author: Hildebrant, P. J.

text:
    McGwinn et al., Appellants, v. Board of Education of Cleveland City School Dist. et al., Appellees.
    (No. 20170
    Decided July 16, 1946.)

      Messrs. Schweid, Snyder, Torhet S Zucker, for George D. McGwinn and others.

      Mr. Lee G. Ilowley and Mr. Charles W. White, for city of Cleveland.

      Mr. Charles N. Malone and Mr. Paul F. Jansen, for Federal Public Housing Authority.
   Hildebrant, P. J.

The question in this case is whether a court of equity will enjoin the Board of Education of the Cleveland City School District from granting free admission to the public schools of all children residing in federal housing projects located on lands owned by the United States and operated in conjunction with the state of Ohio co-operating under its housing laws.

There being no controversy as to the facts attending the creation and general operation of the various projects, a description and classification of the same are taken from defendants ’ brief, as follows:

“It appears therefrom that there are or were twelve (12) public housing estates in the Cleveland City School District all of which are owned by the federal government.

“A. Federal Projects. These are three (3) in number — Cedar Apartments, Outhwaite Homes and Lake-view Terrace. They were constructed by the United States on land acquired by it for the purpose under the National Industrial Recovery Act of 1933. They contain 1,853 dwelling units. They are slum-clearance projects for low-income families. Administration was lodged originally in the Federal Emergency Works Administration, then in the United States Housing Authority (USHA) and finally in the Federal Public Housing Authority (FPHA). Land and buildings have been owned by the United States from, the beginning. Following passage of the United States Housing Act of 1937 and the establishment of USHA, management and operation of the estates have devolved upon the Cleveland Metropolitan Housing Authority (CMHA) by agreement in writing between itself and the proper federal agency.

“B. Aided Projects. These are four (4) in number —Valleyview Homes, Outhwaite Extension No. 1, Woodhill Homes and Carver Park (sometimes referred to in the record as Outhwaite Extension No. 2). Land was acquired and estates constructed with federal assistance. These estates contain an aggregate of 2,886 dwelling units. They are also slum-clearance projects for low-income families.

“CMHA came into existence following a certification by the state housing authority that there was need for such an agency in greater Cleveland. Federal assistance involved a loan and contribution agreement between the federal and local authorities and annual subsidies by the former conditioned upon local contributions to the extent of twenty per centum (20%) of the subsidy. The subsidy took the form of an annual grant in an amount representing the difference between what low-income families could pay as rent and what economic rents would produce if the estates were privately owned and operated. Local contributions could and, quite universally, did take the form of tax exemption whereby no monetary outlay by state or local authorities became necessary.

“Upon the realization of local matching, housing authorities were empowered to enter into agreements with political subdivisions for the payment to the latter of service charges, so-called. Such agreements were entered into with the city, county and defendant board in 1938. Payments thereunder were made and continued until the end of 1942. The amount was arrived at ‘by taking the value of the land prior to demolition of the slum buildings’ and applying to it the tax rate current at the time of such demolition. At the time the said agreements were entered into the service charge approximated $16,000. That sum was distributed among the city, county and city school district, proportionately, as tax moneys are distributed. Following the decisions of the Ohio Supreme Court in 1942 that said aided estates were subject to taxation, payment of service charges were either refused by the local subdivisions or discontinued.

“When the Supreme Court of Ohio held the aided projects to be subject to taxation by the state the same were then owned by CMHA. The decisions occasioned a default in the loan and contribution agreement between federal and local housing authorities. As a result the aided projects became the properties of the United States as of April 1,1943. Obligation for taxes from 1939 through 1942 is acknowledged. Accordingly, there has been paid to the auditor of Cuyahoga county as and on account of such obligation, during 1945, $186,163.62. Defendant board is entitled to its distributive share thereof in the same proportion as other taxes. Of the aggregate sum of $104,207.64 paid in February, 1945, the defendant board received $31,-950 as its distributive share. Said projects, being owned by the United States since April 1, 1943, are not taxable from that time.

“In Cleveland slum-clearance housing projects have been located with reference to nearby and existing school facilities. Within the confines of Outhwaite Homes there are two'public school buildings. They are located on land owned by defendant board. Two rooms in the Carver Park community building are being used by defendant board as school rooms for younger children who live, both within and without the project.

