text:
    ORDINANCE RELATING TO STORAGE AND TRANSPORTATION OF NITRO-GLYCERINE.
    [Circuit Court of Wood County.]
    William W. Walter v. The City of Bowling Green, Ohio.
    Decided, November 28, 1903.

      Nitro-glycerine — Ordinance Prohibiting Storage and Transportation of —Within Mxmicipal Limits — Authorized by Statute — Reasonable Penalty for Violation of — Hearsay Evidence.

    1. A municipality bas power under the statutes of this state, not only to regulate, but to prohibit absolutely the transportation of nitroglycerine through its streets; and an ordinance prohibiting such transportation is not inconsistent with the provisions of Section 6953, Revised Statutes.

      2. An ordinance which prohibits the storage of nitro-glycerine within the corporate limits or its transportation through the streets of a municipality, and imposing a fine of $100 for the first violation thereof, is not unreasonable nor is the fine excessive.

      3. Information acquired from a police officer from a third person as to the amount of nitro-glyeerine transported over a certain street by the defendant in violation of a municipal ordinance, is hearsay evidence and inadmissible.
    Parker, J. (orally); Hull, J., and Haynes, J., concur.
    Error to the Court of Common Pleas of Wood County.
   In this case an affidavit was filed with the mayor of the city of Bowling Green, Ohio, charging the plaintiff in error, William W. Walters, with violating a certain ordinance which prohibited the conveyance of nitro-glycerine through the city. Various proceedings were had attacking the affidavits and so forth that we need not give attention to. The matter finally came to a point where the plaintiff in error entered a plea of not guilty, the evidence of certain witnesses was adduced, and he was convicted and sentenced to pay a fine of a hundred dollars and stand committed to the workhouse at Toledo until the fine and costs were paid. He prosecuted error to that judgment in the court of common pleas, the judgment was there affirmed, and he now prosecutes error to this court. He contends that the conviction is wrong, and the proceedings erroneous for various reasons 5

First, because the ordinance is .invalid, it being prohibitive; his contention being that the council was without authority to pass a prohibitive ordinance upon this subject; that it only had authority to regulate. Second, that the penalty is excessive and unauthorized. Third, that the conviction is against the law because it is not supported by competent evidence; and fourth, that the proceedings were erroneous because the court admitted certain hearsay evidence over his objection, and subsequently refused to rule it out, but considered it; that this evidence was important and its admission and rejection was prejudicial to the plaintiff in error.

We will discuss these questions in the order we have mentioned them. Is the ordinance• invalid for the reasons stated? It is pointed out to us that Section 6953 of the Revised Statutes provides as follows:

“It shall be unlawful for any person, firm or corporation, to manufacture the substance or material known as nitro-glyeerine, or any compound thereof, or to store the same in quantities exceeding one hundred pounds, within the limits of any municipal corporation, or within eighty rods of any occupied dwelling or public building, or without giving bond as hereinafter provided to pay any damage caused by the explosion of said substance. Within thirty days after the passage of this act all persons, firms or corporations' heretofore engaged in the manufacture or storage, shall give bond in the sum of five thousand dollars, with good and sufficient security, to the county commissioners of such county, with such surety or sureties as shall be approved by such county commissioners,. conditioned for the payment of all damages that may be caused to persons or property by an explosion of said substance. And it shall be unlawful for any person, firm or corporation to transport or carry said substance in any package not having written or printed upon two sides thereof, in plain and distinct letters, the words ‘nitro-glycerine — dangerous,’ or in any vehicle or water craft upon which any passenger is, at the same time being conveyed, or in any vehicle upon the two sides and rear end of which there shall not have been printed in plain, distinct letters, large enough to occupy a space two inches wide by eighteen inches long, the words ‘nitro-glycerine — dangerous.’ And any one convicted of a violation of this section, either as principal or servant, agent or officer of such person, firm, or corporation, shall be fined not more than one thousand dollars, or imprisoned not more than three months, or both.”

Now it is urged that because this is not a prohibition but a regulation of the uses of nitro-glycerine, its manufacture, storage, transportation, etc., an ordinance of a municipality going further, going beyond this, is obnoxious to it and in conflict with it, and therefore invalid. This argument proceeds upon the theory that since one is not prohibited by this statute from storing nitro-glycerine within the limits of a municipality so long as the quantity stored does not at any time exceed a hundred pounds, therefore the statute is permissive to that extent, and is a limitation of the authority of the municipality. We do not agree with this contention; we do not think it is intended to be so. I shall, before closing, call attention to some remarks upon these provisions of Section 6953 by our Supreme Court. But proceeding further; counsel contend that there is no express authority to municipalities to prohibit the storage in or transportation through a municipality of nitro-glyeerine, that is to say, of nitro-glyeerine of any quantity whatever.

Counsel for the state relies upon the authority given by subdivisions 3 and 14 of Section 1692 of the Revised Statutes. That section contains an enumeration of the principal powers of municipalities, and among other powers, the village council is given authority to provide by ordinance: “To prevent injury or annoyance from anything dangerous, offensive or unwholesome, and to cause any nuisance to be abated; ’ ’ and ‘ ‘ To regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide or license magazines for the same.” It will be observed that paragraph fourteen- explicitly mentions “explosives” and that the authority given by that paragraph is not to prohibit the transportation or keeping of explosives, but to regulate the same.

It is conceded on behalf of the city that under that paragraph standing alone, this ordinance which is prohibitory could not be sustained; and on the part of the plaintiff in error it is contended that paragraph three is not intended to cover the subject matter specifically covered by paragraph fourteen; and further, that the only lawful method for the enforcement of paragraph three, is by appropriate proceedings to abate the nuisance which-by that paragraph the council has a right to prevent or cause to be abated.

