author: MARVIN, J.

text:
    CRIMINAL LAW — ELECTIONS—ERROR—EVIDENCE—JURY.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Winch, Henry and Marvin, JJ.
    Michael F. Ryan v. State.
    1. Expert Evidence of Check Marks as Standard op Comparison Admissible-
    In a prosecution under Rev. Stat. 7061 (Lan. 10783) against a judge of a. primary election for criminally placing a “V” on the duplicate certified list of registered voters of his precinct opposite the names of certain electors not voting, cheek marks shown to have been made by him opposite the names of those voting may be made a standard of comparison by an expert writing witness to show that those marks opposite those not voting were made by the same person. The court having charged that the-marks used as a standard of accused’s mark must be established beyond a. reasonable doubt, a verdict by the jury finding the defendant guilty will not be disturbed.
    2. Prosecutor’s Reply that Accused Had Absconded not Misconduct.
    A prosecuting attorney is not guilty of misconduct in his closing argument in a criminal trial, having been specially challenged by counsel for the accused to say why the case against the defendant had not been tried before, by replying that the accused absconded from the county and ran away from the police, if this was the fact. '
    3. Opportunity to Read Newspapers Commenting on Criminal Trial Does not-Imply Misconduct on Part op Jury.
    The fact that a newspaper having a large circulation in the locality of a criminal trial contains large display type comment on the trial, is sold by newsboys on the streets and in the vicinity of the courthouse during the progress of the trial, does not necessarily justify a reviewing court in indulging in the presumption that the objectionable articles were read1 by any of the jurors trying the case. Misconduct by the jury from opportunity to do so will not be implied.
    4. Objection to Juror Comes too Late after Verdict.
    Knowledge of an attorney as to the disqualification of a juror in a criminal' trial will be treated as knowledge on the part of the client. Hence, objection to the fact that a juror was not regularly summoned nor his: name drawn, from the jury box which was known to counsel although-forgotten by him comes too late after trial and verdict.
    5. Objection to Grand Juror as Petit Juror a Ground for Challenge.
    Objection to a juror in a criminal trial that he was a member of the grand jury returning the indictment upon which accused was tried comes too late after verdict, it being merely a cause for challenge, the failure to-do which justifies an assumption by the court of its being waived.
    6. Grand Juror Competent as Juror in Criminal Trial,
    Under Rev. Stat. 7206 (Lan. 10960) requiring the concurrence of twelve of the fifteen grand jurors in finding a true bill, no presumption arises that any one member thereof must have formed an opinion of the guilt, or innocence of the accused, precluding a fair and impartial trial by a member of that grand jury, especially , where more than a year has-, elapsed between indictment and trial and the jurors recollection theresf has become wholly indefinite.

      7. Court Mat Poll Jury in Criminal Trial.
    The court, under Rev. Stat. 7314 (Lan. 11069) providing for polling the jury, in criminal proceedings, may properly call the names of the jurors, there being no provision in the statute requiring polling to be done by the clerk in criminal matters.
    8. Failure to Object to Alleged Irregularity.
    Where, from a true transcript of the proceedings of a criminal trial, it appears that but eleven names were called by the court in polling the jury upon its verdict of guilty, and no objection is made that the full number was not called, the verdict will not be set aside on review for such alleged irregularity.
    [Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]
    ERROR to Cuyahoga common pleas court.
    Dawley & Meals, for plaintiff in error.
    S. V. McMahon, prosecuting attorney, and W. A. Carey, assistant prosecuting attorney, for defendant in error:
    Cited and commented upon the following authorities: Blackburn v-State, 23 Ohio St. 146; McGill v. State, 34 Ohio St. 228; Hayward v.. Calhoun, 2 Ohio St. 164; Eastman v. Wight, 4 Ohio St. 156; Parks v.. State, 4 Ohio St. 234; Kendrick v. Beppard, 23 Ohio St. 333; Watts v.. Buth, 30 Ohio St. 32; Beck v. State, 20 Ohio St. 228; George v. Surry f 1 Mood. & Malk. 576; 3 Phillips, Evidence 1323; State v. Tice, 30 Ore-457 [48 Pac. Rep. 367]; Paisley v. Snipes, 2 Brev. (S. C.) 200; Phoenix Nat. Bank v. Taylor, 113 Ky. 61 [67 S. W. Rep. 27]; Strong v. Brewer, 17 Ala. 706; Thompson v. Davitte, 59 Ga. 472; Fogg v. Dennis, 22 Tenn. (3 Humph.) 47; Jackson v. Van Dusen, 5 Johns. 144; Travers v. Snyder, 38 Ill. App. 379; 1 Wigmore, Evidence Sec. 693; 6 Enc-of Ev. 427-434; Bragg v. Colwell, 19 Ohio St. 407; Calkins v. State, ' 14 Ohio St. 222; Burdge v. State, 53 Ohio St. 512 [42 N. E. Rep. 594]; Myers v. Toscan, 3 N. H. 47; State v. Shinborn, 46 N. H. 497 [88 Am. Dec. 224]; State v. Hastings, 53 N. H. 452; Carter v. Jackson, 58 N. H. 156; Wilson v. State, 2 Ohio St. 319; Ide v. Churchill, 14 Ohio St. 372; Cantwell v. State, 18 Ohio St. 477; Pittsburgh, Ft. W. & C. By. v. Probst, 30 Ohio St. 104; Buck v. Mills, 8 Dec. Re. 246 (6 Bull. 665) ; Meyer v. Shroeder, 16 Dee. Re. 309 (10 Am. L. Rec. 309) ; Cooper v. State, 16 Ohio St. 328; Youmans v: Caldwell, 4 Ohio St. 71; Mack v. Great Western Dispatch, 2 Circ. Dec. 22 (3 R. 36); Meyer v. Cad-walader, 49 Fed. Rep. 32; People v. Feld, 149 Cal. 464 [86 Pac. Rep. 1100] ; People v. McCoy, 71 Cal. 395 [12 Pac. Rep. 272]; People v. Stokes, 103 Cal. 193 [37 Pac. Rep. 207]; People v. Chin Non, 146 Cal. 561 [80 Pac. Rep. 681]; Sheehan v. Hammond, 2 Cal. App. 371 [84 Pac. Rep. 340]; People v. Findley, 132 Cal. 301 [36 Pac. Rep. 472];
      Gay v. Torrance, 145 Cal. 144 [78 Pac. Rep. 540] ; United States v. McKee, 3 Cent. Law Jo. 258; Mergentheim v. State, 107 Ind. 567 [8 N. E. Rep. 568]; State v. St. Glair, 16 Nev. 207; People v. Gaffney, 14 Abb. Pr. (N. S.) 36; Commonivealth v. Haines, 15 Phila. 363; Farrer v. State, 2 Ohio St. 54; Commonwealth v. Chauncey, 2 Ashm. 90; People v. Williams, 24 Cal. 31; Roe v. Taylor, 45 Ill. 485; Carter v. State, 77 Tenn. (9 Lea) 440; State v. Robinson, 20 W. Va.. 713 [43 Am. Rep. 799]; 12 Ene. PL & Pr. 552, 561 and foot note 3; People v. Kramer, 117 Cal. 647 [49 Pac. Rep. 842]; Rich v. Taylor, 20 Minn. 378; Boyd v. Slate, 82 Tenn. (14 Lea) 161; Johnson v. Root, 2 Cliff. 108 [13 Fed. Cas. 798]; Gleason v. Strauss, 5 Kan. App. 80 [48 Pac. Rep. 881] ; State v. Dumphey, 4 Minn. 438; State v. Dugan, 52 Kan. 23 [34 Pac. Rep. 409]; Commonwealth v. White, 147 Mass. 76 [16 N. E. Rep. 707]; Commonwealth v. White, 148 Mass. 429 [19 N. E. Rep. 222]; Manning v. Railway, 187 Mass. 496 [73 N. E. Rep. 645] ; Johnson v. State, 27 Tex. 758; Wiest v. Luyendyk, 73 Mich. 661 [41 N. W. Rep. 839]; Commonwealth v. Nash, 135 Mass. 541; Peacham Y. Carter, '21 Vt. 515; Rineheardt v. Potts, 7 Ired. (N. C.) 403; State v. Godwin, 5 Ired. (N. C.) 401 [44 Am. Dec. 42]; Omaha Fair & Exp. Assn. v. Railway, 42 Neb. 105 [60 N. W. Rep. 330]; Pitts. C. & St. L. Ry. v.. Porter, 32 Ohio St. 328; Devere v. State, 3 Cire. Dec. 249 (5 R. 509) ; Austin v. State, 42 Tex. 355; Kent v. State, 42 Ohio St. 426; Youle v. Brown, 49 Ill. App. 102; Mareen v. People, 190 Ill. 81 [60 N. E. Rep. 102]; State v. Murphy, 13 Wash. 229 [43 Pac¡ Rep. 44].
   MARVIN, J.