“C. War Housing Projects. These are five (5) in number and embrace (a) projects of permanent construction — Riverside Park and that part of Brooklyn Acres which lies within the city of Cleveland — and (b) projects of temporary construction — -Seville Homes, Kinsman and Woodland Dwellings and Victory Park. They are so-called ‘Lanham Act’ projects.

“Riverside Park and Brooklyn Acres are constructed on land acquired and owned by the United States. They contain 780 dwelling units.

“Seville Homes, Kinsman and Woodland Dwellings and Victory Park are situated on lands privately owned and leased by the United States from the owners. The owners pay taxes on the land. Seville Homes has about 440 dwelling uiiits. Kinsman and Woodland Dwellings consist of prefabricated houses located on scattered vacant lots and comprise 445 units. Victory Park was a trailer camp since abandoned as no longer needed after construction of a nearby war housing project in another district outside the Cleveland city school district.

“All war housing projects are oAvned by the United States. They are operated by the local housing authority under a Avritten agreement Avith FPHA.

“The Lanham Act provides for payments in lieu of taxes to local subdivisions which approximate in amount A\That the taxes would be if the projects were privately owned. The amount to be paid is arrived at by applying the current tax rate, to the valuation of the projects for tax purposes. The aggregate payment is divided among the local subdivisions in the same proportions as taxes are distributed. The local housing authority has nothing to do with such payments. ’ ’

The principal claims of plaintiffs, who sue as taxpayers, are:

A. By acquiring the land upon which the projects are located, the United States ipso facto acquired ex-elusive jurisdiction thereover, with a resulting ouster of state jurisdiction and loss of territorial control under state law, to extend local services including public schools to residents therein.

B. By extending free schooling to children resident therein, an unlawful shifting of the tax burden takes place, so that the Ohio constitutional provisions as to uniform taxation and equal protection are violated, as well as the constitutional provisions relating to the creation of the public school system and the laws passed pursuant thereto.

Plaintiffs’ contention A has been judicially determined by the Supreme Court of the United States in decisions binding upon this court. As to B, it will be noted at this point, that consent of the state to acquisition of lands Avithin its borders required for government purposes by the United States and cession of exclusive jurisdiction over such land to the United States has been provided by Sections 13770 and 13771, General Code.-

Pertinent acts of Congress affecting plaintiffs’ contention A with relation to each group of projects here involved are in existence.

As affecting “A. Federal Projects,” Title 40, Section 421, U. S. Code, provides in part:

“The acquisitionfby the.United States of any real property in connection with any low-cost housing, or slum-clearance project constructed with funds allotted to the Federal Emergency Administration of Public "Works pursuant to any law, shall not he held to deprive any state or political subdivision thereof of its civil and criminal jurisdiction in and over such property, or to impair the civil rights under the local law of the tenants or inhabitants on such property; and insofar as any such jurisdiction has been taken away from any such state or subdivision, or any such rights have been impaired, jurisdiction over any such property is hereby ceded back to such state or subdivision.”

Thus is made clear the intent of Congress to accept only such jurisdiction as is necessary and incident to the purposes for which the lands in group A were acquired, and not only to refuse to accept exclusive jurisdiction thereover, but to return to the state any jurisdiction the United States might be deemed to have ipso facto acquired, not necessary or incident to the purposes of the acquisition.

As affecting “B. Aided Projects,” Title 42, Section 1413, U. S. Code, provides in part:

“(b) The acquisition by the authority of any real property pursuant to this chapter shall not deprive any state or political subdivision thereof of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the state or local law of the inhabitants on such property; and, insofar as any such jurisdiction may have been taken away or any such rights impaired by reason of the acquisition of any property transferred to the authority pursuant to Section 1404 (d) of this title, such jurisdiction and such rights are hereby fully restored. ’ ’

Again, the intent of Congress to renounce exclusive jurisdiction leaving state jurisdiction unimpaired is specifically expressed.

