text:
    APPEAL FROM OVERRULING OF MOTION TO DISSOLVE ATTACHMENT.
    Circuit Court of Hamilton County.
    Williams v. McCartney.
    Decided, July, 1907.

      Attachment — Motion to Dissolve Overruled hy Magistrate — Procedure on Appeal to the Common Pleas — Section 6494.
    Where property is held by a justice of the peace under attachment and an appeal is taken from the overruling of the motion to dissolve the attachment, the proper procedure under Section 6494 is for the common pleas to determine within three days whether the action of the justice in overruling the motion was right and the decision with the original papers returned to the justice to be entered by him on his docket as the final determination of the motion.
    Swing, .T.; Gotten, J., and Smith, J., concur.
   This was an action before a justice of the peace in attachment. After the attachment was made the- defendant moved to discharge the attachment, which motion the justice overruled. Thereupon the defendant appealed the question to the court of common pleas. This may be done under Section 6494, Revised Statutes. This section provides that the question as to whether the judgment of the justice was right may be taken to the court of common pleas, where it shall be heard by the court or a judge within three days; and the decision is to be returned with the original papers to the justice, and is to be entered by him on his docket as the final determination of the motion.

It is quite clear from the provision of this section that all the court or a judge of the court of common pleas can do so when the matter is brought before him is to ascertain whether the provision of the statute has been comlpied with, and if so, to proceed to determine whether the justice did right in overruling the motion, and to transmit his decision to the justice. There is no case pending in the court of common pleas. The case itself is still pending, before the justice. It is not in the court of common pleas for any purpose of a trial, is not to be heard upon evidence, is not subject to motion or demurrer; the only question is whether the justice ruled rightly in overruling the motion to discharge the attachment.

When this matter came into the hands of the clerk of the court of common pleas it was regularly docketed as a ease pending in that coui't; was continued on application from time to time, and finally on motion of plaintiff, McCartney, the appeal was “dismissed, set aside and wholly held for naught” at the costs of the defendant, Williams.

This action was unauthorized, and the plain provision of the statute was disregarded. The court should have either affirmed the rxxling of the justice, or reversed it, and sent its decision together with the original papers back to the justice, which judgment of the court the justice was bound to enter as his final determination of the motion. After this was done, but not until then, the defendant, Williams, would have had the right to go to a higher court on the whole case. But the way the case stands now, Williams having appealed from the judgment of the justice on the motion to discharge the attachment, and there being no question as to the form of the appeal having been proper, there is no final judgment of the justice on this question.

The judgment of the court of common pleas will be reversed, and we suggest that the court proceed in the manner above indicated.


source: Caselaw Access Project

license: Public Domain

text:
    DISCHARGE OF SERVANT BEFORE TERM OF SERVICE HAS EXPIRED.
    Circuit Court of Geauga County.
    Aaron D. Baird v. The Burton Telephone Company.
    Decided, February Term, 1907.

      Master and Servant — Action for Damages 6y Servant — For Discharge Before Term of Service had Expired — Charge of Court as to Burden of Proof — Error—Presumption as to Character of Service Rendered ■ — Review of the Evidence.

    1. in an action for damages by a servant against the master for discharging him before his time of service has expired, it is the duty of the master to aver and prove that the discharge of the servant was for reasonable .cause, and a charge of the court “that the burden of proof rests upon the servant to show that the discharge was without any just cause therefor” is error.
    2. But where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the charge with a view to determine whether under all the circumstances substantial justice has been done, and if it has the judgment will not be reversed for error in the charge.
    Cooic, J.; Burrows, J., and Laurie, J., concur.
    Error to Geauga Common Pleas Court.
   The action below was by Aaron D. Baird, plaintiff in error, against the Burton Telephone Company, defendant in error, to recover damages for breach of contract in wrongfully discharging him from its employ before his term of employment had expired.

Burton was employed by the telephone company as its manager and collector and the evidence shows that he was employed for a definite period.

The first question that is presented is upon whom the burden of proof rests. The court charged the jury as follows:

“If you find in this case by a preponderance of the evidence that the plaintiff and defendant entered into a contract by which he was, as general manager and collector of the company, to perform certain services for the company at an agreed price to be paid him therefor by the company, and that that contract was to continue for a definite period of time; and you find also that before the contract had expired the defendant, without any cause discharged the plaintiff, then the plaintiff would be entitled to recover such damages as he actually sustained by reason of such wrongful discharge.
“The burden of proof in this case rests upon the plaintiff; it is incumbent upon him, to entitle him to recover, to prove that the contract of service was entered into between him and the defendant, and that the defendant, without any just cause therefor, discharged him from such employment and refused to allow him to continue longer thereip.”

Is the charge correct in this regard? We do not think it is. The law would not presume that the servant was derelict in his duty simply because his employer discharged him. Who would know whether or not the servant was derelict in duty better than the master? Tie justifies for the reason that the servant was derelict in duty. It is in the nature of confession and avoidance, and the master must allege and prove the ground of avoidance.

In this case one of the allegations of the petition is that the discharge was without reasonable cause, and by reference to the approved books of pleading this is the usual form of petition . in cases of this character; but that is of no importance. The answer was a general denial, and that only puts in issue the necessary averments of the petition but not the unnecessary averments or such as are merely surplusage.

The duty devolved upon the defendant to specifically aver and prove the cause of discharge; in what respect the servant was derelict in duty. Such was the holding in the well con-, sidered case of Charles B. Linton v. The Unexcelled Fire Works Company, 124 N. Y., 533. The syllabus of that case is as follows :

“The law will not assume that a servant has been derelict in duty simply from the fact that his employer has discharged him before the expiration of the term of employment, and in an action by him for a breach of the contract of employment, upon proof that he was discharged while engaged in the performance of the contract, and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal.
“A general or specific denial in an answer controverts only material allegations, or such facts as the plaintiff would be compelled to prove to establish his cause of action.
“In such an action the complaint set up the contract of employment and alleged that plaintiff entered defendant’s employ under it; that before its termination defendant, without right or cause, discharged him. The answer admitted the contract, denied the breach, alleged that plaintiff was discharged for cause, and separately specified twelve acts of plaintiff in alleged violation of the contract. Both parties gave evidence tending to sustain the allegations in their respective pleadings, and in addition thereto defendant offered to show other acts of misconduct and unfaithful service on the part of plaintiff not alleged in its answer. This was, upon objection, excluded. Held: No error.”

In the opinion it is said^:

“The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof under proper allegations that he was discharged while engaged in the performance of the contract and before his term of service had expired the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense- confesses the contract and the discharge, but avoids the cause of action by showing new matter which, by the command of the statute, must be pleaded (Code Civ. Pro., Section 500; Code Pro., Section 149; McKyring v. Bull, 16 N. Y., 297). Any other rule, as was said by this court in the case cited, would ‘lead to surprises upon the trial, or to an unnecessary extent of preparation.’ A general or a specific denial controverts only ‘material’ allegations or such facts as the plaintiff would be compelled to prove to establish his cause of action (Griffin v. Long I. R. R. Co., 101 N. Y., 348, 354; Fox v. Turner, 17 N. Y. S. R., 666). It does not put at issue immaterial averments, because the code does not require that they should be denied (Section 500). The language of the statute is that the answer ‘must contain a denial of each material allegation of the complaint controverted by the defendant, ’ etc. That the plaintiff was discharged before the contract had expired was material. That he Avas discharged without cause AAras immaterial, so far as the complaint AAras concerned, because a reeoArerv could be had without proving it. It was sufficient for the plaintiff to allege a violation of the contract by the defendant. Ilis effort to anticipate and deny any possible defense to his cause of action was surplusage. ’ ’

TV. II. Osborne and N. II. Boslivick, for plaintiff in. error,

Wm. G. King, for defendant in error.

But while there is no doubt about there being error in the charge, was the error prejudicial? We think not. The whole evidence is before us and it conclusively shows that the judgment is right; that the jury could not, at least should not, have rendered any other verdict than it did.

The evidence clearly shows that Baird was not discharged at all but that he left the employ of the company upon his own accord. There is some, little evidence to the .contrary, but it is very slight and not worthy of consideration.

