify, it might be a thing that he would be deprived from doing, even although he might know that evidence existed among the jurors that might be of benefit to him.

Look at this case then for a moment. The defendant was put on trial for murder in the second degree, a matter affecting his liberty for life. His defense was that the homicide with which he ha been charged was committed while he was in a quarrel, while he was being attacked, while he was retreating, and was committed by him in self-defense. It was further submitted to the jury that if it was not committed in self-defense it was, at the most, simply a case of manslaughter, and not a case of murder in the second degree. The court, had charged the jury upon all these points, and the jury had retired for deliberation. The fact of stabbing was not practically denied. I believe it was not only admitted, but the defendant himself testified to the fact, so that there could be no question as to the killing to detain the jury for a moment. The question, evidently, they were discussing during the time they were out — for three hours — was as to the grade of the offense, or whether any offense had been committed, or whether the stabbing that had occurred was not justifiable, or at least excusable on the ground that the act was done in self-defense.

Now, while their deliberations are in progress, the court calls them out and makes inquiry in regard to the condition of their deliberations in the jury room, not whether they had agreed upon a verdict or not, but in what condition their deliberations were, whether they were likely to agree upon a verdict soon, and said to them if he went home at all that night to spend Sunday he would have to go in the course of a very few minutes, and they replied that indications pointed towards an agreement of the jury, and thereupon sent them back to the jury room with an admonition to “ be as expeditious as you conveniently can.”

Now, the rights of a defendant in regard to the deliberations of a jury are well defined. It is provided, as I have read from the constitution, that he shall not be put twice into jeopardy for the same offense. As corrollary to that in the decisions of the courts in this state and other states, the court has no right to discharge the jury until it appears clearly that there is no reason to suppose that they can agree upon a verdict. He has a right to have the deliberations of the jury continued unobstructed and uninterfered with until they have so thoroughly canvassed the case, so thoroughly made up their minds in regard to it, either by way of agreement one way or the other, or else by differing so essentially in regard to the conclusions to be arrived at, that there is no prospect of one party or the other yielding. In case there has been sufficient deliberation and no hope of agreement, the court is authorized then to discharge the jury, and the prisoner may be put upon trial again for the same offense.

The constitution also provides that he shall have “a speedy public trial,” and that, public trial is held by the courts to be a trial not only that is open to the public, but a trial where he can be present; and he has the right under the constitution also to meet the witnesses face to face, and has a right to look in the faces of the jury during all the time the case is being heard; he has the right to be present when the court charges the jury; he has the right to be present whenever any step is taken in the case which may in any manner or form be said to be a portion of the trial of the case.

We all know that jurors are sensitive to the influence of the judge. Too often they are quite anxious to learn what the judge thinks about the case, and gather from any hint or word he may drop and the action he may take in the case as to the probable view he takes of the case, and with jurors who stand in doubt that often has a very material effect. In this case the jury had not arrived at a conclusion, their deliberations were not finished, some juror or jurors in the room were differing from the opinions of some other jurors. Whether their deliberations were hastened by the fact of this admonition given by the court, or the thought that they might have to remain over Sunday if the judge went away, or to what extent that would have influenced them we cannot say; the jurors would not be permitted to say if they knew. The presumption of the law is where error has intervened in a criminal case, it is prejudicial to the defendant — has intervened against him. The burden is not cast upon him to prove the fact that it has been prejudicial to him, or to show whether it has been or not; and it seems to us that the conversation that was held by the court with this jury and his admonition to them, were of such a nature that it might well disturb their deliberations; it might well affect to some extent the minds of a hesitating or doubtful juror, one who had not fully made up his mind upon any particular question, and we certainly are unable to say that it was not prejudicial to the defendant. We, therefore, are brought to the conclusion that not only did the court err in this conversation it held with the jury, but that it was of such a nature and character as prevented the jury from having free deliberations upon the subject and coming to their own conclusion in regard to the matter — at least that it might affect that conclusion and prevent, in the language of the statute, the defendant from having a fair trial in the case.

We have said the action was undoubtedly improvidently taken. It was probably taken without the forethought which usually characterizes the conduct of the able judge who presided in the trial of this case. Nevertheless we are called to pass upon the act set forth in the record according to our own judgment after a full and fair deliberation upon the facts, and upon the law in regard to it.

I now approach the last alleged error, and that is that tbe verdict is against the weight of the evidence. The facts of the case are these in brief: Ed ward. Bennett was a waiter at the Sloane house; Christ Parham was at the same time a waiter at the West House. They were both colored young men. They had been in the habit, from time to time, of going into a saloon upon Water street for the purpose of playing billiards, in a building that was adjacent to the West House. On the 20th of September, in the afternoon, they went in there to have a game of pool, and played two or three games. They were about leaving, but concluded to have another game. About that time Philip Kessler came into the room, and either with him, or immediately following him came William Sullivan, who is the person mentioned in the indictment as George M. Sullivan. They were both white persons. They concluded to have a game of pool, and made application to the proprietor of the saloon for leave, and he told them they could play a game, and thereupon they sought for the balls that are used in playing the game. When they found the balls they found a certain ball, which is called the “ flyer,” gone, and this being a necessary ball, the- proprietor told them to take one of the other balls, and they took a ball claimed by the colored boys. Thereupon a controversy quickly arose between the two parties, the colored boys and Kessler and Sullivan, about the possession of one of these balls or the taking of it, and that led to blows and the throwing of billiard balls, and shortly the attention of Mr. John' Wiedenhafer, jr., son of the proprietor of the saloon, was called to the trouble, and he interposed and told Kessler and the others to leave. Thereupon they started and went out, one after the other. The order of their going cannot be correctly stated, because the witnesses do not agree about it. They went out the back door, and immediately after getting into the back yard of the saloon Kessler and Parham engaged in a scuffle, and Bennett, who had come out, was also soon engaged in a scuffle, or in a controversy, or quarrel with Sullivan, and Sullivan was soon after stabbed. He went back into the saloon, fell upon the floor, and expired within a very few minutes. He was stabbed by Bénnett, as I have already said; there is no question about that. Now, on what occurred outside, after the parties had left the saloon, hang principally the questions of fact and the law in this case.