We are cited to the ease of State v. Bright, 38 La. Ann., 1, in 58 Am. R., 155, and St. Paul v. Laidler, 2 Minn., 190, in 72 Am. Dec., 89, in support of the proposition that a municipality has only such powers as are expressly given to it by statute, or, as is said in some states, where the general statute does not constitute their charter, such powers as are expressly given to them by the terms of their charters; and there can be no question but that is the rule, and unless we can find express authority for enforcing the provisions of paragraph three of Section 1692 by an ordinance imposing a penalty, then these proceedings would be unauthorized and this conviction can not stand.

We are also cited to the case of The City of Knoxville v. The C. B. & Q. R. R., 83 Iowa, 636, reported in 32 Am. St. Repts., p. 321. In that case it was held, reading from the syllabus:

“A municipal corporation has no authority to provide by ordinance for the punishment by a fine of a person guilty of a nuisance as defined by the ordinance. The power of the city is limited to provide for the abatement of the nuisance.”

And it appears upon looking into the case that the authority of the municipality in the premises is found in Section 456 of the code of that state which reads, “They shall have power to prevent injury or nuisance from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated;” reading, it will be observed precisely as does this paragraph three of Section 1692, with the exception that in our statute the word “unwholesome” is used, where in the Iowa statute the word “unhealthy” is used.

Now, so far as appears from this report, the only authority so far as preventive measures or penalties,. or method of procedure is concerned, in the state of Iowa, was to be found in this paragraph of the statute which I have read, and in the course of the opinion it is said:

“Cities and incorporated towns have power to provide by ordinance for the abatement of nuisances, but not 'for the punishment by fine of those guilty of maintaining the nuisance.”

May that be said with reference to municipalities in the state of Ohio? We think not. We think there is no such limitation. Section 1861 of the Revised Statutes (and for convenience we use the old statute instead of the late revision) provides:

“By-laws and ordinances of municipal corporations may be enforced by the imposition of fines, forfeitures and penalties, on any person offending against any such by-law or ordinance; and the fine, penalty or forfeiture may be prescribed by each particular by-law or ordinance, or by a general by-law or ordinance made for that purpose, and the municipal corporation shall have power to provide, in like manner, for the prosecution, recovery and collection of such fines, penalties or forfeiture.”

That is a general provision. We doubt, after reading this Iowa decision, if the statute of Iowa contained such a provision; if they had, we can not see how the court could have arrived at the conclusion it did in the case I have just read.

We think that under this section (1861) the council (had power and authority to provide for the prevention of injury or nuisance from anything dangerous, offensive or unwholesome, by the imposition of appropriate penalties for doing or attempting to do that which would result in injury or nuisance, or anything offensive, dangerous or unwholesome; and that the power to cause the nuisance to be abated was an additional power vested in the municipality. Neither do we think that paragraph 14 of Section 1692 is exclusive on the subject of explosives; we think that gives the council additional power over explosives. They may regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles and provide or license magazines for the same; but it does not follow that they may not also do that which would prevent injury or nuisance or anything dangerous, offensive or unwholesome. In other words, they may with propriety and reason, prevent the storage of certain kind of explosives within the limits of the municipality, and they may regulate the transportation and keeping therein of any gunpowder or other explosive. They may pass an ordinance that would be permissive in its nature and character up to a certain point, but with respect to. certain other explosives in their judgment, and as a matter of fact, too dangerous to permit of their storage within the corporate limits of the municipality; too dangerous to permit of their being transported through the corporation in any quantity — we have no doubt they may go further and absolutely prohibit the storage and transportation of such explosives.

The council seems to have been of the opinion in passing this ordinance that nitro-glycerine was an explosive of that character ; so extremely dangerous that it was not wise to permit any quantity thereof to be stored within the corporate limits, or to permit any quantity of it to be transported through the city, and we can not find from anything in this record, and we are not apprised of anything that would cause us to doubt the wisdom of the action of council in providing for. this absolute prohibition. We do not find, therefore, that the ordinance is invalid on the ground that the council exceeded its statutory authority.

We might have decided this upon the authority of Hays v. The Village of St. Marys, in 55 O. St., at page 197; but since counsel has undertaken to distinguish between the ordinance there and the ordinance involved in this case, and has pointed out that the court in that ease did not reason upon the question, and urges that it may have entertained different views if such an ordinance as is here presented had been before that court for consideration, we have taken some pains to discuss the question. In that case it was held that an ordinance of a village prohibiting the storage within its limits and the transportation along its streets of dynamite or nitro-glycerine in quantities larger than five quarts, being within the power conferred upon cities and villages by Section 1692, Revised Statutes, and not inconsistent with the provisions of Section 6953 is valid. And in the body of the opinion the court say, p. 198: ‘ ‘ The ordinance is within the power conferred upon cities and villages by subdivision three of section sixteen hundred and ninety-two of the Revised Statutes, * * * ‘to prevent injury or annoyance from anything dangerous, offensive or unwholesome, and. to cause any nuisance to be abated,’ and subdivision fourteen of the same section, ‘to regulate the transportation and keeping of gunpowder and other explosive and dangerous combustibles, and to provide or license magazines for the same.’ ”

It is also contended, as I have said, that.the penalty is excessive; a fine of one hundred dollars and costs of prosecution was imposed.

Section 1862, Revised Statutes, provides:

“Fines, penalties and forfeitures which do not exceed the sum of fifty dollars for any specified offense, or violation of the by-law or ordinance, or double that sum for repetition of such offense or violation, or which do not exceed ten dollars for each day where the thing prohibited or rendered unlawful is, in its nature, continuous in respect to time, shall not be deemed unreasonable ; but where in any by-law or ordinance a greater fine, penalty or forfeiture is imposed than is above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper, and to permit a recovery or render judgment accordingly.”

