author: WINCH, J.

text:
    ROBBERY — CRIMINAL LAW — EVIDENCE—NEW TRIAL.
    [Summit (8th) Circuit Court,
    April Term, 1904.]
    Hale, Marvin and Winch, JJ.
    John - v. State of Ohio.
    1. Conduct and Responses op Accused Charged With Crime Admissible Against Him.
    Statements of third person to the accused, charging him with crime, and his conduct or replies in response thereto are admissible in evidence against the accused. The value of such evidence depends upon the circumstances of the case, and it should be received and examined with great caution.
    2. Inadmissible Evidence to Rebut or Explain Other Inadmissible Evidence.
    Where inadmissible evidence has been admitted in behalf of one party, without objection, similar evidence may be admitted to rebut or explain it.
    3. Evidence op Accused’s Excessive Use op Absinthe and Morphine not “Newlt Discovered Evidence.”
    After a conviction for robbery, a motion for a new trial based on the fifth clause of Sec. 7350 Rev. Stat., for “newly discovered evidence material for' the defendant which he could not with reasonable diligence have discovered and produced at the trial,” will not be granted, where such evidence 'consists of affidavits setting forth the accused’s excessive use of intoxicants and drugs, particularly absinthe and morphine, before and at the tirne of his arrest; that the particular characteristic of the use of such liquor and drug is to make their user and habitue secretive as to their use, deceitful, careless of results, forgetful and irresponsible, and that counsel for the accused had no knowledge of said habits of the accused until after the trial, it appearing that the accused was in jail, denied the use of such drugs, for five months intervening between his arrest and trial, and at the latter date was apparently in possession of all his faculties.
    ERROR to Summit common pleas court.
    Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.
    H. M. Hagelbarger, prosecuting attorney, for defendant in error.
   WINCH, J.

Plaintiff in error was arrested on May 15, 1903, charged with having participated with two others in robbing one Bobert Spinner. He was incarcerated in the county jail and remained there until his trial at the September term of the common pleas court of Summit county, and on October 28, 1903, was found guilty by the verdict of a jury. October 29, 1903, he filed a motion for a new trial, which, on November 4, 1903, was overruled by the court, and he was thereupon sentenced to two> years in the penitentiary. No exception to the overruling of this motion was taken, but on November 5 another motion for a new trial on the ground of newly discovered evidence was filed, accompanied by many affidavits setting forth, in substance, that at the time, the robbery was committed the accused was so addicted to and under the, influence of intoxicants and drugs that he was not accountable for what he did, and this was unknown at the time of the trial and could not with reasonable diligence have been discovered.

It appears from these affidavits that the young man was of good family, was a member of the bar of New York, and had been assistant corporation counsel of New York city, sustaining a good reputation; that on Christmas day — 1901, he met with an accident, was taken to a hospital, was given narcotics to allay his pain, became used to taking morphine, gradually became a slave to the habit, indulging in drinking whisky and absinthe to excess, descended the social and moral scale until he became a tramp, wandering about the country, associating with low and vicious characters, suffered from his excesses to such an extent that his moral and intellectual faculties were blunted; became a wreck, in fact, frequently being in prison, sometimes at his own request; that he might be restrained from himself and sobered up. He made known none of these facts to counsel assigned to defend him, nor did any of his family know that he was charged with a crime until after he had been convicted thereof.

It may fairly be supposed that the numerous affidavits to sustain the last motion for a new trial were procured in an effort by the parents of this young man to save him and themselves from the disgrace of his commitment to the penitentiary.

This last motion for a new trial was overruled, exceptions taken, bill of exceptions prepared and filed with a petition in error in this court.

The prosecuting attorney claims that no exceptions having been taken to the overruling of the first motion for a new trial nothing is before us for review except the ruling of the trial judge upon the last motion for a new trial, but we hold that the entire case is before us for examination of such rulings as the trial judge made that were excepted to by the accused at the trial. These.matters we shall examine in their order.

First. It is claimed that certain declarations of the prosecuting witness, Spinner, made in the presence of the accused should have been excluded. It appears that the accused and one of his companions were arrested in the evening shortly after the commission of the crime alleged, and taken by two, officers, Goodenberger and Benson, to the boarding house of the prosecuting witness, Spinner, for identification by him. ' The questions and answers objected to referred to a conversation of tbe accused at that time narrated by Goodenberger, and are as follows :

“Q. State wbat was said? A. We asked Spinner in effect, probably not in the same words, whether these were the parties that robbed' him, and he pointed at the accused and said he was one, and he looked; at Macklin (Macklin'was leaning up against a showcase there), and first; he said he didn’t look tall enough, and after Macklin straightened up' and turned ,around so he could get a good look at him, he said he was, one of the other men.
“ Q. Do you remember any other conversation that occurred in the presence of the accused either between you and the accused or Spinner and the accused in that house? A. Yes, sir.
“Q. You may relate it. A. Just as soon-as we got in the house the accused said, ‘I do remember meeting a colored man on some street over here and asking him for some tobacco.’ ”

It appears that without objection Spinner himself, when on the stand, testified to the same conversation as follows:

“Q. Now, Robert, what is the fact as to whether or not you identified the accused there as one of the fellows? A. As soon as I seen him I knowed him. I said, ‘You are the fellow that got my tobacco.’ ‘Yes,’ he says, ‘I did get the tobacco off a colored fellow.’ I says, ‘You are the man that robbed me.’ ‘No,’ he says, ‘I never robbed you. I got tobacco from a little colored fellow, but never robbed you.’ ”

Officer Benson’s testimony on the subject is as follows:

“Q. Tell what was done, what took place. A. Goodenberger told the lady right over there; asked her, ‘Is Mr. Spinner here?’ She says, ‘I guess he went to bed.’
“Q. Go ahead. A. She went up and got him and he come down. As soon as he\come inside the door, as soon as he looked at the accused, ‘You are the one’ he said ‘that helped to rob me,’ he says.
“Q. Who did he say that to? A. The accused.”

It thus appears that the accused at this time made a statement tending to' connect himself with' the crime. His acknowledgment that he had met Spinner about the time and place claimed by the latter, and asked him for tobacco, was significant, tended to identify him as one of the robbers, and was proper evidence for the consideration of the jury.

The rule that statements of third persons to the accused charging him with crime, and his conduct or replies in response thereto, are admissible, was laid down by this court in the case of Moran v. State, 5 Circ. Dec. 234, 235 (11 R. 464), and affirmed, no report, 51 Ohio St. 616. Tbe opinion of tbe court by Judge Hale sets forth our views of this matter, and we believe fully applies to this case. .

“On tbe night of the homicide and about one hour after the assault, Moran was arrested by two police officers -without a warrant, and taken to the house of Theodore Blakeslee, 73 Church street, where the crime was committed. Blakeslee was assaulted and mortally wounded at the same time the assault was made upon Fox, and undoubtedly by the samp person.

“At the time Moran was brought to his house, Blakeslee was lying on the floor in a dying condition, and did, in fact, expire a short .time thereafter.

“Mrs. Blakeslee claimed to have seen the murderer as he left the house after the assault, and was brought into the room for the purpose of determining whether Moran was the man she had seen. Several witnesses were permitted to testify to what occurred while Moran was there and in his presence, including statements made by Mrs. Blakeslee to or about Moran. The introduction of this testimony was resisted on the - ground that Moran was at the time under arrest, and not called Tip on to make answer to charges made against him, and should not be -prejudiced by the fact that he remained silent.

“When brought into the room Mrs. Blakeslee said, in substance, ‘You are the man that killed my husband; you did it,’ or ‘there is the man that killed my husband; he did it.’ It will be conceded that if Moran had made answer to the charge thus made to him or in his hearing, both the statements made to him and his reply would be competent.

“It appears from the record that testimony was -given tending to establish the fact that Moran did not keep silent, but did speak. One witness says he heard Moran say in a low tone; ‘My God, did I do that?’

“If this be true the testimony was competent. It was not for the court to say that it was untrue, and therefore reject the testimony.

“Many of the witnesses did not hear the statement of Moran, but that does not affect the competency of the testimony, if there was testimony tending to establish the fact that-such statement was made by him and heard by others. Both statements may not be heard or testified to by the same person. Nor does the order in which the testimony goes to the jury affect its competency, if both finally get to the jury. For this reason alone the testimony was properly received.

“But even if no statements were made by Moran, the testimony under the circumstances was, we think, competent. We know that there is some conflict in. the decisions of the diffeent states on this question, and while the precise point has not been determined by the Supreme Court of the state, we think the tendency of the decisions is in favor of the admissibility of this testimony, leaving the weight to be determined by the jury. Murphy v. State, 36 Ohio St. 628.

“This testimony is of more or less valúe, depending upon the particular circumstances surrounding the accused at the time, and should undoubtedly be examined with great care and caution, as the .jury were told to do in this case. ”

We, therefore, hold that there was no error in the admission of the testimony objected to.

Second. Exception is taken to the testimony of Detective Doerler in which he gave a conversation with the accused a few days before his arrest, in which the detective claimed he ordered the accused out of town. This testimony was incompetent, but it appears from the bill of exceptions that upon cross-examination of the defendant he was asked if Doerler had not ordered him out of town, and defendant, without waiting for the court to rule upon the question, answered “no.” On redirect examination, the defendant testified to his conversation with Doerler and gave his version of it. In rebuttal the state called Doerler, who gave his recollection of the conversation, to which the defendant excepted.