“The court, in every stage of the action, must disregard any error or defect in the. pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.” R. S., 5115.
“An erroneous instruction to the jury is not a ground for the reversal of the judgment where it clearly appears from the record that the party objecting was' not prejudiced thereby.” Berry v. State, 31 O. S., 219; Banning v. Banning, 12 O. S., 437; Fuller v. Coals, 18 O. S., 343; Marietta c& Cincinnati R. R. Co. v. Strader, 29 O. S., 448.

It would be difficult to find a case where this just rule of law could be more appropriately applied.

Judgment of common pleas court affirmed.


text:
    BREACH OF CONTRACT FOR. CONVEYANCE OF REAL ESTATE.
    [Circuit Court of Hamilton County.]
    Alphonse Zutterling et al v. Charles W. Drake.
    Decided, May 18, 1907.

      Election Between Remedies — -Made, When — Specific Performance— Damages — Tender—Breach of Oontract.

    1. An election between remedies can be made but once, and where a plaintiff has chosen to ask for specific performance he can not subsequently maintain a suit for damages.
    2. Where a suit is filed for specific performance, followed on a later date by an action for damages, the election will be regarded as having been made at the time of the filing of the first suit, and the subsequent dismissal of the suit for specific performance by the plaintiff without prejudice, while the action for damages was still pending, does not create a bar to the prosecution of a new action for specific performance.
    Smith, J.; Swing, J., and Giffen, J., concur.
   Under the contract set up in this case, the plaintiffs originally had two remedies for the enforcement of their rights against the defendant. One was an action on the contract for specific performance; the other was a suit at law for damages for breach of contract. They could not assert both.

On April 15, 1902, plaintiff filed a suit in specific performance, No. 123558 in the court of common pleas. Afterwards, on May 26, 1902, they filed an action at law for damages.

The suit for specific performance was dismissed October 6, 1905, “u'ithout prejudice” while the suit for damages referred to above was still pending. Subsequently, on October 9, 1905, a new suit for specific performance was filed by plaintiffs against the defendant, which last suit was tried, appealed to this court, and is this present case.

Defendant claims that this suit can not be maintained, as plaintiffs dismissed their first suit for specific performance.

AVc are of the opinion that on April 15, 1902, plaintiffs made their election between their remedies against the defendant, by bringing their suit in specific performance. Having so elected, this was a bar to any suit for damages they might subsequently file. They could not choose the second time. 7 Ency. Plead. & Prac., page 36'4.

Eugene G. Pociey, for plaintiffs.

Simeon M. Johnson, contra.

Did the dismissal therefore of -the original suit in specific performance ‘‘without prejudice’.’ preclude the plaintiffs from instituting a new suit for like character within a reasonable time, and thus avail themselves of their election already made?

We think it does not have such effect. Dismissal “without prejudice” meant, that the petition of the plaintiffs was not to be unfavorably affected thereby. All their rights were to remain as they then stood. Creighton v. Kerr, 20 Wallace, 8.

Having once elected to bring suit in specific performance, when the same was dismissed “without prejudice” and a similar suit was again instituted, any and all rights and advantage that had accrued to plaintiffs through the bringing of the first suit still remained to them.

On the evidence we are of the opinion that specific performance of the contract entered into between the plaintiffs and defendant should be decreed in favor of the plaintiffs. The defendant himself admits that he made no tender of the deed to the plaintiff, Alphonse Zutterling, but says that he showed the deed to Mrs. Zutterling; and while he denies that the plaintiffs tendered him the notes and mortgage agreed upon under the contract, yet plaintiffs’ evidence is corroborated, tending to show that such a tender was made together with the amount paid by defendant into the building association.

A decree may therefore be taken in favor of the plaintiffs.


text:
    SEDUCTION OF A PUPIL.
    Circuit' Court of Huron County.
    Harry Esley v. State of Ohio.
    Decided, September, 1906.

      Criminal Law — Prosecution under Section I02j — Saving Reference to Intercourse of Teacher with Pupil — Necessary Averments — Proof as to Other Acts than that Charged in the Indictment — -Discrepancy in Testimony as to Day of the Week on which the Offense Occurred — Meaning of the Word “Term” as Used in the Statute.

    1. In an indictment under Section 7024, Revised Statutes, charging a teacher with having sexual intercourse with a pupil, it is not necessary to aver that such teacher and pupil were not husband and wife.
    2. A judgment of conviction of a teacher of music of the crime, under Section 7024, of having sexual intercourse with a female pupil, will not be reversed because the evidence fails to disclose that the term of employment was for a definite length of time, where the fact is that the teacher was employed to give a certain number of lessons at a stated price per lesson, no provision being made as to the time within which the lessons should be given. The word “term,” as used in this statute, was not intended to mean a definite period of time, but the time within which the teacher continues to fill his engagement, and by virtue of his employment has unusual opportunities for such unlawful conduct.
    3. Frequent acts of sexual intercourse between a teacher and his female pupil at times other than that charged in the indictment i'cr such an offense, even acts at a time when the term of employment of such teacher has ceased, and acts outside of the county in which the indictment is returned, if such acts are continuous and consecutive with the act charged, may be given in evidence on the trial under such an indictment as reflecting light on the relations between the parties.
    4. The positive testimony of a witness of an act of sexual intercourse between a teacher and a female pupil, that such act occurred at a certain place on Wednesday, is sufficient to sustain a verdict of guilty, even though the complaining witness testified that no such act occurred at that place except on Sunday. Such testimony will not be excluded as not corroborative of the complaining witness.

      Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to Huron Common Pleas Court.
   Harry Esley was indicted under Section 7024, Revised Statutes, for having sexual intercourse with'Lelia Burrell, it being charged in the indictment that he was her teacher in music, that she was his pupil, and that this sexual intercourse was with her consent and during the time that this relation existed. He was convicted and sentenced^to a term in the penitentiary, and prosecutes error to this court. Various grounds are alleged and urged upon the attention of this court for a reversal.

In the first place it is said that the indictment does not aver that these parties were not husband and wife, and that, since this offense could not be committed if the parties were husband and wife, that fact should be averred. The absence of such relationship is no part of the description of the offense, and it need not be averred, therefore, as a part of the description of the offense. It is true that the statute would not reach a case of this kind if the parties were husband and wife; but it does not follow that it must be averred that they were not husband and wife.

There are various circumstances- that might exist that would prevent a conviction that need not be negatived by the indictment. If, for instance, the defendant were insane, that would be a good defense; that would be a circumstance which, if developed, would show that he had committed no crime; but his sanity need not be averred. Other illustrations might be given.

Though it is not distinctly averred, this indictment discloses the fact that they were not husband and wife. The statute describes the different relationship that is essential to the commission of the crime, a relationship not necessarily inconsistent with that of husband and wife, but one which does not usually accompany the matrimonial relationship — that of teacher and pupil. It is averred here that they stand in that relation to one another — the one being a pupil and the other a teacher; and it also appears that they have different names — the one is the defendant, Harry Esley, and the other is. the pupil, Leila Burrell.

It is also urged that the testimony does not disclose that this offense was committed during such a term of tutelage as is contemplated by this statute. It is said that when the statute was first enacted, it applied only to superintendents or teachers in parochial seminaries and other public institutions, and that, therefore, when it provided that the offense must be committed during the term of engagement of such instructor, it used the word “term” in the sense that it is used with respect to such avocations and such schools, e., a time for teaching having-certain definite limitations — a term that begins at a certain period and ends at another certain period; and that having had that meaning when the word was incorporated into the statute, when the statute was afterwards amended so as to include instructors of females in music, dancing, roller skating and athletic exercises or any branch of learning, the word “term” must be deemed to- have still retained the meaning which it originally had.