So that even if the penalty imposed were excessive, authority is found under this section to reduce the amount within the limits authorized; but, is this fine excessive? It is contended on behalf of plaintiff in error that this Section 1862 provides a limit of fifty dollars as the maximum amount of fine that may be imposed for the first offense. That question has been considered and passed upon by the Supreme Court in the case of Alliance v. Joyce, in 49 O. St., page 7, where it is said:

“Under Section 1862 of the Revised Statutes, a fine prescribed in a municipal ordinance of more than fifty dollars for any specified offense, or more than double that sum for each repetition of such offense, is hot to be deemed in all cases unreasonable; but, the ordinance may, in some eases, be enforced by a fine greater than that specified in Section 1862, it being lawful for the court or magistrate in any suit or prosecution for the recovery of the increased fine, to reduce the same to such amount as may be deemed reasonable and proper by the court or magistrate.”

The contention there was that this section provided a limitation upon the maximum amount that might be imposed as a fine for the first offense of fifty dollars, but the court did not sustain that contention. Judge Diekman, in the opinion, says, p. 19:

• “But the section of the statute under consideration contains no words forbidding the enforcement of an ordinance by a fine in excess of fifty dollars for the first offense. On the contrary, the reference to an imposition of a greater fine would indicate, that in some instances, it might become proper and necessary for municipal councils to attach a severer punishment than a fine of fifty dollars, as in the case at bar, in which the ordinance provides that any person violating any of its provisions, shall, upon conviction thereof, be fined for the first offense not less than fifty dollars nor more than two hundred dollars. And where it is provided in the statute, that a' fine not exceeding fifty dollars, ‘shall not be deemed unreasonable,’ it would not follow that a fine greater than that sum for an offense of a serious nature, would be deemed unreasonable for the enforcement of a municipal ordinance.
“It would seem that by reason of the probable need of an increased fine in certain cases, the Legislature incorporated in Section 1862 the provision we have before cited, that ‘where in any by-law or ordinance a greater fine, penalty or forfeiture is imposed than as above specified, it shall be lawful for the court or magistrate, in any suit or prosecution for the recovery thereof, to reduce the same to such amount as may be deemed reasonable and proper.’ But to what amount shall such reduction be made? If in the ordinance a fine of two hundred dollars for the first offense is imposed, it is not required that the fine shall be reduced to fifty dollars, as a reasonable and proper amount, but it will be within the meaning of the statute, if the court or magistrate either inflicts the full penalty, or reduces it to any sum between fifty dollars and the maximum of two hundred dollars. ’ ’

We are not apprised' of any fact with respect to nitro-glycerine and its probable effects upon life and property should an explosion occur, that would justify us in saying that in our opinion a fine of one hundred dollars for the first offense of, storing that substance in, or for transporting it through a thickly settled community, a city like Bowling Green, where the destruction of life and property from its explosion might be enormous and appalling, is excessive. Indeed, in our opinion formed from observation -and investigation it is a most dangerous substance. That may be safely affirmed as a fact of common knowledge. The testimony in this ease tends to show that a sufficient quantity was transported through the town to have destroyed the lives and property of a great many inhabitants had an explosion occurred, and the general knowledge of the substance is, that it is likely to explode when an explosion is least expected; that it is liable to explode during the process of conveyance by methods commonly used to transport it from the magazine to the wells where it is to be exploded; it is also likely to explode without apparent cause even where it is stored in the magazines!

In view of the result we have reached in this ease, it may not be necessary for us to discuss or pass upon these questions specifically, but we deem it proper to do so; and to express the opinion that we entertain now, that a fine of one hundred dollars for the first offense is not excessive or unreasonable.

The contention that the conviction was against the law, because not supported by any competent evidence, we will not take time to discuss, but will simply announce that we think there was competent evidence, in the main circumstantial, tending to show that the accused was guilty of the offense charged against him.

We come now to the consideration of the last error assigned or argued, viz., that the mayor erred in admitting hearsay evidence. As I have said, most of the evidence tending to show that the defendant committed this offense, was of a circumstantial nature. He was seen driving out of town at an early hour of the miorning with his nitro-glycerine wagon; he was seen going towards the magazine where the company for whom he worked kept its nitro-glycerine stored. He was seen returning to, and passing through the town at such time thereafter as would fairly allow him to go to the glycerine magazine, load up his wagon and come back. He was followed to a well, some distance from the town, which appears was shot with nitro-glycerine that day, perhaps with a hundred quarts. These, and other circumstances tend to fasten the guilt upon him. In the course of the examination, Mr. Reed, the chief of police, was called as a witness. He had been apprised of the suspicious conduct of the accused and had followed him to the vicinity of this well that was shot. He does not appear to have learned a very great deal of what was going on there; at least not at first hand. He followed the wagon after it left the corporation, trailing it by means of the tracks that the wheels left, and finally came in view of the wagon; he followed the defendant until he disappeared at the well. Mr. Reed did not go to the well at once nor until after the shells containing the explosive had been lowered into the well, but he says he received some information as to the amount of nitro-glycerine that was used in shooting the well. He was asked by the court:

“Mr. Reed, about how many quarts of glycerine were conveyed by means of this team of horses and wagon, through Wooster street, Bowling Green? A. I don’t know, only from the information I gained at the well.” (Objected to.)

“Q. What was your means of information? A. I talked to the owners of the well, part owners interested in the well.” (Objected to.)

By the court: “If Mr. Reed is possessed of any information to give him knowledge of the amount of glycerine, that is the information we want.”

Counsel for defendant: “If he got his information from Mr. Walters, I presume he could tell it. I should object to his telling anything he got from any one else. ’ ’

By the court: “Yes, Mr. Reed may answer that question. If you know how many quarts of glycerine were there; it is a question of knowing. The question does not measure up the exact quantity. It is simply a question of about how many quarts, and if he has any means of knowing if there were so many quarts or about so many quarts, we are not interested especially where he got his information, but as to whether he knows.” (Objected to by counsel for defendant as incompetent.)

By the court: “I think you may answer that question if you know. Do you know about how many quarts were transported over Wooster street? (Objected to by defendant; overruled and exception). A. Well, from one source I ascertained it was one hundred and twenty quarts; from another source I ascertained it was one hundred and fifteen quarts.”

