author: Jelke, J.

text:
    INJURY TO PASSENGER IN STEPPING FROM A TRUCK.
    [Circuit Court of Hamilton County.]
    Nellie McKee v. The Cincinnati Traction Company.
    Decided, February 2, 1907.

      Negligence — Of a Passenger in Stepping from a Truck — Failure to Look Before Stepping — Not Contributory Negligence as a Matter of Lavo —Question of Negligence Must be Determined from the Circumstances.

    The apparent invitation to a passenger, by the partial opening of tile gates of the truck upon which she was riding, to step from the truck to a platform, did not excuse her from looking where she stepped, when a glance would have revealed that there was a space between the truck and the platform.
    Gifpen, J., affirming the judgment; Jelke, P. J., and Swing, J., concur in reversing the judgment.
    While the opinion announced in this case at a former hearing and reported in 6 C. C. — N. S., 426, may possibly be construed as holding that the failure of the plaintiff to look down and observe where she was stepping, was, under any circumstances of the case, as matter of law contributory negligence; yet it is manifest that the court did not intend to so hold, else it would have rendered judgment for the defendant instead of remanding the case for a new trial, as the fact itself was undisputed. There were in that ease, as there are in most cases of the kind, circumstances to be considered in determining whether the plaintiff was excused for failure to observe where she was stepping. We weighed the evidence' as shown by the record and found no fact of sufficient weight to afford a good excuse, although different minds might reasonably arrive at a different .conclusion, as did one of the judges who sat in the case.
    The record now before us was made upon an amended petition in which the negligence is charged as follows:
    “Plaintiff avers that the defendant, by its agents and servants carelessly, unskillfully and improperly managed and controlled said truck and said incline railway, by opening the gates on said truck, upon which plaintiff was a passenger, for the egress of passengers, before said truck had been securely fastened to said stationary platform, and by carelessly moving said truck and attempting to fasten the same to said platform after said gates had been negligently opened as aforesaid, and while plaintiff upon invitation of defendant was passing from said truck'to said stationary platform — because of which, and without fault on her part, plaintiff’s left foot was pressed between said truck and said stationary platform.”
    It is difficult to determine from this petition or the evidence whether the truck momentarily ceased moving and then, after the gates were opened, started up again, or continued to move without interruption from the time it left the base of the incline until it bumped against the platform at the top and caught the plaintiff’s foot. Were it not for the testimony of Mary Brinkmeyer at page 51 of the bill of exceptions, which itself is by no means clear, we would conclude that the truck never ■ ceased moving up until the accident' occurred. In that case the plaintiff herself must have been conscious of- the continued upward movement of the truck, of the space between the truck and the platform, and of the danger in attempting to pass out without looking down or observing where she was stepping and hence was required to look, or offer some reasonable excuse for not looking.

      But leaving that out of consideration the question is fairly presented by undisputed evidence, whether the fact that the gates were partly opened by the attendant, to-wit, about two feet, .justified the plaintiff in assuming that the truck was securely fastened to the platform, and in walking off without locking down, there being nothing to prevent her from so looking and seeing the space between the truck and the platform and thereby avoiding injury.
    It will be observed that the gates were only partly opened and although there was room for the plaintiff to walk out, there was no complete invitation to do so. If she had actually closed her eyes, and then, relying on the fact that the gates were partly opened, attempted to walk out, the danger of having her foot crushed would have been no greater, and her negligence would have been no more contributory, yet no one would claim that under such circumstances she would be free from blame.
    It is claimed that this ease sheuld be governed by the. case of Chamber of Commerce v. Klussman, 2 C. C. — N. S., 83, and the ease of Brener v. Frank, 3 N. P. — N. S., 581, both being affirmed without report by the Supreme Court. In the former case the third proposition of the syllabus i.s as follows:
    “ One who has a right to ride on an elevator is not required to make a full and attentive observation before attempting to enter the cab, but if he finds the door of the shaft open he is at liberty to assume the presence of the cab, and to rely to some extent at least upon its being there; and one in that situation is entitled- to the benefit of the rule applying to a passenger on an elevator.”
    This did not relieve the plaintiff in that case of all care in the premises, but holds only that, from the fact that the elevator door was open he was justified in assuming the presence of the cab, and in relying to some extent at least upon its presence.
    In the case before us the reliance was absolute and unqualified, not because she saw the situation of the truck, but because the gates were partly opened by the attendant.
    In the case of Frank v. Brener, the chief contention arose on a special instruction given by the court to the jury, to-wit;

      “If you find from the evidence that at the time the plaintiff approached the door leading to the elevator shaft the door was wide open, the plaintiff was not obliged in law to stop, look and make a special examination to find out if the elevator cab was there. And if, under such circumstances, he stepped into the open shaft without first stopping to look and make a special examination, that fact alone would not in law constitute contributory negligence such as would, bar the plaintiff from recovering in this ease.”
    It may well be that the plaintiff in that case was not obliged in law to stop, look and make a special examination, nor to stop for the purpose of looking and making a special examination, and yet be required to look, hence the instruction was not erroneous.
    In this case it was unnecessary for the plaintiff to stop, listen, specially examine the truck, or change her position, and the only requirement necessary to avoid injury was to look before stepping. The source of danger was plainly visible, although not actually known, and hence brings the case within the rule stated in Village of Conneaut v. Naef, 54 O. S., 529. There was no error in directing a verdict for the defendant.

      D. D. Woodmamsee, for plaintiff in error.

      Killredge t& Wilhy, contra.
   Jelke, J.

I dissent from the views expressed by 'Judge G-iffen and am of the opinion that the question should have been submitted' to the jury, whether or not the opening was in the circumstances so obvious that Nellie McKee in the ordinary exercise of her faculties could have known of the same.


source: Caselaw Access Project

license: Public Domain

text:
    CHARGING DIFFERENT CRIMES IN THE CONJUNCTIVE.
    [Circuit Court of Wood County.]
    James Limber v. The State of Ohio.
    Decided, April 29, 1905.

      Criminal Law — Indictment for Shooting vnth Intent to Kill, 'Wound or Maim — Charging in the Conjunctive — Duplicity.
    An indictment, drawn under Section 2820, charging the accused with intent to wound, maim and kill, is not bad for duplicity because these offenses are charged in one count and in the conjunctive.
    Parker, J. (orally); Haynes, J., concurs; Hull, J., not sitting.
    The plaintiff in error, James Limber, was indicted under Section 6820, of the Revised Statutes, and was charged in the indictment that on the 23d day of September, in the year of our Lord one thousand nine hundred and four, with force of arms in said county of Wood and state of Ohio, with a certain pistol then and there loaded with gunpowder and one leaden ball, which said pistol, he, the said-James Limber, in his hand then and there had and held, one Abram E. Freeman, did unlawfully, maliciously and purposely shoot, with intent then and there and thereby him, the said Abram E. Freeman, to wound, maim and kill, contrary to the form of the statute, etc.
    A motion to quash on account of duplicity was filed, and overruled, and exception taken to this ruling. The case then went to trial and resulted in the conviction of the plaintiff in error, and it is said that the error which the court committed in overruling this motion to quash was repeated in the charge, and that it was not in any way cured by the verdict, since the verdict is general in form. It is said that the duplicity consists in charging that the plaintiff in error was guilty of the crime of shooting with intent to wound, and with the additional crime of shooting with intent to maim, and with the further crime of shooting, with intent to kill. The statute reads:

      “Whoever shoots, stabs, cuts, or.shoots at, another person, with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”
    It will be observed that while the statute recites what the plaintiff in error claims are different crimes, the matter of wounding, maiming, or killing in the disjunctive, the indictment charges him in the conjunctive, that the said James Limber did this thing with intent to wound and kill, and the court, in charging the jury, said to them:
    “The defendant must have maliciously shot Abram E. Freeman as charged in the indictment, and the shooting must have been done with the intent either to maim, wound or kill the said Abram E. Freeman.”
    It is contended on behalf of the state that these are not three distinct offenses; that these are different forms of stating the same offense and describing it; that these are-different ways in which or means by which the same offense may be committed, and it is along that line of difference that the discussion has run, and counsel, in the course of their argument, have cited a large number of authorities. I can not take time to call particular attention to a great many of them or to undertake to discuss or review them at length. I will call attention to a few of the later authorities, especially in Ohio, that seem to us to bear directly upon the question.
    One of the cases cited is Hale v. Stale, 58 O. S., 676. Hale was indicted for practicing medicine without having complied with the act to regulate the practice of medicine in the state of Ohio. The indictment charges that he did knowingly, willfully and unlawfully practice medicine in the state of Ohio, without having first complied with the provisions of the act of the General Assembly of the state of Ohio, entitled “An act to regulate the practice of medicine in the state of Ohio,” passed February 27, 1896, in this, that at the time and place aforesaid he, the said William F. Hale, did, for a fee, to-wit, the sum of thirty-, five cents, prescribe, direct and recommend for the use of one 0. B. McClelland, a certain drug, medicine and agency, to-wit, a certain drug, medicine and agency put up in a tablet form as aforesaid and encased in a certain paper box, upon the outside of wbicb said paper box then and there containing said medicine put up in tablet form as aforesaid, he, the said William F. Hale, then and there wrote and signed his name to a certain prescription and direction, and he, the said William F. Hale, then and there annexed and appended the letters M. D. to his said name so written under and signed to said prescription and direction, as aforesaid, etc. That is the substance of the charge. The statute involved provides that any person shall be regarded as practicing medicine or surgery within the meaning of the act, who shall append the letters M. D. or M. B. to his name, or for a fee prescribe, direct, or recommend for the use of any person, any drug or medicine, or other agency for the treatment, cure or relief of any wound, fracture or bo_dily injury, infirmity or disease. The point sought to be made against this indictment was that it was bad for duplicity because it charged that he did both of those things described in me statute, viz., prescribed a prescription and signed his name, appending the letters M. D. thereto, and that he did also prescribe a certain drug and received a fee for it. The court held it was not duplicity in this case, and, beginning at the bottom of page 679, this is said by Judge Williams:
    “It appears to be a well settled rule of criminal pleading that, when an offense against a criminal statute may, in the same transaction, be committed in one or more several ways, as therein provided, the indictment may in a single count, charge its commission in any or all the ways specified in the statute, if they are not repugnant; and proof of any one of them will sustain the indictment. This rule is more fully stated in Bishop’s New Criminal Procedure, Yol. 1, Section 436, as follows: ‘A statute often makes punishable the doing of one thing, or another, sometimes specifying a considerable number of things.’ Then, by proper and ordinary construction, a person who, in one transaction does all, violates the statute but once, and incurs only one penalty.' Yet he violates it equally by doing one of the things. Therefore, an indictment on such a statute may allege in a single count, that the defendant did many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.”