As effecting “C. War Housing Projects,” the so-called Lanham Act, Title 42, Section 1547, U. S. Code, provides:

“Notwithstanding any other provision of law, the acquisition by the administrator of any real property pursuant to subchapters II-IV shall'not deprive any state or political subdivision thereof, including any territory or possession of the United States, of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the state or local law of the inhabitants on such property. * * *”

No recession is expressed in the Lanham Act for the obvious reasons that its language expressly avoids depriving the states of their civil and criminal jurisdiction and the inhabitants thereof of their civil rights under state and local law.

Also of general application is Title 40, Section 255, U. S. Code, which provides in part:

“Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required ; but the head or other authorized officer of any department or independent establishment or agency of the government may, in such cases and at such times as he may deem desirable, accept or secure from the state in which any lands or interests therein under his immediate jurisdiction, custody or control are situated, consent to or cession of such jurisdiction, ex-elusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the governor of such state or in such other manner as may be prescribed by the laws of the state where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”

This section has been judicially construed in Adams v. United States, 319 U. S., 312, 87 L. Ed., 1421, 63 S. Ct., 1122.

In the case at bar, no notice required by the above act has been given.

Ohio in its State Housing Law has provided in Section 1078-53, General Code:

“For the purpose of aiding and co-operating in the planning, undertaking, construction or operation of housing projects located within the area in which it is authorized to act, any state public body may upon such terms, with or without consideration, as it may determine :

“ (a) Dedicate, sell, convey or lease any of its property to a housing authority or the federal government;

“(b) Cause parks, playgrounds, recreational, community, educational, water, sewer or drainage facilities or any other works which it is otherwise empowered to undertake, to be furnished adjacent to or in connection with housing projects; * * *

“(d) Plan or replan, zone or rezone any part of such state public body; make exceptions from building regulations and ordinances;

“ (e) Enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary) with a housing authority or the federal government respecting action to be taken by sucb state public body pursuant to any of tbe powers herein granted;

“ (f) Do any and all things, necessary or convenient to aid and co-operate in the planning, undertaking, construction or operation of such housing projects * # # > J

Section 1078-54, General Code, provides:

“In connection with any housing project located wholly or partly within the area in which it is authorized to act, any 'state public body may contract with a housing authority or the federal government with respect to the sum or sums (if any) which the housing authority or the federal government'may agree to pay, during any year or period of years, to the state public body for the improvements, services and facilities to be furnished by it for the benefit of said housing-project, but in no event shall the amount of such payments exceed the estimated cost to the state public body of the improvements, services or facilities to be so furnished; provided, however^that the absence of a contract for such payments shall in no way relieve ány state public body from the duty to furnish, for the benefit of said housing- project all such services and facilities as such state public body usually furnishes without a service fee.”

The relationship of the dual sovereignties to land acquired by the United States has been-held to be a federal question. Silas Mason Co. v. Tax Commission of Washington, 302 U. S., 186, 197, 82 L. Ed., 187, 58 S. Ct., 233; Brewer-Elliott Oil & Gas Co. v. United States, 260 U. S., 77, 87, 67 L. Ed., 140, 43 S. Ct., 60; United States v. Utah, 283 U. S., 64, 75, 75 L. Ed., 844, 51 S. Ct., 438; Borax Consolidated, Ltd., v. Los Angeles, 296 U. S., 10, 22, 80 L. Ed., 9, 56 S. Ct., 23.

Other holding’s in the Mason case, supra, are found in the fifth, sixth, and ninth paragraphs of the syllabus thereof as follows:

“5. The term ‘other needful buildings’ in Const. Art. I, Section 8, Cl. 17, embraces whatever structures are found to be necessary in the performance of the functions of the federal government. James v. Dravo Contracting Co., ante p. 134. [302 U. S., 134, 82 L. Ed., 155, 58 S. Ct., 208, 114 A. L. R., 318.]

“6. This clause of the Constitution does not imply that the consent of the state to purchases must be without any reservation of jurisdiction. James v. Dravo Contracting Co., ante p. 134. Id.

“Such an implication would- not be consistent with the freedom of the state and with its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been made without consent or property has been acquired by condemnation.”

“9. In acquiring land for federal purposes the government is not compelled to accept a transfer of exclusive jurisdiction from the state.”