'The testimony in this case discloses that the plaintiff in error was a music teacher of the girl against whom this offense -was committed, and that he was employed to give her a term of lessons. According to the testimony of the girl there is some uncertainty about whether the employment was for a full term— whether she or her mother, who seems to have managed the employment, were not at liberty to discharge the teacher at any time even before he had given a term, twenty lessons; but we think the jury was justified in finding from all that was said and done at the time the teacher was engaged and subsequently, that there was an employment in the first instance to give twenty lessons, that these lessons were to be given as often as once a week and under certain conditions, that they might be given oftener, and that the price of fifty cents a lesson was fixed upon the theory that a full term of lessons was' to be given; that the engagement was for that. Now, if they were to be given regularly once a week, a term of lessons would occupy a period of twenty weeks; but if they were to be given oftener, of course, the period would be shorter. It appears in evidence that after about ten lessons had been given they were then given at the rate of two per week and that shortened the time.

Counsel for plaintiff in error urged that, since there is such uncertainty as to the length of a term — the period of time to be covered by a term — it is not the kind of a term meant in the use of this word in the statute. If this contention should prevail it would destroy the statute, or render it ineffectual in so far as it applies to instructors in music and dancing and roller skating and athletic exercises, and the like; at least it would have that effect in most cases, for it is a matter of common knowledge that terms .of lessons of these descriptions mean a certain number of lessons not necessarily given at a certain stated period, and that a term may be long or short, depending upon the frequency or infrequency of the lessons.

We think that a fair and reasonable construction of this statute is, that if this offense were committed during the time that this relationship existed — while one is teacher and the other is pupil; while one has certain opportunities for familiarity and may exercise certain wrong influences, if so disposed —the word “term” should not receive the narrow construction contended for it, but punishment should follow. We hold that the jury were justified in finding that there was a term of employment within the meaning of the statute. ■

The evidence discloses that these persons had been guilty of frequent acts of sexual intercourse. The teacher, the plaintiff in error, was a colored man and a married man. The pupil was a young girl, a white girl under eighteen years of age, apparently a girl of not very strong moral sentiment so far as this particular line of conduct was concerned, or of very strong resolution, and it fairly appears that this man, older than she, went to work deliberately to seduce and ruin her, and that he accomplished his purpose; that their acts of sexual intercourse covered a period of several weeks running through the months of July and August of 1905. The indictment charges the act upon August 18. The testimony having developed a number of acts, the prosecutor was required by the court, on motion of defendant, to elect upon which act he would rely for eonviction, and lie elected to rely upon a certain act testified to by a witness of the name of Reynolds as having occurred some time in July in a certain woods northeast of the city.

The court, in charging the jury, was careful to say to them that they could not convict for any other act of sexual intercourse than that; that they must be convinced by the evidence beyond all reasonable doubt that the particular specified act ' of illicit intercourse transpired. But, in the course of proving the relations that had grown up between these parties, it was shown that a few days after the plaintiff in error had been discharged as the teacher in music of this girl, they met at Cleveland and stayed all night together at a hotel, and there, according to the testimony of the girl, slept together and performed acts of sexual intercourse.

A motion was made on behalf of the prisoner to take this testimony from the jury. The ground of the motion is not stated in the record, but- it is sufficiently apparent, and it is now urged that it was incompetent, upon the ground that these acts occurred after the termination of the term of the employment, and that, therefore, there could not be a conviction for such acts; and also that they occurred in another county than Huron county and that therefore there could not be conviction for such acts.

The court said, in overruling the motion, that there could be no conviction for such acts, but, the jury should understand that the defendant was not being tried for those acts; that for acts committed outside of Huron county, the defendant could not be convicted in this case. On another occasion, when a like motion was made, this was repeated by the court; and ill the charge to the jury they are instructed that they are to consider this evidence only as it may reflect light upon, the relations of the parties.

It is urged by the plaintiff in error that it was riot competent for any purpose, and we are cited to State v. Lawrence, 74 Ohio St., 38, a case recently decided by our Supreme Court. That was a prosecution for having intercourse with a girl under sixteen years of age with her consent. It appears that the defendant in conversation with various people admitted that he had intercourse with the girl at certain times two years later than the time charged in the indictment and after she had reached the age of consent. The court held that it was error to admit this evidence, and the judgment of the trial court was reversed on that account by the circuit court, and the Supreme Court affirmed the circuit court. Judge Price dissents from that proposition but concurs in the judgment. It was concurred in by Shauck, Price and Summers. But that we think is very different from a ease like this where the testimony tends to show a continuous and consecutive line of conduct, running olong day after day, between these parties. We think that the objection to the admissions of the defendant in State v. Lawrence, supra, might well have been sustained on the ground that the time was too remote, it being two years subsequent to the acts charged, and there being no evidence, that the record discloses, tending to .show that the illicit relation had continued along day after day, between these parties. We think that the intercourse within that period.

I will not stop to read or to comment upon the authorities cited to us by the prosecuting attorney, but remark that we think that the great weight of authority and of reason supports the doctrine that, under circumstances like these shown here, si^ch evidence for the purpose for which it was admitted is competent.

The witness Reynolds testified very clearly to the act of intercourse at the time in July, in the woods. It is said that this does not corroborate the complaining witness or the person against whom the offense was committed, because Reynolds testified that this occurred upon a certain Wednesday, whereas the girl testified that she never had any intercourse with the defendant in those woods at or about that time, except upon a Sunday.

If the jury were compelled to rely upon the testimony of the girl as to this act — if the jury were1 basing their verdict upon the testimony of the girl — it might be logical to urge that the girl was not corroborated as the statute requires in a case of this character. But we'have the clear testimony of Reynolds, and Reynolds, under the law, needs no corroboration. The testimony of Reynolds standing' alone would be sufficient to sustain a verdict, unless there was something tending to show that he was not worthy of belief, even though the girl did not testify upon the subject, or flatly contradicted him; but aside from that, we see no very serious matter in the difference in the days of the week testified to by these parties. One or the other may be honestly mistaken about the day of the week. As far as the offense is concerned, the testimony is clear that it occurred and at about that time and place.

8. M. Young, for plaintiff in error.

L. W. Wickham, Prosecuting Attorney, for defendant in error.

We find no error in this record that would justify us in reversing the judgment of the court below and it will therefore be affirmed.


author: AVilron, J.

text:
    CONSTITUTIONALITY OF THE COUNTY SALARY ACT.
    Circuit Court of Montgomery County,
    John L. Theobald v. The State of Ohio, ex rel.
    Decided, July, 1907.
    ■ Constitutional Laxo■ — Office and Officer — Who are Officers — Definitioxi of the Word “Salary" — Change of Compensation during Term of Office Law Regxilating Salaries to he Paid, to County Officers. —Legislative Power — What Constitutes Uniform Operation of a

    1. An “officer,” in the sense in which the word is used in the Constitution of Ohio, is an individual who takes the oath of office and becomes responsible to the public for his own official acts and those of his subordinates.
    2. It is competent for the Legislature to fix the salaries of county officers, leaving it to the county commissioners of the several counties to fix the sum to be paid to deputies, assistants, bookkeepers, clerks and other employes.
    3. A salary is a determined and stipulated sum to be paid for a fixed period. Officers receiving their compensation under a fee system are not salaried officers, and a change in the method of compensation from fees to a salary is not a change which “affects the salary of any officer during .his existing term.”
    4. An act providing that the salaries of county officers shall be fixed under a rule based on population does not fail of uniform operation throughout the state.
    5. The act 6f March 22, 1906 (98 O. L., 89), is not in contravention of Article II, Sections 20 or 26 of the Constitution of Ohio, and is a valid enactment.
    Smith, J. (sitting in place of Dustin, J.) ; Wilson J., concurs in a separate opinion; Sullivan, J., concurs in both opinions.
   The original action was brought by the State of Ohio, by Edward T. Hall, a tax-payer, against John L. Theobald, recorder of Montgomery county, Ohio, to recover from him moneys received from January 1, 1907, to March 31, 1907, as fees of his office, which sum he refused to pay into the county treasury as public money belonging to said county, under Section 6 of an act passed March 22,1906, entitled, “An act to fix salaries of probate judges, county auditors, county treasurers, county recorders, clerks of the court of common pleas and sheriffs, and to provide for the employment and compensation of the clerks, deputies and assistants” (98 O. L., 89). It is claimed by said defendant, that the law requiring such payment by him is unconstitutional.