We think that under these circumstances Doerler’s testimony was admissible.

It has frequently been held that where inadmissible or immaterial er irrelevant evidence has been admitted in behalf of one party, similar evidence may be admitted to rebut it, and where part of an act or declaration is given in evidence by one party, the other party is entitled to inquire into the whole. 20 Am. Dig. 450, and cases cited.

It is said by Jones in the first volume of his Law of Evidence, Sec. 169, that the reason for this rule is, that it would be manifestly unjust, if one party is permitted to introduce irrelevant testimony, to prevent the other party from rebutting or explaining it. So it seems to us, though some courts have held that the introduction of immaterial evidence to meet immaterial evidence, is within the discretion of the trial judge. Treat v. Curtis, 124 Mass. 348; Furbush v. Goodwin, 25 N. H. 425.

In either view of the case there was no error in the admission of the testimony of Doerler, for which this case should be reversed.

It remains to consider the claim of plaintiff in error that the trial court erred in overruling the motion for a new trial, which was based upon the ground of newly discovered evidence. The character of this so-called newly discovered evidence has been given. The motioh is based upon the fifth clause of Sec. 7350 Rev. Stat., which provides that, a new trial may be granted for “Newly discovered evidence material for the defendant, which he could not, with reasonable diligence, have discovered, and produced at the trial.”

Whether this evidence, if it had been submitted at the trial, would probably have changed the result it is not necessary for us to determine;. for we are of the opinion that the evidence set forth in the affidavits accompanying the motion does not come within the provision of the-statute that it shall be “newly discovered” and such that defendant “could not, with reasonable diligence, have discovered, and produced at the trial.”

That the accused just before he was arrested had been drinking to-excess, and had been twice locked up for intoxication that he might sober up, was testified to by himself at the trial.

But it is claimed that the use by him of absinthe and morphine was-not known to his counsel- at the time of the trial. This may be so. It is also claimed that the particular characteristic of the use of such liquor and drug is to make their user and habitue secretive as to their use, deceitful, careless of results, forgetful and irresponsible. Such may be the case.

That counsel for the accused did not know of this evidence does not make it newly discovered, if at any time previous to the trial defendant,, who must be presumed to know the most about it, was able to communicate it to him. Isaacs v. People, 118 Ill. 538 [8 N. E. Rep. 821]; Pace v. State, 63 Ga. 159; Russell v. Oliver, 78 Tex. 11 [14 S. W. Rep. 264].

But was the defendant at the time of the trial able to communicate it to him?

• It must be remembered that the accused was arrested May 15, 1903,. but not tried until October 28, 1903, over five months later. During all that time he was in jail and must have materially recovered from any bad effects resulting from the use of intoxicants and drugs. There is no evidence that such was not the case. The affidavits all refer to his condition before and at the time he was arrested, and not to his condition at the time of the trial.

He was an attorney 'and knew the value of such evidence.

He himself testified in the police court the morning after the robbery occurred, and again at his trial before the common pleas court. It-appears from the counter-affidavits on the motion that he sat at the trial table with his counsel and made suggestions to him as to the manner of conducting Ms defense. He argued bis own case to the jury. From these circumstances we1 must conclude that he was abundantly able to-communicate all of the facts as to his previous habits and condition to his counsel and offer them in evidence. That he did not do so was his own neglect, and upon this he cannot base his right to a new trial.

The motion will be denied if the mover has been guilty of laches. Moore v. Coates, 35 Ohio St. 177.

It was held in the case of Nesbit v. People, 19 Colo. 441 [36 Pac. Rep. 221], that:

“A motion for a new trial, on a charge of murder, for newly discovered evidence will not be granted where it consists of the professional opinion as to the mental condition of defendant, and no efforts were shown to obtain it before trial. ’ ’

In the case of Cooper v. State, 120 Ind. 377 [22 N. E. Rep. 320] the court says:

“Where the defendant in a trial for murder testifies as to all the circumstances of the homicide, which occurred more than three years before, and seeks to justify it on the sole ground of self-defense, a new trial will not be granted on the ground of newly discovered testimony to the effect that defendant had been drinking to excess for several months, before the homicide, and was on the verge of delirium tremens. ’r

The affidavits filed in this cause make a case very similar to the case of People v. Hovey, 30 Hun 354, from which I quote as follows:

“The defendant was tried and convicted of murder in the first degree for shooting his sister-in-law on April 20,1882. There was present at the time of the shooting of the deceased, the defendant and his wife. The defendant was examined in his own behalf and testified that the shooting was accidental, stating in detail how it occurred and what he did and said on that day. It appeared by the testimony of several of the witnesses, and to some extent by the testimony of the defendant Mmself, that he had been drinking for some days before the commission of the crime, and that he was intoxicated at the time of its commission. The conviction was affirmed by the general term on March 22, and by the court of appeals on July 5, 1883.
“On July 11, 1883, the defendant moved for a new trial,upon the ground of newly discovered evidence. The affidavits, which were made by public officers attached to the police and prison force of New York, tended to show that the defendant was arrested on April 15, 1882, and committed to prison for three days for intoxication; that at the time of his arrest and while in prison he talked wildly and acted violently so that it was necessary to confine his hands, and that at the time of his discharge he was not fully recovered from the effects of the liquor; that upon the day after his arrest for the homicide the city physician visited him and found him in a highly nervous and excited condition, the result of the excessive use of alcohol; that he complained of being unable to sleep or control himself, which symptoms resulted from the abuse of alcohol and the deprivation of sedatives he had been in the habit of taking ; that he was under treatment for these troubles for some two weeks; that in the opinion of the said physician at the time of such examination the mind of the prisoner was in such a condition that he was oblivious of his actions during the week preceding said examination. These facts were not communicated to the defendant’s counsel until the latter part of June, 1883.
“Held: That it was not probable that the evidence, if received, would have changed the verdict.
“That the evidence had not been discovered since the trial within the meaning of the said section, inasmuch as the facts of his arrest, confinement and sickness must have been known to the defendant, although he might not have known the exact condition, physically and mentally, in which he then was, and that it was his duty to have made these facts known to his counsel if he deemed them important, that the only fact newly discovered was that it might have been of some importance to himself if evidence of these facts had been produced on the trial.
‘ ‘ That as the condition and mental operations of the defendants were questions necessarily involved upon the trial the evidence was cumulative.
“That the failure of the defendant to produce the evidence upon the trial was due to his want of diligence.”

In this state it has been held by the circuit court of the fifth circuit, Weber v. Wiggins, 5 Circ. Dec. 84 (11 R. 18), that:

“Motions for a new trial, based upon newly discovered evidence are usually addressed largely to the discretion of the trial court, and that court, having passed upon the case in all its aspects, a reviewing court will not interfere with the action of the trial court, especially if it sees no ground for such interference. ’ ’

We think this well states the law and adopt it. Believing that the trial court properly overruled said motion, we ‘find no error in its so doing.

Our attention has been called to the fact that the plaintiff in error for about a year has been imprisoned in the county jail, no part of which time counts as part of his sentence of two years in the penitentiary.

It has also been suggested that the young man has been rehabilitated, has overcome his bad habits, recovered from the use of drugs and stimulants and been sufficiently punished; that confinement in the penitentiary will not further reform him nor benefit society; that such •confinement may have the opposite effect. While feeling the weight of -these suggestions, we know of no jurisdiction this court has to reduce the sentence, and suggest that such representations should rather be made to the pardoning power, in which we have no part.

Hale and Marvin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — BURNS LAW.
    [Lorain (8th) Circuit Court,
    October 8, 1904.]
    Hale, Marvin and Winch, JJ.
    William A. Braman et al. v. Elyria (City) et al.
    1. What Acts or Municipal Corporations hot Within Burns Law Lan. R. L. 3999 CB. 1536-205; R. S. 2702).
    No contract, agreement or other obligation involving the expenditure ot money is entered into, within the meaning of Lan. R. L. 3999 (B. 1536-205; R. S. 2702), formerly called the Burns law, by the mere passage of a resolution declaring the necessity of a municipal improvement, the adoption of an ordinance authorizing the improvement and assessing the cost thereof, advertising for and receiving bids, and awarding the contract. All such acts are only preliminary to the contract, agreement or obligation referred to.
    2. Clerk’s Cep.tieicate Under Burns Law Lan. R. L. 3999 (B. 1536-205; R. S. 2702) in Time dt Filed Before Contract Signed, etc.
    The certificate of the municipal auditor or clerk that the money required to carry out a proposed municipal contract is in the treasury to the credit of the fund from which it is to be drawn, and is not appropriated for any other purpose, required by Lan. R. L. 3999 (B. 1536-205; R. S. 2702). formerly called the Burns law, is in time if filed before the contract is signed and the ordinance for the appropriation or expenditure of the money is passed.
    Error.
    Metcalf & Cinniger, for plaintiff in error,
    cited:
    Sections 1693, 2702 Rev. Stat. (repealed, 96 O. L. 96); Comstock Y. Nelsonville (Vil.), 61 Obio St. 288 [56 N. E. Rep. 15]; Elster v. Springfield, 49 Obio St. 82 [30 N. E. Rep. 274]; Ryan v. Hoffman, 26 Ohio St. 109; Cincinnati v. Holmes, 56 Olfto St. 104 [46 N. E. Rep. 514]; Lancaster v. Miller, 58 Obio St. 558 [51 N. E. Rep. 52]; Bond v. Madi-sonville (Vil.), 1 Ciro. Dee. 581 (2 R. 449).
    W. B. Johnson, Q. A. Gillmore and E. G. & H. C. Johnson, for defendants in error. • -
   WINCH, J.