That there was a controversy in the room there is no question ; that a biiliard ball was thrown and that Kessler was hit by one of the billiard balls there is no question. That Par-ham was struck in there, upon the arm with a billiard cue, I think there can be no question from the evidence; but as to what was done by the respective parties, the witnesses do not agree among themselves. It is quite difficult, perhaps almost impossible, to come to an accurate conclusion as to all that did take place. Sullivan was standing a little one side, and the witnesses Wiedenhafer, Jr., and Kessler say that he was doing nothing. Parham says at one time Sullivan said to Kessler, “give it to him.” That was about the time Kessler was attempting to strike Parham. John Wiedenhafer, Jr., says that Bennett threw two of the balls, and that one of the balls hit Kessler. Parham says he threw the balls at the time that Kessler struck him, and because Kessler did strike him. Bennett, it is claimed, did not throw the balls. According to the testimony of Frederick Federer, an employe of the saloon Bennett at the time the parties started out was standing with a cue in his hands, having both hands holding it, and he, Ferderer, said to Bennett: “Let me have that cue, we don’t want any quarrel;” and Bennett gave it to him. He took it and put it back in the rack where it belonged, and Bennett passed out. According to the testimony of Wiedenhafer, Jr., Kessler went out first, Parham following him; then Bennett, then Sullivan. Others place the order of going differently. Some of the witnesses who were there and who ought to have seen or known the order of things, did not see with sufficient distinctness, or did not remember clearly enough to state the order in which they went. John Wiedenhafer, Jr., who had come up there and taken hold of Parham and said to him there should be no more quarreling, and said when they went out he did not see any of them have a billiard cue. A man named Smith, an elderly man who was standing near the bar, drinking a glass of beer with John Wiedenbafer, senior, and whose attention was called to the racket, says when they went out he saw one of the white men have a cue in bis hand. Beyond that his observation is very indefinite and shadowy, except that he saw a ball fly across the room towards the rear end of the room where, it seems, Kessler was situated at the time. The parties then passed out, this being about the situation of affairs, as the evidence discloses when they went out, then the testimony diverges.

Kessler, called as witness for the State, says that he and Par-ham were wrestling, and that Bennett followed them out and came up to him, Kessler, and struck at him; that Sullivan followed Bennett and was standing immediately at the head of some little stairs which they ascended as they came out of the saloon to go into the yard, and immediately after striking him, Kessler, Bennett started towards Sullivan who was still standing at the head of the stairs. There seemed to be a little scuffle between them, and immediately he saw' Bennett turn and run' past himself and Parham, and by a little building which had been used for a bottling house, around that being the road by which Bennett had come to the salaon and beyond that was the back alley so-called to the West House, servants quarters, through which Bennett was accustomed to pass in going to the Sloane House; that immediately after Bennett passed, Parham ceased his struggle with him', Kessler, and started off, and thereupon he, Kessler, started and went to Sullivan, and found Sullivan standing at the top of the stairs shivering, and that Sullivan spoke to him and said, “Philly, I am stabbed,” and thereupon he says he helped Sullivan into the saloon, and laid him down upon the floor where he so remained till he died. Sullivan could not talk after he spoke to Kessler.

Kessler says as Bennett passed him he saw that Bennett had a knife in his hand, saw the blade of it. I think be says it was a jack knife ; at any rate saw the blade of - the knife. It will be seen from the testimony of Kessler that Bennett had approached Sullivan, and had dealt him this deadly blow, and if that were all the testimony, the jury upon that testimony might well have found Bennett guilty of murder in the second degree.

But there are other witnesses who testified in regard to this matter, and their testimony should be examined to see where the truth lies.

Frederick Federer, a witness called by the Slate, who was sitting in front of the saloon when the difficulty commenced, who is a man perhaps seventy years of age went up near the parties, and spoke to some of them, taking the cue away from Bennett; John Widenhafer, senior, and Smith, before referred to, both being witnesses called by the State, were standing at the bar sipping a glass of beer, and they both started towards the rear of the room. Smith, having seen the parties pass out of the room, returned to the sipping of his beer, and saw nothing more; but John Wiedenhafer, senior, went on towards the back of the room, and went to the window which overlooked this whole space of ground where Kessler says the parties were standing, or scuffling, as also did Frederick Federer, and the two stood there looking out of the window. When they arrived at the window, the back yard was clear. They could not s^e either Sullivan and Bennett, nor could they see Par-ham and Kessler. The testimony of these witnesses, so far it goes, tends to show Parham and Kessler in their struggles had passed around to the east of the door and behind some stairs that went up into an upper part of the building.

While they were there, Federer says, he opened the door, stepped out, and in a hollow between the windows he discovered a portion of a billiard cue, with about one-third of the top broken off, and he picked it up and brought it into the room. John Wiedenhafer, senior about that time himself stepped out, and stood there with a cane in his hand for the purpose of preventing any of these parties from returning into the saloon, and he remained there. Federer remained at the window near the door. Now, while Federer was looking out of the window, they both saw Sullivan come from behind this building I have spoken of, called the bottling works, which was west of the saloon door, across the back yard, to the door of the saloon out of which parties had previously passed. The door was opened by Wiedenhafer, senior., and he opened the door for Sullivan to go in. Sullivan passed by him with his hand upon his side, and immediately fell down upon the floor, and Wiedenhafer, senior, remained with him until he expired. Wiedenhafer, senior, and Federer both testify, and testified very clearly, the positions in which they were standing, and showing they were standing by the window or outside the door, but both standing in positions that commanded the whole of the space that was covered by Kessler’s testimony, and covering all the space that lay between them and the entrance to the alley which was some few feet away west of the bottling house. They arrived at their positions very quickly after these men went out, and were both on the watch; so it is very clear, upon the testimony of both these witnesses, that Sullivan did not receive the wound from Bennett while standing in the place in which Kessler says he did stand. It was not while standing there that he was stabbed, according to the testimony of the above witnesses. According to the testimony of Federer, after Sullivan went back into the saloon Parham and Kessler swung around from behind the stairs into the front again, and Parham seized some stones to throw at Kessler, and Federer said to Parham, “ You must not throw them;” and thereupon Parham dropped the stones, and passed around into the alley and went away. There are some other things tending to discredit Kessler’s testimony. He had testified at the hearing before the Coroner that he stood within an arm’s length of Sullivan at the time he was stabbed by Bennett. He also there testifies that Bennett had a large bread knife with which he stabbed Sullivan ; that it was “that long,” indicating a space of about a foot. , His testimony in the common pleas differed from that essentially, and it is perfectly clear upon the testimony for the State that Bennett was not armed with any such weapon; all he had was a large sized jack-knife. Kessler also testifies that he had no cue out in the yard, and that he took none with him when he passed out of the saloon.