Counsel for defendant asked that the answers be stricken out as hearsay evidence; motion overruled and exception. On cross-examination the witness is asked:

“Q. The information you received was not from Mr. Walters? A. Not from Mr. Walters; no.”

Defendant renewed his motion to strike answers from the record as hearsay evidence.

By the Court: “He hasn’t said he got it as hearsay evidence.” (Motion overruled and exception).

We are only required to apply to this certain elementary law upon the subject of hearsay evidence. There is not much difference in the statements of the writers upon the subject in the different text books. I will read from Bradner on Evidence, (2d Ed.), page 2:

“Hearsay is the evidence of those who relate, not what they know themselves, but what they have heard from others. Such mere recitals or assertions can not be received in evidence for many reasons, but principally for the following: First, that the party making such declarations is not on oath. And, secondly, because the party against whom, if it operates, has no opportunity of cross-examination.”

And reading from pages 275 and 276, Sections 1 and 2: ■

“It is a general rule that hearsay evidence is not admissible to establish any specific fact which, in its nature, is capable of being proved by witnesses who speak from their own knowledge; or, in other words, that evidence, whether written or spoken* which does not derive its credibility solely from the credit due to the witness himself, but rests in part upon the veracity and competency of some other person from whom the witness received the information, is not admissible to establish a substantive fact. And this is the rule, although the matter sought to be proved was, at the time it was made, against the interest of the person making it, and although no other evidence can possibly be obtained; as, where it is the declaration of a person who was the only eye-witness and who keeps out of the way to avoid being subpoenaid. The reason of the rule is that such evidence requires credit to be given to the statement of a person who is not under the obligation of an oath or any of the ordinary tests for ascertaining the truth of the statement. The above rule is subject to many exceptions which are as well established as the rule itself. These exceptions are mainly under the following heads: (1) Admissions by parties in interest. (2) Pedigree. (3) Boundaries. (4) Dying declarations. (5) Relating to matters of general public concern. (6) Declarations or entries made in the course of office or business. (7) Ancient possession. (8) Declarations against interest by person deceased. (9) Testimony given by a witness on a former trial, since dismissed.
“Section 2. The term ‘hearsay’ is used to denote that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rest also in part on the veracity and competency of some other person. Thus, testimony of a witness as to what he has been told, but who knows nothing personally, is mere hearsay; as the testimony of a physician that other physicians concurred with him in his opinion, is hearsay. So testimony of plaintiff, in an action for breach of promise that she heard that defendant was very rich.”

Of course, there are a multitude of illustrations. It seems to us that this evidence comes fairly and clearly within the rule prohibiting hearsay evidence. Mr. Reed does not say simply that it was information he got at the well, but in answer to the question of the mayor as to his means of knowing, he says, “I talked to the owners of the well. He does not say that Mr. Walters said anything on the subject. He does not say that Mr. Walters was present and heard what was said. His statement was received as evidence upon a very material matter in the prosecution — the question whether in fact the substance used was nitro-glyeerine. Of course, the quantity was not a matter of a very great deal of importance, but it had not been established that there was any nitro-glycerine in the wagon; it had only been indicated circumstantially. But, assuming that there was sufficient evidence on the point without this, where incompetent evidence upon a material point is received and considered, we can not undertake to support a judgment upon the theory that there may have been sufficient evidence without it, or that the incompetent evidence may have been given little weight. The mayor insisted that this evidence be produced, and upon his insisting, it was produced, and in our judgment this was error, requiring reversal of this judgment, and therefore the judgment will be reversed, and the cause remanded to the mayor’s court to be proceeded with according to law.

Beverstoch <& Donehay, for plaintiff in error.

P. J. Chase, City Solicitor, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    THE CRIME OF INCEST INCLUDED IN RAPE.
    [Circuit Court of Wood County.]
    Conrad Straub v. The State of Ohio.
    Decided, September, 1904.

      Criminal Law — Incest-—-Rape—Evidence—Expression of Belief by Prosecutor — Communications by Deputy Sheriff to Jury after their Retirement — Corroboration of Testimony of an Accomplice — Victim of Incest not an Ordinary Accomplice.

    1. A person indicted under Section 7019, Revised Statutes, for incest against his daughter, can not escape conviction by showing that in committing the offense he also committed the crime of rape, in that the daughter was under the age of consent, or was overcome by force and violence.
    2. Testimony of a witness on her examination in chief, in a criminal prosecution against her father for incest, that the latter had “sexual intercourse” with her, is not incompetent as a mere conclusion, but is simply permitting witness to testify to an act by giving it the ordinary name; and its admission'in evidence is not prejudicial, especially when witness was, on cross-examination, required to relate in full all the facts and circumstances of the transaction.
    3. The trial court is not guilty of an irregularity, such as will warrant a reversal of a judgment of conviction in a felony prosecution, by instructing the deputy sheriff, in the absence of the defendant, to ask the jury while in the jury room, and after it had retired to deliberate upon the verdict, once at supper time, and again about 11 o’clock the same night, what the prospect was of an agreement — it not appearing that the jury was urged to agree.
    4. Where the fair conclusion of the evidence admitted at the trial of ■defendant for incest, including that of physicians who examined the female, is that the latter had had sexual intercourse with some one on other occasions, a statement by the prosecuting attorney, in his argument to the jury, that “I believe the defendant is guilty of having sexual intercourse with his daughter on February 2, 1901 (the date alleged in the indictment), and I am warranted from the evidence in saying that Í believe he had . intercourse with her on many other different occasions,” is not of such character as would constitute misconduct) on his part.
    5. A girl fourteen years of age, with little conception of the enormity of the offense, who is overcome by her father who is occupying the same bed, and submits to incestuous intercourse upon his suggestion, and under his influence, is not such an accomplice in crime as will render her testimony incredible or unworthy of belief unless corroborated by other witnesses.
    6. There is no rule of law in Ohio preventing a jury from convicting in a felony prosecution upon the uncorroborated testimony of an accomplice.
    Hull, J. (orally); Haynes, J., and Parker, J., concur.
    This action comes into this court upon a petition in error to reverse the judgment of the court of common pleas.
   The plaintiff in error, defendant below, was indicted for the crime of incest with his daughter, Lena Straub, was convicted, and the court overruling a motion for a new trial, entered judgment upon the verdict, sentencing the plaintiff in error% to the penitentiary for the period of five years; and it is to reverse that judgment that this proceeding in error was brought here.