      Counsel for plaintiff in error attempts to distinguish that case from the one at bar in this way: He says that the thing forbidden by that statute was unlawfully practicing medicine, prescribing medicine, etc., and that might be done in one or more or several ways; either by writing a prescription and signing his name with M. D. appended, or by giving a drug or prescribing it and accepting a fee for it, and some other ways, but in these two ways at least, and that the crime charged may be committed by all of the other means indicated by the statute; that any one of the several crimes included in this statute might, be committed in any one or more of the several ways prescribed; that the several crimes are distinguished by the several ways pointed out in the statute; that it is a crime to do the certain things pointed out in the statute-; that it is one crime to do the several things mentioned in the statute with intent to kill; that it is another crime to do any one or more of those several things with the intent to wound, and it is another crime to do one or more of those things with intent to maim a person; that it would be permissible to charge that one had maliciously shot, and stabbed and cut, and shot at another person with intent to kill, or that one did one or more or all of those several things with intent to wound, or that one did one or more or all of those several things with intent to maim, but that it is not permissible and it is duplicity to charge that one did one or more or all of said several things with intent to both kill and wound and maim; that those several acts of shooting, stabbing, etc., are means by which the act may be perpetrated; that the act to be perpetrated of which the crime consists in part is distinguished by the intent. As I have said before, you can kill in one case, you can wound in one case, and maim m one case. It will be observed that all of counsel’s contention is based upon the definition which he gives. He analyzes the statute so as to define these separate offenses, but the whole matter made punishable under this statute is described in one section and one sentence, and we do not find authority for the definition and division counsel has been pleased to make here. We think the statute is meant to reach one class of acts and the performance of any one of those acts with any of these intents is the single crime that the statute means to define and reach. That is to say, that the statute defines it in the sense that it indicates the elements of it; it does not define it as we generally understand the term definition — as definitions are usually drawn up by the text-writers and sometimes by the courts. If we were to make a comprehensive definition here of the nature, the character of the offense that the statute undertakes to prohibit and for the violation of which it prescribes the penalty, we would say it would be something like this: That it is the infliction of certain injuries upon the person, “or in case of shooting,” an attempt to do so by shooting at with intent to either kill or wound or maim. They are not different degrees, for the Supreme Court has said they are not, so that according to our view of the matter, if any one would do all of the acts described here in all the ways pointed out with all of the intent indicated in a single transaction, he would commit but one crime, and they are not repugnant, they are not inconsistent. It is possible they might be all done by one person in one transaction. Of course it would involve a good deal of activity on the party. He might be regarded in the light of one running amuck; he would certainly be a dangerous citizen who would attempt all these things, and that is the way we must view this matter. In other words, it would be possible for one, in the same transaction, having the weapons on hand, to shoot, stab, and to cut and shoot at another person, and to do it in the course of that transaction with the intent to kill the person, or, beginning at the other end, with the intent to maim the person, and with the intent to wound the person, and, as his anger and maliciousness grew upon him, with intent to kill the person,. and it does not appear to us that an indictment would be bad that would charge that one in an affray or in an angry transaction, did all of those things with all of those intents.
    Now, as I have said, a great many authorities have been cited, and we can not take time to discuss them. I call attention to them, however, so that the stenographer may preserve them. They are: 32 Atl. Rep., 787, a Maine case,- 58 O. S., 676; 22 Ala., 9, found in 58 Am. Dec., 234; 2 Va. Cas., 231. A great many eases will be found in the 27th Century Digest, at page 668, beginning with .Section 351; 30 O. S., 495, and especially 406; 39 O. S., 37; 11 Cir. Dec., 446-450; 12 O. S., 146; 107 Ind., 156 ( N. E. Rep., 372); 148 Ind., 221 (N. E. Rep., 47); 108 Cal., 440 (41 Pac. Rep., 480); 162 U. S., 625; 34 O. S., 79-81; 76 Mo., 56; 3 N. Dab., 523 (58 N. W. Rep., 27); 2 O. S., 563; 18 O. S., 221; 49 O. S., 228; 39 O. S., 123; 3 0. S., 363; 39 0. S., 660.
    The case in 30 0. S., 405, Ohio v. O’Connor, was a prosecution under the liquor laws, and this was said in the syllabus:
    “Under the act ‘to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio’ (2 S. & C., 1431), a count in an indictment charging that the defendant unlawfully, etc., sold intoxicating liquors to one ‘being then and there intoxicated and in the habit of getting intoxicated,’ defendant knowing, etc., is not bad for duplicity.” .
    It will be remembered that the statute provided that it would be unlawful to sell to one intoxicated, or in the habit of getting intoxicated, and Judge Wright, in discussing the matter, on page 406, says:
    “It appears to have been claimed in the court below that selling liquor to a person intoxicated was one offense, and that the same sale to that person, he being a person in the habit of getting intoxicated, was another, and that by joining the two in a single count, two separate and distinct crimes were charged. We can not so regard it. The offense is but a single one. There is but one sale of liquor and but one person to whom it is sold. The fact that such person represents two characters, under the statute, does not make the offense double. The indictment may be sustained by proving, either that the liquor was sold to one intoxicated, or by proving that it was sold to one in the habit of getting intoxicated, or by proving both of these elements.
    “Manifestly, if there are two distinct and separate offenses, a defendant might be convicted on proof of selling to one intoxicated. Then he might be convicted of selling, at the same time, to the same person, because that person was in the habit of getting intoxicated. Thus would .result two convictions for precisely the same unlawful act.”
    Further down he quotes from Bishop on Statutory Crimes; See. 383:
    “If an indictment is to be drawn on a statute in alternative clauses, the pleader, as a general rule,- may elect to charge no more than constitutes an offense within one clause, or he may proceed upon two clauses, or three, or all, as he deems best, and all in a single count; employing the conjunctive ‘and,’ when the statute has the disjunctive ‘or.’ See also, Secs. 521-759; State v. Batson, 31 Miss., 343; 1 Bishop Criminal Proceedings, Sec. 436, and Note 3; 1 Wharton Criminal Law, Sec. 390.
    ‘ ‘ Our statute as to counterfeiting is: ‘ If any person shall falsely-make, alter, forge, or counterfeit.’ An indictment alleging the uttering of a ‘false, forged and counterfeited bank note’ is held to be good. Mackey v. State, 3 Ohio St., 363; Stoughton & Hudson’s case, 2 Ohio St., 563.”
    In the case at bar, manifestly, if it were established that one had shot at, or stabbed, or cut within the course of the transaction, with intent to maim or wound, and with the further intent made manifest probably later in the transaction that he did the same things, or repeated the same acts with intent to kill, the state could not make two crimes of that. The state would be confined to one prosecution for the one crime growing out of the single transaction of doing those several things with the different intents.
    The case of Watsqn v. State, 39 O. S., 123, is instructive along this line. I can not now take time to comment upon it. That is a case where one was indicted for corruptly offering and promising to a member of the House of Representatives of the General Assembly of the State of Ohio, with the intent to corruptly and feloniously influence his vote upon a certain bill then pending in such house, ‘‘a valuable thing,” to-wit, stock of the Cincinnati Union Railway Co. of the amount and value of $20,000 and a large amount of money of great value. It was charged that this was done with the intent to influence him as a member of the House of Representatives, and also to influence him as a member of the standing committee of the house.
    It was urged that there was duplicity there; that it charged separate and distinct offenses. That attempting to bribe a member of a legislative committee as to his action as such was an offense, and that an offer to bribe him as such committeeman was a different offense from an offer to bribe him as a member of the house; but the court held that that was not duplicity.