-June 17, 1903, the council of the city of Elyria passed a resolution declaring the necessity of paving and otherwise improving East avenue in said city, and on July 15, 1903, it adopted an ordinance for the improvement of said ayenue in accordance with plans, profiles and specifications on file in the office of the city engineer, and provided that one-third of the cost and expense of said improvement, except the curbing, and the entire cost of alley and street intersections, should be assessed as a special assessment upon all the taxable property of the city, and that the remainder should be assessed as a special assessment upon the abutting property by the foot front, the assessment to be paid in ten annual installments. Thereafter it advertised for bids and received them, and on September 5, 1903, awarded the contract for the • work to the Ayers Asphalt paving company. On September 27, 1903, the city issued its certificate of indebtedness in the amount of the contract price to a local bank and borrowed that amount of money, which was placed in the city treasury to the credit of the proper fund, and the city clerk properly certified the fact and filed his certificate in his office. Thereupon the duly authorized officers of the city signed a contract with the Ayers company for the Completion of the improvement, and the clerk of the city certified on the contract that the money to pay the amounts coming due thereunder was in the treasury of the city to the credit of the proper fund. '

Upon October 11,1903, plaintiffs in proper form brought their action in the common pleas court to restrain the defendants from proceeding with said improvement, the payment of any money on the contract and the issuing of bonds, and asking that said resolution, ordinance and contract be set aside.

The case was heard by the common pleas court and determined adversely to the plaintiffs, the court making a separate finding of facts and law, on which findings the case is now presented on error for review by this court.

The only question thus raised for the determination of this court is whether the city complied with what was formerly known as the Burns law, Sec. 2702 Rev. Stat. (repealed, 96 O. L. 96), now re-enacted with slight changes as Lan. R. L. 3999 (B. 1536-205; R. S. 2702), the part pertinent to this case reading as follows:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor <of the corporation, and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose, etc.”

It is conceded that no such certificate was made before the resolution of necessity was passed, the ordinance for the improvement and assessing its cost was adopted, bids advertised, and received, or the con-: tract awarded. The certificate was made, however, before the contract was signed.

Was it made in time?

There has been no ease decided by the Supreme Court of this state specially deciding the question here raised. There are two cases cited to us which contain language indicating that perhaps this certificate should have been made at least before the ordinance for improvement and assessment was adopted.

The case of Ryan v. Hoffman, 26 Ohio St. 109, involved the payment of money for,land taken by the city of Cincinnati for the extension of a street, and the effect of Sec. 3 of the act of April 16, 1874 (71 O. L. 80) which provided that “no ordinance or other order for the expenditure of money (which) shall be passed by the city council * * * shall take effect until the auditor of said city shall certify to the city council there is money in the treasury especially set apart to meet such expenditure.” Judge Gilmore, on page 123 of the opinion in said case said: “The ordinance condemning the land in question, is an ordinance for the expenditure of money,” but the statute was held not to apply because the ordinance was passed before the. law took effect.

In the case of Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514], the validity of a contract for the improvement of a street in the village of Avondale was in question. Judge Minshall starts his opinion on page 110 with the statement:

“The principal and only question in the case is, whether what is known as the Burns law, section 2702 Revised Statutes, is applicable to the improvements authorized by the acts of the legislature under which the village of Avondale proceeded in this case. ’ ’

The court held that the special legislation under which the village proceeded provided an exception to the Burns law and that the latter law did not apply. But on pages 112 and 113 of the opinion we find the following statements:

“These acts, particularly the order of the council, that the improvement be made, fixes an indebtedness for the entire cost of the improvement, one-balf as an assessment on tbe property benefited and the other half on the general taxpayers of the village. It is against the fixing of an indebtedness on the corporation without the money being in. the treasury to meet it, that the Burns law is designed as a protection. * * * It may be said that the indebtedness is not created until as. contract for the improvement is made. It is true that it does not exist in favor of any.particular creditor; nevertheless, on making the order .the successive steps — the advertisement for bids, action on them, the letting of the work and making of the required contract — all follow as. a necessary sequence under the statute. If the council should refuse to take any of these steps without cause, it could be compelled by mandamus to do so. Hence, if the Burns law can have any application te this statute, according to its spirit it must apply to the order of the council that the improvement be made. It is this order that fixes and entails the indebtedness upon the corporation. It is in fact an order for the expenditure of money.”

Such is also the argument of counsel for plaintiffs in this case, but in the absence of any binding statement of the law of the case by the Supreme Court, we have come to a contrary conclusion, which, to a slight extent, is sustained by a careful reading of the case of Elster v. Springfield, 49 Ohio St. 82 [30 N. E. Rep. 274], and Comstock v. Nelsonville (Vil.), 61 Ohio St. 288 [56 N. E. Rep. 15].

It therefore becomes necessary to construe Lan. R. L. 3999 (B. 1536-205), formerly See. 2702 Rev. Stat. (repealed, 96 O. L. 96), and determine at just what stage in the proceedings culminating in a contract for' a municipal improvement, the clerk’s certificate becomes necessary, and all subsequent proceedings without it void.

Certainly no “contract, agreement or other obligation involving the expenditure of money” was “entered into” by the passage of the resolution of necessity, the ordinance to improve and assess, the advertising or receiving bids.

Nor was such contract, etc., “entered into” when the contract was awarded. The statutes elsewhere provide how municipal authorities shall enter into contracts, and the formalities with reference thereto, without which the contract is void.

The certificate was therefore in time so far as the entering into a contract, agreement or other obligation is concerned.

But the law further provides that no “ordinance, resolution or order for the expenditure of money” shall be passed, until the certificate is made.

We bave in this case to consider a resolution, tbe resolution of necessity; an ordinance, tbe improvement and assessment ordinance, and an order, tbe order awarding tbe contract.

All of these in one sense concern tbe expenditure of money, but certainly tbe resolution is not for it, because tbe whole proceeding may stop upon tbe bearing of objections to tbe improvement, and tbe expenditure of money will not necessarily be made because of the adoption of tbe resolution.

Tbe same may be said of tbe ordinance — bids may be advertised for, but none received; or all bids received may be rejected; tbe ordinance may be repealed before any step is taken under it actually necessitating tbe expenditure of money. Tbe passage of the ordinance in no wise binds tbe city to make the improvement, and after its passage, who is to see that tbe improvement is made? What interested party is there, who can compel tbe city to go ahead, advertise for bids and accept them? Sometimes when bids for such improvements come in they are so high and tbe city’s financial condition so poor, or the times so bad generally, that tbe whole matter is then dropped. Who can interfere with tbe judgment of tbe city authorities then exercised? Tbe mere passage of tbe ordinance creates no liability against tbe city, and therefore tbe ordinance cannot be said to be one for tbe expenditure of money. Without further steps being taken, no city official would, upon tbe passage of tbe ordinance be authorized to expend money.

Tbe same may be said of 'the order awarding the contract. That order is simply an expression of opinion on the' part of tbe council that a certain bid is tbe best and should be accepted; that a contract should thereafter be made with such bidder. It authorizes tbe making of a contract, but it is not a contract, agreement or obligation binding upon tbe city, until tbe contract authorized is executed, in behalf of tbe city, by tbe proper authorities. Suppose there were no Burns law, would tbe contractor claim that be could go ahead with tbe work immediately, without any further contract with tbe city, upon tbe mere awarding of tbe contract to him? We think not. Such action on tbe part of tbe council might be reconsidered and its award revoked before any contract was signed. Municipal corporations cannot enter into agreements with tbe same lack of formalities that characterizes tbe acceptance of propositions by individuals, and we are inclined to think that tbe right of all legislative bodies to reconsider their action before persons dealing with them bave acted upon their action, should be recognized.

If we are right in our construction of tbe Burns law,, in the case of municipal improvements to be let by contract, tbe clerk’s certificate of money in the treasury to the benefit of the proper fund, unappropriated for any other purpose is not required until just before the contract is signed. While we reach this conclusion with doubt, from a mere interpretation of the words of the law, such doubt is removed when we consider the necessities of the ease and the impracticability ■of making such improvements, should any other interpretation be given to the law.

The intention of the law is to prevent the entering into of improvident contracts; — improvident, because the payment of obligations is not foreseen when the obligations are incurred. Such intention is strictly complied with if the certificate is made before the final step is taken which makes a contract absolutely binding upon the municipality and absolutely requiring the expenditure of money. Such intention does not contemplate that all. preliminary steps leading up to the making of such binding contract shall be void, unless the certificate is made before all such preliminary steps are taken; and at what stage in the proceedings are we to draw the line, except at the entering into the contract ?

To take any other view of the case would fill our municipal treasuries with idle money for improvements finally abandoned and never made; would prevent obtaining bids upon which to determine how much money must be so certified; would delay municipal improvements, contrary to the spirit of the law; would involve loss of interest in the case of delayed improvements, would, in fact, as before stated, extend the scope of the law far beyond its plain and reasonable intent.