Michael F. Ryan was indicted, tried and convicted under Rev. Stat. 7061 (Lan. 10783), which reads:

“Whoever shall, from the time any ballots are cast or voted until the time has expired for using the same as evidence in any contest of election, wilfully and with fraudulent intent, inscribe, write, or cause to be inscribed or written, in or upon any poll book, tally sheet, or list, lawfully made or kept at any election, in or upon any book or paper purporting to be such, or upon any election returns, or upon any book or paper containing the same, the name of any person not entitled' to vote, at such election, or not voting thereat, or any fictitious name, or, within the same time, shall wrongfully change, alter, erase, or tamper with any name, word, or figure contained in such poll book, tally sheet, list, book, or paper; or falsify, mark, or write on such poll book, tally sheet, list, book, or paper in any manner whatsoever, such act or acts being done with intent to defeat, hinder, or prevent a fair expression of the will of the people at such election, shall be imprisoned in the penitentiary not more than three years nor less than one year. ’ ’

The charge in the second count of the indictment under which count and no other, the jury returned a verdict of guilty, is that Michael F. Ryan on September 7, 1905, at a primary election of the republican party held in pursuance of the statute, in precinct A of ward 20 in the city of Cleveland, in Cuyahoga county, Ohio, which election was held for the selection of candidates for county and municipal offices to be filled at an election to be held on November 7, 1905, in said city and county; that at this primary election said Michael F. Ryan acted as a judge of election, that he was duly and legally authorized and empowered to so act; that in said city, registration of voters was required by law; that while so acting as such judge, he did then and there unlawfully, and feloniously mark the duplicate certified list of registered electors of said precinct by placing a ‘ W ” distinctly in the column under the words “voted at primaries,” and in a line with the names of some forty-three electors, which names are given in this count of the indictment, which said names appeared in said duplicate certified list of registered electors. This count of the indictment charges that said persons did not vote at said primary election, that such marking was done with the intent then and there to cause it to appear that the persons, before whose names this mark was made, had voted at said election, there being in the ballot box of said precinct forty-three ballots so marked as to indicate the persons for whom they were east, in excess of those lawfully cast at said election, this with intent to defeat and hinder a fair expression of the will of the people at such primary election. One Percy A. Secor was jointly indicted with said Ryan, he being charged as having acted as a clerk at said primary, and with doing the same things charged against Ryan.

To this indictment a demurrer was filed by Ryan, which was overruled by the court and this is assigned as error. The indictment is not copied in this opinion, but no reason was given, either in oral argument or in brief of counsel why the indictment was not sufficient, nór has the court, after careful consideration, been able to discover any reason why this demurrer should have been sustained.

It is further alleged that error was committed in the progress of the trial by reason of the overruling of a motion made by counsel for Ryan, that the jury be discharged by reason of the publication of certain articles in regard to the jurors, which articles were published while the trial was in progress, in the Cleveland Press, a daily newspaper, shown to have a very large circulation in the- city of Cleveland, where the trial was being conducted. The attention of counsel for the defendant was called to one of these articles by the trial judge, and it was shown that articles of a similar character to that to which attention was first called were published in at least two different editions of said Press during the progress of the trial. These several articles had headings in very large type, the several letters being at least one inch long and the heading making two lines extending at the top of .the page, across six columns of the page and reading:

"Attempt made to bribe jurymen in Ryan case.”

Immediately under this there is printed in large type extending •across two columns the words "Prosecutor McMahon and Judge Bab-cock put in possession of the facts and indictments may follow. Gamblers haunt court room where the election fraud case is on trial, — : ■Jurymen called out of bed and offered money to vote a certain way.”

Below these words are cuts purporting to be likenesses of three ■of the jurors, with the name of each. These cuts extend across two '■columns of the paper printed one above the other and each being the .likeness of a man’s face, each occupying about two inches perpendicular space, then in large letters the words "Men offered bribes,” followed by the names of six of the jurors. Following this is an article stating that one juror was visited at his home Sunday night by a man who ■ said there was money for any juror who would vote right; that another was called out of bed at ten o’clock Monday night and asked if he would consider a proposition to vote a certain way. This article is made up of statements of a similar character and covers a double column space of some ten or twelve inches perpendicular, the same article .or practically the same, together with the same pictures was printed .in another edition of the same paper on the same day, under the heading: "Drop case is demand,” the letters being about an inch and a half in length.

Upon hearing of these publications counsel for the defense filed a motion for the discharge of the jury, based upon the fact of these publications and in support of the motion filed the affidavit of J. P. Daw-ley, Esq., one of the attorneys for the defendant, in which he alleges the publication of the articles already spoken of in this opinion, annexing as exhibits, copies of the papers containing the publications, that said newspaper has a very wide circulation throughout the city of Cleveland, and in Cuyahoga county and elsewhere; that it is extensively sold by newsboys upon the public streets of the city of Cleveland, and around and in the vicinity of the courthouse where said •trial was progressing; that his attention was called to it by the court who had one of the papers in his possession, and that several were being circulated and commented on in the courtroom where said case was being tried.

The affidavit further states that said paper goes into the homes of those who are serving upon the jury in the court, as well as into the homes generally of the people of Cleveland, that several of the jurymen .sitting in- the case on trial reside in the city of Cleveland, and are general readers of the daily papers. He further says the case has attracted great and universal interest in the community, and that, in his opinion, these newspaper articles cannot but be prejudicial to the interests of the defendant. No other evidence was introduced for or against the motion.

As has already been said, this motion was overruled, and this •action of the court is alleged as error.

That these articles are of such a character as to tend to prejudice whoever should read them, whether juryman or not, against Byan, ■does not admit of a doubt, that the headings and pictures were intended to, and would, attract attention to them cannot be doubted. It follows of course that their publication was naturally calculated to interfere with the due administration of justice, because of the danger that they might be read by jurors and their minds be biased thereby. But, in the absence of any evidence that any one of the papers fell into the hands of, and was read by, any juror, other than is contained in the affidavit referred to, we are not prepared to say that the motion to discharge the jury should have been sustained. Our attention has been called to but one ease in which it has been held sufficient ground for a new trial, that newspaper publications, calculated to affect the judgment of the jury, were made and circulated about the place of trial during its progress without also directly showing the reading of ■the same or comment thereon by some juror. Meyer v. Cadwalader, 49 Fed. Rep. 32. This was a ease in the circuit court of the United 'States, Eastern District of Pennsylvania, in which it was shown only that the objectionable publications were made in leading journals and .-scattered broadcast throughout the community where the trial was in progress; the court held this to be a sufficient showing that the articles had been read by the jury.

Judge Acheson uses this language in the opinion at page 36: “It is idle to say that 'there is no direct evidence to show that the jury •read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated at the close of each session of the court, and it is incredible that, going out into the community, they did not see and read these newspaper publications. ’ ’

This case is cited in the opinion in the case of West Chicago St. Ry. v. Grenell, 90 Ill. App. 30. At page 47, the court, after quoting the words hereinbefore quoted from the opinion of Judge Acheson, says, “But in the present case it is not necessary to resort to the presumption indulged in by the court in the case cited,’’ the opinion then going on to show that the newspapers were traced into the hands of jurors and that at least two of the jurors read one of the articles.

Authorities are numerous to the effect that the reading by jurors of newspaper articles prejudicial to one ■ of the parties is ground for new trial, but we do not feel justified in indulging in the presumption which Judge Acheson seems to have indulged, in that the objectionable articles were read by the jurors, or any of them. We feel it our duty rather to presume that the jurors were mindful of their duties and that they did not, in violation of such duties, read the newspaper publications about the case while it was on trial before them. We think it should not be said there was misconduct on their part simply because a popular newspaper gave them the opportunity for misconduct. There was no error, therefore, in overruling this motion.

On the motion for new trial it was shown that certain other publications of the same newspaper were made during the progress of the trial, equally prejudicial to the defendant, and circulated in the same way. We do' not find that the action of the court, in overruling the motion for a new trial on this ground was in contravention of any provision of Rev. Stat. 7350 (Lan. 11114), which provides, for what causes a new trial may be granted. The first ground named is for “Irregularity in the proceedings of the court, jury, prosecuting attorney, or the witnesses for the state, or for any order of the court, or abuse of discretion, by which the defendant was prevented from having a fair trial.” The second is for “Misconduct of the jury, or of the prosecuting attorney, or of the witnesses for the state.” What has already been said applies as well to the action of the court on the motion for new trial on the ground now being considered, as to its action in refusing to discharge the jury on the former motion.