      In the case of The State v. Insheep, 49 O. S., 228, the defendant was indicted and charged that he did “unlawfully make an assault in and upon one John W. Moler, and him, the said John W. Moler, did then and there strike and wound,” with the usual conclusion. A motion to quash the indictment was sustained on the ground that “it contains but one count and two separate and distinct offenses.” Charged him with striking, and the further offense of wounding; but the Supreme Court held that the common pleas court erred in sustaining the motion to quash, saying: “The indictment is not bad for duplicity, is in proper form, and the motion should have been overruled.’ ’
    I can not take further time to go over these cases. We think there is sufficient authority to be found in these cases cited from our own Supreme Court to justify the ruling by this court in this case, and our conclusion is that the court did not err in its ruling on the motion to quash, and did not err in its charge; that there is no prejudicial error in this record, and the judg-' ment of the court below is affirmed.

      E. T. Dunn, Edward'Beverstoch, for plaintiff in error.

      J. E. Ladd, Prosecuting Attorney, and E. G. McClelland, for state.


author: Donahue, J.,

text:
    PROSECUTIONS FOR. PROCURING.
    [Circuit Court of Tuscarawas County.]
    Caroline Studer v. State of Ohio.

    Decided, December 15, 1905.

      Criminal Law — Prosecution for Decoying Females under Eighteen Years of Age — Scienter—Gravamen of the Offense — Venue.—Evidence— Acquittal of One who Co-oyerated in the Procuring — Section 7023.
    1. It is not necessary under an indictment for “inducing, decoying or procuring any female under eighteen years of age * * * to enter any house of assignation or any 'house of ill-fame for the purpose of seduction or prostitution” that the defendant shall be charged with knowledge that the female so decoyed was under eighteen years of age.
    2. Where the inducing, decoying, or procuring is done in one county, but the house of ill-fame which is entered is in another county, the venue of the prosecution is properly laid in the county where the inducing, decoying or procuring was done.
    3. Where two persons are jointly indicted for the same offense, neither the court nor the jury engaged in the trial of the second defendant is concluded by the fact that a verdict of not guilty was returned in the case of the first defendant.
    4. It is better to err on the side of permitting testimony to be introduced than of excluding it, and in a case involving circumstantial evidence, where some latitude in the matter of evidence is necessary, the judgment will not be reversed because evidence was admitted which was unnecessary but not prejudicial.
    W. O. Werntz, Atlee Pomerene and Henry Bowers, for plaintiff in error
    cited in support of the position that scienter is a necessary averment in an indictment under Section 7028 — Anderson v. State, 7 Ohio (pt. 2), 250; Birney v. State. 8 Ohio, 230; Miller v. State, 3 Ohio St., 475; Ault father v. State, 4 Ohio St., 467; Grahtree v. State, 30 Ohio St., 382; Farrell v. State, 32 Ohio St., 456; State v. Morton, 8 Wis., 167; 21 Am. & Eng. Ene. Law (1st Ed.), 850,_ note.

      Venue of the prosecution' — 7 Am. & Eng. Enc. Law (1st Ed.), 758-762; Slate v. House, 55 Iowa, 466; Connor v. State, 29 Fla., 455 (10 So. Rep., 891).
    As to declaration of co-conspirators — Goins v. State, 46 Ohio St., 457; Clawson v. State, 14 Ohio St., 234; Patton v. State, 6 Ohio St., 467; Seville v. State, 49 Ohio St., 117.
    Taggart, J.; McCarty, J., concurs; Donahue, J., dissents in a separate opinion.
    Error to the Tuscarawas Common Pleas Court.
    Caroline Studer was indicted at.the September Term, 1905, of the court of common pleas in this county, charged, under Section 7023, Rev. Stat., with inducing, decoying and procuring female persons under eighteen years of age to enter a house of ill-fame for the purpose of prostitution. Thereupon, on the return of this indictment, she filed a demurrer on the ground that the indictment did not charge an offense under the laws of Ohio. This demurrer was overruled. She was placed on trial, and she made the same question a.t the close of the state’s testimony— that the testimony did not establish a crime for which she should be held. This was overruled by the court and the ease proceeded to a verdict of guilty. Sentence was pronounced by the court and this proceeding in error is prosecuted.
    The first question .that is made is1 an objection to the indictment, and addressed also to the contention that there is no testimony that establishes a crime against her. The indictment does not contain a scienter that she knowingly performed the acts for which she should be held.
    Section 7023, Revised Statutes, omitting the words that are unnecessary for a correct Tinderstanding of the question, is as follows:
    “Whoever induces, decoys or procures any female person under eighteen years of age * i:! * to enter any house of assignation or any house of ill-fame for the purpose of seduction or prostitution, * i:=” shall be punished, as provided in the statute. ' . ..•

      It is claimed that the indictment should charge, as in cases of selling liquor to minors, the scienter, and our attention is called to a number of cases wherein the statutes while not containing the word “knowingly,” the courts have held that the indictment must contain a scienter, and the proof must show knowledge. Birney v. State, 8 Ohio, 230; Miller v. State, 3 Ohio St., 475; Aultfatker v. State, 4 Ohio St., 467; Farrell v. Stale, 32 Ohio St., 456, and others.
    An examination of this statute convinces the majority of the court that that contention ought not to obtain in this case. Whatever may have been the former holdings of the Supreme Court, the Legislature in enacting this statute, as we think, clearly defined the crime, and the indictment alleges the offense in the language of -the statute. The Legislature, we think, did not intend to make scienter an element of this offense. If persons engage in inducing, decoying or procuring female persons to enter houses of ill-fame for the purpose of prostitution, they must, at their peril, ascertain the age or ages of the persons so procured. It is no crime to induce, decoy or procure female persons over the age of eighteen years to enter a house of assignation or house of ill-fame, for the purpose of assignation or prostitution, but it does become a, crime to procure female persons under eighteen years of age. And, therefore, persons engaged in this business, we think at their peril, must ascertain and know whom they procure or decoy or induce, to so enter into this business.
    We think the question is fairly settled in State v. Kelly, 54 Ohio St., 166, 170, 171. This was simply a violation of a police regulation under an act of the Legislature “to provide against the adulteration of food and drugs.” But in that case the counsel brought to the attention of the court directly the holding of the courts in cases similar to this, and we think in this case an examination of the eases cited in the brief of counsel is instructive, and we want to call attention to them.
    ‘ ‘ A distinct class of cases have come up, in which the unlawful act is done intentionally, but in ignorance that it is unlawful. This ignorance is of two kinds: First, ignorance of law; and, second, ignorance of fact. That ignorance of law is not a defense is generally conceded. * * * Ignorance of fact, however, presents questions far more intricate, and as to this defense, we may lay down the following propositions-:
    “First. When to an offense knowledge of certain facts is essential then ignorance of these facts is a defense.
    “Second. When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense.
    “It is easy to see that, to require an affirmative proof on the part of the state that the' accused had actual knowledge of the adulteration, would put an end to many meritorious prosecxxtions. The cases even warrant the holding that the accused must know at his peril, and that such doctrine is necessary to protect the public. * * * Analogous cases have arisen under statute making it indictable to abduct, seduce or violate girls under a specified age. Hei’e, also, it is no defense that the defendant mistook the girl’s age. * * * In other lines of prosecution, under statutes making acts indictable irrespective of intent, similar conclusions have been reached. ’ ’
    An examination of the brief of counsel on page 173, el seq., will show that all the authorities hereinbefore cited were called to the attention of the Supreme Court. In construing the statutes then before it, the court, speaking through Judge Shauck says, page 178:
    “The act does not in terms require, to constitute an offense against its provisions, that the adulterated article of food shall be sold to be used by the pxxrchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a want of such knowledge shall constitute a defense. Both conclusions stated in the decision of the court of common pleas are therefore wrong unless they are justifiable, inferences from the pxxi’pose and indicated policy of the act.”
    Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, unsusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an ai-tiele of food, or his knowledge of its adulteration, it would thereby have defeated its declared pxxrpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the Legislature, they can not in ease of a statute whose provisions are unambiguous, and whose validity is clear, defeat the purpose by construction.”
    The correct view of statutes of this general nature is stated by the Supreme Court of Massachusetts in Commonwealth v. Murphy, 165 Mass., 66:
    “Considering the nature of 'the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is, whether the intention, of the Legislature was to make knowledge of' the facts an essential element of the offense, or to put upon every one the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it
    The majority of the court are of the opinion that in the enactment of the statute under consideration it was the evident purpose of the Legislature to protect the public against the harmful consequences of decoying, inducing and procuring females under eighteen years of age to enter houses of ill-fame for the purpose of prostitution, and there is no difference between this statute and those which make it indictable to abduct, seduce or violate girls under a specified age. It is the same provision. If a person seeks to decoy, induce or procure a female person to enter a houvse of ill-fame they must do so at their peril, and it is no defense for a defendant, indicted for this offense, to say that he tor she mistook the girl’s age. So we think the indictment is sufficient.
    At the close of the state’s testimony a motion was made to direct a verdict on the ground that the record then showed that the house of ill-fame that was entered by these two girls was in Stark county and not in Tuscarawas county; and that, therefore, the crime, if any crime was committed, was committed in Stark county. It is well known that a person shall not be held to answer for a charge except in the county where the crime was committed, and thus venue is important.- -