The judgment of the court of common pleas is affirmed.


author: SULLIVAN, J.

text:
    ELECTROLYSIS — STREET RAILWAYS — MUNICIPAL CORPORATIONS,
    [Montgomery (2nd) Circuit Court,
    December 22, 1904.]
    Sullivan, Wilson and Dustin, JJ.

      Dayton v. City Railway Co.
    1. Street Railway Company Only Liable for Actual Negligence in Opekatinq Trolley System.
    A street railway company wbicb is operating with, a single trolley system, under ’a franchise granted by the municipality, is only liable for damages resulting from its actual negligence m the use of such system.' The municipality will be held, in granting such franchise, to have contemplated and condoned by anticipation any mischief arising from the reasonable use of such system.

      2. Equity Will not Compel Electric Railway Company to Change its System, When.
    Where there is a sharp conflict in the evidence, including the testimony oí expert witnesses, as to whether or not the present system under which an electric street railway company is operating is a proper system, a case is not presented which will authorize a court of equity in requiring the company to change to another system.
    2. Negligence or Others no Defense to Party Sued, etc.
    The fact that other electric street railway companies operating within a municipality by the same system are partly responsible for injury resulting to the city’s water pipes from electrolysis, constitutes no defense to the company against whom the action is brought.
    t. Injunction to Restrain Street Railway Company From Allowing Electricity to Come in Contact With City Water Pipes.
    Injunction will lie, at the suit of a municipality, to restrain an electric ■ street railway company from operating its system in such manner as to allow its electricity to escape into the ground and come in contact with and injure the waterpipes of the municipality.
    Appeal from Montgomery common pleas court.
    E. P. Matthews, city solicitor, for plaintiff.
    McMahon & McMahon, for defendant.

       Affirming, on appeal, Dayton v. Railway, 12 Dec. 258.

   SULLIVAN, J.

This cause was at a former term heard upon the transcript of the testimony taken in the court below and depositions taken upon the appeal.

Omitting the several averments of the petition admitted by the defendant, those controverted by the defendant, stated substantially, are as follows:

That the railway company has not furnished a metallic circuit, for the return, to the power house of the electricity having been used to propel its cars, and hence the current is thus left to return as best it can. It escapes from the rails to the earth, and a division of the current takes piase, the water pipes of the city receiving a part.

That the railway company so imperfectly and inefficiently connected the rails of its tracks, that the return current, in a number of places, leaves the rails, escapes into the earth and to the water pipes of the city, and thence back to the earth or rails. That at the points where the return current quits the water pipes, returning to the earth or to the rails, the pipes are decomposed, the metal of the pipe removed, and then is left simply the soft material of the chemical compound constituting the pipes. By this action the pipes in some instances have been perforated with holes, at other points split, and in some instances wholly ruined, and in eve^y case weakened.

' That the city has already been compelled to dig up and replace by new pipe, at a number of places, where the pipes have been destroyed or so weakened by the action of the return current as described, as to' render them unsafe and inefficient to carry the water, and especially under the pressure necessary in case of conflagration. That the injury is still being done and will continue unless the railway company is required to adopt some method to prevent it, and hence is a constant, menace to its own property and the lives and property of its citizens.

That points where this damage is being done and the extent of it are not accurately known to the city, and cannot be known without, digging up all of its pipes; hitherto notice of the injury being done has been brought to the city by leaks from the breaks, and hence not until the damage in such instances was completed. That the injury, il continued, will still be greater, and that it is within the power of the railway company to adopt methods for the return of the electric current after use that will wholly prevent its continuance. That the city advised the railway company of the injuries done and of their continuance, and of the city’s inability to do anything to prevent them, and demanded of the railway company that it adopt methods known to it to prevent them. But the railway company has taken no steps and still neglects, to adopt some method to prevent the injury being done; that the city is-without an adequate remedy at law and therefore prays that a mandatory injunction may issue commanding the railroad company to adopt such methods as will wholly prevent the injuries to the water pipes of the city set forth in its petition.

The railway company in its answer sets forth two defenses:

First, it denies that the rails of its track are not perfectly connected or bonded, avers that it has adopted and keeps in use the best known systems as they are invented. As to whether the decomposition of the water pipes takes place by the action of its return current, as averred in the petition, it has no knowledge, and therefore denies that it does.

It denies that it can adopt any system to prevent such action of its return current without the concurrence of the city; denies that it knowingly or purposely uses the water pipes of the city for such purposes, or that the city has ever proposed any plan to remedy the evil.

The second defense sets forth that it purchased the Dayton street-railroad and Fifth street railroad in 1893, being two systems of street-railway theretofore operated in said city by horse power, setting forth the grants to the respective companies, to be found in the several ordinances .as set forth in this defense, also the ordinances extending the grants to these respective railway companies to use trolley, storage electric, or cable motor power, for the purpose of propelling its ears; that these several ordinances constituted the contract between the defendant and the city; that the defendant, having acquired by purchaser both lines of railway in pursuance of the grants to said respective companies, in the year 1894 equipped its lines so as to operate with electricity, and since that time has operated its railway by what is known as the single overhead trolley; that the equipment of its road with this; system was done under the supervision of the proper officials of the city,, and all was done with the knowledge, acquiescence and approval of the’ city authorities; that the essential part of this system was the use of the-rails to carry the current back to the powerhouse, and the only system in use in the United States, and at the time was regarded as the only practical system for the operation of electrical railways. It was more-economical and much simpler than any other known system, les® dangerous to employes, indorsed by the Supereme Court of the state, and had the approval of scientific and practical men throughout the country; and in the city of Dayton the street railway known as the "White Line had been in operation under'the same system theretofore for the period of seven years.

It is averred in this second defense, since the grants to the defendant and the equipment of its lines with the single trolley, the city has granted to other street railways companies the use of its streets to construct and operate street railways with the same system for the application of electricity as a motive power — nine in number — with power houses within the city, the lines of which railways cross and intersect with those of the defendant and each other.

Its legal obligation to use reasonable care to prevent the electricity escaping from its rails to the water pipes of the city is admitted, but it avers it has exercised such care and diligence.

It is also averred that it proposed a method of protection and to remedy the claimed mischief to the city officials, but this proposition was declined, and none was ever proposed or suggested by the city. That the petition of the city does not inform the defendant what system the court should compel the defendant to adopt.

The defendant admits knowledge of the system of double trolley being in use in the cities of Cincinnati and New York, and the conduit system in the city of Washington, District of Columbia, but claims that the adoption of either system would not obviate the danger or protect the water pipes of the city, so long as the other street railways in the city mentioned operate with the single trolley. It claims that the conduit system is impracticable and that the double trolley would involve an outlay of a very large sum of money, in the reconstruction of its road, so as to receive such equipment, largely increase the operating expenses of its road, largely increase the danger to its employes, requiring the use of so large a number of additional wires as to greatly increase the difficulty of handling fires.

In this defense the railway company avers that there are various methods by which the city can protect itself, and the danger can be entirely obviated if the city would act in concern with the defendant, which the defendant is willing to do. It knows of no way by its own action to prevent the electricity used by it from escaping except to keep its tracks in good repair and property bonded. It claims to have always done this and is ready always so to do. That in locating the tracks of the city railway, as well as its water pipes and connections, any effort to prevent the escape of the cement would be entirely futile.

The defendant claims in this defense that the several ordinances constituting the contract between it and the city, and in pursuance thereof, the city through its official supervised the construction of its road to be equipped and the equipment of its .road with the single overhead trolley, and the same being approved and acquiesced in by the city officials, and relying thereon it expended large sums of money in the construction of its road to receive said equipment and in equipping the same therewith; that by the contract it had the right to the use of its rails as a return current. The city not having repudiated its contract, this court is without authority to compel the railway company to make any change in the construction and equipment of its road. It further avers that the city has not in any of its departments taken any action requiring the change, and the railway company would be without power to make any change without permission of the city, even though this court might make such an order.

In conclusion it avers that so much of the plaintiff’s. petition as prays that the railway company may be compelled to adopt some new system, this court is without jurisdiction, such action being legislative and not judicial.

The railway company, renewing its assurance that it is ready at all times to perform its whole duty under the contracts, between it and the city, prays that it may go hence without day and have its costs.

The city in its reply to the first defense denies all allegations therein contained, and for reply to the second defense denies that the single trolley system was in successful use in the city prior to the defendant’s operating its road by the single trolley so far as affecting the property of the city was concerned; denies that any of the grants were for single trolley. Avers that tbe grants were general, to use animal, electrical or cable power, and unless implied in tbis general grant tbe defendant bas no authority to use tbe single trolley; that tbeir general grants to the railway company tbe city did not intend nor did it authorize tbe railway company to use tbe single trolley or any other system that would damage tbe property of tbe city or its citizens. Tbe city avers that tbe railway company bad known for six years that tbe single trolley system interfered with the water pipes; that the electricity escaping from tbe rails of its tracks caused tbe injury of which tbe city complains, but continued the use of tbe system and refused to take any steps to prevent further damage. That tbe railway company at tbe time it equipped its road with tbe single trolley knew that a portion of tbe current used by it would pass from the rails to tbe earth and return along tbe water pipes.