It is further urged that a new trial should have been granted because it was shown, on the motion for new trial, that one M. J. Oviatt, who wab one of the jury before whom the ease was tried, was not regularly summoned as a juror, nor was his name drawn from the jury box as provided by law. The further fact is shown, too, that one of the attorneys representing the prisoner and who took part in empan-nelling the jury, bad full knowledge of all tbe facts relating to Oviatt’s disqualification. Indeed, this attorney had shortly before the empan-nelling of the jury, tried a case in the same court where Oviatt sat as-a juror, and had made a motion for a new trial on the ground that. Oviatt had not been summoned as a juror nor his name been drawn from the bos. It is true at the time when this jury was being empan-nelled the attorney overlooked the fact that he knew of this disqualification of Oviatt, but he states in his affidavit that he really knew all about it, and it was simply a matter of forgetfulness for the moment which prevented his calling attention to it at the time. Knowledge on the part of the attorney is to be treated as knowledge on the part of his'client in a matter of this sort. It is only where there is want of knowledge that the court will hear a party complaining of such disqualification. In the case of McGill v. State, 34 Ohio St. 228, this language is used by the court in its opinion on page 235:

“The rule is clearly settled by the cases cited below, that the disqualification of a juror sitting at the trial of a cause, either civil or criminal, which the exercise of due diligence would have disclosed, is not a sufficient ground for setting aside the verdict and granting a new trial. * * * The party moving for a new trial on such ground must show that he exercised such care and diligence before the juror was sworn, or he will be held to have waived all objections to his competency, which the employment of reasonable diligence would have shown to be well founded.”

The court was right in refusing to grant a new trial on this ground. . •

Another complaint made is that one Colson who was empannelled as a juror in this case, was a member of the grand jury which found the indictment upon which the prisoner was being tried. Colson was examined by the prosecuting attorney as to his qualifications; no question was asked of him by counsel for the prisoner, nor was any question asked of him by anybody as to whether he was a member of .the grand jury which found the indictment. He was asked if he had talked with anybody about the case, and he answered, “not for a year.” He was asked if he talked with anyone a year ago about it,., and he answered, “I presume I did.” He was asked if he remembered that conversation, and he said that he didn’t. He said that he did not know Mike Ryan, and that he did not know whether the talk which he had concerned the guilt or innocence of Ryan. He was then asked the question: “Do you remember definitely that you did have a conversation about this case a year ago?” To which he answered, “No, ■sir. I may have talked about it at that time, but would not say that I did.” He was further asked if he had formed or expressed an opinion concerning the ease, and he answered, ‘ ‘ I have not, no, sir. ’ ’

As has been said these questions were all asked by the prosecuting attorney. The fact is, that the indictment was found something more than a year before the trial was had,.and it is by no means impossible, and perhaps not improbable that the juror had forgotten this particular case. His answers indicated that he had some indefinite recollection about the case, but that it was wholly indefinite.

It is urged that since he was a member of the grand jury which returned the indictment he must have at that time formed an opinion as to the guilt or innocence of the prisoner. This is not necessarily so. A grand jury consists of'fifteen men, and it is provided by Rev. Stat. 7206 (Lan. 10960), that “At least twelve of the grand jurors must concur in the finding of an indictment,” — so that there may have been at the time this indictment was found, three of the grand jurors who had formed no opinion either way, as to whether there was evidence sufficient to warrant the indictment. For aught that appears Colson may have served upon the grand jury and have been one of three who never made up his mind or formed any judgment as to the guilt or innocence of the party indicted. The statute makes the fact that one was a member of the grand jury which found the indictment, a ground of challenge of such person as a juror upon the trial, but where no challenge is made and no question on this subject is put upon the examination of the juror touching his qualifications, it is too late .to raise this objection, after the trial and verdict. In the case of Beck v. Btate, 20 Ohio St. 228, it is said in the opinion at page 230:

“The objection taken, after trial, to the juror * * * is thus declared by statute to be a ground of challenge only, and as such it may be waived. The court below was justified in regarding the failure to interrogate the juror, or to make inquiry into the subject-matter of this cause for challenge, before the jury was sworn, as a waiver of •the same.”

We find no error then in the action of the court in this regard.

Another complaint made is that there was irregularity in the manner in which the verdict was received by the court. The facts in this regard are, as appears from the affidavit of Gertrude Kelley, a stenographer : That she was present at the time the jury returned its verdict and that a true transcript of the proceedings connected therewith is attached to her affidavit. It will be noticed that she does not say •that a full transcript is attached, but that what is attached is true. ’The transcript to which she refers shows that the court proceeded to ■call the roll of jurymen, and then she gives a list of eleven names only, with the word ‘‘here” following each of such names. Later it appears from her said transcript that the court inquired in these words: ‘ ‘ Gentlemen of the jury, is this your verdict?” That the answer was: “It is.” The court: “So say you all, gentlemen?” Answer: “Yes, sir.”

Counsel for the prisoner then asked for the polling of the jury and there follows an inquiry made of the same eleven men whose names ■appear as having been called by the court.

It is said, first, that the court should not have called the jury, that this is required to be done by the clerk. This is a mistake. In criminal cases the statute, Rev. Stat. 7314 (Lan. 11069), does not provide that the clerk shall call the jury. But, it is said, that only eleven men were called. This does not affirmatively appear, although it does appear affirmatively that eleven names were called. No objection appears to have been made by 'anybody that the full number was not called. The transcript of the journal entries shows that on December 26, 1906: “The jury duly empannelled and sworn having heard all ■of the evidence adduced by the respective parties, the arguments of ■counsel and the charge of the court, retired to their room in the custody of the court constable, and after due deliberation they do, upon their oath, find, return and say, as follows”: Then follows the verdict, and then these words: ‘ ‘ Thereupon the court discharges the jury from the further consideration of this case.” In the absence of any suggestion made at the time of the calling of the names of the jurors, that but eleven names had been called, and but eleven were especially inquired of by the court, we cannot reach the conclusion that the statement in the transcript of journal entries, that the jury which was em-pannelled returned their verdict, into court and were properly inquired of, is incorrect, and so, we-find no error in the action of the court in refusing a new trial on this ground.

Another objection to the record arises on the evidence. The charge it will be remembered was, that the prisoner while acting as a judge at a primary election made a mark opposite certain names, thereby indicating that the parties whose names were thus marked had voted at this election; whereas in truth and in fact they did not so vote. This was said to be established by showing that Ryan had charge of one of the boobs containing a certified list of electors, and that Seeor, who was jointly indicted with him was acting as a clerk in the same booth at the’ same election, and had charge of another of these certified lists. These books were introduced in evidence, and we think it was shown clearly that Ryan made the mark opposite the name of several voters' who actually voted at the election; that Secor made the mark opposite the name of one voter at least who voted at the election. These marks, which were so established, were used as standards of comparison by an expert witness, who was placed upon the stand, and he assuming the marks, which we have said we think it was clearly established, were made by Ryan as a standard, gave it as his opinion that Ryan made the mark, which is spoken of in the indictment as a “V” opposite the names of a considerable number who did not vote. It must be conceded that ordinarily a mark made by one with a pen or pencil is much less satisfactory as a standard of comparison than written words. But, an examination of these marks, which are peculiar, tends very strongly to corroborate the opinion expressed by the expert witness. The marks-shown to have been made by the prisoner differ materially from that shown to have been made by Secor. The mark made by the latter has an angle at the bottom much -more acute than those shown to have been made by Ryan. Not only so but the upstroke on the Secor mark is much longer than on the Ryan mark. The court in its charge to the jury said to them that the marks used as a standard of Ryan’s mark must be established beyond a reasonable doubt. We are not surprised that the jury found it was so established. The court said to the jury that the fact that the disputed marks were made by the same man who made those used as the standard must be established beyond a reasonable doubt. We are not surprised that the jury found they were. There-was no error in admitting the evidence of the expert, nor is the evidence such as to justify a reversal on the ground that it was not shown by sufficient evidence that the disputed marks were made by him .who-made the marks established as a standard. •

Another complaint made is that there was misconduct on the part of the prosecuting attorney in his closing argument to the jury. It appears that one of the counsel for the prisoner in his argument, used this language, pointing his finger at the prosecuting attorney and speaking of this ease:

“Why was it not tried before? Let the prosecutor tell us why the case was not tried. Mr. McMahon did not want .to try it; he was forced against his will to try it. Term after term has gone by, yet the prosecutor failed to try it. We challenge you to tell this jury, when you come to argue to them, why you have not tried this case before. ’ ’

The prosecutor in his argument following the one just quoted from, made on the part of the defendant, said:

“He (Meals) asked, why wasn’t this case tried before? You •challenged me and I am going to tell yon: Because Mike Ryan absconded from this county when we wanted to try him, last April or last May, and ran 'away from the police and got out of town. You •asked me, and I told you why.”