      It is claimed in this case that the proof shows this crime was committed in Stark county. This woman was charged with inducing, decoying or procuring these girls to enter a house of ill-fame for the purpose of prostitution. We think the gravamen of this offense is the decoying, the procuring, the inducing, and when there is the decoying, the procuring and the inducing followed by the entrance to the house of ill-fame for .this immoral purpose you then have the crime complete, the venue being where the decoy was laid, where the persuasion was exerted, or where the inducement was held out. The majority of the court think that it is the right view of the case, and that the court was right in refusing to overrule this motion; that the venue was properly laid and properly sustained by that proof.
    Objections are made as to the admission of testimony in this case. In all' eases similar to this, of circumstantial evidence there must be some latitude, and we do not think the court in this ease overstepped the boundaries or permitted the introduction of testimony that could be called prejudicial. There was some testimony that was perhaps unnecessary to have been presented, or to have gone to the jury. There is difference between hearing a case, with counsel’vigorous, able, prompt, watching the rights of the client, as they are entitled to do, and as the record shows was done, and cooly and critically examining every question and answer as it appears in the record. The court might sometimes err in the introduction of testimony and permit more than was necessary, and yet the rule is stated that it is better to err on the side of the introduction of testimony than its exclusion, and only when it is prejudicial will a court reverse. We do not think this testimony as shown here was prejudicial, because if this conviction was right, the introduction of testimony claimed to be improper could have had very little force or effect upon the mind of the jury, and it could not then be said to be prejudicial.
    It is claimed that there is no testimony to support this case, and that it ought to be reversed and the motion in arrest of judgment should have been sustained. The majority of the court do not think so. We think this conviction is abundantly established by this record.. On the day charged in this indictment the accused was in Canal Dover, at the house of Mrs. Alberts, when she met Mrs. Whitmire, who is jointly indicted with her. At this meeting the accused informed Mrs. Whitmire “that she was running a hotel in Canton, but good help was hard to get and that she wanted some girls to work in the hotel. ’ ’
    Mrs. Whitmire informed Mrs. Studer that if she heard of any girls that wanted a place in a hotel she should tell them where the hotel was. «The girls went to a show in the evening of this day and Mrs. Whitmire and her husband awaited their return in an adjoining saloon, and then took them to their home, and informed them that a lady in Canton, who had come to the show, wanted a couple of girls at a hotel, and gave a description and location of the hotel. The next day after the show the Whit-mires directed the girls to Alberts for more specific directions. They were at Alberts when Mr. Whitmire again appeared on the scene and furnished them money, and gave them more specific directions to find Mrs. Studer’s place. These girls had no information in regard to Mrs. Studer’s “hotel,” other than that imparted by the Whitmires and Alberts. On their arrival at Mrs. Studer’s the girls informed Mrs. Studer that they were informed by Whitmire that she wanted girls to work in her hotel. She replied that she had left word at Mrs. Alberts’ and down there at Canal Dover for some girls to work in the hotel, but that she did not want them to work in the hotel, but that she wanted them for her house of ill-fame. At this time and prior thereto she was the keeper of a house of ill-fame under the guise of the Central Hotel.
    • Was there a,ny trouble in the jury’s finding where the decoy was laid, where the persuasion exerted, where the inducement was put forth? All these facts and circumstances were for the jury. Was Mrs. Studer keeping a hotel, and did she want girls to do hotel work? What did she mean by “business is good, but good help is hard to get”? Was it a mere coincidence that she was in Canal Dover that day and met the Whitmires? How did the Whitmires understand her remarks — what meaning did it convey to them? It is claimed that if there was any decoy or inducing, the Whitmires must have been a party to it, and that this could not be so, as the jury which tried Mrs. Whitmire acquitted her. This may be all true, but neither the jury nor the common pleas court in this cause were concluded by that verdict. Mrs. Whitmire could not be again tried for that offense but the jury in this case were entitled to pass on the evidence in this case, and if it satisfied them that these girls were decoyed into entering this life of shame, they could so find, even if contrary to- the finding of a former jury on .the trial of one jointly indicted with the accused.
    What is a decoy? It is the appearance of things as being natural and true for the purpose of entrapping, when in fact they are unnatural and untrue; anything intended to lead into a snare; an enticement that deceives and misleads into danger by artifice.
    The majority of this court think that the jury were fully justified that there was a decoy, an inducement and persuasion held out to the girls by the accused in Tuscarawas county. “I want girls for hotel work.” She had no hotel. “I did leave word down there for girls,” “but not to do hotel work.” “I want you to -enter my home for immoral purpose.” The decoy was laid in this county to lead the girls to her house of ill-fame in Stark county. The facts and circumstances in this record were of such force as to bring the conclusion in the minds of the jury that this - woman was guilty of this crime, and with that conclusion we are in accord; the motion in arrest of judgment was properly overruled.
    Finding no error in this record to -the prejudice of the plaintiff in error, the judgment of the court of common pleas will be affirmed and the cause remanded for execution.

       Affirmed by the Supreme Court without report, Studer v. The State, 74 O. S. 519.

   Donahue, J.,

dissenting.

It is so very late now that time ought not to be taken with a dissenting -opinion, but dissenting from an -opinion as able as that we have just listened to certainly would require of a judge that he give some sort of reason for his dissenting, and I will only hold you a few moments in that behalf.

As to the question of scienter in the indictment, or the question of its not being averred in the indictment, while it is contrary to all my experience in the law, yet in view of the opinion in State v. Kelly, 54 Ohio St., 166, I could reconcile myself to the position of the majority of the court, and do, although I have not so learned the law myself; and although the.Supreme Court does attempt to make a distinction between a crime, which is a police regulation, not involving, as it says, moral turpitude, and one that does, I am hardly able to reach out and grasp the distinction, and I believe the Supreme Court have fairly said in this character of cases that the scienter need not be averred in the indictment, although I confess I do not see and have not heretofore so understood the law. My opinion was, that this character of cases was the same as the sale to a minor where the Supreme Court have said time and again that it must be with the knowledge of the fact. But iipon that I would not dissent.

I want to say that this .is the most remarkable result of a case, in which I have disagreed, that I have met during my experience on the bench. I am very glad that my associates can conscientiously affirm this judgment. I can not do it myself. . It is evident that the woman is guilty- of this crime, and it is only a technical objection arising in my mind.

But this is the point that appeals to me in this case. No chain is stronger than its weakest part, and this whole prosecution gathers around and about a statement made by Mrs. Studer at the home of Mrs. Albert over in Canal Dover. There is the stai’ting place of this prosecution. Whatever expressions are introduced after that must be supported in that conversation. It won’t do to offer what Mrs. Whitmire says, or what the girls say Mrs. Whitmire told them. The state is finally relegated to their evidence on what occurred at Alberts’; and what was that? Mrs. Alberts says, Mrs. Whitmire says, and Mrs. Studer says; “I said business was good over there but good help was hard to get.” Probably it was in her line; no doubt about it, that good help was hard to get. That is where the state must finally rest its ease, because if Mrs. Whitmire misrepresented that statement to these girls, without authority, without conspiracy, of course it is not important, it does not bind Mrs. Studer. Mrs. Studer makes use of this expression: “Business is good in Canton,” and it seems to be from all the evidence we read in this record, “but good help is hard to get.” All the evidence of the state is exhausted when that statement is proven against Mrs. Studer. That is the end- of it. It is the nucleus about which all the other evidence centers. That being true, can it'be resolved into a statement that “I want young girls under eighteen years of age for prostitution?” I do not think it can.

Suppose she said, “I want girls for dining room and will pay five dollars a week for them,” which was the statement made at Mrs. Alberts’ so far as this record is concerned. Can that be resolved into a statement that, “I want girls under eighteen years of age for prostitution. I want you to go out and get these particular girls under eighteen years of age, or any other girl under eighteen years, for prostitution ? ’ ’ She may have sent this woman out for girls for prostitution, but did she send her out for girls under eighteen years of age?

From that time onward in the trial of this case it is conclusive to my mind that, Tam-o-Shanter-like, almost anything went. Whatever any citizen did or said that had any connection at all with the girls — the Whitmires or the Alberts — was taken in evidence. There is certain evidence here that the girls were doped. Now, because Mrs. Studer said good help was hard to get, is that any authority for introducing evidence into this case that these girls were doped by somebody else ? Or that they were drinking with other men, or that they were prostituting themselves with other men, or that they were of good character prior to that time? Their character is not a feature in this case at all, only to excite and anger the jury .against the defendant. And while it is true that courts and juries are sworn to administer the law without fear, favor or affection, if courts and juries are made of men with prejudice and convictions — and you can not entirely disabuse your mind from these things — when a woman of the character of Mrs. Studer comes into court it is difficult for a court, much more for a jury, to forget the enormity of her crime against society and not wish to heap their anger against her, and not to wish her to be punished whether guilty or not. And we can only raise the courts a,s high as the best ability of men go and no farther, and of course, I am not expecting we have done that, but we are trying to do that. So that I think that those things are dangerous things, and ought to be guarded against in a trial of this kind. There is not any reason why this woman could not be convicted properly on evidence that is absolutely permissible under the rules of criminal evidence. No reason why she ought not to be convicted in Stark county.