There are several grounds of error alleged: It is claimed that the defendant below could not properly be convicted of incest for the reason that the evidence showed that his daughter was under the age of sixteen years at the time of the alleged sexual intercourse, and that, therefore, the crime that he was guilty of, if any, was rape and not incest. It is contended that the court erred in the admission of testimony, and that it was guilty of certain irregularities. Further, that the argument of the prosecuting attorney was improper; that a new trial should have been awarded on the ground of such misconduct of the prosecutor. It is claimed also that the verdict was against the weight of the evidence and not sustained by sufficient evidence. The ease was fully argued by counsel, both for the state and for the defendant.

The plaintiff was indicted under Section 7019 of the Revised Statutes, which relates to the crime of incest and is as follows:

“Persons nearer of kin by consanguinity or affinity than-cousins, having knowledge of their relationship, who commit adultery or fornication together, shall be imprisoned in the penitentiary not more than ten years, nor less than one year.”

The undisputed evidence in the case shows that at the time of the commission of the alleged offense, to-wit, the second of Febru-ary, 1901, the daughter was not more than fourteen years of age. She testified that she was only fourteen at the time of the trial, and it is claimed that under Section 6816 of the Revised Statutes, the offense of the plaintiff in error if anything, was rape, and that he should have been indicted and tried for that, and not for incest, of which it is said he should have been acquitted. Section 6816 is as follows:

“Whoever has carnal knowledge of a -female person forcibly and against her will, or, being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.”

It is contended by counsel for plaintiff in error that it was the duty of the court, under this testimony, to direct a verdict of acquittal. The crime of incest can only be committed, it is argued, where both parties are of the age of consent and agree to the sexual intercourse; that there must be the consent of both to constitute the crime. The statute defines incest to be where persons nearer of kin by consanguinity or affinity than cousins, having knowledge of their relationship, commit adultery or fornication together; and authorities are cited to the effect that the crimes of adultery and fornication are committed where both the man and the woman are willing parties to the offense; and Section 6816, Revised Statutes, which I have read, makes the offense which the evidence discloses here, the crime of rape. It is argued that the female, being incapable of giving consent by virtue of the statute, and the offense itself being denominated rape in the statute, it can not be fornication, and that, therefore, the offense can not be incest, and can be nothing but the crime of rape, which, it is argued, is a separate and distinct offense from that of incest.

The authorities on this question appear to be -to some extent divided; they are somewhat in conflict, there is no question about that. A summary of them is found in Vol. 16 of the Encyclopedia of Law, at page 135, where the authorities on both sides of the question are to some extent collected. A case in the 23 Am. St.. Reports, 141 (found in the 20th Oregon, 437), sustains the contention of the plaintiff in error. I read this from the syllabus in the case:

“On the trial of a charge of incest, evidence as to violence used in the commission of the crime charged is inadmissible.
“Rape and incest are two distinct crimes, and while evidence of the violence used in the commission of the former is admissible, such evidence is not admissible under an indictment charging the latter crime alone.
“Rape by forcible ravishment and incest can not be committed by the same act, as incest is accomplished by the concurring assent of two persons, while rape is committed through the impelling will of one.
“Evidence showing the commission of rape will not sustain a conviction under an indictment charging incest alone.
“One charged with incest can not be convicted on the uncorroborated evidence of the prosecutrix alone.
£ £ Indictment charging incest must allege that the act charged was the joint act of both parties.” .

This was a case where actual force was used in the commission of the offense. The same doctrine is held in California, Michigan and some other states. There are, however, cases on the other side of the question, and there has been no decision by our Supreme Court upon this question whether a man indicted for incest may be found guilty of that crime, although the evidence shows he is guilty, under the statute, of rape.

In other states, however, this question has been answered in the affirmative. In 70 N. W. Rep., 613, an Iowa case, decided April 7, 1897, the court say in the syllabus:

“On a trial for incest, it was not error to admit evidence of an act which constituted rape, since that crime includes incest. 1 ’

And on page 617 of the opinion the court say:

“It appears from the testimony of a son of the defendant, younger than Dora, as well as by her testimony, that the three were in Sioux City in the fall of 1893, and that the three occupied one bed, by compulsion from the defendant as to Dora for a part of the night, and that defendant, while the three were in bed together, had intercourse with Dora. It is said that if this evidence proves anything, it proves rape, and that evidence of such a crime could not be used to render probable the act charged, as might evidence of an offense like the one charged. But we hold that, even though it were rape, if the relationship existed essential to the crime of incest, it would be incest — that is, incest would be included in the crime of rape; so that in no event was the rule violated. ’ ’

Porath v. The State, 63 N. W. Rep., 1061, is to the same effect. It is a Wisconsin case, decided June 20, 1895, and this is found in the syllabus:

“A father who has sexual intercourse with his daughter is guilty of incest, independent of the question of force.”

The court say on page 1046:

“The fact that the defendant used a certain amount of force to overcome the resistance actually made will not enable him to escape the punishment for incest, the parties being within the precribed degree of consanguinity, although the force used was not sufficient to constitute rape. It does not necessarily follow in all such eases that the female is to be regarded as an accomplice, and particularly in a case like the present, in view of the relation between the parties, and the coercive authority of her father over her. Raiford v. State, 68 Ga., 672; Norton v. State, 106 Ind., 163 (6 N. E., 126). If, in the commission of the incestuous act, the female was the victim of force, fraud, or undue influence, so that she did not act voluntarily, and join in the commission of the act with the same intent that the accused did, then she ought not to be regarded as an accomplice. In all such eases where is to be proved inferentially the question of accompliceship, is one of fact for the jury.”