There was a young man who testifies by the name of Frederick Butts, and he was also called by the State. Butts is a resident of this city (Sandusky); it seems he had resided here many years. He was employed in a confectionery store in the West block at the time of this stabbing. In pursuit of his duties he was out at the back door of this store in the West block quite frequently that afternoon. The door of the store opens back upon this space, and he could look over into the grounds in question, because this ground adjoins the West House, and could see what was going on. His testimony was not as clear and full and explicit as we would like to have it, but he does testify when he was there, that he saw Kessler, whom he knew, standing with a colored boy in front of him, and Kessler had in his hands a billiard cue. He says he cannot tell for the moment whether they were struggling or scuffling, but in the observation he made at the time he saw the cue distinctly, and knows who had it, so that it is very evident, we think, from his testimony, he saw this very fracas, and saw Kessler there with the cue in his hand. ■

We are forced to this conclusion in regard to Kessler’s testimony, that so far as the final result of this affray isconcerned, his testimony is of no value, and ought to be left out of consideration ; that the killing did not occur at the time or place in the manner in which he states. We are then left with this state of facts, that these men had passed out of the saloon in the manner stated; that one of the white boys went out armed with cues. It appears from the testimony of the Coroner that he made an examination of Bennett’s person the next morning, and that Bennett had upon his back a mark, a large welt; that he appeared to be lame in his arm, and it was difficult for him to pull off his coat. It appears from the testimony of the officers that arrested Bennett that when they arrested him at the Sloane House, which was only a few minutes after the affray occurred, he asked them why he was arrested, and the return question was “why did you stab that man?” He said he stabbed him or cut him because he had hold of him, and would not let him go. He also stated in addition that Sullivan had followed him, and dealt him a blow with a cue, and it was for the purpose of ascertaining whether his statements were correct that the examination was made by the Coroner, at the time he found this mark or heavy welt.

The testimony of the defendant himself is that Sullivan followed him from the saloon; that he started to go to the Sloane House by way of the alley, and that as he turned the corner into the alley, or about that point, Sullivan, who had followed him, struck him across the back with a cue, and followed it up by attempting to inflict another blow which Bennett dodged, but which grazed his face a little, which mark was there. So that the testimony of Bennett is corroborated by the Coroner’s testimony, and we think that the testimony shows that the statement of Bennett is substantially true; that he was followed by Sullivan (for the testimony, generally, shows that Sullivan went out last); that Sullivan was armed with one of the cues, which, probably, he had in his hands in the saloon; that he followed Bennett out; that he struck him across the back with the cue ; that he struck at him again, and that some conflict ensued between them during which Sullivan was stabbed. The testimony of Bennett is, that Sullivan was following him up attempting to inflict these blows, until Sullivan got so close to him that he could not use the cue, and then closed with him. He says the force of the blow Sullivan gave him was such as to partly turn him around so that he was facing towards Sullivan, and Sullivan grabbed him around the arms, holding his arms by his side, and was attempting to trip him, and that he got the knife from his pocket, opened it and delivered the blow.

"Whether that be the correct statement of the affray or not, we think it must be held to be true in this case that Bennett was retreating, going from the place, passing from the saloon in the direct route he would ordinarily take going to the Sloane House, and was followed by Sullivan, who was keeping up this quarrel, and who was inflicting bodily injury upon Bennett, and it was during that struggle that the fatal blows were given.

Now, the question is, and the important question, is whether that was murder in the second degree, upon the facts of the case. The statute of the state, now, by the revision, is changed in its phraseology, but not in its meaning. It is section 6810:

“ Whoever, purposely and maliciously, except as provided in the last two sections, kills another, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary during life.”

There is a distinction between the offenses of murder in the first and second degrees in the state of Ohio from murder as it is described at common law. In the case of Fouts v. The State, in the 8th Ohio St., the Supreme Court discusses that question, and they hold that under the statute of the state of Ohio, making murder a statutory crime, the intent to kill must be averred in the indictment; that is to say, that the act which caused the death was inflicted with intent to kill.

I think this question has been before the courts from time to time in this state, and I shall not attempt to give all the decisions, but I shall state one or two of them in regard to this matter. The question has been before the Supreme Court within a month past in the case of Jones v. The State, which was error to the Circuit Court of Brown County, where the Supreme Court held that “an intention to kill is an essential element in the crime of murder in this state and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or second degree. This rule is not changed by reason of the accused contending, and introducing evidence tending to prove, that the homicide was accidental. The legal effect of such evidence being, simply, to controvert an inference of an intent to kill, which may arise from the evidence introduced by the State.” See Law Bulletin, p. 299, May 28,1894.

In that case the father had been put upon trial charged with killing his son while he was attempting to get him away from a house of ill repute, and it was claimed by the father that the killing was accidental. The Supreme Court held that an intention to kill is an essential element of the crime, and must be established beyond all reasonable doubt by the State, to authorize a verdict of murder in the first or second degree. And that the rule was not changed by the defendant introducing evidence that the killing was accidental.' Now, that is a burden that is cast upon the State. It must show the intent to kill, and affirmatively. True, it may be shown by all the facts of the case, but the affirmative proof is upon the State to show by the evidence that.there was at the time the blow was given, an intent existing in the mind of the prisoner to kill the person whose life was taken.

It is argued' here that the defendant in this case was guilty of murder because he used a weapon that was dangerous j that to use it in the manner he did, would necessarily tend to produce death in the person who was stabbed. That question is discussed by.the Supreme Court in a case in the 29th Ohio St., Erwin v. The State, page 186, a case where person was indicted for murder — shooting, and the court had charged the jury, “if you find from the evidence the defendant used a deadly weapon in this case, and that death resulted from the use of such deadly weapon, then the law raises the presumption of malice in the defendant, and also an intent on his part to kill the decedent.”

The court say:

“We can well see how the jury, under these instructions, may have been led to convict the defendant of murder in the second degree, though guilty of manslaughter only, or even though not guilty of any crime whatever. It was plainly inferable, from the first instruction above stated, that the defendant’s crime was not manslaughter, if the killing were intentional. Such is not the law of manslaughter. If the killing .be unlawful, but \yithout malice as upon a sudden quarrel, although intentional, the crime is nevertheless manslaughter only. It is true that the jury must have found the presence of malice as well as purpose to kill; but having first found the purpose to kill, as we may suppose, they entered on the inquiry as to malice, under the influenee of an instruction, that the defendant was guilty of murder or not guilty of any crime whatever; thus exposing the defendant to a moral influence against him, which should not have any lodgment in the minds of the jurors.”

The court further say :

“ As an abstract proposition, where the circumstances of a homicide are not known, further than the mere fact that the death was caused by the use of a deadly weapon, we do not deny that the jury may, from such fact alone, infer both malice and a purpose to kill. But where the attending circumstances are shown in detail, some of which tend to disapprove the presence of malice or purpose to kill, it is misleading and erroneous to charge a jury that in such cases the law raises a presumption of malice and intent to kill, from the isolated fact that death was caused by the use of a deadly weapon. In such case the presence of malice or intent to kill must be determined from all the circumstances proven, including, of course, the character of the weapon. It may indeed be said, with much reason, that the use ofa deadly weapon in the taking of life raises the same presumptions whether other attending circumstances be shown or not; and that when other circumstances are shown, they either strengthen or rebut the presumption so arising from the character of the weapon.
The question before us, however, is not one of mere logic; but rather, how would jurors of ordinary understandings interpret and reason upon such a charge ? The instruction was, “if you find from the evidence that the defendant used a deadly weapon in this ease, and that death ensued from the use of such deadly weapon, then the law raises the presumption of malice in the defendant, and also an intent on his part to kill the decedent.’ This was notan abstract proposition. It covered the case before the jury. And in our opinion, a jury of ordinary intelligence might well understand that the law fixed the guilt of the defendant ds a murderer, if the evidence showed that he took the life of the deceased by the use of a deadly weapon, without regard to other circumstances; save only, as they were told in another part of the charge, that he might, under certain circumstances, justify on the ground of self defense. But our objection to the charge is independent of all question of self defense, and relates to it solely as bear-; ing on the case which the state was bound to prove in order to entitle it to a conviction.”