At page 197 of the, opinion in the Mason case it is stated:

“The question of exclusive territorial jurisdiction is distinct. That question assumes the absence of any interference with the exercise of the functions of the federal government and is whether the United States has acquired exclusive legislative authority so as to debar the state from exercising any legislative authority, including its taxing and police power, in relation to the property and activities, of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that -the state, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise. Surplus Trading Co. v. Cook, 281 U. S., 647, 650-652; James v. Dravo Contracting Co., supra. See, also, Fort Leavenworth R. Co. v. Lowe, 114 U. S., 527, 539; Arlington Hotel Co. v. Fant, 278 U. S., 439, 451; United States v. Unzeuta, 281 U. S., 138, 142.”

At pages 203 and 204, the following appears:

“Lands acquired by purchase or condemnation. Appellants contend that exclusive jurisdiction as to these lands vested ipso facto in the federal government by the operation of Clause 17, Section 8, Article I, of the federal Constitution, which provides that the Congress shall have power ‘to exercise exclusive legislation’ over ‘all places purchased by the consent of the Legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.’ Considering this provision in James v. Dravo Contracting Co., supra, we construed the phrase ‘ other needful buildings ’ to embrace locks and dams and whatever structures are found to be necessary in the performance of the functions of the federal government. We also concluded that Clause 17 should not be construed as implying a stipulation that the consent of the state to purchases must be without reservations. We were unable to reconcile such an implication with the freedom of the state and its admitted authority to refuse or qualify cessions of jurisdiction when purchases have been'made without consent or property has been acquired by condemnation. ’ ’

In this connection, in Renner v. Bennett, 21 Ohio St., 431, Welch, C. J., states, at pages 448 and 449:

“It gives ‘power’ to Congress to ‘exercise exclusive legislation’ over all such places ‘purchased’ by Congress ‘by the consent of the Legislature of the state.’ The effect would have been the same had the provision been: ‘Congress is authorized to purchase and hold the title’ to such place, and to acquire from the state and exercise jurisdiction thereover; ‘and the consent of the state to the purchase shall be deemed and held a sufficient grant of such jurisdiction.’ The Constitution divested the state of no jurisdiction, and, thereover, vested none in Congress. The transfer of jurisdiction to Congress requires the joint action of Congress and the state, and is a matter which belongs exclusively to them. The Constitution had no agency in the transfer. It found the jurisdiction in the state, and left it there. It merely gives to Congress the power to acquire and use the thing granted and prescribes a form or manner in which the grant may be made. No matter what may be the form of the grant, whether by consent to the purchase, or, as in this case, by direct cession, it is, nevertheless, in fact and in law, a grant by the state.

“If this be so, it must follow that Congress may relinquish the jurisdiction at its pleasure, as it may acquired at pleasure. The ‘power’ to acquire and ‘exercise’- the jurisdiction, implies the power to omit its acquisition, and, as I think, also implies the power to acquire it, in part, as well as in whole. The direct and simple object of the provision was, to enable Congress to do that which, without-such an enabling provision, it could not do, namely, to acquire and hold title to such property, qnd to acquire and exercise jurisdiction thereover, in such cases, to such extent, and during such times, as Congress might deem expedient. The Constitution gave the necessary power, but left the full discretion as to its exercise to Congress.”

In the case of Silas Mason Co. v. Tax Commission, supra, at pages 207 and 208, in construing a statute of the state of Washington, similar to the Ohio statute (Section 13771, General Code), it is stated:

“Not only do we find no violence done to federal right or frustration of federal intent by the state’s construction of its statute, but the evidence is clear that the federal government contemplated the continued existence of state jurisdiction consistent with federal functions and invited the co-operation of the state in providing an appropriate exercise of local authority over the territory.