In State v. Chambers, 43 Am. St. Rept., 349, the court say in the syllabus:

“One accused of incest can. not escape conviction on the ground that the female upon whom the crime was committed did not consent thereto, or was of such an age that she was at the time capable of giving her consent. That the act so committed also constitutes the crime of rape does not prevent it from constituting the crime of incest. ’ ’

In Smith v. State, 54 Am. St. Rept., 140 (108 Alabama, 1), the syllabus reads:

“The consent of both parties is not essential to the crime of incest, and the defendant may be convicted of that crime, though in committing it lie employed the force essential to the crime of rape. ’ ’

The court say in the opinion:

“This is an open question in Alabama. There is nothing in our statute defining the offense to prevent us from taking ground with what is said in the text quoted to be the weight of authority; but, to the contrary, every element of the crime as denounced in our law may well exist as against one party to the sexual act, though the other did not consent thereto, and though the act was only accomplished by the man by such force or coercion brought to bear on the woman a would render the man guilty also of rape.”

In People v. Rouse, 43 Mass., 193, the syllabus is as follows:

“Under the Rev. Stats., c. 137, 11, a defendant indicted for a rape alleged to have been committed upon his daughter, may be convicted of incest, if the jury find the criminal connection, but that it was not by force and against the will of the daughter.”

If the defendant was willing and consented to the sexual intercourse, he can not escape by showing that the woman was overcome by force and was not of the age of consent, for so far as he is concerned, it is incest as well as rape. In the case at bar the testimony shows that the girl was of the age of fourteen years; that she did, in fact, consent; that no force was used upon the part of the defendant to accomplish his purpose.

The offence of having sexual intercourse with a female under sixteen years of age, with her consent, the statute says is rape; but that language is rather to be considered to mean that the Legislature has enacted that one who has intercourse with a female under sixteen years of age, with her consent, shall be punished as for rape, or shall be deemed guilty of rape. That is the way the statute formerly read; it now reads that such person is guilty of rape, and he is punished accordingly. But the fact still remains that the other party is willing; she does in fact give her consent; she is not overcome by force.

^The Legislature fixed the age at sixteen years. It might have fixed it at eighteen or twenty years. The weight of authority and the better reasoned eases sustain the contention of the state upon this proposition.

It would seem a strange rule of law that if a man was indicted for incest he might escape conviction and secure an acquittal by satisfying the jury that he overcame the woman by force and violence. That seems to be the view of the Supreme Court of Oregon. We hold in favor of the state and against the plaintiff in error upon this proposition.

It is urged that the court erred in permitting the girl, Lena Straub, to testify on examination in chief by the prosecuting attorney, that her father had sexual intercourse with her, and it is contended that this was permitting her to state a mere conclusion without stating any of the facts. We are of the opinion that it is permissible and proper to admit such a question and answer. It is a conclusion to be sure, as many other things are that witnesses testify to; but it is simply permitting a witness to testify to an act by giving it the ordinary name. She is open to cross-examination, however, and in this ease she was requred on cross-examination to relate in full, in detail, all of the facts and circumstances of the transaction, so that if there were any doubt about the propriety of allowing such a question and answer, we would not hold that the defendant had been prejudiced by it' in any respect, in view of her very full recital of the facts upon cross-examination. -

It is said that the court was guilty of irregularity after,the jury had retired. According to affidavits filed, after the jury had been out about an hour, perhaps, they going out late in the afternoon, supper time having arrived, the court instructed the deputy sheriff to ask the jury what was the prospect of their agreeing, and the deputy did so, and reported that there was no prospect of an immediate agreement, and the jury were thereupon given their supper. 'And again about fifteen minutes to eleven that night, the jury not having agreed and the court, presumably desiring to know whether they were likely to agree that night, directed the deputy sheriff to ask a similar question, which he did, and in about half an hour after that time the .jury did agree. These questions were asked in the absence of the defendant, and this, it is urged, was improper.

There is a statute permitting an inquiry to be made of the jury, through the sheriff, as to whether they have agreed. The question put to them was a little different, but not very different, from the one laid down by the statute. It being about supper time, and it being proper to furnish the jury with their supper if they had not 'agreed, or were not likely to do so soon, it seems to us it was not improper for the court to direct the deputy sheriff to inquire of the jury what the prospect of their agreeing was. They were not urged to agree, or anything of the kind, and the same may be said of the question that was asked later at night. It is of course the rule, that the defendant has the right to be present at every stage in the trial of the case, and there has been cited in argument the case of Bennett v. State, 10 C. C., 84, where the judgment was reversed, but in that case the jury were brought out into the court room -in the absence of the defendant and asked certain things, and statements made to them that are not in this case, which it was held by the circuit court should not have been done, and the judgment was reversed. We do not think this case is like the Bennett case. In this case, the jury were' not brought out of their room; this question was put to them in their room by the deputy by order of the court, and in our judgment there was no irregularity on the part of the court in that act.