Now we come to the other point. Suppose all that has been said is true, and these girls were induced to go to Canton. Through a remark that this woman had made they entered into the doorway of this Central Hotel. What for? The physical entering of a house of prostitution is not a crime, but it is entering for the purpose of prostitution. Her remarks sent out the poison, suggested by my associate, that was breathed in the air of Tuscarawas county. That poison may have brought the girls into that house, but they did enter for the purpose of prostitution? On the very threshold of that house they are met with the statement, “I do not want girls for servants or for house work; I want girls for prostitution, and I want you to stay here for that purpose.” There is where the contract is made. They are not induced nor decoyed to go into that house of prostitution. But they are openly told the moment they enter that house, “I want you for the purpose of prostitution.” They were procured indirectly; they were induced to stay there by her, but that inducement and statement were made to them when they came to the threshold of that door, when they crossed it first. It seems to me, that being true, there is no other rational conclusion than that the venue of that crime is in Stark county. It is simply technical, as I said before. I believe in the guilt of this woman as much as my associates, and I am very glad that my associates have been able to see their way not to let her escape the lash of justice at this time. So I simply make this statement because I believe as a lawyer this is the way the ease stands. I would not have taken your time in this explanation except for the purpose of showing the reasons and why I dissent.

W. O. Wernts, Atfae Pomerene and Henry Bower, for plaintiff in error.

J. F. Greene, Prosecuting Attorney, and J. A. Buchaoicm, for defendant in error.


text:
    ACTION ON A CERTIFIED CHECK.
    [Circuit Court of Hamilton County.]
    Charles G. Blake v. The Hamilton Dime Savings Bank.
    Decided, February 7, 1907.

      Certified Check — Attempt by Endorser to Stop Payment — Has Attri-. butes of Money — Title Passes by Delivery — Failure of Consideration to Endorser.

    Under a warranty of soundness, etc., B paid for a horse with a certified check, which after endorsement by him became payable to the bearer on demand. The horse proved to be unsound, and B. attempted to stop payment of the check after it had passed into the hands of third parties.

      Held: After endorsement and delivery of the check, title thereto passed out of B, and he had no further interest in it, and was without authority to stop its payment.
    Swing, J.; Jelke, P. J., and Giffen, J., concur.
    This was an action in the court of common pleas by the defendant in error against the Franklin Bank on a certified check, which check is as follows:
    “Office.of C. G. Blake,& Co.,
    “Wholesale Coal & Coke, First National Bank Building.
    “No. 12360. Cincinnati, Ohio, Oct. 16, 1903.
    “The Franklin Bank.
    “Pay to order of C, G. Blake two hundred and seventy-five' dollars.
    “275.00 C. G. Blake & Co.”

      Across the face of the cheek the following appears1:
    “Good for $275.00 when properly endorsed. The Franklin Bank, H. Sachteleben, Teller.”
    The following endorsements appear on the cheek:
    “Pay to order of Charles Werbel.
    “C. G: Blake,
    “Charles Werbel.”
    The facts show that on October 19, 1903, the said- Charles Werbel deposited said cheek with the Hamilton Dime Savings Bank and was given credit on his account for the amount of the check. At the time of the deposit Werbel had to his credit over- $800 and has always had to his cx-edit in said bank a sum largely in excess of the amount of the check. Said check was presented to the Franklin Bank, but payment was refused, and thereupon the Dime Savings Bank, to-wit, on October 20, 1903, brought its action against the Franklin Bank. After-wards the Franklin Bank filed an affidavit for interpleader saying that it was ready and willing to pay said sum into court, and that C. G. Blake had notified it not to pay said check, and that he claimed to be the owner of the same. And thereupon said bank by order .of court paid said sum into court.
    C. G. Blake was made a party and filed an answer, in which he admitted the check was a certified check, and that the check was certified by the Franklin Bank at his request, and that the same was delivered by him to said Charles Werbel; that said plaintiff is not. the owner or holder of said check; that said Werbel delivered the same to said. plaintiff after notice to said Wex-bel that payment of the check would be stopped, and that plaintiff received the check with fxxll knowledge of the same. Then follows allegations setting forth the transaction which brought about the giving of the cheek.
    It was all about the purchase of a horse by said C. G. Blake from said Charles Werbel. The horse was represented by said Wex-bel to be sound, a good and qxxiet driver, not afraid of the cars; 'any woman could drive him, and only six years old; whereas he was eight or ten years-olcl, unsound, afraid of the ears, and no woman could drive him.
    Plaintiff denied the allegations of Blake’s answer.
    A jury was waived and the cause tried by the court. The court found for the plaintiff and at request -of counsel stated its- conclusions of fact and law separately. Blake prosecutes error to said judgment and asks for a reversal, the main ground relied on being that said judgment is contrary to law.
    There is virtually no dispute about the material facts pertinent to the issue, if the question about soundness of the horse can not be brought into the case and the court below ruled out such evi-' dence.
    The admitted facts are: That the firm of C. G. Blake & Co., of which said C. G. Blake is a member, drew its check on the Franklin Bank for $275, in favor of said C. G. Blake, on October 16, 1903; that said C. G. Blake presented said check to said bank and had the same certified by the teller of said bank, endorsing on- said check in the usual form, “good” for $275; that after said check was certified he (Blake) endorsed the same and delivered it to said Charles Werbel in payment of a horse which he had purchased from said Werbel; that said Werbel transferred -said check to said Dime Savings Bank and was credited in his account with said bank to the amount -of the cheek on October 19, 1903; that at the time of the deposit the bank had no knowledge of " any claimed infirmity in the check; that there was, and that.there remained in the bank, until the commencement of these proceedings, to the credit of Werbel, a sum in excess of the amount of the check.
    From these facts the following conclusions must be drawn— That Blake intended to change the check of Blake & Co. into the certified check of the Franklin Bank, in order to give Werbel a better security free from any rights of Blake & Company in the check, and that Blake intended by delivering the check to Werbel that it was in fact a full and complete payment for the horse, and that AVerbel accepted it as such; that when Blake got the horse and Werbel got .the certified check the sale was completed and each was rightly in possession of what he had' — one the horse and the other the check — and Werbel had no further interest in the horse and Blake had no further interest in the check.
    We think, as a matter of law, that the Dime Savings Bank was not a purchaser for value. When it took the check from Werbel and credited it to the account of Werbel, it parted with nothing' and the only relation that existed between them was one of debtor and creditor, and the bank got only such title as Werbel had. This is clearly shown by the authorities cited by counsel for Blake and many others in the same line. See 30 Ks., 412; 18 Hun., 417; 71 Wis, 309; 150 U. S., 231.
    The question then must turn on the right of Werbel as against the Franklin Bank. The bank does not dispute its liability; on the contrary, admits it, and has deposited the amount of the same in court; and the drawer of the check, Blake & Co., is not here claiming any rights as against Werbel. Werbel had nothing to do with the drawing of the check, nor with its certification, and it is admitted that he came into possession of the check rightly. Blake makes no claim otherwise. His claim is that the horse for which he gave the check is unsound and not as represented by Werbel, but whatever vice there was in the horse could not attach to the check. The check when certified by the bank became the obligation of the bank, which when according to its terms was properly endorsed by C. G-. Blake, became payable to bearer, on demand, and, so far as the bank was able to make it, had the attributes of money. Title passed by delivery, and was payable to bearer on demand, and when Blake delivered the check to Werbel, Werbel became the absolute owner of the check free from any claim of Blake to the same extent as if it had been money. 2 Daniels, Neg. Inst., Section 1601 et seq.; Morse on Banking, Section 414, et seq, and authorities cited by these authors.
    If the drawer of the check, C. G. Blake & Go., had procured the certification of the check before delivering the same to C. G. Blake, the rights existing between them would not be the same as in. this case — for instance, C. G. Blake & Co. would still be liable to O. G. Blake for the failure of the bank to pay (see 51 O. S., 110, and authorities cited in Morse, supra), and probably C. G. Blake & Co. might have been able to assert some claim against the check in the. hands of C. G. Blake. But here, when C. G. Blake had the cheek certified, he n,o longer had any claim against C. G. Blake & Co. His object in having it certified was to release C. G. Blake & Co. and accept the bank as payer, and of course C. G. Blake & Go. had no further claim against the check in the hands of C. G. Blake or any one else. Aind when the bank certified the check for its own protection and for its own advantage, it gave to the cheek the character, that “when properly endorsed”; that is, when C. G. Blake should place his name on it, it should be payable to bearer on demand, and it never intended that C. G. Blake, after he endorsed the check and delivered it to any one, should have any interest in it, and this we think is the law.
    Judgment affirmed.

      Burch (& Johnson, for plaintiff in error.