Tbe city admits that there was a conference between its officials with tbe defendant and other street railway companies within tbe city; but avers that tbe defendant and tbe other companies only offered to make certain metallic connections between the water pipes and the power bouses, but because such connections would not prevent injury to tbe water pipes of tbe city or remove tbe mischief, tbe city decided to have it done and at tbe same time urged and insisted that tbe defendant and tbe other companies should adopt and use tbe double trolley. That whilst believing that tbe double trolley would prevent tbe injury being done, yet tbe city would be satisfied with any other system that would render the pipes immune, that would not obstruct the streets or do damage to the city’s property or that of its citizens; avers that at the time of filing tbe petition in this case suits were also instituted against tbe other street railways in tbe city using tbe single trolley system.

It then avers that no action on part of tbe board of city affairs or the city council is necessary to authorize tbe suit brought; but that tbe officers of tbe city have not only requested but demanded of the defendant that tbe method of operating its road be so changed and modified that no further damage will result to the water pipes of the city, to its property, or to tbe property of its citizens, and upon failure to do so that suit be brought against defendant to compel it to comply with the grant and use electricity as a motive power in such a way as not to endanger tbe property of the city or its citizens. It then sets forth the necessity of waterworks for tbe protection of the city, property and the lives and property of its citizens in all the streets occupied by the defendant; that the water pipes were in most of the streets before the railway of the defendant was established and constructed, and avers that it is not possible for the defendant in the use of any bonds known to exist to prevent the current escaping from the rails to the earth and thence to the water pipes so long as defendant uses the single trolley system.

It then denies each and every allegation of the railway company’s second defense not specially admitted in the reply, and renews the prayer of its petition.

The railway company contends that the city could not appeal to the courts to give it relief by a change of system without first, having by proper authorities passed proper ordinances ordering a change in the system with permission to the defendant to do the things necessary to accomplish a change.

If the change demanded was definitely specified in the ordinance and not complied with, then action could be brought to compel a change if the council had the power to order a change.

All the city did was to pass a resolution authorizing a suit to compel some system that would not damage the pipes. With nothing more the defendant contends that the court cannot grant the relief for it, without authority in the absence of such legislation by the city to order a change, though a state of facts was shown that a change should be made. The defendant in asserting this proposition assumes that the city by this action is seeking a change in the contract between it and the city, whilst it is the contention of the city that the action is to require the railway company to carry out its contract. The city admits that the grant to the railway company to use electricity as a motive power, is general in its terms, no system being named, but under the grant the railway company was not given the right to use the underlying earth or the use of the water pipes of the city as a part of the! railway operations, and hence the suit is to prevent the railway company, under the grant to it, to use the property of the city in the operation of its railway and thereby injure and destroy the property, and, if a change to the double trolley or some other system is necessary for that purpose, the court should order it done. That the demand of the city that the railway company adopt some system that will prevent the electric current, or its return to the power house of the company, escaping to and using the water pipes of the city as a return path, is simply asking that it be required to comply with the implied terms of the grant, and not asking the court to exercise police powers and, hence, no legislation by the city is necessary for such action, as full authority is found in the statute authorizing it. The relief, if any, the city may be entitled to, arises upon the proof in the case. The testi.mony, taken upon tbe issues beween parties and presented here upon transcript and depositions, covers some three thousand pages of typewritten matter — too voluminous to be set out in detail in this ■opinion, and, therefore, we shall not attempt to do more than make occasional reference to particular parts of it bearing directly upon facts ■we think proven by it.

At the time the defendant equipped its road with the single overhead trolley was thought to be, and so pronounced, by persons experienced in the use of electricity as a motive power for the operation of •street railways, as compared at least with the double trolley, the more simple, less liable to disarrangement,, muqh cheaper, less liable to accident in blockading cars and less dangerous to its employes, and the most approved. There was but one road in the United States operated by the double trolley. It was contemplated by the parties at the time that, in the application of the current as a motive power, poles and wires were to be used, as the grant specifies the kind of-poles, the distance the same were to be set apart and that the location of the same was to. be decided by the city’s engineer.

It also provided how high above the surface of the streets the wires used to convey the current to the cars should be suspended. Therefore, it was contemplated that the equipment was to be a trolley system. Part of the process of equipment was to be under the supervision of the city’s engineer. The work proceeded and was of a character that necessarily required personal observation of the authorized officials of the city during its progress. The streets were torn up and their use by travelers necessarily at times interferred with, and the material necessary to the equipment by a single trolley placed upon the streets in plain view, and at the time, and, since the equipment of the defendant’s road, several other street railways within the city, under •special grants of the city, have been equipped with, and are now operated by, the same system. The White Line began operating with' the same system in 1888, and in 1893 injury by electrolysis to lead •service pipes was discovered. The testimony does not show that this injury was due to the system; in fact, it does not seem to have attracted much attention.

In September, 1893, a representative of the waterworks was sent by the city to a convention of the American waterworks, held at the city of Milwaukee, where electrolysis to water pipes was discussed. Whether the discussion included observations made where single trolley systems were in use, the testimony does not show. If it did, this representative does not seem to have been impressed with any claims made that it would occur where such system was used or he failed to convince the waterworks board that electrolysis to the pipes was likely to occur; for, in the year 1894, the railway company, partly under the supervision of the city’s officials and under the observation of all, as. above stated, equipped its road with that system.

These facts are fully established by the testimony and prove, as. we think, that the grant was for the single overhead trolley.

The testimony shows that it was then known to the parties that a eonstitutent part of his system was the use of the ground circuit and that portions of the current are unavoidably diverted through whatever conductors are in proximity, having themselves grounded circuits, returning to the source in which it originated. What, if any, injury would result by electrolysis, or whether it would occur in any such proximate conductors, was not known by the parties. The testimony shows that a sufficient quantity of the current, on its return to the power house of the company, is diverted to the water pipes of the city to injure them and, in some instances, destroy them.

The lines of the defendant’s railway at several points within the city, cross steam roads and also street railways operated by electric motive power, also cross the Miami river at two different points, one on a bridge part wood and part iron, and the other on a bridge solely of iron. At other points they cross streets 'where hoist bridges are used. All these present serious difficulties to be overcome in providing for the return current. Some of the bridges will not permit the use of the standard rail on account of the structure of the bridge being light. The unavoidable shaking of the bridges by the passage of the cars makes it impossible to perfectly bon'd the rails; and, at the intersections and crossing of other roads, the pounding of the passing cars upon the intersecting joints makes it very difficult to maintain perfect connection at such points for the return current, and all these difficulties tend to increase the resistance of the rail path and facilitate a diversion of the current to other conductors.

The decided weight of the testimony in the case shows that the bounding of the entire road of the defendant is not only inadequate, but very poor, and very far below the present standard of the art, and, as we have already seen from testimony, this to a very great extent raises the resistance of the rail path, facilitating a diversion of the current to proximate conductors and, where the water pipes of the city are in proximity to the rail, they receive a portion of the diverted current. It is undisputed that the return feeders in use at the bridges, across the river at points already named are not sufficient to prevent a diversion of tbe current at those points, and that the use of ground plates for the return current has been wholly inefficient and has been almost universally abandoned. It is also undisputed, if these several pnrmissions were supplied and the difficulties at the bridges and railway crossings could be overcome, much less of the current would be diverted from the rail path.

There is a sharp conflict in the testimoney as to the amount of current sufficient to cause electrolysis. Upon this question the views of the experts are widely apart. This is true, even where the opinions are based upon the same facts and conditions.

If the construction of the company’s road is brought up to the present standard of the art, the best known appliances used and the road kept in repair and operated with reasonable care, no witness pretends to say that the mischief would not be obviated, except certain experts who claim that the mischief will continue so long as the single trolley is used, admitting, however, that if the road was brought up and operated according to the present standard of the art, much of the mischief would be overcome. How much of the mischief is traceable to either, they do not advise the court.

The first notice that electrolysis had occurred to any of the water pipes of the city was the water escaping from breaks in the pipes and coming to the surface in the street. It is likely to occur at any point where the pipe is potential to the rail. Where such points are and how far the injury may have progressed, unless a break has occurred, could be discovered only by digging up the pipes.

It must be conceded that the defendant has the right to a reasonable use of the power granted it by the city, and such use must be exercised with due care; but it is not made clear how the court is to determine whether the railway has abused the franchise in the selection of the system adapted for the application of the electrical current, when the testimony offered shows that part of the mischief is due to the negligent construction and operation of the road'; and how much is traceable to these causes the testimony fails to show.

In view of the fact that the expert witnesses differ as to the ¡quantity of current sufficient to cause electrolysis, how can the court :'say that, after the construction of the road is up to the present standard of the art and is operated with due care, the current then diverted, if hny, to the water pipes of the city will cause electrolysis or constitute ¡actual-negligence on the part of the railway in the use of the single trolley?

Under the grant to the defendant by the city to equip with the single trolley, in the use of that system the defendant would be liable only for actual negligence. In granting such right the city must be taken to have contemplated, and condoned by anticipation, any mischief arising from the reasonable use of such system. Telegraph Co. v. Baker, 2 Chan. Div. L. R. 1893, 186.