To this language used by the prosecuting attorney the prisoner’s •counsel objected at the time. There was no misconduct on the part of the prosecuting attorney in making this answer to the challenge made to him by counsel for the prisoner. Indeed, it would have been an extraordinary thing if he had allowed to go unanswered the statement' that it was because he did not want to try the prisoner, that he had not been tried, if the fact was as the prosecuting attorney stated it to be. Other language used by the prosecuting attorney is complained of, but was not such as to constitute misconduct. Many other complaints are made by the prisoner of the record in this case. All of them have been examined, but we do not feel that it would be profitable to enter into a discussion of any more of them. We find no error in any part of the record, and the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    PARTITION FENCES — STATUTES.
    [Portage (7th) Circuit Court,
    October Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    John H. Nichols v. H. J. Turner et al.
    Act 97 O. L. 138, Repealing Provision for Removing Partition Pences, and Re-enacting and Amending other Provisions of Pence Law Requires Adjoining Owners to Build Partition Pences.
    Under the act of April 18, 1904 (97 O. L. 138; Rev. Stat. 4239-4243d; Lan. 7003-7014), owners of adjoining lands are required to build and maintain in good repair all partition fences between them in equal shares unless otherwise agreed upon between them in writing; although such lands may not be inclosed with fences.
    [Syllabus by the court.]
    Appeal from Portage common pleas court.
    J. H. Nichols and A. S. Cole, for plaintiff.
    E. W. Maxsom and D. B. Wolcott, for .defendants.
   COOK, J.

This action [J. H. Nichols v. H. J. Turner and J. N. Turner and D. D. Davis, J. B. Stewart and D. P. Shilliday, Tr.] is upon appeal and is for the purpose of obtaining an injunction to restrain the Turners and the board of township trustees from requiring plaintiff to build* and maintain a partition fence between the lands of plaintiff and defendants, Turners.

The evidence shows that at one time there was a partition fence-between these lands, now owned by plaintiff and the Turners, but that-it had gone into decay and is now entirely worthless as a fence; that, the lands of plaintiff is practically uninclosed; that no stock of any consequence has been kept upon the farm for several years; that while-a tenant has been upon the farm, yet he had but a horse, a cow or-two and a couple of hogs which were kept in an inclosure about the-house.

The evidence further shows that about ten years ago plaintiff gave notice to the then owner of the Turner farm, under Rev. Stat.. 4241 (Lan. 7008; repealed 97 O. L. 141), that he would remove his-part of the fence between their farms, as he had no further use for it;. he intending to abandon all fences upon his farm.

There is no claim but what the proceedings before the township-board of trustees was in all particulars regular.

Under these circumstances plaintiff claims that he should not be-required to build and keep in repair any part of the fence between his. farm and that of Turners’ for three reasons:

First. That his land is uninclosed.

Second. That he gave due notice that he would remove his part' of the partition fence and would not longer continue to keep any part, of it in repair.

Third. The act under which the proceeding was had before the-township trustees is unconstitutional;

As to the first and second claims, it will be observed that the act. of April 18, 1904 (97 O. L. 138), made a radical change in the fence laws of the state. Previously the law provided (Rev. Stat. 4240; Lan.. 7007) that:

“The owners or lessees for one or more years of lands inclosed with fences, shall beep up and maintain in good repair all partition fences between their own and the next adjoining inelosures, in equal shares, so long as both parties continue to occupy or improve the same. ’ ’

By Rev. Stat. 4241 (Lan. 7008) it was provided:

■ “When the inclosures of two or more persons are divided by a. partition fence of any kind, and either of the parties think proper to-vacate his part of such inclosure, or to make a lane or passage between such adjoining inclosures, such person may remove his share or part of such partition fence, on giving six months’ notice in writing of such intention, to the party owning or occupying the adjoining inclosure, or his agent, if such party is not a resident of the county.”

By the act of April 18, 1904, both of these sections are' repealed and so far as the question here involved, Rev. Stat. 4239 (Lan. 7003), as amended, took their place. That section now provides:

“The owners of adjoining lands shall build, keep up and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed upon between them, which agreement must be in writing and witnessed by two persons. ’ ’

The evident intent and purpose of the legislature by the new law was to require all owners of adjoining lands, whether inclosed or not, to make and maintain one-half of the fences between them. This is especially apparent from the fact that the law now applies to the owners of the land alone, lessees being eliminated; and the further fact that in order to be relieved from the requirements of the statute there must be an agreement in writing, signed by'the adjacent owners in the presence of two witnesses, so that there may not be any misunderstanding as to the liability of the parties. Further, the repeal of Rev. Stat. 4241 - (Lan. 7008), taking away the power of either party to remove his part of the fence, is important as tending to show that in-elosure or noninclosure should thereafter not have any effect and that thereafter there should be no devils’ lanes. Whether this material change in the law is salutary or not it is not for us to inquire. Its tendency no doubt will be to keep down controversies and litigation between neighbors as they will now know precisely what their exact rights and liabilities are. The changing of the law so that it applies to all owners will have very little effect, as there is now very little unimproved land in this state, and no doubt that had some effect in prompting the change.

As to the third claim of plaintiff we do not see how the change in any manner affects the statute as to its constitutionality, and as the fence law, substantially the same in its provisions, has been incorporated in our law for nearly eighty years and has been before our Supreme Court time and time again without any question being made as to its constitutionality, and further, as the counsel for plaintiff does, not show us in what respect it is unconstitutional, we leave that matter without further comment.

Judgment' for defendants dismissing the petition of plaintiff at his costs.

Burrows and Laubie, JJ., concur.


author: SWING, J.

text:
    APPEAL — ATTACHMENT.
    [Hamilton (1st) Circuit Court,
    July 9, 1907.]
    Swing, Giffen and Smith, JJ.
    Williams v. McCartney.
    'Duty op Common Pleas to Aeeirm ok Reverse Justice’s Ruling on Appeal prom Motion to Discharge Attachment.
    On appeal under Rev. Stat. 6494 (Lan. 10071) from an order by a justice of the peace, overruling a motion to discharge an attachment, the common pleas is* required to affirm or reverse the ruling appealed from and send its decision back to the justice which he is bound to enter as his final judgment. Not until this is done’can the aggrieved party go to a higher court on the whole case.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    J. H. McMakin and E. H. Williams, for plaintiff in error.
    Brink & Deasy, for defendant in error.
   SWING, J.

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 Rev. Stat. 6494 (Lan. 10071). 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 when the matter is brought before him is to ascertain whether the provision of the statute has been complied with, and if so, to proceed to determine whether the justice did right in overruling the motion, and to transmit his de-cision 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 case pending in that court; 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 ruling 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 ease 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.

Giffen and Smith, JJ., concur,


author: HURIN, J.

text:
    WILLS.
    [Henry (3d) Circuit Court,
    October Term, 1907.]
    Hurin, Haynes and Wilüman, JJ.
    (Judges Haynes and Wildman of the sixth circuit sitting in places of Judges Norris and Donnelly.)
    Boston Gilson, Exr., v. Mary A. Gilson.
    Constbuction Off Will.
    A testator left all of his personal property and a life interest in his realty .to his widow. The will provided that, after the death of the widow, the real estate should be sold by the executor and the proceeds divided into nine parts, eight of which were given to specified heirs and one part was left undisposed of. The widow elected not to take under the will and received her statutory allowances of dower and year’s support. Upon the sale of the real estate by the executor under authority of the probate court: Held, (1) That the undevised one-ninth is first applicable to the payment of testator’s debts in exoneration of the real estate that was devised; and (2) That as the will contains no provision for the blending into one fund of the personal property . and the proceeds of the realty; but On the contrary treats the two as : distinct classes of property and contemplates a sale of the realty only after the death of the widow, the doctrine of equitable conversion does not apply and the widow is not entitled to a distributive share in the proceeds of the realty after its sale. HutcHings v. Davis, 68 Ohio St. 160 [67 N. E. Rep. 251], distinguished.
    [Syllabus by the court.]
    Appeal from Henry common pleas court.
    ■ Donovan & 'Dittmer, for plaintiff.
    W. W. Campbell,’Donovan & Warden, for defendant.
   HURIN, J.

The essential facts in this case are agreed upon and are as follows:

The defendant, Mary A. Gilson, is the widow of David D. Gil-son, deceased, who died, testate and childless, November 21, 1904.

The will of David D. Gilson gave to his widow, Mary A. Gilson, a life interest in all his real estate besides giving her all of his personal property which she was to have absolutely.

The wilT directed that the real estate be sold by the executor after the death of testator’s wife and the proceeds divided among eight classes of heirs, one-ninth to each (leaving one-ninth undisposed of).

The widow elected not to take under the will and has received all of her statutory allowances of dower and year’s support. The land has been sold by the executor, the personal property not being sufficient to pay the debts; all debts of the testator'have'been' paid out of tbe joint 'proceeds of the personal and real property and the widow now demands, in addition to what she has already received, her distributive share of the proceeds of the land considered as personal property. She also demands, as her husband’s heir at law, the undevised one-ninth of his real estate or the proceeds thereof.

The debts now paid amounted to about the same amount as the proceeds of the one-ninth of the real estate which was undisposed of by will. The executor in this suit asks a construction of the will.