“Even if it were assumed that the state statute should be construed to apply to the federal acquisitions here involved, we should still be met by the contention of the government that it was not compelled to accept, and has not accepted, a transfer of exclusive jurisdiction. As such a transfer rests upon a grant by the state, through consent or cession, it follows, in accordance with familiar principles applicable to grants, that the grant may be accepted or declined. Acceptance may be presumed in the absence of evidence of a contrary intent, but we know of no constitutional principle which compels acceptance by the United States of an exclusive jurisdiction contrary to its own conception of its interests. The mere fact that the government needs title to property within the boundaries of a state, which may be acquired irrespective of the consent of the state (Kohl v. United States, 91 U. S., 367, 371, 372), does not necessitate the assumption by the government of-the burdens incident to an exclusive jurisdiction. We have frequently said that our system of government is a practical adjustment by which the national authority may be maintained in its full scope without unnecessary loss of local efficiency. In acquiring property, the federal function in view may be performed without disturbing the local administration in matters which may still appropriately pertain to state authority. In our opinion in James v. Dravo Contracting Co., supra, we observed that the possible importance of reserving to the state jurisdiction for local purposes which involve no interference with the performance of governmental functions is becoming more and more clear as the activities of the government expand and large areas within the states are acquired. And we added that there appeared to be no reason why the United States should be compelled to accept exclusive jurisdiction or the state be compelled to grant it in giving its consent to purchases.”

Application of the above principles to the instant case, in the light of the intent of Congress, as disclosed by the above-quoted portions of the applicable enactments would alone seem sufficient to resolve the issue here of plaintiffs ’ contention A in favor of the defendants. And certainly so in the light of the co-operation with the federal government the state of Ohio expresses in its State Housing Law, above set forth.

From a reading of the statutes above quoted in conjunction with the paramount principles set forth in judicial decisions, sufra, we conclude that plaintiffs’ contention A must fail.

As to contention B, we observe the fatal defect to be that admission to the free public schools of this state in no way is dependent upon the payment of taxes. Whatever iniquity is present in the situation here revealed must be charged to the failure of federal administration to function according to the plain intent of the Congress and cannot be charged to the defendants, whose duties plainly appear upon a mere reading of the school laws of the.state. The remedy for correcting the distortion of the symmetry of the dual form of government occasioned by faulty administration, with or. without ulterior motive, lies with the legislative branch rather than the judicial branch of government.

In addition to the observations above set forth we agree with the reasoning and authority contained in the opinion of the court below, and the same decree may be presented here.

Decree accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the opinion and judgment.

Hildebrant, P. J., Matthews and Ross, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Howey, Appellant.
    (No. 3877
    Decided February 8, 1946.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr.

      William G. Bryant and Mr. Daniel S. Webber, for appellee.

      Mr. Russ Bothwell, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the" Court of Common Pleas of Franklin county, Ohio, wherein the defendant was found guilty of manslaughter in the second degree.

The record discloses that on June 10, 1945, Irene A. Duffy, the deceased, and her husband were .walking south on the west side of Eighteenth street in the city of Columbus, Ohio; that when they arrived at an intersection of Eighteenth street, which intersection is controlled by a traffic light, the light was red. After a few moments the light turned green for the north and south traffic on Eighteenth street and the deceased and her husband, started across Mound street on the crosswalk. When they had arrived at a point several feet south of the center line of Mound street, they were struck by the automobile of the defendant which resulted in the death of Irene A. Duffy on the following day.

The defendant was driving his automobile in an easterly direction on Mound street at a speed of approximately 20 to 25 miles per hour-and when he was approximately a half a square from the light, seeing that it was red, he slowed down his speed to five or ten miles per hour. When he was 50 to 60 feet west of the light it turned green for the east and west traffic and the defendant proceeded on into the intersection, striking the deceased and her husband. The defendant testified that he did not see these parties prior to the impact. The accident happened about 9:30 p. m. and a misty rain was falling.

The record discloses further that there was a street light at the northwest corner of this intersection.

The trial court found that the deceased and her husband entered the intersection on the green light. The testimony of the defendant tends to corroborate this finding, as he testified that the light turned to green for the east and west traffic when he was some 50 or 60 feet west of the intersection.

The indictment, in addition to charging violation of Section 6307-18, General Code, defining second degree manslaughter, also charged violation of Sections 6307-12, 6307-20 and 6307-45, General Code. The plea was one of not guilty. A jury was waived and trial had before a judge of the Common Pleas Court. The court found the defendant guilty as charged, and a motion for new trial was overruled.

The assignments of error are in substance that the finding of the trial court was contrary to law and contrary to the evidence.