When a corporation is exercising delegated authority for the public benefit by the use of due care, no action will lie against the corporation resulting from the proper exercise of the authority. Hudson River Tel. Co. v. Railway, 135 N. Y. 393 [32 N. E. Rep. 148; 17 L. R. A. 674; 31 Am. St. Rep. 838].

The law authorizes the action of the city.

■ The case presented does not authorize the court to require defendant to change to another system.

The faulty construction of the defendant’s road and negligent operation of the same result in a continual damage to the water pipes of the city for which it has no adequate remedy at law.

The fact that other- electric railways operated in the city by the same system are in part responsible for the injury to the city’s water pipes constitutes no defense for the defendant.

The defendant will be enjoined from operating its road in the condition shown by the evidence, and from negligently operating the same.

Jurisdiction of the case will be retained, to -give the defendant an opportunity to show what, if any, improvement it has made since the cause was submitted to this court, in the way of bringing up the construction of its road and in operating the same.

The question of costs of the appeal is reserved.

Wilson and Dustin, JJ., concur.


text:
    EMBEZZLEMENT — JURY—CRIMINAL LAW.
    [Allen (3rd) Circuit Court,
    October, 1904.]
    Day, Norris and Winch., JJ.
    (Judge Winch of the Eighth Circuit, sitting in place of Judge Mooney.)
    Amos Young v. State of Ohio.
    1. JurtmeN Need not be Sworn Upon Their Voir Dire Until Challenqed for Cause in Criminal Case.
    In the trial of a criminal case, jurymen need not be sworn upon their voir dire until challenged for cause.
    2. Evidence in Embezzlement Restricted to Transactions in Bill of Particulars.
    In an embezzlement case, the prosecuting attorney haying furnished the accused at his request a bill of particulars of the several transactions which the state proposes to prove to maintain its case, the evidence should be restricted to such transactions.
    3. Forty-eight Hours Consideration of Criminal Case by Jury not Duress, nor Exercise Upon Streets in Sheriff’s Custody, Irregularity.
    The mere fact that a jury in a criminal case was held forty-eight hours in consideration of the case, part of which was Thanksgiving Day, is not sufficient to show that the jury was either under duress or unduly hastened in its consideration of the case, nor is the mere fact that the jury was permitted exercise upon the streets, in custody of the sheriff, such irregularity as to require a reversal of the judgment.
    4. Election Cannot be Required Where Several Acts of Embezzlement are not Complete Until Refusal to Account.
    The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time, as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account for the aggregate amount. Hence a motion to require the state to elect upon which one of the several sums so received it will rely for a conviction should be overruled where the indictment charges in one count the embezzlement of the aggregate sum on a particular day.
    E. Evidence Should be Limited to Time Statute, Under Which Indictment Found is in Force.
    Under an indictment for the embezzlement of $6,921, alleged to have been committed September 4, 1902, it is error to admit evidence of the alleged embezzlement of part of said amount prior to April 29, 1902, on which day the legislature repealed the old statute, defining the crime of embezzlement, and enacted a new statute on the subject. Campbell v. State, 35 Ohio St. 70 followed.
    ERROR.
    Ridenour & Halfhill and Richie & Richie, for plaintiff in error:
    The claim of embezzlement charged against the defendant consisted in a series of takings covering a period of five years; the eonfession of defendant as to having taken $2,000 of the association’s money was so general' as to be incompetent, giving neither names,, dates, amounts or any other specific details. Underhill, Cr. Év. Sec. 290, and cases cited.
    By the act of April 28, 1902, the statute defining embezzlement was repealed and a new act passed, which became effective May 1, 1902; the indictment was for a gross amount ($6,921) and did not aver that a certain amount had been embezzled during the existence-of the repealed statute and a specified part under the new statute;, hence, evidence tending to show an offense committed before' April 28, 1902, was inadmissible. Campbell v. State, 35 Ohio St. 70, 77.
    The prosecuting attorney furnished a bill of particulars specifying the amounts and the times when taken, upon which he relied. On the trial he introduced evidence over objection of defendant tending to show other distinct offenses. This was prejudicial error. Wharton, Cr. Pr. & Proced. Sec. 705, and cases cited.
    William Klinger, prosecuting attorney, for defendant in error:
    [Synopsis of brief submitted in Supreme Court.] The amendatory act of April 29, 1902, did not change the rules of evidence, relating to ■the admission of evidence of other like offenses and similar acts under an indictment for embezzlement. Evidence of such offenses and acts are competent against the accused. The case of Campbell v. State, 35 Ohio St. 70, is not opposed to this contention, as a careful reading of that case will show that the court did not hold that acts of embezzlement committed prior to the enactment of the new law, and while the old law was in force, were inadmissible. 10 Am. & Eng. Enc. Law (2 ed.) 1033, 1036; Commonwealth v. Sawtelle, 141 Mass. 140 [5 N. E. Rep. 312]; 12 Cyc. of Law & Proced. 411, 412; State v. McDaniel, 39 Ore. 161 [65 Pac. Rep. 520]; State v. Brady, 100 Iowa 191 [69 N. W. Rep. 290 - 62 Am. St. Rep. 560; 36 L. R. A. 693]; Commonwealth v. Robinson, 146 Mass. 571, 575 [16 N. E. Rep. 452]; Reeves v. State, 95 Ala. 31 [11 So. Rep. 158]; Reg v. Richardson, 8 Cox C. C. 448; Reg v. Balls, L. R. 1 C. C. 328 [40 L. j. M. C. 148]; Stanley v. State, 88 Ala. 154 [7 So. Rep. 273]; Chambers v. State, 26 Ala. 59; State v. Mathews, 98 Mo. 125 [10 S. W. Rep. 144; 11 S. W. Rep. 1135]; Guthrie v. State, 16 Neb. 667 [21 N. W. Rep. 455]; State v. Kent, 5 N. D. 516 (67 N. W. 1052; 35 L. R. A. 518]; 11 Am. & Eng. Enc. Law (2 ed.) 513, 514; New York Mut. L. Ins. Co. v. Armstrong, 117 U. S. 591 [6 Sup. Ct. Rep. 877; 29 L. Ed. 997]; Butler v. Watkins, 80 U. S. (13 Wall.) 456 [20 L. Ed. 629]; People v. Gray, 66 Cal. 271 [5 Pac. Rep. 240]; 6 Am. & Eng. Enc. Law (1 ed.) 501; Reg v. Proud, 9 Cox C. C. 22; Brown v. State, 26 Ohio St. 176; Underhill, Cr. Ev. See. 283.
    The accused waived all objections to the admission of evidence, except as to the specific grounds alleged by him in his objection, and new grounds of objection cannot be raised for the first time on motion for a new trial, or in the reviewing court. Also, the failure of accused to ask for, certain instructions, whether proper or not, will be treated as a waiver of such instructions; and evidence or errors at the trial, not excepted to at the time, are held to be waived. 12 Cyc. of Law & Proced. 820; 1 Thompson, Trials Secs. 693, 694; Rush v. French, 1 Ariz. Ter. 99 [25 Pac. Rep. 816]; 1 Thompson, Trials 562; State v. McGinnis, 158 Mo. 105 [59 S. W. Rep. 83]; State v. Phillips, 24 Mo. 475; Holds-worth v, Tucher, 147 Mass. 572 [18 N. E. Rep. 430]; Ladd v. Sears, 9 Ore. 244; 1 Am. & Eng. Enc. Law (1 ed.) 624; Harrington v. Minor, 80 Mo., 270; Weilandy v. Lemuel, 47 M6. 322; Easley v. Elliott, 43 Mo. 289; Fortier v. Bank, 112 U. S. 439 [5 Sup. Ct. Rep. 234; 28 L. Ed. 764]; State v. Hope, 100 Mo. 347 [13 S. W. Rep. 490; 8 L. R. A. 608]; Talbot v. Taunton (City), 140 Mass. 552 [5 N. E. Rep. 6167]; Chapman v. Moore, 107 Ind. 223 [8 N. E. Rep. 80] ; Thompson v. Building & A. Assn. 103 Ind. 279 [2 N. E. Rep. 735]; Miller v. Bradish, 69 Iowa 278, 279 [28 N. W. Rap. 594]; Shafer v. Ferguson, 103 Ind. 90 [2 N. E. Rep. 302]; Miles v. Albany, 59 Yt. 79 [7 Atl. Rep. 601]; Feidler v. Motz, 42 Kan. 519 [22 Pac. Rep. 561]; Steffy v. People, 130 Ill. 98 [22 N. E. -Rep. 861]; O’Neill v. Railway, 115 N. Y. 579 [22 N. E. Rep. 217; 5 L. R. A. 591]; 16 Am. & Eng. Enc. Law (1 ed.) 634; House v. Alexander, 105 Ind. 109 [4 N. E. Rep. 891; 55 Am. Rep. 189]; Landwerlen v. "Wheeler, 106 Ind. 523 [5 N. E. Rep. 888]; Northwestern Mut. L. Ins. Co. v. Hazelett, 105 Ind. 212 [4 N. E. ,Rep. 582; 55 Am. Rep. 192]; Louisville, N. A. & C. Ry. v. Grantham, 104 Ind. 353 [4 N. E. Rep. 49]; Smythe v. Scott, 106 Ind. 245 [6 N. E. Rep. 145]; Helena v. Albertose, 8 Mont. 499 [20 Pac. Rep. 817]; Stringer v. Frost, 116 Ind. 477 [19 N. E. Rep. 331; 2 L. R. A. 614; 9 Am. St. Rep. 875n]; Clark Civil Tp. v. Brookshire, 114 Ind. 437 [16 N. E. Rep. 132]; Chicago & E. Ry. v. Holland, 122 Ill. 461 [13 N. E. Rep. 145]; Vickery v. McCormick, 117 Ind. 594 [20 N. E. Rep. 495]; Louisville, N. A. & C. Ry. v. Falvey, 104 Ind. 409 [3 N. E. Rep. 389; 4 N. E. Rep. 908]; McCullough v. Davis, 108 Ind. 292 [9 N. E. Rep. 276]; Byard v. Harkrider, 108 Ind. 376 [9 N. E. Rep. 294]; Metger v. Bank, 119 Ind. 359 [21 N. E. Rep. 973]; Bundy v. Cunningham, 107 Ind. 360 [8 N., E. Rep. 174]; Boston v. Murray, 94 Mo. 175 [7 S. W. Rep-. 