To this petition a demurrer was filed on behalf of the defendant, which was overruled by the trial court, and judgment rendered thereon, to reverse which judgment this cause is brought to this court.

It is claimed on behalf of the plaintiff in error that the act in question is unconstitutional, because—

1st. It contravenes Article II, Section 20 of the Constitution, which ..provides: ‘ ‘ The General Assembly in cases not provided for in this Constitution shall fix the term of office and compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished”; and

2d. That said act contravenes Article II, Section 26 of the Constitution, which provides, that “All laws of a general nature shall have a uniform operation throughout the state. ’ ’

Upon the first contention we are of the opinion that Article II, Section 20 of the Constitution is not infringed by this act. The act in question makes it incumbent upon the Legislature to fix compensation of all officers, and as this term “officers” is used in the Constitution, we are satisfied that ‘ ‘ deputies, assistants, bookkeepers, clerks and other employes,” are not “officers” as contemplated in the Constitution. An officer is one who is elected or appointed to an office in the state, and the Constitution recognizes that no person can be elected or appointed to an office in the state unless he possesses the qualifications of an elector, and as the subordinates might all hold their positions without being electors, then in the constitutional sense of the word “officer” they would not be such, and the “officer” in question is the individual who takes the oath of office and is responsible for his official acts as well as those of his various employes.

It is therefore within the purview of the Constitution to allow the Legislature to direct the county commissioners to fix the sum to be paid for the compensation of all “deputies, assistants, bookkeepers, clerks and other employes” of said “officer,” leaving it to the Legislature to fix the compensation or salary of the “officer” himself.

Nor do we think the law is unconstitutional because it is claimed it contravenes the second clause of Article II, Section 20 of the Constitution, which provides: “That no change therein shall affect the salary of any officer during his existing term, unless the office be abolished.”

Heretofore the various officers mentioned in this act received their compensation under what was known as the fee system, but it is evident that fees can not be construed as a salary, which is a determined, stipulated sum for a fixed p’eriod, and an examination of the debates of the Ohio Convention of 1851, Yol. 1, page 233, reported by J. Y. Smith, official reporter, shows, that the convention recognized a distinction when this clause was up for debate between an “officer” receiving fees and one receiving-compensation by way of salary. See, also, Thompson v. Phillips, 12 O. S., 617; Gobrecht v. Cincinnati, 51 O. S., 68.

The “officers” mentioned in the act were not upon a salary, but were paid their compensation under certain rules prescribed by the Legislature.

As to the second claim that said act is in violation of Article II, Section 26, that “All laws of a general nature should have uniform operation throughout the state, ’ ’ we are of opinion that the act does have uniform operation throughout tile state. The Legislature simply prescribes the rule by which compensation should be had in various counties. This article in the Constitution does not mean that each officer in each county should receive the same amount of money as salary, but simply that the rules of compensation shall be uniform; and the Legislature having seen fit to base this rule upon population, the exercise of that rule through the various counties of the state must of itself in its action.be uniform. The reason of this is, that the basis of operation is the same, and the result attained by the operation of the rule is the same, although the amount of money in dollars and cents may be different. See Cricket v. The State, 18 O. S., 79.

So long as the rule upon which compensation is based is uni-from throughout the state, it matters not whether in one county of the state the recorder receives more by reason of the increased population, than a recorder in another county receives less by reason of a less population. The compensation belongs to the officer under the act for his services. The fact that there is a limit upon the annual salary, that it shall not exceed a certain fixed sum, does not change the uniformity of the operation of the law, as this also applies to every county in the state.

We are therefore of opinion that there is no error in the judgment rendered below, and the same will be affirmed.

AVilron, J.

(concurring in the opinion of Smith, J.)

As to the purpose of the law: Prior to the enforcement of this act, county officers were paid by fees which they were permitted to charge the public for the performance of their duties. Necessarily these fees were uniform throughout the state, as one citizen could not be charged more than another for the performance of the same public duty. The consequence was that a fee system which would support the offices in a small county afforded an exorbitant compensation to the officers in a large county. It was to remedy this evil more than any other that the act under review was passed.

In the opinion of the Legislature the services of the officers in the larger counties were not commensurate with the fees they were permitted to charge and collect. The policy is now, as it was before, to support the offices by fees charged to those demanding the services, and because the existing fee system affords but a meager support to the offices in the smaller counties, the fees were not reduced. The principal purpose of the act is to divert the excess in the larger counties over and above a fair compensation for services from the officers to the county general fund.

As to the unequal operation of the law: It should not be said that the services of an officer must be valued by the standard of fees alone. The larger duties of the offices are common to all the counties. They must be kept open for' business, requiring the officers’ time; the same reports must be made by all; the same system of bookkeeping must obtain in all; the trust imposed upon the officer is alike in kind, if not in degree. The multiplied fees in the larger counties principally entail more bookkeeping and for this the law in question undertakes to make compensation independently of the officers’ salaries. Of course there is increased responsibility and enhancement of the trust in the larger- counties, calling for increased attention and ability in office; but in the opinion of the Legislature the graded salary is a corresponding compensation.

The salaries are not so unequal under the law as to make unreasonable classification. The glaring inequalities enumerated by counsel are based upon a wrong construction of the statute; as for instance, the salary of the auditor in Auglaize county, estimated on a popualtion of 31,192, is $2,530, not $2,475, and of the auditor in Brown county, based on a population of 28,237, is $2,345, not $1,500, as stated by counsel. The salaries of the same officer in Allen (47,976) and Miami (43,105) are respectively $3,390 and $3,190; and so, correspondingly in all the other counties until the maximum of $6,000 under the law is reached.

In order that the officer may be compensated for each full thousand at the given rate in any fifteen thousand, it is not meant, as conceived by counsel, that the fifteen thousand must be full before he can be allowed the rate per full thousand. Under this interpretation of the law the salaries approach uniformity and equality in a remarkable degree.

As to the proposition that the act authorizes the board of county commissioners to fix the compensation of the officers when it fixes the aggregate to be paid his subordinates for assisting to perform the duties of his office: The Legislature takes absolute control and makes full and final disposition of the entire funds arising from fees in all .of the offices, and this it may do. It prescribes how much shall be paid therefrom to the officer; how much to deputies, assistants, bookkeepers and clerks, and transfers the residue, if any, to the county general fund.

Tn contemplation of the act, the fees no longer attach to the officer, but to the office, and to the extent they are not needed to support the office they are devoted to the. general good.

It can not be said that the officer is entitled to claim the fees as perquisites belonging to him by virtue of his office. The Legislature has always bestowed or denied them at pleasure. Nor can it be claimed in reason that it intended to make an appropriation to the officer as part of his compensation, when it authorized the board of county commissioners to fix the compensation, in the aggregate, of deputies, assistants, bookkeepers and clerks. The law expressly negatives such intent, when it makes it a crime for the officer, directly or indirectly to receive, or appropriate any part of the allowance to his own use and benefit. It would be an anomaly to charge an officer with a crime for receiving his own.

The law recognizes the necessity for an additional working force in some of the offices of some of the counties. The existence of the necessity and its extent are questions of fact local in their character, and should therefore be referred to some local tribunal for - determination.

. The Legislature has conferred upon the board of county commissioners in each county the power to judicially determine these questions. The selection of the tribunal must be left to its wisdom. If, under the law, an officer should make application to the board for assistance in the prescribed way, and be refused, then should he be physically unable himself to perform all the duties of the office because of their magnitude, the default would be not his, but that of the board. It must act with legal, not arbitrary, discretion, in the bestowal or refusal of the fund.

The public have a right to expect and demand a reasonable and proper regard, both by the officer and the board, for the amount of labor necessary to be performed in each office.