Upon the question whether the jury were justified from, the facts and the law in the case in finding the prisoner guilty of murder in the second degree, the members of this court do not arrive at the same conclusion.

Speaking for myself, and myself only, I think the. verdict is clearly against the evidence ; that is to say, I think the jury were not warranted in finding the defendant guilty of murder in the second degree. I think the testimony shows, as I have already stated, that this young man was being pursued by Sullivan ; that he was receiving bodily injury at the hands of Sullivan, and that during that affray Sullivan received the fatal wounds at the hands of the defendant. When Bennett was called upon in regard to the matter, the next day, by the coroner, his first inquiry was: “ How is the young man that is hurt?” and the coroner said : “He is dead.” He said: “It can not be possible; I can not believe it.” He says in his testimony that he delivered those blows for the purpose of making Sullivan let go of him. The statements that he makes, it seems to me, are entirely consistent with the facts of the case, and might well have existed. The burden of proof is upon the State to show from all the circumstances, clearly and beyond a reasonable doubt that there was a purpose in the mind of this young manto kill — a formed purpose as much as though he said to himself: “I strike you now, and I do it with the intention of killing you.” I do not believe the facts show any such thought existing in his mind at that time. He was in a struggle, endeavoring to get clear, and used his knife during that fracas. It should be remembered that the decedent who was following him, was using a billiard cue that was heavy. It is a formidable weapon, and one, if the blow had taken effect upon Bennett, his death would have laid the young man Sullivan himself open to indictment for manslaughter.

So that from all the evidence, as it looks to me, there seems to be established this state of facts: That in an affray growing out of a sudden quarrel, a stab was given which caused the death of Sullivan. The Supreme Court say, in the 29th Ohio St., supra, that although that blow may have been delivered with intent to kill, it does not make murder in the second degree. There must be something more; there must be shown malice in the heart of the party, that he not only delivered the blow with intent to kill, but did it maliciously.

John P. Stein, Pros. Att’y, and S. A. Court, for the State.

King & Hull, for the prisoner.

As has been suggested, it may be that this young man had the knife in his hands and opened it before he says he did, and Sullivan closed with him for the purpose of holding his arms down, so that he might not deliver the blow. That may have been the state of affairs, but I am unable to see how that would make any different result, and from the law of the case, how it would change the act. I think it would still be a homicide during an affray, and would not only come within the definition of manslaughter, but within the general scope of decisions in regard to manslaughter in the state of Ohio.

My associates, however, while they have a feeling within their minds, as I understand it, that it would have been better for the jury to have returned a verdict for a lesser offense than they did, still on the whole facts of the case are unable to say the jury were not warranted in returning a verdict of murder in the second degree.

We, however, all agree that the judgment of the court should be reversed, and the verdict of the jury set aside, and the defendant should be awarded a new trial, and the court so orders it, and that the costs be paid by the State of Ohio.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    Duhme, Adm’r, et al. v. Mehner, Adm’x, et al.
    The petition of the plaintiff, containing the allegations hereinafter stated, states facts sufficient to constitute a cause of action in favor of the plaintiff, against the defendant, and in her representative capacity.

      On appeal from the Court of Common Pleas of Hamilton County.
   Smith, J.

We are of the opinion that the demurrer filed to the petition of the plaintiffs, as amended, should be overruled. Such petition, on its face, shows that Florence U. Thompson, now deceased, and Albert W.. Mehner were children and heirs at law of Louis Mehner, deceased, late of this county, who died intestate, leaving a personal estate of about $150,000, which would pass, on distribution of his estate, to his widow, Christina Mehner, and his four children. That said Christina was appointed and qualified as administratrix of said estate and took possession of the assets thereof, and thus became the trustee of an express trust, and it became her duty to guard and protect the interest of the beneficiaries of said trust. That in violation of her duty in this regard, shortly after the death of her husband, she combined with her son Edwin, then of full age, to obtain for herself the full possession and control of all said trust estate and to secure from the beneficiaries thereof a release of their several interests therein, to the end that she and her son Edwin might have complete control thereof, freed from the claims of the beneficiaries. And to that end then represented to Florence L. Thompson that her father in his life-time desired that on his death, the mother should have complete control and dominion over all of his estate while she lived, and that, at her death, Mrs. Thompson and her sister Josephine should each'have $20,000, and no more, and that the two sons should have the residue; that at this time Mrs. Thompson was but nineteen years of age, recently married, and had no knowledge ofbuisness affairs; that she had always lived at home under the dominion and control of her father and mother, to whom she was greatly attached, until her marriage three months before her father’s death; that she was ignorant of her rights in the premises, and was then under the dominion of her mother, and had no attorney to advise her, and her husband, a very young man, would not do so; that said representation so made was wholly false and originated with said Edwin Mehner, and had no other foundation in fact than a possible opinion, casually expressed by Louis Mehner in his life-time, that a man upon his death ought to give to his wife his property for life, to go to their children on her death ; and that the said Edwin fraudulently availed himself of this pretext to induce his mother, over whom he had great influence, he being the eldest son, to deceive and defraud the other heirs and get the money into the control of his mother, whom he could control, and that the said Christina, administratrix, .in breach of her said trust acquiesced in and aided the said Edwin in the consummation of said fraud; and by reason of said false and fraudulent representations aforesaid, and of the dominion over said Florence, had by said Christina, she was induced to sign a receipt to said administratrix for her distributive share of the estate, without any consideration therefor, and that the entire transaction was a fraudulent scheme and device to defraud her and the distributees, other than Edwin Mehner, and that such receipt is false, fraudulent and void. It is also averred, as to Albert Mehner, who was a minor of tender years, as a part of said fraudulent scheme, Edwin Mehner was to be, and was appointed his guardian, and was to, and did sign a like receipt, without any consideration therefor; that the administratrix filed a pretended final account for settlement of said estate, and used said receipt as a full discharge for moneys coming to said distributees; that this was a part of said fraudulent scheme, and said pretended settlement in so far as said receipts are concerned was void, that there is a large sum of money still in the hands of said administratrix coming to said distributees; that this fraud was not discovered until within four years from the time of the bringing of the action. Wherefore they pray that the said receipts and settlement may be declared void; that an account be taken, and the amount in the hands of the adminstratrix be ascertained, and she be decreed to pay the same, and for all equitable relief.