The definition of manslaughter in the second degree is found in Section 6307-18, General Code, which is as follows:

“Whoever shall unlawfully and unintentionally kill another while engaged in the violation of any law of this state applying to the use or regulation of traffic, shall be guilty of manslaughter in the second degree.”

We are, therefore, confronted with the question of whether the defendant was violating any law of this state applying to the use or regulation of traffic at the time of the fatal injury. The indictment charges that the defendant violated three separate and distinct sections of the state traffic laws, to wit, Sections 6307-45, 6307-20 and 6307-12, General Code. Section 6307-45, General Code, provides in part:

“It shall be the duty of the operator of any vehicle, street car or trackless trolley to yield the right-of-way to a pedestrian lawfully crossing the roadway within any crosswalk.”

Under that section we find that, since the deceased entered the intersection on the green light and was walking within the crosswalk, she had the right of way. The “right of way” is defined by Section 6307-2, General Code, as “the right of a vehicle, street car, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, street car, trackless trolley or pedestrian approaching from a different direction into its or his path. ’ ’

This right of way was not yielded to the deceased, and we, therefore, find that the trial court properly found the defendant violated that section of the Code.

The indictment charges also that the defendant violated Section 6307-20, General Code, which provides: “No person shall operate a vehicle * * * without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles * * * and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.” We find that the defendant also violated that section as he operated his automobile without regard to the rights of the deceased who had the right to proceed uninterruptedly across the street.

The defendant is charged in the indictment also with violating Section 6307-12, General Code, but we do not believe that the record shows a violation of that section by the defendant.

Counsel for the defendant cites the case of Martinovich v. Jones Co., 135 Ohio St., 137, 19 N. E. (2d), 952, which was decided on March 15, 1939, more than two years prior to the enactment of the Uniform Traffic Act. The first paragraph of the syllabus of that case reads as follows:

“In the absence of statute or ordinance so prescribing, there is not an absolute duty devolving upon the driver of a motor vehicle standing at or approaching a street intersection, upon receiving the green or ‘go’ signal of a traffic light, to wait until one on the crosswalk is entirely out of the intersection before such driver may move into it. A charge to the jury imposing such absolute duty would be erroneous.” (Emphasis ours.)

We think that case has no application, for we have made reference to Sections 6307-45 and 6307-20, General Code, which are statutes prescribing the conduct to be pursued by one who has received the green or “go” signal of a traffic light.

We find that the casé of Juergens v. Bell Dist., Inc., 135 Ohio St., 335, 21 N. E. (2d), 90, is more applicable to the case at bar. The second paragraph of the syllabus of that case is:

“Where an ordinance gives a pedestrian, crossing or starting across a crosswalk at such an intersection on a green or go signal, the right of way over vehicles until such pedestrian has reached the opposite curb, the question of contributory negligence of such pedestrian includes consideration not only of the conduct of such pedestrian in crossing such crosswalk but also of the extent of the right of way granted by the ordinance, and where such ordinance further provides that it shall be unlawful for the operator of any vehicle to fail to yield the right of way to any such pedestrian, the latter, while not absolved from the requirement of exercising ordinary care for his own safety, does have the right, in the absence of notice or knowledge to the contrary, to expect that the operator of such motor vehicle will obey the law.” (Emphasis ours.)

In the instant case the deceased had a right to expect that the defendant would obey the law, which he failed to do.

The cases cited hold that the pedestrian may be guilty of contributory negligence which bars a recovery, even though the driver of a motor vehicle violated a law which directly contributed to the injury, but we are not confronted with the question of contributory negligence in this case. . We are only interested in whether the defendant was violating a law relating to the use of streets or regulation of traffic at the time of the injury, and we have found the answer to be in the affirmative.

The judgment is affirmed and the cause is remanded.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.


text:
    The State of Ohio, Appellee, v. Colley, Appellant.
    (No. 1762
    Decided January 24, 1946.)

      Mr. Mathias II. Keck, prosecuting attorney, and Mr. Maurice J. Gilbert, for appellee.

      Mr. A. K. Meek and Mr. P. J. Wortman, for appellant.
   Miller, J.

The defendant, George Colley, was charged with murder in the first degree, in that while attempting to perpetrate a robbery he killed one Harry Miller on the morning of December 25, 1937.