It is argued that the prosecuting attorney was guilty of misconduct in his argument to the jury, which was prejudicial to the defendant. According to the affidavits the prosecuting attorney said to the jury: “I believe the defendant is guilty of having sexual intercourse with his daughter on February 2, 1901, and I am warranted from the evidence in saying that I believe he had intercourse with her on many other different occasions. ” The prosecuting attorney was arguing the case to the jury from his point of view and stating to them what he claimed from the evidence, and he said to them that he believed the defendant was guilty of having sexual intercourse with his daughter on the second of February, that is, the date alleged in the indictment. Certainly there could be nothing improper in that. Anri he said further that he believed he had had intercourse with her on other and different occasions. Of course the defendant was only on trial for this one offense, but her conduct, and his conduct, as shown by the evidence at the time of the alleged commission of the offense in question, was before the jury; the fact that she made no resistance at that time, and that he accomplished his purpose, according to the testimony, without causing her any great pain, as she testified to, was all before the jury. The testimony of the physician who examined her was before the jury, and the fair conclusion from the testimony would be that she had had sexual intercourse with some one on other occasions, and the prosecuting attorney, arguing from this evidence to the jury, made this statement. The evidence that was offered by the state that she had had intercourse with her father on other occasions was excluded. We are not entirely clear but that this would have been admissible, not for the purpose of convicting him for an offense committed at any other time, but as shedding light on the transaction in question, and upon the question of whether the girl was telling the truth or not in her narration of the transaction;.but all that was excluded, and we need not, and do not, pass upon that question. But in view of the testimony that was admitted, we do not think that this remark of the prosecuting attorney was of such a character as would constitute in any respect misconduct on his part.

It is claimed further, and urged with earnestness, that the evidence is not sufficient to sustain the verdict; that it was against the weight of the evidence; and we have examined the record with a great deal of care. It is urged that there is no corroboration; at least, not sufficient corroboration of the testimony of the girl to warrant a conviction. I do not intend to go over the testimony of the ease at any great length. The girl testified as to her age, that she was about fourteen years old; that she had lived in a church institution in Cincinnati for some years; that she had come, home about a year before the second of February, 1901, when this offense is alleged to have been committed. According to the testimony of the girl and the other children in the family, and the defendant, they lived in a house at Mermill, this county, in very close quarters; they had for a time only one bed with a lounge, and part of the time, two beds; the father and the girl occupied one bed, sometimes alone, and sometimes with a smaller brother, and sometimes other children were in that room. The record discloses clearly that they did occupy the same bed at times, indeed the defendant does not deny this. The girl testifies to the transaction on the night in question; stating all of the details fully upon cross-examination. She was examined by a physician soon after this alleged occurence, who testified that in his judgment she had had sexual intercourse with some man. There was evidence offered tending to impeach the character of the girl for truth and veracity; and testimony was offered by the state to sustain her character for truth and veracity. The defense offered testimony to sustain the character of the defendant for chastity, and the state in rebuttal called some witnesses attacking his character for chastity, and an older daughter, a sister of the girl in question — some years older —testified very positively that her father’s 'character for chastity and his conduct with women was b'ad; that he had made improper suggestions to her. She testified that her father told her, her mother being dead and having ■ been dead for some years, that it was proper for the daughter to take the place of the mother, and narrated what occurred, and there was other testimony of changing character. It it difficult under these circumstances to conceive of this girl manufacturing this charge against her father. We are unable to find any motive to impel her to come to the public authorities and charge her father with the commission of this grave offense.

It is not the rule in Ohio that a jury can not convict upon the uncorroborated testimony of an accomplice, but does that rule which impeaches the testimony of an accomplice apply with all its force to the case at bar? Was she an accomplice in the true sense of the word? An accomplice is one who freely and voluntarily engages with another in the commission of a crime, and when such person goes upon the witness stand and testifies against his partner in crime he does so often with the purpose and intention of saving himself, and his testimony is discredited; but where a girl of fourteen years, with little conception of the enormity of the offense, is overcome by her father with whom she is occupying the same bed, and submits to incestuous intercourse upon his suggestion, and under his influence, she is not such an accomplice as necessarily renders her testimony on that account incredible or unworthy of belief unless corroborated by other witnesses. There should be in all such eases corroboration, if possible, but, as suggested by some of the cases, a girl under those circumstances, joining with her father in the commission of the offense, is not to be considered in the light of an ordinary accomplice; but the Supreme Court has said that even in an ordinary case, corroboration is not required absolutely. The court say in the case of Allen v. The State, 10 Ohio St., page 288:

D. B. Jones and Baldwin & Harrington, for plaintiff in error.

E. G. McClelland, Prosecuting Attorney, for defendant in error.

“While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice. ’ ’

The court stated to the jury that the most of the evidence against the defendant was that of the girl, the so-called accomplice, and after proper caution and instructions they found the defendant guilty.

We have examined this record with a great deal of care, and considered it fully, appreciating the grave consequences of this judgment to the plaintiff in error, and we are unable to find that the jury were not warranted in finding the defendant guilty of this crime. We are of the opinion that he is guilty.

The judgment will be affirmed.


text:
    INADEQUATE PAYMENT FOR. STOCK WITH PROPERTY.
    [Circuit Court of Cuyahoga County.]
    John B. Orton, Jr., v. The Edson Reduction Machinery Company.
    Decided, January 16, 1905.

      Corporations — Payment for Stock — By an Exchange of Property of Inadequate Value — Effort to Assess the Stockholder — Remedy of the Corporation.

    1. A corporation having issued its stock as fully paid, in exchange for property transferred at an agreed valuation, can not thereafter, without the consent of the stockholder, treat his stock as only partially paid and- assess him for the difference between the market value of said property and the par value of the stock issued in exchange for it.
    2. In such case, where actual fraud has entered into the transaction, the remedy of the corporation is to rescind the agreement, tender the property back to the stockholder and ask that he be compelled to return the stock, or its market value, to the corporation.
    Winch, J.; Hale, J., and Marvin, J., concur.
    This case comes into this court on appeal and was heard upon demurrer to the amended answer.
   The petition sets forth that plaintiff is the owner of fifty-eight, fully paid, non-assessable shares of the capital stock of the defendant company, a corporation organized under the laws of the state of Maine; that for the purpose of meeting its losses and expenses, the defendant company is attempting to levy and collect an assessment of five dollars per share upon the stock of plaintiff and other stockholders, and, on August 26, 1904, notified him that unless he paid said assessment within five days it would sell his stock. Alleging the insolvency of the corporation and the injury which would result to him if his stock should be sold, plaintiff prays that defendant be enjoined from selling his stock, or offering it for sale.