The aggregate sums allowed in the various counties-are not required, or expected, to be uniform. As is said by counsel, they should be governed by environments — cost of living, the prevailing wage and the like. It is to the interest of the officer, and the public as well, that the compensation should be no greater than the wages paid for like services in the particular community to be served, and this may be as variant as the judgment of the boards in the different counties. It must not be overlooked that the officer fixes the compensation of each particular employe, as well as the number of employes.. With that the board has nothing to do, save that it may limit the aggregate that may be thus expended. If not left to it, to whom should be left the determination of the amount? Manifestly the Legislature could not determine it. If left to the officer the tendency would be to expend the whole of the fee fund in this way, defeating the purpose of the law.

I am of the opinion, therefore, that the act does not violate either Section 20 or Section 26 of Article 11 of the Constitution, and the judgment should be affirmed.


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    SERVICES BY PROSECUTING ATTORNEY OUTSIDE OF HIS OFFICIAL CAPACITY.
    Circuit Court of Hamilton County.
    George H. High, a Tax-payer, v. State of Ohio, on Relation of Hiram M. Rulison, Prosecuting Attorney for Hamilton County, Ohio, et al.
    Decided, June 22, 1907.

      Error — Can not he Prosecuted hy a Tax-payer, When — Recovery from. County Treasurers of Interest Received hy them on Puhlie Deposits — Not Within the Official Duty of the Prosecuting Attorney — Reasonable Compensation for Such Services — Sections 1277 and 1278a.
    1. Where an action, brought on relation of the prosecuting attorney on behalf of the tax-payers of the county, is prosecuted to a final judgment favorable to the county, it is not competent for a taxpayer to prosecute error to the allowance made by the trial court to the prosecuting attorney for the services therein rendered.
    2. Services rendered by a prosecuting attorney, in an action for recovery from county treasurers of amounts received by them from banks as interest on county deposits and appropriated to their own use, are services outside of his official capacity; and where such an action results in the recovery of $215,000, which has been turned into the county treasury, it is not an abuse of discretion for the trial judge to fix the allowance to the prosecuting attorney for the services so rendered at $7,500.
    Smith, J.; Giffen, J., and Swing, P. J., concur.
   The original actions in the court of common pleas were brought by the State of Ohio, on relation of Hiram M. Rulison, Prosecuting Attorney of Hamilton County, and Louis A. Ireton, Legal Council for Hamilton County, against R. K. Hynicka, John II. Gibson and Tilden R. French, as treasurers of Hamilton county, to recover for the use of said county about $215,000, which it was claimed, said treasurers had received and appropriated to their own use, as interest upon deposits of county funds from various banks in the city of Cincinnati, ' said actions being brought under Section 1277 of the Revised Statutes.

These actions resulted in judgments being obtained against each of the defendants for the amounts claimed, which sums were paid to the prosecuting attorney and by him turned into the treasury of the county, satisfactions of said judgments being filed in each case. After the rendition of said judgments the prosecuting attorney filed a motion for compensation for services in said cases, the court fixing an aggregate amount in all three cases at $7,500, under Section 1278a.

Prior to the entry being made on said motion for allowance the 'trikl court, on application of the plaintiff, in error herein, allowed said plaintiff in error to be made a party defendant. Said plaintiff in error thereupon filed a motion for a new trial on the question of compensation, which was overrated, and he now brings this suit as plaintiff in error against the defendants in error to reverse the action of the court of common pleas in its allowance of compensation to the prosecuting attorney, the defendant in error herein.

At the outset, upon an examination of the record and the sections under which said action was brought (1277 and 1278a of the Revised Statutes), the court is of the opinion that this suit can not be maintained by the plaintiff in error.

Under those sections the original actions were brought by the State of Ohio on the relation of the prosecuting attorney and legal counsel, in behalf of all the tax-payers of Hamilton county, and was prosecuted in their behalf. Final judgments were secured in behalf of the state of Ohio, and the object sought by the tax-payers through the prosecuting attorney was attained.

Having, therefore, no substantial right or interest in the litigation, the suit having been brought and determined in favor of the tax-payers, and as a proceeding in error is an entirely independent action from the original case, there remained nothing to be done but for the court under the statute to fix the compensation, if any, to the prosecuting attorney for his services.

The plaintiff in error was not, therefore, a proper party in the court of common pleas. The statute does not provide for the prosecution of error by a tax-payer where suit is brought on relation of the prosecuting attorney at the request of a taxpayer and the suit is successful; nor does the order made in favor of Mr. Rulison affect a “substantial” right of the plaintiff in error as understood by Sections 5115 and 6707 of the Revised Statutes.

But if this is not correct, the court is of the opinion that no error was committed by the trial court in the allowance to the • prosecuting attorney in the three actions brought. It is clear under the statute relating to compensation- for such services that the amount so fixed is within the sound discretion of the trial court; and this discretion can not be reviewed unless thére is an abuse of that discretion. It is urged that the services rendered by the prosecuting attorney were in the line of his duty as an official. The trial court found that many of the services connected with the bringing of the suits and the collection of the amounts were performed as a part of his duties as prosecuting attorney, and that others were not. The language used in Section 1278a, Revised Statutes, is “that for all services rendered by the prosecuting attorney under the provisions of Section 1277, in which the state is 'successful,’ the court shall allow the prosecuting attorney reasonable 'compensation for his services, and proper expenses incurred.” It can not be claimed in these cases that the state was not ‘ ‘ successful; and if ‘ ‘ successful” that the court should not allow the prosecuting attorney reasonable compensation. Upon an examination of the record setting out the services rendered, we are of the opinion that he was “successful” in these actions, and the services were rendered by him outside of his official capacity. The allowance made by the trial court is not excessive. The discretion of fixing the allowance is- lodged solely in the court itself, who has the right to determine the amount either from extrinsic testimony or from its own good sound judgment, and as this discretion was not abused by the court, its action can not -be reviewed on error.

Judgment affirmed.


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    COMPENSATION OF COUNTY SURVEYORS AND THEIR DEPUTIES.
    Circuit Court oí Wood County.
    Elmer L. Spafford v. State of Ohio.
    Decided, March 4, 1907.

      County Surveyor — Can not Charge Extra Time for Services Rendered ■ — Actual Services, not Estimates, Control Ms Compensation — May Charge Full Rate per Diem for Deputies — Though Employing Them at a Lower Rate — Wor7c on County Ditch Improvements — Criminal Laio — Prosecution of County Surveyor for MaTcing out and Presenting False Claims — Effect of Comment on Matters not in Evidence —Section J/36Ji-62a.

      1. Where a prosecuting attorney, in his closing argument to the juryf in a case where the guilt of the defendant is not free from doubt, j refers to a paper he supposed had been put in evidence, but oni objection and investigation it was found had not been so introduced, \ and his remarks are such, when taken in connection with the con- ¡ tents of the document, as would tend to create an impression of f the guilt of the defendant on the minds of the jury that would '< not likely be removed by a mere charge by the court and a request by the prosecutor to disregard the incident, the subsequent, conviction of the defendant should be set aside and a new trial granted.
    2. A county surveyor performing services for the county does not come within the purview of. Section 4364-62«, Revised Statutes, fixing a day’s work for mechanics and laborers at eight hours; and when on a calendar day he devotes more than eight hours to such services, he can not charge the county for his excess time, as hours of another day, in addition to his regular per diem.

    3. A county surveyor is entitled to payment at the rate of four dollars per day for all the days of service of his deputies, though he may not have been required to pay his deputies at that rate, or for all their days of service.
    4. A .county surveyor is not authorized to estimate and charge the county for the days of his service upon a given ditch or other improvement upon the basis of a certain number of days or hours per mile, but his charges must be based on the days of his actual service.

      Per Curiam.

      Haynes, J., Parker, J., and Wildman, J.
    Error to Wood Common Pleas Court.
   In December, 1906, an application was made to two members of this court on behalf of the plaintiff in error for a stay of execution of the sentence herein requiring his imprisonment in the Ohio penitentiary, so that said sentence might not be carried into effect pending the hearing of the cause by the court at its next session, to-wit, in April, 1907.

After hearing and considering the statements of counsel as to the alleged errors and the questions involved in the record, it seemed to the two judges that the questions were so important and their proper solution so doubtful that it would not be expedient or just to permit sentence to be carried into execution until the court could have an opportunity to hear full argument and give careful examination to the questions involved, and, therefore, the usual order in such cases, i, e., for a stay of execution, was made.