273]; Bindord v. Young, 115 Ind. 174 [16 Ñ. E. Rep. 142]; Salisbury v.- Howe, 87 N. Y. 128; Reab v. McAleister, 8 Wend. 109; Cnreton v. Dargan, 16 S. C. 619; Davis v. United States, 107 Fed. Rep. 753; Lawrence v. Commonwealth, 86 Ya. 573 [10 S. E. Rep. 840]; State v. Campbell, 25 Utah 342 [71 Pac. Rep. 529]; State v. Haworth, 24 Utah 398 [68 Pac. Rep. 155]; Washington v. State, 62 S. W. Rep. 747 (Tex. Cr. App.); Johnson v. State, 59 S. W. Rep. 898 (Tex. App.) ; McMullen v. State, 59 S. W. Rep. 891 (Tex. App.) ; Lewis v. State, 59- S. W. Rep. 886 (Tex. App.) ; State v. Whittle, 59 S. C. 297 [37 S. C. Rep. 923]; State v. 'Turner, 18 S. C. 103; State v. Hicks, 13d N. C. 705 [41 S. E. Rep. 803]; State v. Kinsauls, 126 N. C. 1095 [36 SE. Rep. 31] ; People v. Noelke, 1 N. Y. Cr. Rep. 252; Carnal v. People, 1 Park Cr. Cas. (N. Y.) 272; Territory v. Guillen, 66 Pac. 527; State v. Me-Mullin, 170 Mo. 608 [71 S. W. Rep. 221]; State v. McGinnis, 158 Mo. 105 [59 S. W. Rep. 83]; State v. Pitre, 106 La. 606 [31 So. Rep. 133] ; State v. Williams, 115 Iowa 97 [88 N. W.' Rep. 194]; Bias v. United States, 3 Ind. Ter. 27 [53 S. W. Rep. 471]; Brown v. United States, 2 Ind. Ter. 582 [52 S. W. Rep. 56]; Jones v. State, 32 So. Rep. 793 (Fla.) ; Gass v. State, 32 So. Rep. 109 (Fla.) ; Bonville v. State, 70 Ark. 613 [69 S. W. Rep. 544]; Smith v. State, 130 Ala. 95 [30 So. Rep. 432]; McDowell v. Commissioners, 4 Ky. Law 353; Cook v. State, 22 Tex. App. 511 [8 S. W. Rep. 749]; Ladd v. Sears, 9 Ore. 247; Elwood v. Deifendorf, 5 Barb. 398; Mallory v. Perkins, 9 Bosw. 572; Button v. McCawley, 38 Barb. 413; Walker v. Blassingame, 17 Ala. 810; Newton v. Harris, 6 N. Y. (2 Seld.) 345; Bohanan v. Hans, 26 Tex. 445, 446.
    Where evidence is competent for any purpose, a general exception to its admission, which is overruled, is insufficient as a basis for prosecuting error. 12 Cyc. of Law & Proeed. 563; Bradner, Evidence (2 ed.) 717, Sees. 14, 15; State v. Magone, 32 Ore. 206 [51 Pac. Rep. 452]; Smiley v. Pearce, 98 N. C. 185 [3 S. E. Rep. 631]'; Dow v. Merrill, 65 N. H. 107 [18 Atl, Rep. 317]; State v. Hope, 100 Mo. 347 [13 S. W. Rep. 490; 8 L. R. A. 608]; State v. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; Turner v. Newburgh (City), 109 N. Y.'301 [16 N. E. Rep. 344; 4 Am. St. Rep. 453]; Dreux v. Domec, 18 Cal. 83; Sneed v. Osborne, 25 Cal. 619; Bohanan v. Hans, 26 Tex. 445; Yoorman v. Yoight, 46 Cal. 392; Rush v. French, 1 Ariz. Ter. 99 [25 Pac. Rep. 816]; Castleberry v. State, \ 135 Ala. 24 [33 So. Rep. 431]; People v. Rodley, 131 Cal. 240 [63 Pac. Rep. 351]; People v. Gordon, 99 Cal. 227 [33 Pac. Rep. 90Í]; People v. Glenn, 10 Cal. 32; State v. Gannon, 75 Conn. 206 [52 Atl. Rep. 727]; DeForest v. United States, 11 App. Cas. 458; Jamison v. People, 145 Ill. 357 [34 N. E. Rep. 486]; Tracey v. People, 97 Ill. 101; Musser v. State, 157 Ind. 423 [61 N. E. Rep. 1]; State v. Gunn, 106 Iowa 120 [76 N. W. Rep. 510]; State v. Brady, 100 Iowa 191 [69 N. W. Rep. 290; 36 L. R. A. 693; 62 Am. St. Rep. 560] ; State v. Perry, 51 La. Ann. 1074 [25 So. Rep. 9.44]; People v. Foglesong, 116 Mich. 556 [74 N. W. Rep. 730]; Lipscomb v. State, 75 Miss. 559 [23 So. Rep. 210, 230] ; Hamilton v. State, 35 Miss. 214; State v. Dent, 170 Mo. 398 [70 S. W. Rep. 881]; State y. Brown, 168 Mo. 449 [68 S. W. Rep. 568] ; State v. Hathhorn, 166 Mo. 229 [65 S. W. Rep. 756]; State v. Westlake, 159 Mo. 669 [61 S. W. Rep. 243]; State v. Harlan, 130 Mo. 381 [32 S. W. Rep. 997]; State v. Mnrpby, 9 Nev. 394; State v. Flanders, 38 N. H. 324; People y. Place, 157 N. Y. 584 [52 N. E. Rep. 576]; Gaffney y. People, 50 N. Y. 416; Height y. People, 50-N. Y.' 392; People v. Webster, 59 Hnn 398 [13 N. Y. Snpp. 414] ; State v. Mitchell, 119 N. C. 784 [25 S. E. Rep. 783, 1020] ; State v. Wallace, 44 S. C. 357 [22 S. E. Rep. 411]; State y. Sexton, 10 S. D. 127 [72 N. W. Rep. 84]; State v. La Croix, 8 S. D. 369 [66 N. W. Rep. 944]; Barfield y. State, 41 Tex. Cr. App. 19 [51 S. W. Rep. 908]; McGrath y. State, 35 Tex. Cr. App. 413 [34 S. W. Rep.. 127, 941]; Cornell v. State, 104 Wis. 527 [80 N. W. Rep. 745]; Downey v. State, 115 Ala. 108 [22 So. Rep. 479]; Gabriel y. State, 40 Ala. 357; Kirby v. State, 32 So. Rep. 836 (Fla.) ; State y. Bartlett, 170 Mo. 658 [71 S. W. Rep. 148]; State y. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; State-y. Magone, 32 Ore. 206 [51 Pac. Rep. 452]; Barkman v. State, 41 Tex. Cr. App. 105 [52 S. W. Rep. 73] ; Davis v. State, 131 Ala. 10 [31 So. Rep. 569] ; Longmire v. State, 130 Ala. 66 [30 So. Rep. 413]; Henderson v. State, 105 Ala. 82 [16 So. Rep. 931]; Harrall v. State, 26 Ala. 52; Anthony y. State, 32 So. Rep. 818 (Fla.) ; Gully v. State, 116 Ga. 527 [42 S. E. Rep. 790] ; Cox v. State, 64 Ga. 374 [37 Am. Rep. 76n]; Archibald v. State, 122 Ind. 122 [23 N. E. Rep. 758]; State v. Benge, 61 Iowa 658 [17 N. W. Rep. 100] ; State v. Johnson, 76 Mo. 121; Hoehrieter v. People, 2 Abb. Dec. 363; Payton v. State, 35 Tex. Cr. App. 508 [34 S. W. Rep. 615]; Trogdon.v. Commonwealth, 72 Ya. (31 Gratt.) 862; Kent v. State, 42 Ohio St. 426; Hunt v. McMahan, 5 Ohio 132; Hummel v. State, IT Ohio St. 628; Elstner v. Fife, 32 Ohio St. 358; Morris v. Faurot, 21 Ohio-St. 155 [8 Am. Rep. 45] ; Brooklyn St. Ry. v. Keley, 3 Circ. Dec. 393 (6 R. 155).
    The failure of the court to confine, by its charge to the jury, the evidence of other offenses and acts of defendant to offenses and acts committed after the enactment of the amendatory act of April 29, 1902, or to limit the effect of such evidence, was waived by defendant’s-neglect to request such instructions. Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445 [15 N. E. Rep. 293]; Queen Ins. Co. v. Leonard,. 6 Circ. Dec. 49 (9 R. 46) ; New York & St. L. Ry. v. Swartóut, 6 Circ. Dec. 768 (14 R. 582) ; Hoppe v. Parmalee, 11 Circ. Dec. 24 (20 R. 303).;. Mitchell v. State, 11 Circ. Dec. 446 (2 E. 24) ; Dollman v. Haefner, 4 Circ. Dec. 290 (12 E. 721) ; Schryver v. Hawkes, 22 Ohio St. 308; Boggess v. Boggess, 127 Mo. 305 [29 S. W. Eep. 1018]; Dow v. Merrill, 65 N. H. 107 [18 Atl. Eep. 317]; People v. Ah Tute, 53 Cal. 613; Missouri Pac. Ey. v. Johnson, 72 Tex. 95 [10 S. W. Eep. 325]; Lipprant v. Lipprant, 52 Ind. 273, 276; Duke v. State, 35 Texas Cr. App. 283 [33 S. W. Eep. 349]; 11 Enc. PI. & Prac. 310; Eollins v. State, 62 Ind. 46; State v. Plefferle, 36 Kan. 90 [12 Pac. Eep. 406] ; State v. Shenkle, 36 Kan. 43 [12 Pac. Eep. 309] ; State v. Eook, 42 Kan. 419 [22 Pac. Eep. 626]; Gettinger v. State, 13 Neb. 308 [14 N. W. Eep. 403] ; Burgett v. Burgett, 43 Ind. 78; 2 Thompson. Trials Sec. 2341; Winn v. State, 82 Wis. 571 [52 N.- W. Eep. 775]'.
    The proposition, that the mere failure of the court to instruct the jury, as contradistinguished from misdirection, upon a particular point of law arising in either a civil or criminal case, is not reversible error unless the court was specially requested to instruct upon the point, is supported by the following Ohio decisions. Taft v. Wildman, 15 Ohio 123; Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445, 452 [15 N. E. Eep. 293]; Sehryber v. Hawkes, 22 Ohio St. 308; Smith v. Eail-way, 23 Ohio St. 10; Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Eep. 596].
    ■ Failure to object to incompetent evidence when offered constitutes a waiver of the defendant’s right and cures the error, if any. Objections or exceptions cannot be raised for the first time on motion for a new trial, or in a reviewing court. 12 Cyc. of Law & Proced. 567, 817, 818, 820; 1 Thompson, Trials Sec. 700; State v. Peak, 85 Mo. 190; State v. Burnett, 81 Mo. 119; State v. Williams, 77 Mo. 310; State v. Blan, 69 Mo. 317; Harvey v. State, 40 Ind. 516; Satterly v. People, 58 N. T. 354; Williams v. State, 61 Wis. 281; Mubini? "v. State, 10 Ind. 5; Wheeler v. State, 8 Ind. 113; State v. Foot You, 24 Ore. 61 [32 Pac. Eep. 1031; 33 Pac. Eejl. 380]; People v. Guidici, 100 N. Y. 503 [3 N. E. Eep. 493]; Clark v. State, 12 Ohio 483 [40 Am. Dec. 481]; State v. Preston, 77 Mo. 294; State v. McDonald, 85 Mo. 539; Turner v. People, 33 Mich. 364; Graham v. People, 115 Ill. 566 [4 N. E. Eep. 790]; State v. Meyers, 99 Mo. 107, 108 [12 S. W. Eep. 516]; Steffy v. People, 130 Ill. 519 [22 N. E. Eep. 861]; 2 Cyc. of Law & Proced. 660, 677.
    Evidence of similar offenses was not incompetent because of the generality of its character. See authorities cited in the first paragraph of brief; also State v. Perigo, 70 Iowa 657 [28 N. W. Eep. 452]; Under-hill, Cr. Ev. Sec. 10.