Follett <k Kelley and Von Seggern, Phares & Dewald, for the demurrer.

J. J. Glidden, E. H. Kleinsehmidt and John R. Von Seggern} for the petition.

It is objected that the averments of the petition are not sufficient in this: that the representations made were not as to a substantial fact, and that it is not alleged that the said Christina knew then to be untrue. We think however, that while the allegations as to these matters are not very explicit or certain, and may be difficult to prove, that still they are good as against a demurrer. But even if there be doubt as to this, we think it clear that, on the whole case as made in the petition —the administratrix being the trustee of an express trust, and under obligation to use the utmost good faith in her dealings with the beneficiaries of the trust — the relations of mother and children existing between them — the fact alleged that one was a minor of tender years, and the other a young married woman, under the dominion of her mother, and acting without independent advice or the aid of counsel, and who, without any consideration therefor, by virtue of a conspiracy and fraudulent scheme to which the mother is a party, is induced to execute a paper whereby she practically gives up her whole estate, makes such a case, which, if proved, entitles them to relief in equity.

Even if this is an action for relief on the ground of fraud, which is controverted, the allegation that the fraud was not discovered until within four years before the bringing of the action, disposes of the question of the statute of limitations raised by the demurrer, and the third ground that the acts complained of as having been done by Mrs. Mehner, if done by her, were so done in her individual capacity, and not as administratrix, we think is not well taken. They appear to have been done by her in her representative character, and the result was a benefit to her as administratrix of the estate, by operating (if the releases stand), as a release from a liability to account for the same as administratrix.

The demurrer will therefore be overruled.


author: Price, J.

text:
    (Third Circuit—Crawford County, O., Circuit Court
    Feb. Term, 1895.)
    Before Seney, Day and Price, JJ.
    Frederick E. Tracy, Trustee of Tracy & Avery v. George J. Deatrick et al.

      A note and mortgage given to suppress a criminal prosecution of a third party for embezzlement, voidable.

    A statement of the issues and facts contained in the opinion of the court.
   Price, J.

The plaintiff brought suit in the Court of Common Pleas of Crawford County against George J. Deatrick and his wife, to foreclose a mortgage on certain real estate owned by them, and situated in the city of Galion, O., which mortgage was executed by defendants to secure two notes of $1,500 each, all dated October 30, 1891 — the notes to become payable in one and two years respectively, and the petition prays that an account be taken of the amount due on the mortgage and for an order of sale of the premises.

The defendants answered the petition, admitting the execution- of the notes and mortgage — but allege certain facts which are claimed defeat the right of the plaintiff to enforce the mortgage — that their son-in-law, Harry Brown, who had for several years been in the employ of said Tracy ■& Avery as a traveling salesman, was at the time of the execution of the notes and mortgage under arrest on a charge of embezzling the money of said firm in a large sum, which charge was instigated by said firm, and that the sole consideration for said obligations, was the compromise of said charge, its withdrawal and the discharge of the accused. The answer recites the details of the transastions, some of which are shown in the findings of facts herein made.

The court of common pleas found for the plaintiff and ordered the premises sold, from which an appeal was taken to this court. The case was referred to a master, who heard and reported the evidence together with his finding of facts and conclusions of law.

-The defendant excepted to the findings of the master, and we have heard the exceptions, and the report is hereby so modified as to be in accordance with the following facts:

“That on the 28th day of October, 1891, Harry Brown was, and for two years prior thereto had been, in the employ of Tracy & Avery, of Mansfield, Ohio, as a traveling salesman ; that finding said Brown short in his accounts of money collected by him for them, they on that day caused an affidavit to be filed with a justice of the peace at Mansfield in which the salesman was charged with having embezzled of their money the sum of $571.00; that a warrant was then issued for his arrest; that he was arrested that night at Ashland by the constable holding the warrant, taken to Mansfield, and on the morning of October 29 he was taken by the constable before the justice issuing the warrant. We find that Jenner & Tracy, a law firm of Mansfield, were acting as attorneys and advisers of said plaintiff in the matter of arrest and prosecution of Brown, and that Jenner of said firm was at the office of the magistrate when Brown was brought before him on said charge; that when the affidavit was read to the accused, and he was asked by the magistrate how he pleaded to the charge, and Brown responded that he was guilty. Whereupon Jenner stated to him that he should not be in haste j had better not make that plea yet. That it was a serious charge, and advised the accused to see an attorney; that not knowing attorneys of the place, the justice named over several lawyers, among whom was Judge Dickey, who about that time came into the office of the magistrate on some business, and that when informed by either the justice or Jenner, that here was a man iu trouble, Dickey held a conversation with the accused.
“We further find that before going to the office of the justice the wife of Brown was informed by an employe of plaintiff of his arrest, and that his shortage was very large; that she was asked by Jenner if help could not be obtained from her or her husband’s people; and that it was suggested that her father and the father of Btowd be sent for, and a message was signed by the husband and sent to Deatrick and Brown at Galion, to come at once on an important matter. The criminal case, at request of Dickey, was adjourned until 2 o’clock of the 29th, at which time George J. Deatrick, and C. W. Brown, father of the accused, appeared at Mansfield, and for the first time learned of the trouble. They were informed that instead of the shortage being $571.00, it was $6,000.00 or over. After talk of adjusting the matter, Deatrick informed plaintiff he could not and was not able to settle such a sum, and was informed that the matter was in the hands of the attorneys of the firm, and no conclusion was arrived at at that time.
“When the parties appeared again before the magistrate, Jenner was preparing a new affidavit, charging the accused with embezzling about $6,000.00 of the firm’s money. Brown was all this time in custody of the officer on the former charge, but he had been told by the attorneys and others of the firm that his shortage was $6,000.00 or over, and plaintiffs then claimed, as they do now, that the accused admitted his shortage in the latter sum, and the firm were about to have a warrant issued and served, charging his crime ih that amount.
“Negotiations began again at this time for a settlement of the shortage by Deatrick and Brown’s father ; that after one or more offers by Deatrick had been made, and rejected by Jenner, Jenner started to the door of the office and told the constable to do his duty, at which the constable took hold of the accused, when his wife and her father became deeply distressed, she fainting and he breaking down. Deatrick then said to Jenner he would do what he demanded. He and the father of Brown would give a note for $3,000.00 until the next day, and sign the contract. That on the next day after plaintiffs had examined the title to Deatrick’s real estate, he executed two notes'with the father of Brown, one for $1,500.00, due in one year, and another due in two years for the same amount, and secured the same by mortgage on real estate of Deatrick ; a copy of this contract is attached to the reply, and also one is in the report of the master. The $3,000.00 note was then signed on the 29th as well as the contract, and the next day the two notes of $1,500.00 each were substituted and the mortgage described in the petition executed.
“Upon the execution of said contract, the said Harry Brown executed his note for the sum of $3,000.00, payable to F. E. Tracy, trustee of Tracy & Avery, and upon the execution of all said notes and mox’tgage, Mr. Jenner, as attorney for Tracy & Avery, instructed Tracy & Avery -to credit the account of Harry Brown with the sum of $6,000.00, which credit was made on the books of Tracy & Avery, but it does .not appear that this was done in the presence of the defendants, or with their knowledge.
“We further find that it was well understood by Jenner, acting for the plaintiff, and by the parties who signed the notes and contract referred to, that if said contract and notes were executed, the prosecution already pending and the one for the larger sum impending, would be abandoned, and the prisoner released and discharged. And further we find that it was mutually xxnderstood by Jenner, acting for the plaintiff, the accused, his father and Geoi’ge J. Deatrick, that on his release and dischax’ge, that the papers on which his arrest was had, and on which he was about to be arrested, should be destroyed and no record made of any of them, and that in pursuance of said understanding the said papers were destroyed, no record made, and the plaintiff paid the costs of the prosecution, accused was released, and was not further prosecuted, and,
“That the sole and only consideration for the note and mortgage set out in the petition was the release, discharge and agreement not to prosecute the said Brown upon said charge of embezzlement.”