Since then the prosecuting attorney has applied to the full membership of this court for an order setting aside said order of suspension, and we have been asked to make such full investigation of the case as is usual upon final hearing, to the end that the prosecuting attorney may have the advantage of our views upon certain questions involved, in the prosecution of other eases, civil and criminal, pending in the Court of Common Pleas of Wood County, Ohio; and, upon his suggestion that it may be of assistance to him in expediting said business if we will express our views upon such questions now, instead of waiting until April, we have acceded to this request and have made a careful examination of the record, and have given consideration to the arguments of counsel and the authorities by them cited, besides many other authorities bearing upon the question argued, and other questions that seem to be involved in the case. We can take no action in the way of either affirming or reversing the judgment herein, until the cirexxit court as such, sits in April, bxxt we may foreshadow the action that it now seems to us we will be required to take at that time, though the opinion now expressed is not final, bxxt we will hold oxirselves at liberty to change or modify the same if persuaded that we should do so upon further argument.

We shall now discuss all of the questions presented or examined, but it may be understood that we have found nothing in this record that seems to us to require a reversal of the judgment, except as herein specifically pointed out. It is made apparent by the result of the trial that one of the important questions of fact, if not the chief question that was submitted to the jury for its determination, of which a proper solution was doubtful, was. whether the plaintiff in error, Spafford, had knowingly and corruptly made excessive charges for the services of himself and his assistants as engineers upon a certain ditch, to-wit, the ITutson joint ditch, an improvement promoted by AYood and Hancock counties, upon which Spafford, county surveyor of AYood-county, was employed as engineer.

The prosecution was under Section 7075, Revised Statutes, and the specific charge in the indictment was, in substance, that' Spafford had made out and presented for allowance a bill which included a charge for the services of his assistant, W. Ii. Wood, for twenty-one days at the rate of $4 per day, making $84, whereas AYood had served but eleven days, on account of which Spafford was entitled to $44 and no more, so that his bill was excessive and fraudulent to the extent of ten days, or $40. It appwuvs that the same bill in which the aforesaid charge was made on account of the services of AYood upon this ditch contained a charge for forty-five days at $4 per day, for services performed by Spafford, and forty-five days at $4 per day for services of another assistant (all upon the same ditch), so that the whole charge was for one hundred and eleven days, or $444.

By the testimony of Wood, it was shown that he had kept a, private memorandum of the time, of his service upon this ditch, and that while he had worked on fifteen calendar days thereon, he had reckoned some of said days as fractional, or parts of days, whereby the total number of days of service, or working days, were by him computed as eleven days only. AVithiu the period comprised in this service, i. e., between November 25, 1903, and January 12, 1904, Wood performed other services of like character for Spafford, but on other jobs or improvements, and early in December, 1903, he made a report to Spafford of the days he had worked on different jobs in November, 1903; and likewise early in January, 1904, he made a report-for December, 1903, but it is not clear from the testimony of Wood, nor from any evidence in the case, that by any accounts, reports, statements, settlements or other means, Wood made it plain to Spafford, before said account was presented by Spafford, that any one of the fifteen calendar days he reported that he had worked on this ditch were reckoned by him, or should be computed as fractions of days instead of full days, or that he reported the number of hours that he worked on any of the so-called fractional days. The importance of this will be pointed out farther on.

It is shown by the undisputed testimony of several witnesses that while at work on the Hutson ditch, Spafford and his assistants were crowded and hurried by their work, so that they often started out upon their woi'k quite early in the morning and did not quit until late in the evening, and sometimes ivould not reach home until long after nightfall, and, besides, they felt obliged to, and did work thereon Sundays and nights, so that if Spafford might lawfully reckon the days of service of himself and his assistants according to the statutory rule provided for laborers and mechanics, that is, at eight hours for a day (as his counsel contended he might properly do) many of the calendar days upon which they were so employed would have yielded from one and a fourth to one and three-fourths of such work days; and it is not apparent that by such method of computation less than one hundred and eleven days were so devoted to this work by Spafford and his assistants.

Again, it was contended on behalf of Spafford that in employment of the character of that in which he was so engaged, the law reckons as a full day every calendar day upon which he performed any service, even though the number of hours of such service might not equal those required to make up a full work dají- in the cas.e of a common laborer or a mechanic; and there was testimony tending to show that there was a custom among surveyors and engineers to charge on that basis, and we have been cited to some authority tending to support that view of the law.

Again, it was testified by Spafford that on works of the character of the Hutson ditch, it has been the custom of the office for many years to reckon the time of the engineer thereon at a certain number of days per mile, a rule and method which he claimed resulted in a fair average, and which was made necessary by the impossibility of keeping an exact account of the time employed on a-ny certain improvement, especially in the office work, because' of the constant interruptions to which the engineer and his assistants were subjected in being required to drop one job or improvement to take up another for a time; and it appears that, charging according to such alleged custom (as he says he did) the charge for one hundred and eleven days was not excessive. Spafford also testified (and in this he was supported by other witnesses) that the work on account of which the one hundred and eleven days were charged was not all completed on January 12, 1904, wh;n the bill was presented, but that a large part thereof was performed subsequently to said date; and he says that at the time the bill was presented it was made known to the commissioners that it covered not only the services already performed, but an estimate of the time that would be required to complete the necessary preliminary engineering work for the ditch; and he declares that though too many of the one hundred and eleven days may have been attributed to Wood in -his account and estimate, this error was immaterial, since one hundred and eleven days were not excessive or an overcharge for the services of himself and his two assistants engaged upon the work, even though the rule as to a certain number of daj^s per mile were not applied. All these claims and contentions on behalf of Spafford were disputed by the state, and evidence was introduced by the state in opposition thereto, and all were properly submitted to the jury upon the question whether the charges were in fact excessive and unauthorized.

The court refused to charge the jury that the statutory rule of eight hours constituting a day applied to the engineer or his assistants, but charged them that any custom in that behalf shown by the evidence to prevail amongst engineers and surveyors should control. Upon this subject we have to say generally that we find no error in the statement of the law by the trial judge; and we can not say that the jury was not fairly warranted in finding Spafford guilty of knowingly making charges in some degree excessive and unauthorized, and therefore fraudulent; but, as the evidence stood at its conclusion, it is apparent that there was room for honest doubt in the minds of the jury as to whether Spafford had willfully perpetrated the fraud and crime charged, and, if so, whether he had presented a bill that was known to him to be excessive, and which was, therefore, fraudulent for as much as $40, or for as much as $35.

We think it probable that the jury was brought to resolve this doubt against the accused by either or both of two circumstances, to-wit: First, a failure of the jury to appreciate the importance of determining the exact amount for which the bill might be deemed fraudulent, and therefore to note the uncertainty of the evidence before mentioned as to the information possessed by Spafford of the number of working days devoted to this work by Wood at the time Spafford presented his bill; and, secondly, by an unfortunate reference of the prosecuting attorney in his closing argument, to matter not in evidence, but which the prosecutor apparently supposed was in evidence. It is to be remembered that the guilt of the accused must be shown by the evidence produced at the trial, and the evidence must show guilt so cleax?ly as to produce ixx the minds of the triers a moral certainty of guilt admitting of xxo reasonable doubt thereof. While, as before stated, we are xxot persuaded that the proofs in the ease do not xxxeet these requirements so as to warrant the conclusion of Spafford’s guilt of soxne offense, we are persuaded that they do xxot warrant his conviction of knowingly presentixxg a bill that was excessive to the extent of $40, or for as great an amount as $35.