On the facts thus disclosed, two questions arise:

1. What disposition should be made of the one-ninth of the estate which was not disposed of by will?

2. Has the widow, having received in money the value of her dower interest in the land and of her year’s support, the right to further demand a widow’s share of the value of that real estate considered as personalty after its sale by the executor?

The first question presents no great difficulty. By Rev. Stat. 5972 (Lan. 9511) it is provided that when the “personal estate shall be insufficient for the payment of his debts, the undevised real estate shall be first chargeable with the debts, in exoneration, as far as it will go, of the real estate that is devised, unless it shall appear from the will, that a different arrangement of his assets, for the payment of his debts, was made by the testator; in which case they shall be applied for that purpose in conformity with the provisions of the will.”

Under the provisions of the will of David D. Gilson, all the real estate was to be sold by the executor after the widow’s death, all the personal property having been bequeathed to the widow, and the proceeds of said real estate were to be divided into nine parts, one of which was, by an apparent oversight, undisposed of — no special provision was made for the payment of debts out of any specific fund.

The assets in the executor’s hands after the payment of the-, widow’s allowance were not sufficient to pay the debts of the estate.The real estate was sold, not in conformity to the will, but necessarily sold in order to pay debts. The one-ninth of the estate being only' equal to the amount of the debts, it is clear that, under the letter and' spirit of Rev. Stat. 5972 (Lan. 9511), the portions actually disposed':' of by will should be exonerated from contribution to the payment of" these debts, in so far as the portion undisposed of, will, together with the balance of the personal property, suffice to pay them. The widow therefore cannot claim as heir this portion undisposed of by will and' require the legatees to contribute to pay the debts out of the portions» devised or bequeathed to them.

But the second question is a more serious one.

The widow has already received in money the value of her dower interest in the real estate, as real estate. Is she also entitled to share in the proceeds of that same real estate after it has been sold, considering such proceeds personalty, and, by so doing, reduce the share of each legatee?

This question depends for its answer upon the preliminary question, whether the sale of the land by the executor changed its character and required the proceeds to be treated as personalty and not as real estate.

We are cited to the leading case of Hutchings v. Davis, 68 Ohio St. 160 [67 N. E. Rep. 251], where it, is held:

“The positive direction by a testator to sell all of his real'estate and to blend the proceeds with his personal property in one fund for the distribution of his whole estate according to the scheme of the ■will, makes an absolute conversion for all purposes into personal property, which should be distributed as personal property, even if the special object intended by the testator should fail.
“A widow for whom no provision is made in her husband’s will .and who has been paid the value of her dower in money from the proceeds of the sale of real estate, converted into personal property, pursuant to a direction in the will, is not thereby precluded from asserting and receiving the widow’s distributive share in such proceeds, as well as in the other personal property of the testator.”

That case and the one at bar are at first sight hardly distinguishable. ■ While in' the case at bar there was a provision in the will for the widow, yet she elected not to take under the will and, as to her, the will must be construed and executed as if she had not been mentioned in it.

There is, however, this seriqus difference between the two cases. In Hutchings v. Davis, supra, the will provided for the sale of all of the real estate within two years of testator’s death, practically an immediate conversion into personalty.

In the case at bar the land was not by the terms of the will to be sold till after the death of the widow, who was to have a life interest in it as realty.

In Hutchings v. Davis, supra, the testator was not a married man at the time he made his will and he consequently made no provision whatever for his wife. In the case at bar the wife is not only provided for and given all the personal property absolutely (which was not therefore to be blended in one fund with the real estate), but she is given a life interest in all the real estate,' and it is only at her death that the intention to convert it into personalty was to be carried into effect and even then there was no provision for blending it with the personalty. In fact, however, it became necessary to sell it sooner to pay debts and it was so sold by the executor. Probably it might have been so sold by the executor even if its sale was not necessary to pay debts, for, the widow, having elected not to take under the will and having thereby waived her right to enjoy a life interest in the real estate, the reason provided by the will for postponing the sale of that real estate had failed, and, under the doctrine known as ‘‘ acceleration, ’ ’ the executor might have sold the land in order to execute his trust and wind up the estate, even though the widow still lived.

But, even in that event, this ease would have been clearly distinguishable from Hutchings v. Davis, for that depended upon the fact that, by the terms of the will, the real and personal property were, directed to be blended in one fund, and the court held, Judge Shauek dissenting, that this amounted to an equitable conversion of the real estate into personalty.

Does this rule apply where, as in the case at bar, the will did not contemplate a conversion during the life of the widow and where the sale by the executor during the widow’s life was only authorized by the necessity of paying debts or, after her waiver of the life estate, by the executor’s wish to wind up the estate; and where there was no provision for the blending of the two kinds of property in one fund? Can the testator be said to have intended to effect an equitable conversion of his real estate into personalty when he expressly provides that, so far as the widow is concerned, she shall hold it and use it as real estate all the days of her life and that only at her death shall it be sold?

In the case of Craig v. Leslie, 16 U. S. (3 Wheat.) 563, 577 [4 L. Ed. 460], Washington, J., in his opinion, quotes with approval from Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497, the doctrine that, “Nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted.” But while this is the settled law, it may well be doubted whether it can be held to apply for the benefit of one during whose lifetime the will directed the land to be held as land, and at whose death only the conversion was to be made. In the case of Furgeson v. Stuart, 14 Ohio 140, it was held that “Land directed by a will to be sold and converted into money, is treated as personal estate,” but there the Will provided for an immediate conversion — no life estate intervened, nor were there any devisees of the realty, a very different case from the one at bar.

And, by statute, Eev. Stat. 6171 (Lan. 9712); “In all cases of a .sale by an executor or administrator of part or the whole of the real estate of the deceased, under an order of court, * * * the surplus of the proceeds of the sale remaining on the final settlement of the account, shall be considered as real estate, and shall be disposed of ••accordingly. ’ ’

And in the case of Griswold v. Frink, 22 Ohio St. 79, it was held •that:

- “The surplus of the proceeds of a sale of real estate by an administrator, remaining in his hands on the final settlement of his .account, under the statute, is to be considered and disposed of as •real estate, and the widow of the intestate is not entitled to any part thereof in her capacity as one of the distributees of the personal ■estate. ’ ’

This decision has never been overruled unless by implication in Hutchings v. Davis, supra.

If, then, the land in the case at bar was sold by the executor under an order of court (as it was — the will itself so provides), and in order to pay debts, for this is the evident meaning of the statute as recognized by the court in the statement of facts in Griswold v. Frink, supra, the surplus of the proceeds of the sale must still be considered and disposed of as real estate and not as personalty.

And there seems to, be especially good reason for applying this rule to this case. The testator, by giving to-his wife a life interest in the real estate and providing for its sale only after the termination óf that estate, shows that he thought of it only as real estate so far as she was concerned. By giving to her all his personal property and in addition to that, the life estate in the realty, he shows that he distinguished between personal and real property. He even thought of it as realty after it was sold, for he uses the word “devisees” in describing those among whom the proceeds were to be divided while he uses the two terms “devises” and “bequests” to describe respectively the devise of the real estate to the other heirs and the bequest of his personal property to his wife, thus showing that he recognized the legal significance of these terms and the distinction between them. Some importance is attached by counsel to the significance of the provision of the will of David D. Gilson that the devises to his bene-fieiaries other than his wife shall be treated as debts. This is perhaps important as an aid to our conclusion for, if they are debts of the estate, then they must be paid by the executor and are not subject to distribution as assets of the estate. Hence, the widow would be entitled to no share in their proceeds.

There seems, therefore, to be especially sound reason for applying to this case the rule stated in the dissenting opinion of Judge Shauck in the case of Hutchings v. Davis, supra, where he says:

“The view seems to be (referring to the opinion of the majority of the court), that the testator was entrapped in the equitable doctrine of conversion. But that doctrine was devised, and it should be applied, to effectuate intention, not to defeat it. It may, therefore, be invoked by one who claims under an instrument, not by one who claims against it.”

We have read with care numerous authorities cited by counsel for Mrs. Gilson to uphold the doctrine that a sale of real estate by an executor in accordance with the terms of a will is per se an equitable •conversion of the realty into personalty.

In most, if not all, of the Ohio cases so cited this conclusion is reached from the peculiar language of the will there under discussion —the intention of the testator controlling, the decision of the case. "While the rule probably differs in different states and it appears that in some of them the authorized sale of the land by the executor converts it, eo instanti, into personalty, such does not seem to be the rule in Ohio and is not, we think, founded on sound reason. Not even in Hutchings v. Davis, supra, is so broad a view endorsed.

But, while the rule laid down in Hutchings v. Davis is the final expression of the law of this state as applied ,to such a state of facts as was disclosed in that case, the courts of other states have shown great reluctance to recognize that rule; and particularly is this the case in the state of Pennsylvania.