      Murphy & Williams and Pogue <& Pogue, contra.


text:
    MOVING BUILDING ACROSS ELECTRIC CAR TRACKS.
    [Circuit Court of Wood County.]
    The Toledo, Bowling Green & Southern Traction Company v. George Sterling.
    Decided, November 28, 1906.

      Use of Streets for Moving Buildings — Interference with Electric Gar Line — Evidence as to Permit to Move Building — Reasonable and Unreasonable Requirements by Railway Company — Obstruction of Trade by Building — Undue Force in Clearing Track — Damages— Error.

    Having obtained a permit from the mayor of the village to move a building, the owner notified an electric railway company of his intention to cross their track, and a work car and crew were sent at an appointed time to adjust the wires so as to permit the passage of the building. The railway employes, without previous notice that such a requirement would be made, demanded $10 in advance to meet the expense to the company of making the change, The demand was refused, and when the owner of the building at-temped to move it over the track, the work car was purposely run against it with such force as to jar down the chimney and plastering and otherwise injure the building. A jury gave the owner damages. Held:

    1. The moving of a building upon or across a street is not an ordinary use bf the street, but is one which must be exercised subject to such restrictions as may be imposed by the municipal authorities.
    2. Proof by the owner of the loss of the permit which he obtained from ■ the mayor for the moving of the building was competent, both for the purpose of showing the contents of the permit, and that the owner was not trespassing in the use which he was making of the street.
    3. A requirement by an electric railway company that the moving of a building across its track in the street shall be done in the night time, when there is no current on the wires and the company and traveling public can not be inconvenienced thereby, would be a reasonable requirement, if insisted on by the company.
    4. Refusal by the owner to pay in advance the $10 demanded, - after consent to move the building across a railway track and the bringing, of the building to the track, did not justify the railway employes in resisting the passage of the building, in the absence of previous notice that such a demand would be made, or of ground for believing that the $10 could not be subsequently collected from the owner.
    5. But even if the company was warranted in treating the building as an obstruction on its tracks, there was no warrant for the using of undue force in removing it; and the unexplained failure to push the building back on the skids, which apparently could have been easily done, rather than the running of the car violently into it, rendered the company liable for -the resulting damages.
    G. The admission of incompetent evidence as to offers by many persons to sign the bail bond of the owner of the building after his arrest for obstructing the track, would not justify a reversal of the judgment, where substantial justice has been done by it.
    "WiijDMAN, J. (orally); Parker, J., and Haynes, J., concur.
    This case is not of much money consequence, for the amount involved is very small — only a hundred dollars besides the costs. Bitt the plaintiff in error, the traction company, seems to deem it of some importance as likely to result in a definition of the rights and liabilities of electric railway companies with reference to the moving' of buildings along- streets and across the tracks of the companies.