The whole charge axxd the only charge against the plaintiff in error, and the only matter the - jury had a right to consider, was that respecting the twenty-one days on account of the services of Wood on this particular ditch, and as set forth in the particular account wherein it appears. Whatever other offenses of like character on the part of Spafford the testimony may show him to have committed, and however much the amounts involved therein, no part thereof could properly be added to the amount that was fraudulent in the bill of January 12, 1904, or could have been considered legitimately in this case, except as the same may have reflected light upon the knowledge, motive or intent of Spafford in making up and presenting this bill. Looking at the evidence bearing on this subject, we find, as before stated, that Wood worked on the ditch on fifteen different calendar days; that he so reported to Spafford, but we fail to find that he reported to Spafford that some of these days were but fractional work days, or that he had not worked enough hours on any of said days to justify their being reckoned as whole work days. It might be fair to infer that Wood did make this known to Spafford if this were a civil action, and the probability that he did so, in such a ease, might be strong enough to support a verdict based thereon; but that he did so, is not shown with the degree of certainty required to support a conviction in a criminal case.

A significant thing noticeable in the testimony of Wood, to which allusion has been made, is the fact that while he states that he reckoned his services on some of these calendar days at a half a day, three-fourths of a day, etc., he does not in any instance state how many hours he devoted to the work for which he made the charge of only a partial day, but he seems to be quite unable to do so; and, for aught that appears, he may have 'worked "enough hours on every one of those so-called fractional days to have justified a charge therefor as full days. As was properly held by the trial judge, how much, or how little, Wood charged to or received from Spafford for his services, is wholly immaterial and aside from the real question; for Spafford was authorized to charge $4 per day for the services of Wood even if he was required to pay less per day to Wood; and likewise, Spafford was authorized to charge at that rate for what amounted to a day even if Wood reckoned it at less than a day and charged accordingly. The importance of care and exactness in fixing the amount, if any, for which the bill should be found to be fraudulent, may not have been, and it seems to us probably was not, understood and appreciated by the jury; and it may have been, and probably was, regarded as a matter of indifference. As a matter of fact, it involved in this ease all the difference between a felony, punishable by imprisonment in the Ohio penitentiary, and a misdemeanor, punishable by a fine and imprisonment in the county jail for a limited period, or both. No emphasis was by the charge of the court placed.upon the importance of determining the exact sum that might be deemed fraudulent. The record discloses that the jury, after about two hours deliberation, returned a verdict of guilty, but in their verdict they stated no sum; and that upon being informed by the trial judge that the verdict was therefore imperfect, and that they must again retire and insert the amount for which they found the bill fraudulent (but without any suggestion of the importance of this matter, or that different amounts might involve different consequences) they thereupon again retired, and in a very few minutes returned into court with the full amount stated in the indictment, to-wit, $40, inserted in the verdict.

We do not criticize the action of the court herein, but merely call attention to what occurred as something suggesting the thought and the apprehension that the question of the amount involved may not have received the careful consideration at the hands of the jury that its importance merits, or that it wrould have received had the jury appreciated the consequences. However this may be, we repeat that we are of the opinion that the evidence does not make it sufficiently certain that Spafford knew" that the w"ork done by AVood on the fifteen days reported was not sufficient to justify a charge for fifteen full days; and if he proceeded upon the assumption or belief that there were fifteen full days, or that the time of service by Wood exceeded twelve and a quarter days, or that the work comprehended enough time to justify a charge for so many days (assumptions not irreconcilable with the evidence), he could not have been guilty of making and presenting a bill that was false to an amount as great as eight and three quarter days, or $35, and therefore he could have been guilty of no more than a misdemeanor. To repeat, as at present advised, we are of the opinion that a conviction of a felony can not be said to be supported by the evidence with that degree of positiveness required in criminal cases; and as it is not in our power to amend the verdict or reduce the penalty, we feel -bound to reverse the judgment and remand the case for a new trial, unless, on further argument, we x shall be brought to a different view of the matter.

In this connection we again call attention to the statements of the prosecuting attorney made to the jury in his closing argument. The record recites the incident as follows:

‘ ‘ Thereupon counsel proceeded to argue said cause to the jury, and the prosecuting attorney in his closing argument and near the conclusion thereof made the following statement to the jury: ‘ That the bills presented by the defendant were false and fraudulent is shown by the fact that he paid $626 back into the county treasury. ’
“Mr. Baldwin interrupting, said to the court: ‘We object to this statement of the prosecutor. There is no such evidence in the case.1
“The prosecuting attorney replied: ‘There is such evidence in the case,’ and he thereupon took from the trial table a paper marked ‘Exhibit B-3’ and held the same in his hands before the which had been identified by the witness George Spencer and jury, and further said, ‘Here it is.’
“Mr. Baldwin said: ‘That paper was not admitted in evidence. ’
“The prosecuting attorney replied: ‘ It was and was sworn to by George Spencer.’
“The court then said: ‘I don’t think that paper was admitted in evidence, or that anything was testified to relating to the refunding of any money-.’
“The prosecuting attorney replied: ‘I am very certain it was, . and it will be so found in the stenographer’s notes.’
“Thereupon the court directed the stenographer to examine the notes. This the stenographer did, occupying several minutes, during which time no other proceedings were had. And after such examination the stenographer reported to the court that said paper marked ‘Exhibit B-3’ had not been admitted in evidence.
“Thereupon the court instructed the jury as follows: ‘The statement made by the prosecuting attorney to the effect that the defendant paid a certain sum of money back into the county treasury was improper; no such evidence is before the jury, and you are instructed to disregard that statement. ’
“The prosecuting attorney resuming his argument said to the jux'y: ‘I thought that.paper was iix evidence. It seexns I was xxxistaken about it. You may disregard what I said about it.’ Thereupon the defendant excepted.”

We are assured that the prosecuting attorney xxxade the stateíxxejxt in entire good faith, believing that this xnatter had been property brought before the jxxry, and we see no reason to doubt this. Nor do we see what more could well have been done by hinx, or the coxxrt, to correct the xxxischief probably done by his xxnwarranted statement; bxxt whether what he did was done in good faith or from improper motives, is not a qxxestion of so mxxch importance as the qxxestion xvhether his action had a daxxxaging effect upon the cause of the prisoner; and this involves the fxxrther question, xvhether sxxclx effect was xnerety temporary and was dissipated bjr the admonitioxx of the court axxd the request of the prosecxxtiug attorney that the jury should disregard xvhat he had said. The vital qxxestion is, xxot “Did the prosecuting attorney willfxxlly commit a fault, ’ ’ bxxt, was soxnething done that prevented the accxxsed from having a fair trial. It has already been pointed oxxt that the whole question of the guilt or innocence of the accused as presented to axxd coxxsidered by the jxxry, probably turned upon their decisioxx as to whether he acted ixx good faith in presenting the bill in qxxestion. That beixxg txnxe, and the evidence bearing thereoix xxot being free froxn doubt, it is not only conceivable, but altogether probable that a statexxxent to the effect that he had acknowledged his bad faith in the transaction by paying back part of what he had thxxs obtained froxn the county, together with the exhibition of a paper in which it was said this acknowledgment of his guilt appeared, woxxld sink deep into the xninds of the jury and would tend to resolve all doubts on that qxxestion against the prisoner. The prisoner, or his coxxnsel, had xxo xxxeaxxs of defense against the alleged evidence thxxs prodxxced aixd exhibited, though, if the paper had been regxilarly offered and admitted in evidence, it might have been explained so as to make it quite harmless. Under the circumstances, counsel for the prisoner could only protest and object to the court, and the court could only say to the jury that the paper and statements were to be disregarded. But, after all, it seems to us that the jury would naturally reflect that the existence of such a paper was manifest, and that counsel for the prisoner had simply succeeded in preventing them from examining it, and in procuring a direction of the court that they should not give it consideration, and that the failure to bring it properly before them must have been due to some oversight upon the part of the prosecuting attorney. Is it not probable that such direction to the jury was entirely fruitless; that the mischief was of a character that could not be corrected by such means? If so, it is manifest that the prisoner did not have a.fair trial, and that he should be granted a new trial without respect to the question whether the prosecutor acted in good faith or -bad faith.