In Cunningham’s Estate, In re, 137 Pa. St. 621 [20 Atl. Rep. 714; 21 Am. St. Rep. 901], it was held that,

“Where a will directs the conversion of real into personal property, but the widow elects to take under the statute, her rights are fixed irrespective of the will, and she cannot claim that the conversion operated in her favor so as to entitle her to one-half the fund absolutely. As to her, the fund must be regarded as realty, and she is only entitled to a one-half interest therein for life.”

And in that case it was said by Mitchell, J., in deciding the case:

“ ‘Election,’ in the sense that applies to the present contention, means ‘a choice between two courses of action; acquiescence by the widow in her husband’s disposition of his property, or disregard of it and assertion of the rights the law gives her.’ There is no third or mixed course. Her legal rights, which are paramount to the husband’s control, attach eo instanti that he dies, and there is no interval during which the will can slip in and work a conversion, and then stand aside to let in her intestate rights upon the converted estate. Conversion takes place by virtue of the will, but as to the widow SO' electing there is no will. She must make her choice and it is will or no will. * * * The law does not permit her to say there is a will for conversion, and no will as to her share. * * * The election which the widow is required to make is between rights, not between benefits. ’ ’

And in Petterson, In re, 198 Pa. St. 78 [45 Atl. Rep. 654], it was. held that, "A conversion worked by direction in a will to sell is inoperative as to the testator’s widow, electing to take against the will.”

And in Hoover v. Landis, 76 Pa. St. 354, the same rule is announced, as follows:

"By her (the widow’s) election the intestate laws superceded the will as to her, and excluded the power of conversion under the will so far as it affected her estate. Having declined to accept under the will, as to her there was no will and she could not claim her share of the proceeds of a sale by the executor, absolutely as personalty.”

And this seems also to be the rule in Kentucky, for in Barnett v. Barnett, 58 Ky. 254, it was held that:

“A widow, renouncing the provisions of her husband’s will under the act of 1797 (2 Stat. at L. 1544), has a right of dower in lands, which are directed by the will to be sold by the executor, and the- proceeds paid to the devisees and being so entitled, she cannot claim an interest in them as personal estate, converted into that character by the terms of the will.”

And the same rule seems to. apply in Tennessee. See Armstrong v. Park, 28 Tenn. (9 Humph.) 195.

In New York, too, the courts have taken the same stand, e. g., in Brink v. Layton, 2 Redf. (N. Y.) 79, it was held:

"An absolute direction in the will to sell real estate, since it affects an equitable conversion from' the time of the testator’s death, is inconsistent with a right of dower in the widow, and she should be put to her election whether to take a share of the proceeds of conversion or to claim dower.”

Arid in Asch v. Asch, 113 N. Y. 232 [21 N. E. Rep. 70], the judge rendering the opinion said:

“Although there is no express language providing that the bequest to the widow shall be in lieu of dower, yet, where there is a manifest incompatibility between such provision and dower, it is held that she cannot take both, and is put to her election between them.” Citing Vernon v. Vernon, 53 N. Y. 351; Konvalinka v. Schlegel, 104 N. Y. 125 [9 N. E. Rep. 868; 58 Am. Rep. 494]; Zahrt, In re, 94 N. Y. 605.

It thus appears that the rule as stated in Hutchings v. Davis, supra, is not in accordance with many excellent authorities in other states and that even that rule was based on a condition of facts not paralleled in the case at bar and cannot therefore fairly apply to this case.

It appears also that the evident intention of the testator in the case at bar as disclosed by his will was not to effect a conversion of his realty into personalty for the benefit of his widow. It is inconceivable that such á thought was in his mind when he executed this will. He expressly provides for her in a way utterly inconsistent with such a construction.

Under the well recognized rule of construction that the intention of the testator should control, as well as for the other reasons which we have stated, the finding of the court will be that the widow is not entitled to share in the proceeds of the realty.

Decree accordingly.

Haynes and Wildman, JJ., concur,


text:
    ASSAULT AND BATTERY — DAMAGES—WITNESSES.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Winch, Henry and Marvin, JJ.
    Lee August v. Catherine Finnerty, by her Next Friend, etc.
    1. Impeachment of Witness for Infamous Crimes Only.
    Only such conviction as could have been shown under the law as it formerly was in England and America for which a witness was rendered incompetent to testify can now be shown to impeach or discredit the witness. s

      2. Witness not Impeachable by Proof of Public Prostitution.
    A record of conviction by a police court is not admissible to impeach a witness, such conviction not being of an offense punishable by the statutes of Ohio, or for an infamous crime within the meaning of the fifth amendment to the federal constitution or Art. 1, Sec. 10 of the state constitution for which presentment by grand jury is required.
    '3. Damages for Assault and Battery in Sum of $450 not Excessive.
    Damages in the amount of $450 is not excessive for an assault and battery on a girl sixteen years of age by throwing her down a flight of stairs and severely injuring her; there being evidence that the assault was an outrageous one for which there could be no justification or reasonable excuse, punitive as well as compensatory damages may properly be allowed, including reasonable attorney fees.
    [Proof of this decision and syllabus has been submitted to Judge Marvin ¡and corrected.]
    Error to Cuyahoga common pleas court.
    J. H. Sampliner, for plaintiff in error.
    Hart, Canfield & Croke,. for defendant in error.
   MARVIN, J.

The plaintiff in error was defendant below and the defendant in ■error plaintiff below; the terms plaintiff and defendant as used in this ■opinion, will refer to the parties as they were in the court below. The plaintiff, who was a minor, brought suit by her next friend, and sought to recover damages from the defendant on account of an alleged assault and battery committed upon her, as the petition avers, on January 22, 1906; the answer was a general denial. In this state of the¡ pleadings the case -went to trial and the plaintiff recovered a judgment for $450. The defendant moved for a new trial, which motion was overruled and the present proceeding is brought to reverse such judgment; a bill of exceptions'is filed here containing all of the proceedings in the trial court. The defendant claims that there was error in such proceedings, because the verdict upon which the judgment was ¡entered was not supported by sufficient evidence. The record shows that the- plaintiff and two other witnesses testified to an assault and battery committed upon her by which she was thrown down a pair of •stairs and severely injured. If their testimony is to be believed the assault was committed, and was an outrageous one for which there •could be no justification or reasonable excuse. The defendant and two other witnesses testified to the transaction and say that no assault whatever was made upon the plaintiff. In this state of the evidence it was properly a question for the jurj- to determine what witnesses were to be believed and how far each witness was to be believed. From their verdict it appears that they believed the testimony of the plaintiff and the witnesses produced by her. We cannot say that they were not justified in so believing; hence, the ease.cannot be reversed upen the weight of the evidence.

It is further urged that the damages awarded are excessive. We •do not feel that we should be justified in reversing the case upon this •ground. Believing the testimony of the plaintiff and her witnesses, •as the jury did, it was a proper case for the recovery of damages; not •only compensatory but punitive as well, and it being a proper case for the recovery of punitive damages, the jury had a right to include in its verdict reasonable attorney's fees. If the defendant committed the assault upon this plaintiff, who was a girl but sixteen years old at •the time, he deserved punishment, and if the compensation should have been less than $450, certainly it should not have been so much less than that as to show that the jury gave too much for punitive damages.

There is, however, another question urged on the part of the defendant which has received a large amount of attention by the court. 'The question arose in this way: When the plaintiff was upon the stand, she was asked if she had ever been arrested, and she answered, “Yes.” She was then asked if she had ever been convicted in the police court of this city, to which she answered, “No.” She was then asked this question: “Isn’t it a fact, Katie, that you were charged with being a common prostitute?” To which she answered, “No, sir.” Later she was again asked: “Weren’t you convicted of the charge of being a common prostitute?” To which she answered, “No, sir.” The defendant, when he came to offer evidence in his own behalf, offered a record of the police court of this city. That record reads as follows:

“City cases of the city of Cleveland, Thursday, .July 18, 1907. City of Cleveland v. Kittie Finnerty. Common prostitute.
“Affidavit filed. Warrant issued. Defendant in court and pleads not guilty. Hearing had. Found guilty, and she is sentenced to thirty •days’ workhouse imprisonment and fine of $25 and costs.
“On further consideration sentence is suspended six months.”

(Defendant’s Exhibit B.)