      See generally Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233]; Jones v. State, 20 Ohio 34; Doll v. State, 45 Ohio St. 445 [15 N. E. Rep. 293]; Hills v. Ludwig, 46 Ohio St. 373 [24 N. E. Rep. 596]; Warder v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97]; Columbus Ry. v. Ritter, 67 Ohio St. '53 [65 N. E. Rep. 613]; Rufer v. State, 25 Ohio St. 464; Williams v. State, 19 Tex. App. 276; State v. Meyers, 99 Mo. 107 [12 S. W. Rep. 516]; People v. Barker, 60 Mich. 277 [27 N. W. Rep. 539; 1 Am. St. Rep. 501]; 1 Greenleaf, Evidence Sec. 229; Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233],
   WINCH, J.

(Orally.)

Amos Young was indicted for embezzling the sum of $6,921 from 'The Allen County Building & Loan Association Company on September 4, 1902. He was tried and found guilty of embezzling $1,800. A motion for new trial was overruled and a bill of exceptions prepared and filed with petition in error in this court. Some twenty-one errors alleged to have occurred at the trial in the court below are thus presented to us for review. The books of the loan association used on the trial and referred to in the bill of exceptions, were not produced with said bill and we are therefore unable to pass upon the claims that the verdict of the jury was against the weight of the evidence and not supported by •sufficient evidence. All the other errors complained of we have considered and will pass upon without detailed statement of the facts of the ease, or extended reasons for conclusions reached.

It is said that the court erred in refusing to place the jurors on their voir dire. Such does not appear to be the case. Every juryman challenged for cause was put upon his oath for further examination; this is all that is required by Lan. R. L. 11033 (R. S. 7279).

With regard to the bill of particulars or list of errors furnished by the prosecuting attorney to counsel for the accused, we are inclined to think that the state should have been held strictly to the offering of evidence with regard to the several transactions therein noted, and no others.

Counsel for plaintiff in error, however, have failed to point out to us in the record where this course was departed from, and we have been unable to hunt out instances of such departure which may, perhaps, be found in the record, which is very voluminous.

We do not find that the trial court erred in compelling the accused, to go to trial immediately after his plea of not guilty.

1 We find no error in the refusal of the court to give to the jury defendant’s third request to charge before argument, nor in the refusal to give defendant’s requests to charge after argument, written and oral.

The jury was out forty-eight hours in the consideration, of this case, but we find no facts or law upon which, by. reason of their being held that length of time, part of which was upon Thanksgiving Day, it can be claimed that the jury -was either under duress or unduly hastened in its consideration of the case, nor was there irregularity in permitting the jury exercise upon the streets, so far as is shown by the record.

For a proper consideration of the remaining errors complained of, it is necessary to state a few facts with regard to the trial.

Amos Young had been secretary of the building association for several years prior to his indictment. The state, to prove the charge in the indictment that he embezzled some $6,000 on September 4, 1902, offered evidence of many alleged defalcations, on separate days, aggregating that amount. The statute in force when these acts were said to have commenced, was repealed April 29, 1902, and a new statute on that day enacted. Over the objection of defendant evidence was received as to irregularities before April 29, 1902, although the indictment alleged that the offense was committed after said day.

After the evidence as to these several irregularities, alleged to have been committed on different days, and from time to time, was all in, defendant moved that the state be compelled to elect upon which one of the alleged separate offenses it would depend for conviction of the defendant. This motion was overruled, and, we think, properly. The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time, as it comes into-his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account for the aggregate amount. This view of the ease, taken by the trial judge as shown by his charge and ruling on the motion to elect, is supported not only by reason, but by authority. Brown v. State, 18 Ohio St. 496; Gravatt v. State, 25 Ohio St. 162; State v. Mook, 40 Ohio St. 588; State v. Bailey, 50 Ohio St. 636 [36 N. E. Rep. 233].

Now as to the effect of the repeal of the old statute and enactment of the new one defining the crime of embezzlement, on April 29, 1902. We are constrained, upon authority of the case of Campbell v. State, 35 Ohio St. 70, to hold that as the indictment charged the crime as committed since said, repeal of the old statute, all evidence as to alleged offenses committed before said day, should have been excluded and that the jury should have been charged that under the indictment it could only consider transactions of the accused since said day. It is immaterial that this proposition was not argued to the trial court, as is claimed. The evidence offered as to alleged shortages before April 29, 1902, was objected to and admitted over defendant’s objection. Whether he gave the proper reason why it should be excluded is immaterial. He asked that it be excluded. It was his right under the authority cited to have it excluded. It was admitted over his objection and his rights were thereby ignored. Such being his rights it was also the duty of the trial judge to protect them in the charge to the jury and this was not done. Proper exceptions to the charge were taken and this we find to be the .only error in the charge, prejudicial to the defendant.

Many exceptions. to the admission of this incompetent testimony, too numerous to mention, are found in the bill of exceptions.

It remains, however, to point out that this vice is lurking in the so-called confessions of the accused. Not only were these alleged confessions altogether too general and lacking in particularity as to time and amount to be admissible, but as neither the court nor jury could determine whether they referred to transactions before or since April 20, 1§02, they should have been excluded.

It follows that the motion for a new trial should have been granted, and for error in overruling it and for errors in the admission of evidence and the charge, as specified, the judgment of the common pleas court is reversed and the case remanded to the common pleas court for new trial.

Day and Norris, JJ., concur.