      Much, argument has been made before us as to the nature of such use of a street and we are disposed to accept the view of counsel for plaintiff in error that the moving of a building upon a street is not an ordinary use, nor one the right to which can be exercised at all times and without license from the proper authority.
    The case presented to us was brought by Mr. Sterling, the present defendant in error, against the traction company. In his petition in the court below he alleged that on the 17th of November, 1904, he was attempting to move a dwelling-house owned by him across the railway tracks owned and operated by the defendant traction company, the present plaintiff in error, in the village of Yan Btiren; that he had crossed a portion of said track when the defendant by its agents and servants in charge of a work car belonging to the defendant unlawfully, willfully and maliciously ran said car into the truck of the wagon upon which said house was loaded, causing the house to drop, and damaged it in the sum of a hundred dollars, and he asked for judgment in that sum.
    The case was tried below to a jury, and resulted in a verdict in favor of Sterling.
    The defendant, with some denials of the allegations in the petition, including a denial that it unlawfully, willfully and maliciously ran this car into plaintiff’s house, by way of cross-petition asserted that the plaintiff, in moving his house upon the tracks of the defendant, recklessly, carelessly and maliciously tore down and misplaced the feed trolley wires over and along •the tracks of the defendant company, and blockaded said tracks and caused the cars of the defendant to cease running for a period of ten or more hours, to the great delay, hindrance and inconvenience of the defendant, the traveling public, and the passengers upon defendant’s cars, to the damage of the defendant in the sum of one thousand dollars, for which the defendant asked judgment. The claim in the cross-petition did not prevail in the court below¡
    As already indicated, the use of a highway by persons in moving a building, is an extraordinai-y use, and one subject to reasonable restrictions. In the case before us, the plaintiff testified as a witness, as shown by the record, that prior to the moving of this house he obtained a permit from the mayor of the village of Van Burén.
    At the time of the trial it was stated that this permit had been lost, so that he was unable to introduce it in evidence. The testimony as to this matter came under objection, but was permitted by the court and an exception was taken by the defendant company. We think that the evidence was properly received. While the use of the highway for the purpose described- is an extraordinary use, it is still one which may be made-lawful by license from the proper municipal authority, subject to the restrictions imposed by such authority.
    Succinctly, we may state, as was said by Chief Justice Shaw substantially in the case of Jay v. Green, 4th Cushing, 437, that no man has a right to move a house along a public street, but it may be done under license from a municipal corporation provided reasonable care is used to prevent the obstruction of the street. It is contended here, and with some show of authorities, that where a municipality has granted a franchise to an electric railway company to construct and operate its railway along a public street, that the municipality has thereby vested in the railway company a right which can not be qualified by any action of the municipality; that is to say, that the municipality can not subsequently impair that franchise or withdraw it, or grant to any other person a right to interfere with it. Probably this in a sense is true, and yet the franchise itself is qualified to a certain extent. The right of the public to use street crossings over railway tracks is always implied or understood to remain in the public, notwithstanding the granting of the franchise for the construction and use of the tracks along the highway.
    It is not necessary for us to determine, however, whether, against -the will of the railway company, the village of Van Burén could grant a privilege to any person to move a house across the company’s tracks, in view of the fact than an arrangement was by the undisputed proof entered into -between the company, through its general manager, and the plaintiff .below, Mr. Sterling, for the crossing of the company’s tracks by the plaintiff, Sterling, with his honse.
    We deem the ruling of the court below in the admission of the testimony of Sterling that he had been permitted by the municipality to move his house upon the street, a proper ruling. We think so because in the first place he proved the loss of the decument which he describes, so that he might be permitted to give its' contents if the original permit would have been proper; and in the next place he had a right to show that he was not a mere trespasser upon the highway; that he had been given by the municipality such rights and all the rights which it had power to give to any person traveling upon the highway in this manner, and so to use the highway at the point where it intersected and crossed the defendant’s tracks.
    Whether it was necessary for Mr. Sterling to make this showing is perhaps not of any great consequence. We feel that in any event it was not prejudicial to the defendant. There is some conflict of evidence as to the precise arrangement which was made between Sterling and Mr. Smith, the general manager of the defendant company. They have both given their versions of the conversation had between them prior to the attempted moving of the house across the tracks. In substance Mr. Sterling testifies that Mr. Smith gave him authority to move the house without any qualification other than that he should apprise the company of the time when he desired to move it, and that he should pay the expense of disconnecting or moving the wires of the defendant company so as to enable him to cross with his house. He says he inquired whether the company would ask payment for bringing its work car and men to the place where the track was to be crossed, and was informed that they would not make that requirement.
    Mr. Smith, on the other hand, testifies that he notified Sterling in this conversation that the company required that crossings of this nature should be made in the night time, when the electric current could be cut off and the wires disconnected without danger, and also that Mr. Sterling would be required to pay the entire cost of disconnecting the wires or so moving them as to enable the crossing to be made, including the cost of bringing the work train and crew there.
    I have not, of course, attempted to give the testimony of either of these witnesses in their exact phraseology, but have endeavored to give the substance of their statements as nearly as I can recall them. The issue as to this arrangement, as with all other matters involved in the case, was submitted to the jury, and we may fairly assume that the jury found in favor of the plaintiff, accepting the version given by the plaintiff below. Neither Mr. Smith nor Mr. Sterling says that the payment of the cost of disconnecting or changing the wires so as to afford facilities for the passage of the house across the track was to be a condition precedent to the moving of the house across; nor does Mr. Sterling seem to have been notified by the general manager of the company that he would have to make any deposit of money in advance, or furnish security for the payment of any expense.
    Under these circumstances Mr. Sterling says that he had notified the company that he desired to cross at a certain time; he was somewhat delayed, but finally brought his house to the track of the company along the public highway, and the company being notified, sent a work car with a crew to the point for the purpose of doing what was expected of the company in the matter in aid of this movement of the house across the track. In the conduct of the company at this point, no claim was made that' the plaintiff should have brought his house there in the night time, and the regulation or requirement of the company that the house should be moved only in the night season, if there was any such regulation or requirement, seems to have been waived.
    In passing, I might say that it is our judgment that if such a requirement had been made and insisted upon, it would seem to be not an unreasonable one, both for the protection of the public from any danger which might be involved in the removal or disconnection of the wires at a time when the current was on, and also to avoid injury to the company by the interruption of its travel, and the inconvenience of passengers in their transportation and the right of the public to travel along the defendant company’s track in its cars. Whether or not it would have been a reasonable requirement that a person should make a deposit of estimated expense with the railway company prior to being permitted to cross, is a matter which we are not quite prepared to determine at this time and with regard to which perhaps any expression made at this time by this court would be of little binding weight in view of the fact that under the arrangement made, there was no such requirement as I have stated. We are inclined, however, to the view that at least in a ease of irresponsible persons from whom no collection could be made by ordinary process of law, there would be no impropriety in the railway company insisting upon some security that the expense would be paid and .that the company would not be compelled to render the service or 'incur necessary expense until so secured.
    All this discussion is suggested by the -fact that when Mr. Sterling had brought his house to -the track and the company had seemingly waived other conditions and requirements, and was present with its work car and crew for the purpose of aiding in the moving of the house, the question of payment in advance, or the giving of some sort of security by Mr. Sterling was first raised by some 'employes of the railway company. It was now for the first time insisted that Mr. Sterling should pay the company the sum of ten dollars, or in default of that that he should give some indemnity or security for the payment to them of the expense of disconnecting and raising their wires. lie says that .he was not prepared to do this at that time; he had not that amount of money, and declined to comply with the demand. lie testifies that the noon hour having arrived and the employes of the .traction company refusing to do anything until they had eaten their dinner or luncheon, he unhitched his horses from the trucks which were employed in the moving of the house, and that there was a suspension of action for some little time; subsequently one of the employes of the company got upon the roof of the house, and Mr. Sterling says he supposed they were about to permit him to go across without any .further demand, and that this man had gone upon the roof for the purpose of lifting the wires above the house so that the house could pass under. Thereupon he moved his house forward to such a point that certain skids upon which the house rested projected to some extent across the defendant’s track. Thereupon the man who was upon the house came down, the house and the wagon trucks remaining in that position for the further action of all parties.
    A crowd had gathered by this time; the company demanded the removal of this obstruction from the track, and with this demand Mr. Sterling did not comply; whereupon, after some talk between them, the work car of the company was moved, first with no very great force, against the truck, striking the skids, but afterwards with sufficient force to strike it and do it some damage. The truck which was struck seems to have been broken from the wheels; the house was dropped at one corner, the chimney fell, the plastering was broken in the house and other damage done which, as the witnesses testified, amounted to considerably more than the amount charged in the plaintiff’s petition and sued for.
    This is a general statement of the transaction as it occurred up to that point. Later, at some time in the following night, the house was moved across the defendant’s tracks and some injury was thereby occasioned to the company’s wires. Some hangers were pulled off, or pulled loose, and there was other damage claimed by the company, but the evidence utterly fails to disclose that the plaintiff had any connection with it. Indeed, during the progress of these acts the company, having failed to obtain an injunction from the court in' -time to restrain the moving of the house across the tracks, caused the arrest of the plaintiff, which resulted in his being taken away from the scene of the operations for some hours.
    One of the contentions of'the plaintiff in error, the traction company, is that all the evidence of the plaintiff’s arrest was improperly admitted by the court and that it created a prejudice in the minds of the jury against the defendant company. This has been a very serious question in our minds, and we should not be disposed to hold that this evidence could properly be admitted, unless upon one of two grounds. The plaintiff had charged in the petition that this’ conduct of (the defendant com-party was malicious; there was, however, no urging upon the court that there should be punitive damages, nor did the court in its instructions advise the jury to consider such. The element of malice, then, was of no especial consequence, and we are driven to the other consideration, and that is that there was some evidence that Mr. Sterling was not present at the time that the house was finally moved. The defendant had made a claim for damages against him for injury to its wires and the interruption of traffic, etc. Our judgment is that, under all the circumstances in the placing of the house where he placed it, he was not guilty of any violation of the defendant’s rights, and that the company would not be entitled to recover from him damages by reason of his conduct. The company may have been, or may not have been entitled to damages against some persons for the moving of the house across the tracks in the night season wherein some damage was done to the company’s wires, but there is not a pax-tide of evidence unless circumstantial to connect the plaintiff with that, and we are inclined to think, on the whole, that it was proper enough for him to show the fact that he was under ax-rest and was taken away to a distant point as a sort of an alibi — as showing that he had no part in whatever feature in this transaction might be deemed to be unlawful. There were one or two circumstances connected with this arrest, the admissioxx of which in evidexxce was of very doubtful propriety, but ixnder all the circumstances of the ease we are not inclined to deem their admission so substantial and important as to justify a reversal of the judgment of the court below on that groxind.
    One of the questions concerned the offer of a large number of persons -to go bail for Sterling whexx he was arrested. This evidence should not have beeix permitted to go to the jury ixx our judgment, and it might be reversible error were it not for another consideration which we have given to the whole matter and to which I will refer.
    Thex-e was no evidence by the company as to what would be the reasonable expense of disconnecting these wires or so to move them as to permit the passage of the plaintiff’s house. It is not in evidence that the sum of ten dollars, the price demanded, was a reasonable price fox- the work. There is no evidence that Mr. Sterling was insolvent — that á claim for ten dollars, or even more, could not have been collected from him by legal process. We think, then, that the company was not justified in the demand that it made, and had no right to make such demand at the time, and if the company deemed Sterling irresponsible, he should have been so notified before the time he brought his house to the track and made his preparations for moving across.
    But, however we may deem all these preliminary questions, there can be no possible question that, in the moving of the house, if the company had a right to treat it as an obstruction upon its track, no undue force could be used in removing it. There is no very adequate reason for believing that the company could not have pushed the house back; it was resting upon these trucks with wheels, and it would have required no great force to move the house far enough back to take the skids entirely away from the position in which they were obstructing the passage of cars along the track. No explanation is given of the failure to do this. It is perhaps true, as stated, that there was a crowd present, and the crowd was somewhat threatening in the expressions used, and in its demeanor. There is some conflict on this point, but we may assume that the claims of the company in this respect were well founded. Even this, however, hardly explains to the jury the failure of the company to attempt to move the house by gentler means than it did and without in any way injuring it. The car was butted against the house and did considerable mischief, as I have stated. We think that the jury might fairly have inferred that the company used undue force.
    Now I stated that there is a reason why the error to which I have referred might not bo deemed sufficient to justify a reversal of the case below. We think that, under all the circumstances of this case, the verdict Avas an entirely proper one. The evidence discloses greater damage to the plaintiff: than that which he sued for and for Avhich judgment was rendered. The result of a new trial, should the verdict be set aside, would probably be, and Ave think ought to be, the rendition of the same verdict, and, believing that substantial justice has been done under all the circumstances, we are disposed to allow the verdict and judgment of the court below to stand.

      J. A. & E. V. Bope, for plaintiff in error.

      S. P. Harrison, for defendant in error.


author: Per Curiam.

text:
    AWARDING OF CONTRACTS BY COUNTY COMMISSIONERS.
    [Circuit Court of Sandusky County.]
    The State of Ohio, ex rel Swint, Reinick & Company, v. The Board of County Commissioners of Sandusky County, Ohio.
    Decided, December, 1906.

      County Commissioners — Bids and Bidding — For County Bridges — Mandamus to Compel Award to the Lowest Bidder — Discretion of Commissioners — Contracts which Need not he Awarded to the Lowest Bidder.

    1. It is not improbable that mandamus will lie to compel county commissioners to award a contract for a public improvement to the lowest and best bidder, when th'e statute requires such action on their part, and it appears by undisputed evidence, or concession in pleadings, that one of the bidders is the lowest and best, and that the commissioners are fraudulently colluding for the award of the contract to another bidder.
    2. But where the petition fails to disclose that the contract is one which the commissioners are required to award by public bidding, the fact that they did advertise in regular form for bids with a reservation of the right to reject any or all, does not afford ground for compelling them to accept the lowest and best bid, or for complaint because an amendment was permitted to one of the bids after expiration of the time fixed for their filing, whereby better figures were obtained for the county.
   Per Curiam.

' Error to the Court of Common Pleas of Sandusky County, Ohio.

This is a proceeding by which the plaintiff in error seeks to reverse a judgment of the court of common pleas, sustaining a demurrer to the amended petition of plaintiff and dismissing the plaintiff’s action. The ease is one instituted in the court below for injunction and mandamus.

The plaintiff, in its amended petition, alleges that the relators, together with other persons, submitted bids for the construction of certain bridges in said county, and that the relators were the lowest and best bidders therefor. It is claimed that plans and specifications and estimates were prepared and that the proceedings of the board of county commissioners of said county were taken under Sections 795 to 800, inclusive, of the Revised Statutes ; that notices were published for four weeks in a newspaper published and of general circulation in said county, soliciting such bids, in pursuance of said plans and specifications, for each of said bridges separately, and with a provision in said notices that bids would.be received up to twelve o’clock noon on the second day of March, 1906. The plaintiff says that relators filed, in due form, within the time named in the notice, a sealed bid in all respects as required by the notice published and by the statute and in accordance with the said plans and specifications, agreed to furnish materials and do the required work upon all said bridges for the sum of $709.08.