The answer admits plaintiff’s ownership of stock and the attempt to levy an assessment thereon, sets forth the regularity of the steps taken to levy the assessment, pleads the laws of Maine regulating corporations, and further sets forth a contract dated December 24, 1901, signed by all of the stockholders of the Buckeye Fish Company, including plaintiff, wherein it was agreed that a reduction company should be organized to take over the reduction part of the business of said Buckeye Fish Company, said company to be formed to have a capitalization of $1,500,000 and that $1,200,000 of its stock should be issued to the stockholders of the Buckeye Company pro rata as the purchase price of certain patents and processes owned by said company, such stockholders agreeing that the executive committee of the Buckeye Fish Company should take the necessary steps to incorporate said new company in such state as said committee should deem best, take charge of stock subscriptions and the delivery of said stock to the signers of said agreement.

The answer further alleges that the defendant company was organized pursuant to said agreement and its stock issued as .therein provided, plaintiff obtaining his stock in that manner; that the property turned over in payment for said $1,200,000 of stock was at the time carried on the books of the Buckeye Fish Company at a valuation of only $200,000, and was at the time of no more value than that amount. That the new company had no other assets than the patents and processes so conveyed to it, which plaintiff and all other stockholders well knew, and that they then knew and contemplated that to. develop said patents and processes, put the same upon the market and construct plants and machinery to operate under the same would involve a large additional expense and that they authorized the directors and officers of the defendant company, by electing, them as such, to incur such expense, well knowing that there were no resources from which they could be paid, except by assessment upon the stockholders, which defendant company made in order to provide funds for the prosecution of the business of the company.

The answer further alleges that by reason of the premises plaintiff’s stock, although it purports to be paid-up stock, is not paid-up stock; that it was never delivered to xne stockholders as such and that it would be an actual fraud upon its cred-tors to so treat the same.

A second defense pleads the force and effect of said contract of December 24, 1901, as an authorization to the directors of the defendant company to incur indebtedness for the prosecution of the business of the company; that said indebtedness was created with plaintiff’s knowledge; that there was no other way to pay said indebtedness except by an assessment on the stock, and that by the making of said assessment the directors were carrying out the intention and object of the stockholders, and plaintiff should not now be heard to deny the right of the directors to make said assessment.

The contract is not set out in full in the pleadings, but it is apparent from what is set out that by it no" express authority was given by the stockholders to the directors to make any assessments, and that the corporation has taken no steps to rescind or set aside the original issue of its stock in payment for the property mentioned in said contract.

The statutes of Maine, under which this corporation was incorporated, provide that “No payment upon any subscription to or agreement for the capital stock of any corporation shall be deemed a payment within the purview of this chapter, unless bona fide made in cash, or in some other matter or thing at a bona fide and fair valuation thereof” (Revised Statutes, Ch. 47, Section 87). “That assessments, not exceeding the amount originally limited for a share, may be made on all the shares subscribed and not paid for” (Section 37) ; and that “any corporation may purchase mines, manufactories and other property -necessary for its business * * * and issue stock to the amount of the value thereof in payment therefor, * * * and the stock so issued shall be full paid stock and not liable to any further call or payment thereon; and in the absence of actual fraud in the transaction, the judgment of the directors as to the value of the property purchased, or services rendered, shall be conclusive” (Section 50).

The truth of the allegations of the answer that the property turned over to the corporation to pay for the stock issued by it was worth only one-fifth the par value of said stock and that said fact was well known to all the parties to the transaction, is admitted by the demurrer. Such being the case, the real value of the property being so grossly inadequate, it is claimed by defendant that an action would lie in favor of a creditor of the corporation to compel the stockholders to pay up the other four-fifths on their shares; that if a creditor has a right to compel such payment as an unpaid subscription, the corporation itself can voluntarily require it.

In answer to this it may be stated that the authorities are not agreed that a creditor, after exhausting the assets of the company, can compel a stockholder to make good the difference between the par value of his shares and the real value of property exchanged for them.

Thompson on Corporations inclines to the conclusion that where property is turned in to the corporation in payment of its shares, under whatever scheme, at an overvaluation, to the knowledge of the contracting parties, this' will be evidence of fraud such as will render the stockholder liable (2 Thompson on Corp., Sections 1616, 1621).

1 Cook on Corporations, Section 46, says:

“They (corporate creditors) seek to hold the stockholders liable for the par value of the stock, less the real value of the property which was turned in to the corporation. During the past ten years there has been a vast amount of litigation on this subject. The courts disagree in their conclusions, but a careful study of the cases will show that upon authority, as well as principle, the stockholders can not be held liable in such a case. * * * reason of this rule is that if the payment by property was fraudulent, then the contract is to be treated like other fraudulent contracts. It is to be adopted in toto, or rescinded in toto, and set aside. Both parties are to be restored as nearly as possible to their original positions, the property or its value returned to the person receiving the stock and he must return the stock or its real value.”

The authorities, however, agree that:

G. J. Horn and A. A. Bemis, for plaintiff.

Smith & Taft, for defendant.

“The corporation itself, after issuing its stock as paid-up stock, and declaring it so to be, can not subsequently repudiate that declaration and agreement and proceed to collect, either from the person receiving the stock, or his transferee, the unpaid part • of the par value. It is estopped from so doing. Where, however, actual fraud enters into the transaction, then the corporation is not estopped from having the agreement set aside. The person receiving the stock can then be compelled to return the stock or its market value, and take back that which he gave to the corporation for it. But the corporation can not hold him liable for the par value of the stock” (1 Cook on Corp., Section 38). See also 2 Thompson on Corp., Chapter XXVII, passim.

Believing the law as stated by Cook is applicable to this case, the demurrer to the amended answer is sustained.