The contract of October 29, the day before the execution of the notes and mortgages sued on, and which was plead in the reply, recited, that Harry Brown being indebted to the plaintiff in a large sum, the indebtedness was adjusted and settled by Deatrick and Harry’s father executing a note for $3,000.00 on that day, and that on the next day they should execute two notes of $1,500.00 each, in lieu of the $3,000.00 note, payable as above stated, which Deatrick was to secure by the mortgage in question, and Harry to give his individual note for $3,000.00, thus making the total $6,000.00. All this was done the next day as called for by this contract.

In view of these facts, what is the law that must control ? Deatrick and wife were not indebted to the plaintiff in any sum, and their notes and mortgage were executed to terminate the criminal prosecution and release the son-in-law, while at the same time it secured $3,000.00, one-half of the sum which the plaintiff claimed was the shortage of the agent. The plaintiff comes into a court of equity to enforce these obligations, executed and accepted under the circumstances, and for the purposes above narrated.

It is urged by the plaintiff’s counsel, that the written contract of October 29 was the real consideration for the notes and mortgage executed the following day, and which are involved in this action, inasmuch as the contract recites Harry Brown’s indebtedness to the plaintiff and stipulates for its settlement on the next day by the execution of the obligalions in question. And it is further urged that there being no other consideration mentioned in the contract, the defendant cannot go back of the written agreement to inquire into the facts that led to its execution, where there is no averment of fraud or mistake in the agreement, and no prayer for its reformation.

We are of opinion, the case cannot be so narrowed, and the court shut out of a full inquiry into the entire circumstances and facts which culminated in the notes and mortgage. It is quite plain that the contract of October 29 was a temporary arrangement, and intended to bind Deatrick until the following day, in order that during the interval the counsel for plaintiff could examine the title to the real estate offered as security, and that when the title was found to be satisfactory the notes and mortgage were given.

This contract was but a temporary bridge, over which the parties passed from the transactions of that day to those ofthenext. It made the business of that day a necessary part of the business of the next day, and if this bridge was an illegal structure in that it has compounded a felony, it follows that the notes and mortgage taken in pursuance of it are likewise tainted and affected.

The contract cannot be used as a shield to protect the court from searching into the real consideration and the entire transactions of the parties.

We do not deem it necessary to here discuss the doctrine of common law as to the validity of such obligations as are here in question, where they rest for their origin on the compounding of a felony. The current of authorities is almost unbroken, that where the party favored by their execution seeks to enforce them, the court will deny him any assistance and leave him without remedy.

This subject has received attention in many cases decided by our Supreme Court. In Thomas v. Cronise, 16 Ohio, 54, the court says:

“ It is a universal principle, both in law and equity, that where an agreement is founded upon a consideration illegal, immoral, or against public policy, a court will leave the parties where it finds them. If executed,, the court will not rescind it; if executory, the court will not aid in its execution.”

In Kahn v. Walton, 46 Ohio St. 195, the following proposition is made:

A commission broker, who, with knowledge of its unlawful character, negotiates an illegal agreement between parties, becomes a particeps oriminis, and cannot recover for services rendered, or losses incurred by him in behalf of either, in forwarding the unlawful undertaking, and checks given him for such services or losses, are tainted with the vice of their origin, and subject to all the infirmities of securities given for illegal considerations.”

The case just quoted from carefully reviews the authorities bearing on the various phases of illegal considerations for written instruments, and fully sustains us in our holding in this case.

But it is further argued by counsel for the plaintiff, that under the provisions, and especially the saving clause, in section 6901 of the Revised Statutes of Ohio, the plaintiff had a right to a restoration of what had been embezzled, and that in obtaining such restitution, no law was violated. The section referred to makes the compounding of a felony, itself a crime, and closes with the following proviso:

* * * “This section shall not apply to the receiving back by the owner thereof, or his agent, of any property stolen, embezzled, or fraudulently obtained, together with the actual expense of recovering the same.”

It is claimed by the plaintiff, that under this clause he had a right to take the notes and mortgage, and that a liberal construction of the language legalizes the transaction. Did the plaintiff receive back the property embezzled ? Or did he receive notes and mortgage of a third party who was under no obligations whatever to him ? These questions are easily answered. He did not receive back the property embezzled— but did receive property or a lien on property belonging to Deatrick.

We think the statute means the specific property embezzled and not its equivalent in value in lands or other kinds of property.

In support of their construction, counsel for plaintiff cite us to a case in the 52 Ill. Report. That case is based on the language of the statute of that state which is very different from ours. It reads — “that no person shall be debarred from taking his goods or property from the thief or felon, or receiving compensation for the private injury received by the commission of the criminal offense.”

Jenner & Tracy and Thomas Beer, for plaintiff.

S. B. Harris, B. W. Johnston and E. B. Finley, for defendants.

It is seen in this language that the owner may re-take his property, or, receive compensation, etc., for the private injury, etc.

The statutes of Illinois and Ohio are so much unlike on the subject under consideration, that we cannot receive the case referred to as having any authority in this case.

Again, it has been argued, that when the settlement was made and notes given plaintiff, that there no longer existed the offense of embezzlement, and by this form of satisfaction agreed upon, whatever of crime which had been charged against the agent, disappeared or was atoned for, and hence there was no compounding of crime in taking the mortgage.