The amended petition alleges further, among other matters, that at the time specified in said notice the said board of commissioners opened and read the bids and that the said board of commissioners, together with the county surveyor, tabulated the same and found -and declared the bid of the relators to be the lowest and best bid, but adjourned for the noon hour without awarding the contract,- that at a later hour of the same day the said board of commissioners reassembled for the purpose of taking futher action in the matter of awarding the contract.

The amended petition further alleges that the bid of another party, known as the Hughes Brothers, was of like character with that of the relators, but was for the sum of $929.07; and that during the adjournment of said board of commissioners and after the opening of the bids, and before the reassembling of the said board, the said Hughes Brothers, acting in collusion with certain members of said board of county commissioners, added to their bid and proposal the following sentence: “If the said board awards the said Hughes Brothers all the said bridges we will allow a reduction of fifteen per cent, from the total amount stated in this bid.” It is further alleged that said Hughes Brothers and certain members of said board illegally colluded and fraudulently conspired in the mating and procuring of said change and alteration in said Hughes Brothers’ bid, and that said change and alteration were made after twelve o’clock on the second day of March, .1906, and after all the bids herein mentioned and described had been opened and read by the said board of commissioners, and that said change and alteration were contrary to the terms and conditions prescribed in said notice by the said commissioners and contrary to and in violation of law; that said reduction in price was made after the bids had been opened and read, and after the relators had been ascertained to be the lowest bidders, and after said commissioners and Hughes Brothers had full knowledge that relators were the lowest and best bidders, and was made in fraud and violation of the relators’ rights in the premisés.

The plaintiff alleges the intention of said board to enter into a contract with said Hughes Brothers for furnishing of the work and materials for said bridges and that they will do so unless restrained by the order of the court. Based upon these and other facts mentioned, the plaintiff asks for a writ of mandamus against the said board commanding it to award its said contract to the relators, and also that said board be enjoined from entering into any contract with said Hughes Brothers. The demurrer to this amended petition is upon the ground that it does not state facts constituting a cause of action, and that said facts do not entitle the relators to the relief asked. The estimated cost of the contemplated structures is not stated in the amended petition, except that as to each of the bridges it is less than $1,000. Copies of the notice and of the relators’ alleged bids are attached to said amended petition and made a part thereof.

By the filing of a demurrer the allegations of the amended petition are, of course, to be taken as true, including the averment that some of the commissioners colluded with Hughes Brothers as to the alteration of their bid, and that the bid .of relators wa® the lowest and best bid among those submitted. The notice published by the commissioners contained an express reservation of a right “to reject any or all bids.”

We have no doubt, under the facts admitted by the demurrer, as to the right of a tax-payer of the county to an injunction to restrain the commissioners from awarding the contract to ■the Hughes Brothers after the refusal of the prosecuting attorney to institute such suit. There is here, however, no allegation either that the relators are tax-payers or that the prosecuting attorney has been requested or has refused to institute such proceedings for an injunction. It seems to be conceded by both parties that the question now pending before our court involves only the sufficiency of the facts alleged by the relators to entitle them to the writ of mandamus compelling the county commissioners to award to them‘the contract.

It has been generally held that the courts will not, by mandamus, interfere with the discretion of the commissioners and like bodies, in determining as to which among several bidders for a contemplated improvement is the lowest and best bidder. These cases, however, so far as we are advised, have not. involved the consideration of such facts as are herein disclosed, and it is not improbable that, in a case where, under the statute, the commissioners are compelled to award a contract for an improvement to the lowest and best bidder, if it should appear by the undisputed evidence, or concession in pleadings, as here, that one of the bidders was the lowest and best, and that the commissioners were fraudulently colluding with another to defeat the statute, the court might interfere by mandamus.

But does this amended petition disclose a case in which the commissioners were compelled to let the contract or contracts for -the construction of these bridges upon competitive bidding? As already stated, the estimated cost of the proposed structures is not given, although it is said to have been, as to each of said bridges, less than $1,000. But in Section 798, Revised Statutes, it is provided that—

“When the estimated cost of any * * * bridge or bridge sub-structure or of making any addition 1 hereto or repair thereof, does not exceed $200.00, the same may be let at private contract without any publication or notice thereof.”

Hal De Ban, for plaintiff in error.

M. W. Hunt, for defendant in error.

The pleadings nowhere aver that these bridges were not of the class so specified in the statute — that is to say, bridges of an estimated cost not to exceed $200; and the bids of the relators indicate that no one of the bridges was to cost the county upon such bidding as much as $200.

Upon this state of facts we fail to discover that there was any requirement of the statute that the contract should be let to the competition of bidders at all. If the county commissioners saw fit to invite offers from contractors, it was their privilege so to do. The action .taken by them, so far as disclosed by the amended petition, was entirely voluntary and it was within the power of the commissioners when so acting to reserve to themselves the right to reject any or all bids, as in terms they did. ^With this reservation, neither the relators nor any other bidder had a right to insist upon the acceptance of a bid, and after the opening and inspection of several bids, the commissioners might, if they chose, permit any amendments of such offers tendered them, so as to obtain the best figures for the county.

These views, of course, dispose of the questions as to the right of the relators to either injunction or mandamus, or both. We find no error in the conclusion reached by the court below, and the judgment will be affirmed.


text:
    PROSECUTION FOR SELLING MILK BELOW STANDARD.
    [Circuit Court of Hamilton County.]
    George Diersing v. State of Ohio.
    Decided, January 17, 1907.

      Criminal Law — Adulterated ‘Milk — Prosecution for Selling — Insufficient Evidence to Connect Owner with Sale — Driver of Wagon Misnamed in Affidavit — Agency.
    The admitted sale of milk which was below standard, from a wagon belonging to the defendant and from cans whicli contained the supply he had delivered to his customers, does not justify his conviction of selling milk below standard, where the evidence fails entirely to show that the boy who made the sale was authorized to sell milk, or had ever sold any before, but that ho sold the milk on this occasion without the knowledge of the owner, while temporarily in charge of the wagon, and did not account to the owner for the money received therefor.
    Swing, J.; Giffen, J., and Jblee, P. J., concur.
    George Diersing was arrested, tried and convicted before M. Muller, a justice of the peace in the city of Cincinnati, on a warrant sworn to by John J. Kinney, Assistant Dairy and Food Commissioner of Ohio. The offense charged in the affidavit of Kinney was that said George Diersing did, on the 29th day of June, 1905, through his agent, Joseph Kurrus, sell to said Kinney one-half pint of milk, which said milk contained only 10 63-100 per cent, of total solids, which it is alleged is contrary to the law of the state.
    The evidence is all embodied in a bill of exceptions. The case was taken on error to the court of common pleas, and in that court the judgment of the justice was affirmed. Error is prosecuted to this court to reverse the judgments of said courts. The error relied on is that the evidence is insufficient to sustain the judgments.
    There is no question but that Kinney purchased from a boy who, at the time, was in charge of the wagon of Diersing, a half pint of milk; that Diersing was in the business of selling mill? to customers in said city; that the milk sold to Kinney by this boy was impure and contained fifteen per cent, of water.
    The evidence shows that no such boy by name Joseph Kurrus was ever in the employ of Diersing, but a boy by the name of Webber was in the employ of Diersing, and was in control of said wagon at the time Kinney purchased the milk.
    Diersing testified that he had served his customers, and having some business to transact, left his wagon in Webber’s charge, with instructions to meet him at Third and Walnut streets, in said city, at a certain time; that Webber was not employed by him to sell any milk, never did sell milk for him, and in this instance did not report to him any sale or pay him any money for the sale of milk. The boy Webber ran away shortly after this, and has not been found. There is nothing-in the evidence to disprove the statement of Diersing except the circumstance above referred to.
    We think this is insufficient to sustain the conviction. It was incumbent on the state to prove by clear and convincing-evidence that the boy was the agent of Diersing for the sale of this milk. There is nothing unreasonable in what Diersing says about this boy. He was employed about his place to wash cans and take care of his horses; never had sold any milk for him; came to town that day to buy some things at the store; did not authorize him to sell any -milk, and he did not report to him that he had sold any milk. No other sale was shown to have been made by this boy at this time or at any other time. It is fairly shown that the milk belonged to Diersing; it was sold out of his cans and out of his wagon. Pie says that he came to town with 35 gallons of milk; had served his customers and there was probably 2 gallons left in the cans. The mere fact that the boy in charge of his wagon and his milk sold the milk does not of itself prove by clear and satisfactory evidence that the boy was authorized to sell in the absence of other evidence showing sales by the boy for Diersing or other direct evidence that Diersing authorized him to sell. Diersing- says he never authorized him to sell any milk; that the boy never did sell milk for him and he never employed him to sell milk. The boy could not bind Diersing, unless Diersing- -authorized him to sell, and such authority is not shown in a clear and satisfactory way by showing a single sale by.the boy, especially when weighed in connection with the evidence of Diersing which seems to be clear, reasonable and satisfactory.
    The judgments of the court of common pleas and of the justice of the peace should be reversed, and Diersing discharged, for the reason that said conviction is not sustained by sufficient evidence. ,

      A. H. Bode, for the plaintiff in error.

      Chas. F. Williams, for the state.