And the defendant offered to show that the Kittie Finnerty named in this record was the plaintiff in the action. To the admission of this evidence objection was made by the plaintiff, and that objection was. sustained. It is urged that this was error, the argument being: First, that the plaintiff having testified that she never was thus convicted would be discredited by showing this record. That this question had no bearing upon the case on trial is conceded. It was purely a collateral matter. It being a collateral matter the party asking the question was bound by the answer, unless the case comes within some exception to the general rule. The fact that the witness sought to be discredited was a party to the suit in no wise affects the question of whether this record should have been admitted. If it was admissible at all it was admissible without any question having been asked of the witness in cross-examination on this subject. Under the law as it formerly was in England and America, one who had been convicted of any infamous crime was incompetent to be a witness. Under the law as it now is in Ohio, he who would have been incompetent under the law as it formerly was, is liable to be discredited by evidence showing conviction of such a crime as would have rendered the witness incompetent under the law as it was. It is only the conviction of such crimes as would formerly have rendered the witness incompetent which can now be used to discredit the witness. As already said, that crime, the conviction for which rendered the witness incompetent, must have been an infamous crime. The conviction here sought to be shown was for an offense made neither a crime nor a misdemeanor by any stat-' ute of the state of Ohio. The conviction must have been for the violation of some ordinance of the city of Cleveland, of which the court cannot take judicial notice, and which in no event could be made what is denominated in law an infamous crime.

The fifth amendment to the constitution of the United States provides :

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

Article 1, See. 10, of the constitution of the state of Ohio provides that:

“Except in cases of impeachment, and cases arising in the army and navy, or in tbe militia when in actual service in time of war or public danger, and in cases of petit larceny and other inferior offenses, no person shall be held to answer for a capital, or otherwise infamous crime, unless on, presentment or indictment of a grand jury.”

The conviction here sought to be shown was a conviction in the police court of the city of Cleveland. It was then a conviction upon which there had been no presentment by a grand jury. The crime then was clearly not an infamous crime if it was a crime which could be tried without presentment by grand jury. This view is sustained by Coble v. State, 31 Ohio St. 100, the language of the second clause of the syllabus reading:

“The credibility of a witness cannot be affected by showing his former conviction of an offense under a city ordinance against disorderly conduct. A conviction, which may be shown to affect the credibility of a witness, under section 139 of the criminal code (66 O. L. 308), is such only, as, independent of the section, would have rendered the convict incompetent to testify.”

It is true that the case being considered was a criminal case, which this ease is not, and that the section of the statute being considered was a section which provides for evidence in criminal cases, but the reasoning upon which the court reaches the conclusion which is reached, applies as well to civil as to criminal cases.

In Rapalje, Law of Witnesses, Sec. 201, this language is used:

“Formerly, when convicts were not admitted as witnesses, proof of conviction of crime was altogether fatal, not only to the credibility, but also to the giving of any testimony whatever by the witnesses. Since the almost universal abolition of incompetency by .reason of infamy, however, the fact that a witness has been convicted of a crime which would have excluded him at common law is allowed to be shown for the purpose of affecting his credit with the jury.”

In the ease of Bakeman v. Rose, 18 Wend. 146, 153, it is said in the dissenting opinion of Senator Tracy:

“It has been pressed upon us with earnestness and eloquence, that the condition of a public prostitute being the most debased and demoralized state of human being that can be imagined, necessarily presupposes the absence of all moral principle, and especially that of regard for truth; and it is therefore contended that a common reputation of public prostitution, necessarily includes a common reputation for falsehood. In addition, it is urged that the laws of many countries exclude the testimony of females in some cases entirely, and in all eases where any stain is attached to their character; * * * In respect to these suggestions, it is sufficient to say, that it is not. within the power of this court to subvert the established rules of evidence, and substitute new rules in their place, even were they persuaded, which I am not, that they would be preferable; and if they had this power, it might not be a very discreet exertion of it to attempt to gúage crimes and graduate a standard of vices and immoralities. Loathsome, deplorable, and even detestable as is a condition of' public prostitution, it is not the only vice ‘of a great kindred;’ theft,, forgery, swindling, drunkenness, gambling, adultery, are also ‘well allied;’ and if we undertake to determine that the reputation of one' vice necessarily includes the reputation of another, it would be difficult to say when or where we could stop. ’ ’.

This reasoning seems to us to be sound and to apply as well to' eases of conviction for prostitution as to cases where it is sought to impeach a witness by showing that she has a general reputation of being: a prostitute. ' . »

We hold, therefore, that there was no error in the exclusion of' this record, first, because it showed no conviction of any offense punishable by the laws of the state of Ohio, and second, because it showed no conviction of an infamous crime, as that word is used in law; this,, because there could be no prosecution under the constitution of the-United States or the state of Ohio for an infamous crime, except upon presentment of a grand jury.

Third, only such conviction as could be shown under the old law as to render a witness incompetent can be shown under the law as it. is now to discredit the witness. ,

The result is that we find no error in the record and the judgment, of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


author: DUSTIN, J.

text:
    ASSESSMENTS — LIMITATION OF ACTIONS.
    [Franklin (2nd) Circuit Court,
    July 23, 1904.]
    Wilson, Sullivan and Dustin, JJ.
    W. R. Gault et al. v. Columbus (City) et al.
    1. Action to Restrain Collection of Street Assessments — wren Barred..
    The right of action to restrain the collection of street assessments on the-ground of excess of benefits, is not barred in four years from date of the assessment. The statute begins to run from the dates when the respective installments are due.
    2. Purchasers of Abutting Property Chargeable with Notice of Faulty Con-, struction Estopped.
    Abutting owners, knowing of the defective construction of a street before the work was approved and the reserve fund paid to the contractors, are thereafter estopped from contesting the assessment, on the ground of' such faulty construction.
    [Syllabus approved by the court.]
    Bbror to Franklin common pleas court.
    W. O. Henderson and DeWitt C. Jones, for plaintiffs.
    Butler, Marshall & Keating, for defendants.
   DUSTIN, J.

In this case we do not concur in the view of the common pleas, court (Gault v. Columbus, 13 Dec. 575), that the action is barred by reason of not having been brought within four years from the making-of the assessment.

The threatened injury of which plaintiffs complain is the collection of assessments in excess of benefits, and such threatened collection-was impending at the commencement of the action.

But we do think that the defendants are estopped to complain off the defective construction of the street, because they knew of such defects long before the work was approved and the reserve fund paid to the contractors, and took no action to prevent such approval or payment. They thus, by their laches, allowed the city to lose the fund it. had reserved for such contingencies, and have not an equitable standing before the court.

The plaintiffs who became purchasers after the assessment, and' in their deeds assumed and agreed to pay the same as part consideration for the property, are also estopped.

Other purchasers (if any) who became such after the assessment, but did not assume the payment in their deeds, are nevertheless chargeable with notice of the assessment through the records and stand in the shoes of their grantors so far as knowledge of the defects is concerned.

As to the claim that the assessments are in excess of benefits we are not satisfied that it is clearly made out.

The decree, therefore, will be in favor of the city, and the injunction dissolved, at plaintiffs’ costs.

Wilson and Sullivan, JJ., concur.


text:
    CONSTITUTIONAL LAW — LICENSES.
    [Cuyahoga (8th) Circuit Court,
    January Term, 1908.]
    Winch, Henry and Marvin, JJ.
    E. R. Theobald v. State. W. S. Judd v. State. Frank Stupens v. State.
    Stationary Steam Engineer’s License Act Held Constitutional..
    Act 95 O. L. 48 as amended hy acts 95 O. L. 333 and 97 O. L. 28 (Rev. Stat. 4364-891 to 4364-89w; Lan. 7351 to 7362) providing for the examination and the licensing of stationary steam engineers, in that it prescribes that the rules and regulations for examinations of steam engineers shall be adopted by the chief engineer, shall be uniform throughout the state and enumerates the subjects for examination for license as such, avoids the evils of act 94.0. L. 33 held unconstitutional by the Supreme Court in Harmon v. State, 66 Ohio St. 249 [64 N. E. Rep. 117; 58 L. R. A. 618.]
    [For other cases in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 257, '697-710; 5 Cyc. Dig., “Licenses,” § 13.]
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Ford, Snyder & Tilden, for plaintiff in error:
    Cited and commented upon the following authorities: State v. Harmon, 13-23 O. C. C. 292; Harmon v. State, 66 Ohio St. 249 [64 N. B. Rep. 117-.; 58 L. R. A. 618]; State v. Thompson, 160 Mo. 333 [60 S. W. Rep. 1077; 54 L. R. A. 950; 83 Am. St. Rep. 468]; Cooley, Const. Lim. (7 ed.) 163, 544; Cincinnati, W. & Z. By. v. Clinton Co. (Comrs.), 1 Ohio St. 77.-
    Gage & Wilbur, for defendant in error. '
   MARVIN, J.