We cannot sanction this view. If the crime had been once consummated, no repentance or contrition of heart, no restitution, no matter how ample, could wipe it out. No principle of criminal law is better settled than this.

' On the review of the whole case, we hold that the exceptions to the conclusions of law reported by the master should be and they are sustained ; that the exceptions to his findings of fact are sustained in part, and they are modified in accordance with this opinion, and as so modified his report is confirmed.

There is a finding and a decree for the defendant, the petition dismissed with costs, and cause remanded for execution for costs.

Day, J., dissents.


author: Marvin, J.,

text:
    (Eighth Circuit—Cuyahoga County, O., Circuit Court
    Jan. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    Daisy D. Wittenmeyer v. The Board of Education of Brooklyn, Ohio.
    1. A building erected upon leased land by a lessee, for use exclusively as a school house, is as to the right of removal, governed by the same rules of law which govern in the case of buildings erected by a lessee for the purposes of trade.
    2. Such building, in the absence of any express agreement on the subject, may, when the duration of the term granted by the lease is dependen t upon a contingency over which the lessee has no control, be removed before or within a reasonable time after the expiration of the term granted by the lease.
    S. One taking a conveyance by deed of lands from a lessor before the ex - piration of the term granted by the lease, upon which is a building erected by the lessee, exclusively for use as a school house, with knowl - edge that such building was so erected, stands in the same situation as to the removal of such building as did the original lessor.
    4. When the lessee, within the time in which he has the right to remove a building erected by him on the leased premises, accepts a new lease in writing from the owner, in which nothing is said about such right to remove, and in which nothing is said about the condition in which the premises are to be delivered up at the expiration of the lease, and where such lease is executed on the part of each party by an agent, and such agents agree by parol at jthe time of the execution of such new' lease, that the lessee’s right to remove the building shall be left open, the acceptance of such new lease is not such a surrender of the lessee’s rights to remove, as to prevent him from removing the building, within the term granted by such new lease.
    Appeal from the Court of Common Pleas of Cuyahoga County.
   Marvin, J.,

(orally).

This is a suit brought by Mi;s. Daisy D. Wittenmeyer against the Board of Education of the village of Brooklyn to have that board enjoined from taking down or removing a school bouse built by them upon lots now owned by Mrs. Wittenmeyer.

The lots are lots No. 84 and 85 of the village of Brooklyn. These lots were owned originally by C. L. Jones. In 1883 Jones executed to the Board of Education a lease for these two lots, this lease to determine and the term to end whenever the village of Brooklyn should be annexed to the city of Cleveland. The rental was $1.00 per year.

Immediately after the lease was made, or very soon thereafter — the lease was made in 1883 — the Board erected a school house on these lots, a frame building on a stone foundation, and the foundation set into the ground some two feet, and brick chimneys were built resting upon this foundation.

But the building was built and adapted to the purpose of a school house, and was used for that purpose up to the time or just before the time when this suit was commenced.

In 1886 Mr. Jones, who up to that time had owned these lots, deeded the same to his daughter, the plaintiff in this case. One of the considerations mentioned in that deed is a certain contract — and that contract, by the way, was executed on the same day that the deed was executed, on the 30th of October, 1886. In that contract were these words in regard to the property that was being conveyed — quite an amount of real estate was being conveyed to Mrs. Wittenmeyer, including lots 84 and 85, and the contract had this clause in it, “subject, however, so far as sub-lots 84 and 85 are concerned, to the lease held by the school board of Brooklyn village, and reserving to said school board, its successors and assigns, any rights they may have or should have therein under said lease and in the tenements and improvement by said school board placed upon said lots.” The deed had a similar provision, but my recollection is, the language was not exactly, although substantially, the same.

The village of Brooklyn was annexed to the city of Cleveland in November, 1S90. By the terms of the lease that ended the term. Whenever that annexation took place, the term granted by the lease ended by its own terms, leaving the premises with this school building thereon.

At the time of the annexation, and therefore at the time of the termination of the lease, a school was being conducted in this building, and continued to be so conducted up to some time in the spring or summer of 1891; the only exception being the. Christmas holidays, when there was no school. Whatever school furniture and the like there was in the building remained there during that Christmas vacation, and then the school went on.

Very early, almost immediately after the annexation, negotiations were begun with Mrs. Wittenmeyer — negotiations on the part of the school board — for a lease from her. These negotiations resulted in a lease, dated the 30th day of January, 1891, made by Mrs. Wittenmeyer to the school board, and executed on her part by E. J. Hart, as her agent and attorney in fact. By the terms of this lease the premises were to be held under it from the 1st day of December, 1890, up to the 15th day of July, 1891. Although the date ofthe lease is the 30th day of January, 1891, the term began by the language of the lease, on the 30th day of December, 1890, and ended on the 15th day of July, 1891.

Some time in May, or about the first of June, 1891, the school board commenced to make its preparations, and was about to remove this building, and the suit was commenced on the 2nd day of June, 1891, during the term of this new lease, to prevent the destruction or removal of this building. This suit was brought in the court of common pleas, and after trial there, appealed to this court.

At the time this new lease was made, or during the negotiations for that lease, Mr. Hart, representing the plaintiff, and Mr. Selzer, representing the school board, had interviews; and it was asked on the part of Selzer, that there be in the new lease a stipulation showing that the building was owned by the school board. Mr. Hart stated that he was not authorized to execute a lease having such a clause, but that a lease might be executed leaving that question open. That matter was substantially discussed between these two men, that the lease might be executed leaving open the question as to whether the building was the property of Mrs. Wittenmeyer or the property of the school board. This new lease contains no covenant or provision aboutthe surrendering of possession in the condition in which the premises now are; that provision, which is very commonly and ordinarily in leases, is omitted. This is a written lease — not the filling out of a printed blank — and nothing is said about the surrendering of the premises in the condition in which they are at the commencement of the lease.

Mrs. Wittenmeyer said upon the witness stand, that she did not know that the school board erected this building; but she must have meant by that, and did mean, simply that she did not know it in the sense that one on the witness stand could swear to it. By the contract which was made on the 30th day of October, 1886, and by the deed which she then took, she was certainly apprised of the fact that there was some sort of interest which the school board had in these premises, other than that contained in the lease, because the language of both the contract and the deed not only reserved their right under the lease, but also in the tenements and' improvements by said school board placed upon said lots.