Tn the making up of a jury for the trial of a criminal case, extreme care is taken to procure for such service men who have minds free from impressions supposed to be produced by talking with witnesses about the facts of the case. Why is this done and required if it may be suposed to be possible to remove such impressions by a simple request that the jury shall disregard what they have so heard? And if such impressions can not be thus obliterated, why should it be thought that like impressions made by the solemn assertions of the state’s representative, who is supposed to stand for the protection of the prisoner against wrong as well as for the enforcement of the rights of the state, can be effaced by the mere request of them to banish the matter from their minds, though (as here) the statements stand unrefuted ? In many cases, perhaps in most cases, it is held by the reviewing courts that it will be presumed that such admonitions to disregard matters coming to the attention of the jury by im- ■ proper admissions of evidence afterwards ruled out, by improper statements, and the like, have been regarded by the jury and have been effective; but it is not always so held; and where a statement as damaging as this would naturally be, is made by the prosecuting attorney in his closing argument, and upon a point so vital to an issue of fact, the proper solution whereof is left in so much doubt by the legitimate evidence in the case, we think it would be unsafe to assume that the mischief has been cured by the cautionary remarks of the court, and that such assumption would not be supported by the experience of mankind. As said by Judge Smith, in the first circuit, in the course of an opinion in the case of McGuire v. State, 3 C. C., 551:

“We can readily see that the introduction of some kinds of incompetent evidence might be of such a character as greatly to prejudice a defendant, and that in such cases its withdrawal would not rectify the injury done, and that it would be proper for a new trial to be granted under such circumstances.”

In Scripps v. Reilly, 35 Mich., 371, an action for libel, the judge at the trial permitted counsel in closing the case, to read, against objections, papers not admissible in evidence, and which were, not afterwards offered in evidence. This was held to bé such an abuse of discretion ¡vs to require the granting of a new trial; and it was further held, that the error was not cured by a subsequent instruction to the jury to disregard said papers.

In Marlin v. Orndorf, 22 Iowa, 504, the counsel were permitted to read and comment upon testimony taken at the former trial between the same parties; and this was held to be error sufficient to call for a reversal, and that the error was not cured by a charge to the jury not to consider such testimony.

The statutes of Ohio, and many other states, permitting a defendant in a criminal case to testify on his own behalf, provide that, if he does not do so, no reference to such failure to testify shall be made by the prosecuting attorney; and it is held in many cases that such prohibited reference to the failure of the prisoner to testify constitutes error requiring a reversal, and that such error can not be cured by any admonition of the court to the jury to disregard such reference.

Many other illustrations might be given of matters improperly, or even accidentally brought to the attention of a jury during the course of a trial, or during their deliberations, resulting in a mistrial, even where no person connected with the trial could be said to be at fault.

In the case of Angelo v. People, 96 Ill., 209, counsel for the people commented on the omission of the defendant to testify in his own behalf, and it was held that that was ground for a new trial, although the counsel was stopped by the court and the jury were instructed to disregard such comments; and in the course of the opinion, this was said -.

“It is true, that when stopped by the court, he said it was inadvertently done, and the jury were directed by the court to disregard that portion of his argument. ' Notwithstanding what he said, and the direction of the court to disregard it, who can know what effect it may have had on the jury in forming their verdict! * # * * Where such things are done, whether intentionally or inadvertently, it may make an impression on the minds of the jury that nothing can remove. And who can say that this inadvertence may not have produced the verdict of guilty?
“We think the plaintiff in error has not had a fair trial, and the judgment of the court below must be reversed and the whole cause remanded. ’ ’

And in the case of Smith v. State, 44 Tex. Or. App., 137 (68 S. W. Rep., 995), counsel for the state, in his closing speech to the jury, commented upon the atrocious character of the crime and declared that while he did not believe in mob law as a rule, that its enforcement in a case like this would be justifiable, and continued: “I will be doing my duty as a citizen and a father if I can induce this jury to hang the defendant as high as Hainan and then go home and tell my wife what I have done, and hear her remark, ‘Well done, thou good and faithful servant, you have performed your duty.’ ”

These remarks were objected to at the time and the court reprimanded counsel and instructed him to desist from -any further remarks upon that subject, which he did, and the court at the request of the appellant instructed the jury not to regard said remarks; but the reviewing court, while recognizing the rule that ordinarily, a charge of the court instructing the jury to disregard improper remarks made in argument will cure the error, declared that this was a case where the rule would not apply, because it seemed to the court that the admonition of the trial judge to the jury to disregard such remarks, could hardly eradicate from the minds of the jury the effect of such appeal made to them by counsel for the state.

But illustrations need not be multiplied. If the evidence were so clear as to compel the belief, beyond a reasonable doubt, of the bad faith of Spafford in presenting the bill, we would be disinclined to regard this episode as one probably resulting in prejudice to his rights, and we are not prepared to say that, in. any event, standing alone, it would require a granting of a new trial. But, under the circumstances of this case, we believe the trial judge should have regarded and given Aveight to it on the motion for a new trial as a circumstance that probably had some influence in producing the verdict of guilty.

It seems to us that the trial judge was more confident than the circumstances AA^arranted that his direction to the jury, that they should disregard A\diat the prosecutor had said about the exhibit not in evidence, was effective, and eradicated the impression made by the action and remarks of the prosecutor. In our opinion the uncertainty in the evidence touching the information possessed by Spafford of the number of work days devoted by Wood to the Hutson joint ditch at the time the bill in question was made out and presented, coupled with the probability that such remarks by the prosecutor had a damaging effect, prejudicial to the cause of the accused, and the further fact that the conviction was of a felony, instead of a misdemeanor, requires the reversal of this judgment and the granting of a new trial; and, holding these views, of course the motion to set aside the order suspending the execution of sentence should be, and accordingly is, overruled.

Later, to-wit, April 27, 1907, in the same case, before the same court, Judge Parker stated as follows:

“The case of Spafford v. State of Ohio has been submitted to this court upon the briefs formerly filed Avith and considered by the court at the time a motion was submitted by the prosecuting attorney to set aside the order suspending the execution of sentence, and we have been furnished with no further light from counsel either in the way of briefs or oral argument, so that we assume, that if they are not content with our decision made at that time they are at least not prepared to point out any new considerations that should influence the court to change the views then entertained and expressed.

Baldwin & Harrington, for plaintiff in error.

,T. E. Ladd, contra.

“We examined the case very carefully at that time and we have had no reason since upon reflection or upon any suggestion that has been made to us to doubt the correctness of our views then expressed, and therefore the judgment of the court of common pleas will be reversed upon the grounds stated fully in the opinion handed down at that time. ’ ’


text:
    LICENSING OF VEHICLES.
    Circuit Court of Franklin County.
    Lewis L. Pegg et al v. City of Columbus; J. F. Linton v. City of Columbus; and Columbus v. Badger, Mayor.

    Decided, March, 1907.

      Municipal Corporations — Use of Streets — Regulation of, lyy Vehicle Licenses — Exemptions from Payment — Can not he Based on Non-Residence — Ordinance—Constitutionality of — Uniformity of Operation — Injunction.
    The term “use” in an ordinance regulating the use of vehicles on the streets of a municipality and requiring payment of certain license fees therefor, has reference to continued or repeated use; and the ordinance applies to all who use the streets with the vehicles described whether residents or non-residents of the municipality.
    AYilson, J.; Dustin, J./and Sullivan, J., concur.

      M. E. Thraillcill, for Lewis L. Pegg et al.

      Paid Jones, for city of Columbus.

      J. A. Godown. for J. F. Linton.

      G. S. Marshall, C. E. Carter and E. L. Weinland, City Solicitors, for defendants.

       Affirming in part Pegg v. Columbus, 5 N. P. — N. S., 436, which see for a full statement of the issues.

   The ordinance in question, No. 21927, is “to license and regulate the use of the streets of the city of Columbus, state of Ohio, by persons who use vehicles thereon,” etc. Bearing in mind the definition of “use” as a continued and repeated practice, we are of the opinion that the ordinance applies to those who, in the above sense, use the vehicles described. This construction would apply to non-residents as well as residents, and must be settled in each case according to the facts.

The other questions are disposed of as we think in the ease of Marmet v. The State, 45 Ohio State, 63.

As the above construction will not give a common relief to all the plaintiffs in Pegg v. Columbus, the decree in that case as in the others must be for the defendants.