These cases all involve the same question and a decision of one disposes of all. Theobald was prosecuted before a justice of the p'eace, and each of the others in the police court of the city of Cleveland; each was charged with having unlawfully operated and caused to be operated a stationary steam boiler and engine, in violation of the statutes of Ohio; each was found guilty and the judgment in each ease was affirmed, on error in the court of common pleas. Each did operate an engine and boiler in violation of the provisions of Rev. Stat. 4364-891 (Lan. 7351), which reads:

“It shall be unlawful for any person to operate a stationary steam - boiler or engine in the state of Ohio, of more than thirty (30) horse 1 power, except boilers and engines under the jurisdiction of the United | States, and locomotive boilers and engines, without having been duly f licensed so to do as herein provided.” , ' t

It is urged that the statute under which these convictions were had is in contravention of the provisions of the constitution. Revised Statutes 4364-89q (Lan. 7356), provides:

“Any person who desires to act as a steam engineer shall make application to the district examiner of steam engineers for a license so to act, upon a blank furnished by the examiner, and shall successfully pass an examination upon the following subjects: the construction and operation of steam boilers, steam engines, and steam pumps, and also hydraulics, under such rules and regulations as may be adopted by the chief examiner, which rules and regulations, and standard of examination, shall be uniform throughout the state. If, upon such examination, the applicant is found proficient in said subjects a license shall be granted him to have charge of and operate stationary steam boilers and engines of the horse power named in this act. Such license shall continue in force for one year from the date the same is issued, provided, however, the district examiner may, upon written charges, after notice and hearing, revoke the license of any person guilty of fraud in passing the examination, or who has become insane or who is addicted to the liquor or drug habit to such a degree as to render him unfit to discharge the duties of steam engineer. ’ ’

Prior to the enactment of the present statute, to wit, on March 1, 1900 (94 O. L. 35), an act was passed by the general assembly on this same subject. That act, like the present one, provided for examinations of those desiring to operate steam engines, and one of its provisions was (Sec. 6) :

“Any person who desires to act as a steam engineer shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the engineer, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him to have charge of, or to operate any steam plant. Such license shall continue in force for one year, unless after proper hearing it is sooner revoked for intoxication or other sufficient cause, the said license to be renewed yearly.”

The act last spoken of was declared by the Supreme Court to be unconstitutional in the case of Harmon v. State, 66 Ohio St. 249 [64 N. E. Rep. 117; 58 L. R. A. 618]. In the opinion in that case it is pointed out that by the section last quoted the examiner is made the exclusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the general assembly as to qualification, and no specifications as to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding and caprice of the examiner. He is the autocrat with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that he finds them trustworthy and competent.

The present act differs from the former act in- that it is provided by the present act that the governor of the state with the advice and consent of the senate, shall appoint one chief examiner of steam engineers, and said chief examiner, with the approval of the governor, shall appoint eight district examiners. '

The same provision is found in the old act in this regard, but in the present statute there is found what is not found in the old, that the rules and regulations under which examinations shall be held shall be uniform throughout the state, and that these rules and regulations shall be adopted by the chief examiner. Now it is said that practically the objections to the old statute exist as against the new.

The court said in Harmon v. State, supra, page 253, that a district examiner could in fact “make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers,” and that this was granting legislative authority to this, examiner.

Under the provisions of the present statute, as has' already been shown the rules and regulations for the examination are fixed by the chief examiner and are to be uniform throughout the state, and that, seems to us clearly to make him not a legislative but an administrative officer, with power only to execute the statutes enacted by the general assembly. It is said that no standard of qualifications is fixed except that upon examination the applicant must be found proficient in the subjects upon which he is to be examined. In the, former act no subjects for examination were mentioned. Here the statute fixes just what subjects tbe applicant is to be examined in. How the legislature could have more definitely fixed what the examiners shall do is not easy to understand. If a percentage of answers had been fixed or a percentage of qualification had been fixed by the statute, it would still have been with the examiner to say what degree of qualification was indicated by any per cent of marking. An inspection of the statutes in relation to the examination to be given to those desiring other employments may not be found unprofitable.

Revised Statutes 559 (Lan. 890) provides for the examination of those desiring to practice law in Ohio, and reads:

“When a person applies to said court (the Supreme Court), for admission to the bar, he shall be examined by 'the court or two of the judges, touching his fitness and qualifications; and if, on such examination, the court or judges are satisfied that he is of good moral character, and has a competent knowledge of the law, and sufficient general learning, an oath of office shall be administered to him,” etc.

The Supreme Court is permitted to fix and has fixed rules for the educational requirements of those who may be admitted to the examination, but so far as we know it has never been said that this was granting legislative authority to the court.

It is provided in reference to physicians by Rev. Stat. 4403 (Lan. 7507), that a board of examiners shall be appointed and that this board shall formulate rules to govern its action.

Revised Statutes 4403c (Lan. 7510), provides in reference to physicians that:

“All examinations shall be conducted under the rules formulated by the board. Each applicant shall be examined in anatomy, physiology, pathology, chemistry, materia medica, and therapeutics, the principles and practice of medicine, surgery, obstetrics, and such other subjects as the board may require. The applicant shall be examined in the materia medica and therapeutics and, the principles and practice of medicine, of the school of medicine in which he desires to practice, by the member or members of the board representing such school. If an applicant passes an examination satisfactory to the board, and has paid the fee as hereinafter provided, it shall issue its certificate to that effect,” etc. We think it has never been claimed that these provisions constituted a delegation by legislative power to the board of examining physicians.

The provisions of the law in reference to the examination of teach-' ers for our public schools, Rev. Stat. 4070 (Lan. 6,661), are that the board of examiners shall make all needful rules and regulations for the proper discharge of its duties and the conduct of its work, subject to statutory provisions and the approval of the state commissioner of common schools.

Revised Statutes 4071a (Lan. 6663), provides that the questions for all county teachers’ examinations throughout the state, shall be prepared • and printed under the direction of the state commissioner of common schools. We have never heard it suggested that this was delegating legislative powers to the' commissioner of schools. And, under Rev. Stat.'4074 (Lan. 6666), it is provided that the teachers in elementary schools shall be examined on the subjects of orthography, arithmetic, reading, writing, English grammar and composition, geography, history, of the United States, including civil government, physiology including narcotics, literature, and that the applicant possesses an adequate knowledge of the theory and practice of teaching.

There is nothing suggested in any of these statutes to the several provisions of which attention has been called that undertakes to fix a standard in any other way than to say that the applicant must show sufficient knowledge upon the several subjects of examination.

Surely there is no good reason why one desiring to operate a steam engine should have a standard of qualification fixed more definitely than one who desires to teach school, or practice medicine or law. The statute under consideration is not subject to the criticism in this regard that the statute considered in the case of Harmon v. State, supra, was subject to.

It is said, however, that Sec. 10 of the act now being considered, which is Rev. Stat. 4364-89u (Lan. 7360), is clearly in contravention of the constitution. That section, reads in part:

“Provided, that all persons holding license issued to them under the act of the general assembly of the state of Ohio, passed March 1, 1900 (94 O. L. 33-36), shall not be required to submit to a further examination during the period covered by such license first issued. But such former license shall evidence the qualifications of such person to operate the kind of steam plant, and for the period as therein designated, unless such license is sooner revoked for cause.”

Attention is called to See. 7 of the act now under consideration, being Rev. Stat. 4364-89r (Lan. 7357), which reads:

“Any person to whom a license is issued under the provisions of this act shall upon application at the expiration of one year from the date thereof be entitled to a renewal thereof for one year, unless the district examiner of his district for the cause or causes set out in seetion 6 [Rev. Stat. 4364-89q; Lan. 7356] of this act, upon notice and hearing, should refuse such renewal.”

Now as to Sec. 10 (Rev. Stat. 4364-89u; Lan. 7360), it may be said, first, that even though this section were held to be unconstitutional, the persons provided for in this section are simply those who at the time the present statute went into effect were holding licenses issued under the former act, and since no such license could extend beyond one year, from the time of its issuing, it cannot be supposed that this small period of time for which some were permitted to operate engines after the present act took effect, was an inducing cause for the enactment of the provisions in respect to the examination of those who desired to become engineers. Further than that this act extending the privilege to those who were- already licensed under the former act for the short time they would be permitted to operate, is of too small consequence for the courts to say that it is in contravention of the constitu- , tion. In any event this has long ceased to be a practical question, for the present statute went into operation on May 1, 1902, and all those permitted under the provisions of Sec. 10 to operate engines have long since lost that privilege. It will be noticed by Sec. 7, hereinbefore quoted, that it is only those who have obtained a license under the present act, who are entitled to a renewal, after examination. Those spoken of in See. 10 of the present act are not entitled to such renewal without examination. It is those who have obtained a license under the present act who may have a renewal.

It is said in argument that the general construction which has been given to this statute by engineers and examiners is that those who were permitted by this Sec. 10 to continue their occupation until the expiration of the time for which their several licenses were issued, were entitled to have such licenses renewed without examination. Whoever has given it this construction has1 done so in violation of a provision of law expressed in language as plain as any language can well make it, and it behooves all engineers to take notice now that they were not entitled to a renewal of their licenses granted under the former act, and it behooves the examiners to take notice that they are not authorized to issue any such renewals. The language of the statute, as has already been said, -is so plain that “a wayfaring man though a fool need not err therein.”

The judgment of the court of common pleas in each of these several cases is affirmed.

Winch and Henry, JJ., concur.