The first question in this case to be determined, is whether this school building was such a building as that, if there had been no new lease and no transfer of the property from Jones to his daughter, the building could have been removed by Jones during the continuance of that lease. There are numerous authorities to establish that a building erected upon lots by tenants, for the purposes of trade, and for the purposes of conducting business, even though built upon solid foundations, may be removed by the tenants during the tenancy, and they come within the description of trade fixtures. I read from Ewell on Fixtures, page 95 : However, on the other hand, it was held in Van Ness v. Pacard, that a wooden building, two stories high in front, with a shed of one story, and a cellar of stone or brick, the principal building resting upon this stone or brick foundation, and having a brick chimney, erected by a tenant for years, who was a carpenter by trade, with a view of carrying on the business of a dairyman, and for the residence of his family and servants engaged in his said business, in which said house he also carried on carpenter work, was a trade fixture which might be pulled down and removed by the tenant. In delivering the opinion of the court, Stoby, J., observed that, ‘the question whether removable or not, does not depend upon the form or size of the building, whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole question is whether it is designed for purposes of trade or not. A tenant may erect a large as well as a small messuage, or a sub-boilery, of one or two stories high, and on whatever foundations he may choose.’ On the whole, the tendency of modern authority, at least, in the United States, is believed to be adverse to the rule laid down in Whitehead v. Bennett, supra, that trade fixtures, or at least trade fixtures in the nature of buildings, to be removable, must either’he capable of being bodily removed, or taken in pieces and put up again so as to be identically what they were before such removal.” The whole of this section is devoted to this subject, and the conclusion of this writer, supported by numerous áuthorities, is that a building, though resting on a foundation of stone or brick, a building of brick, where it is erected for the purposes of the business, may be removed by the tenant during the continuance of the lease. It is well settled by authorities that where the time when the term of the lease will end is uncertain in the lease, if the improvements are of such a nature that they might be removed during the term of the lease, they may be removed within a feasonable time after the expiration of the term. In the nature of things that must be so, where one cannot know when his lease is to an end.

In Ewell on Fixtures, I read further on page 147: “ The rule that the right of removal must be exercised before the expiration of the tenancy is also necessarily subject to qualification in those cases where the tenancy is of uncertain duration, and is liable to be determined by the happening of some contingent or uncertain event on which it depends, or by the act of the lessor, as in the case of a tenancy at will. In such a case the tenant’s right of removal is not terminated until after he has had a reasonable time, after the happening of the event, or the determination of his will by the lessor for the exercise of such a right.” We see no distinction in principle between the right to remove a building erected by a lessee for school purposes, and one erected by a lessee for the purposes of trade or other business.

So then it seems from what has been said — if what has been said is correct — that if no transfer had been made, if Jones had remained the owner of the property, the board might have removed its building not only during the term, but within a reasonable time after its expiration ; because the time of expiration was uncertain and depended upon a contingency which could not be controlled by the lessee.

But if a deed was accepted by this plaintiff without knowledge of the situation, without knowledge of what rights the school board had, and without knowledge of their claiming rights, a different question might arise from the one that does arise in this case.

We think that the language of the deed which she accepted, and of this contract which was made at the same time, sufficiently notified her that the school board erected this building and claimed a right in it. So that there remains only the question of whether, by accepting the new lease from Mrs. Wittenmeyer, there was a surrendering of rights, a surrendering of the estate held under the former lease in such wise as to preclude and prevent the lessee-from claiming the right to remove fixtures.

The authorities, as was demonstrated by counsel in this case, are not uniform on this subject. I think the authorities are much more numerous that the acceptance of the new lease was a surrendering of the rights under the old lease, and a yielding up of whatever right there was to remove the building than those holding otherwise. But there is excellent authority for the proposition that it is not sueh a surrendering up. The cases cited in 69 Wisconsin and 39 Michigan, from one of which I will read later, sustain the proposition that the taking of the new lease was not such a surrendering as to deprive the tenant of his right to remove the building.

The cases cited in 45 N. Y., and 124 Mass., and other cases, sustain the contrary doctrine. In the case in 45 N. Y., Lough-ran v. Ross, there was a clause in the lease that the premises should be surrendered in good condition, natural wear and decay only excepted, at the expiration of the lease. In Watriss v. First National Bank of Cambridge, 124 Mass. 571, there was a clause in the lease that the premises should be surrendered up in as good condition as they were at the time of the execution of the lease, with certain exceptions, and the syllabus reads as follows: “A lessee, who, during the term, erects trade fixtures on the demised premises, and before the expiration of the term, accepts a new lease of the premises to commence at the expiration of the first term, contained different terms and conditions, making no reference to the old lease and reserving no right to him in such fixtures, and in which he covenants to deliver up the premises at the end of the term in as good condition ‘as the same now are/ can not remove the fixtures after the expiration of the first term, although his occupation has been continuous.” In the case mentioned in the 45 N. Y., there was such a clause, and although that is mentioned in the opinion of the court, no reference is made to it in the syllabus, and hence in that case the law, as announced by the court, seems to be directly in conflict with the decisions in Michigan and Wisconsin, to which our attention was called by counsel, and which we have concluded to follow. The Michigan ease is that of Amelia Kerr, Administratrix v. Solomon. O. Kingsberry et al., 39 Michigan, 150, and the court in the opinion say : “ In brief, the claim on the part of the complainants that when Kingsberry and Bennett, in January, 1876, accepted from J. P. Kingsberry a new lease, they in contemplation of law surrendered the existing lease, and not having asserted and exercised a right to remove the erections made previously, they thereby abandoned them to their landlord, and could not assert or transfer to any one else the right to remove them afterwards. This is the principal question in the case. The right of a tenant to remove the erections made by him in furtherance of the purposes for which the premises were leased, is conceded. The principle which permits it is one of public policy, and has its foundation in the interest which society has that every person shall be encouraged to make the most beneficial use of his property the circumstances will admit of. On the other hand, the requirement that the tenant shall remove during his term, whenever he proposes to claim a right to remove at all, is based upon a corresponding rule of public policy, for the protection of the landlord, and which is that the tenant shall not be suffered, after he has surrendered the premises, to enter upon the possession of the landlord -or of a succeeding tenant, to remove fixtures which he might and ought to have taken away before. But why the right should be lost when the tenant, instead of surrendering possession, takes a renewal of his lease, is not very apparent. There is certainly no reason of public policy to sustain such adoctrine. On the contrary, the reasons which save to the tenant his right to the fixtures in the first place, are equally effectual to save to him on a renewal what was unquestionably his before. What could possibly be more absurd than a rule of law which should in effect say to the tenant who is about to obtain a renewal : ‘ If you will be at the expense and trouble, and incur the loss, of removing your erections during 1he term, and afterwards bring them back again, they shall be yours ; otherwise, you will be deemed to abandon them to your landlord.’ ” The judge, delivering the opinion, calls attention to authorities which sustain the contrary doctrine.

We have concluded in this case to follow the doctrine as laid down in this Michigan case, and in Wisconsin, to which we were cited in the hearing, (it seems to us to be sound and to produce the right result), rather than to hold the contrary rule.

Hart & McCormick, and Blandin & Rice, for plaintiff.

T. K. Disselle, Heisley & Seher, and Lawrence, Estep, Well & Henry, for defendant.

The petition will therefore be dismissed.