The facts pertinent to the issues raised before us disclose that in April 1937, the defendant was declared insane by the Hygiene Commission of Kanawha county, Vest Virginia, and committed to the state asylum for the insane at Spencer, West Virginia, from which he escaped and came to Dayton on or about December 10, 1937. On the morning of December 25, 1937, at about 2:30 a. m., defendant encountered Harry Miller on the street and attempted to rob him with a gun acquired several days previous. During the attempted robbery, the deceased resisted and in the scuffle that ensued the gun was discharged with the result that the deceased was shot in the abdomen, from which wound he died later in the day. Miller made a dying statement in which he gave a description of his assailant who Miller said was attempting to rob him. Miller stated that he took a swing at him and was then shot. At another time Miller stated that he “grabbed out” at the assailant before the shooting.

For several weeks after this shooting numerous robberies were committed by this defendant in Montgomery county, which he admitted on his return to Dayton. Several months after the alleged offense the defendant was arrested for an offense in New York state. He plead insanity and after examination by a duly appointed sanity commission he was found to be insane and ordered committed to Mattewan State Hospital, from which he was later released to the Spencer State Hospital, from which he escaped in 1937. On his return to Dayton in 1942 he made a statement to the police in which he admitted the attempted robbery of the deceased, but stated that the discharge of the gun occurred during a scuffle and that the discharge was accidental.

The pleas were not guilty and not guilty by reason of insanity. Upon the plea of insanity, the court appointed a sanity commission composed of three medical experts to examine and observe the defendant, who Avas ordered committed to an insane institution at Dayton for a period of 30 days. This commission reported to the court that the defendant was sane, and the court adopted the report, found the defendant to be sane and the case came on for trial.

We now consider the following errors assigned.

The court erred in not ordering a mistrial when the assistant prosecuting attorney was making his opening statement to the jury.

The record discloses that in this opening statement the prosecuting attorney • described numerous other holdups in the city of Dayton beginning the day following the killing of Miller and continuing over the several following weeks, which holdups were admitted by the defendant. The statements as to those crimes were supported by the evidence and were admissible only for the purpose of establishing the identity of the accused. In the opening statement in any case, counsel in good faith may make statements as to what they expect to prove by competent testimony. That was done in this case. The opening 'statement was made in conformity with Section 13442-8, General Code, and was properly made.

The court erred in the admission and rejection of testimony and evidence.

Under this assigned error it is the contention of the defendant that the court erred in admitting the admissions of the defendant in evidence against him since he had been adjudged insane less than one year before the alleged offense and had never been released from the institution for insane at Spencer, West Virginia, from which he had made his escape. There is no presumption of insanity in a criminal case. The law presumes every person over the age of 14 years to be of sufficient capacity to entertain a- criminal intent. Therefore, the presumption is that every such person is sane insofar as criminal responsibility is concerned. Loeffner v. State, 10 Ohio St., 598; 21 Ohio Jurisprudence 78, Section 30. The burden of proof in establishing the defense of insanity rests upon the defendant, but a preponderance of evidence is all that is necessary for that purpose. Even though the evidence introduced by the state tends to show the insanity of the defendant, the burden of proof does not shift. Rehfeld v. State, 102 Ohio St., 431, 131 N. E., 712. The admissions of the defendant were properly admitted in evidence. The issues on insanity were submitted to the jury under proper instruction and we are of the opinion that the finding of the jury was fully supported by the evidence.

The court erred in submitting to the jury the question of whether the defendant was guilty of first degree murder, as there was no evidence of murder.

An examination of the record is convincing that the defendant was attempting an armed robbery at the time within the purview of Section 12400, General Code, and the charge was not only properly given but the verdict was amply supported by the evidence. It is the contention of the defendant that the attempted robbery had ceased and that there was then a scuffle over the gun which was accidentally discharged. This was a factual question which was properly submitted to the jury.

The court erred in charging the jury that accidental shooting after attempted robbery had ceased was manslaughter.

We find no error in the charge as given. If there is any testimony supporting a lesser offense it becomes the duty of the court to charge upon it. This was properly done.

We find no prejudicial error in the record and find further that the guilt of the defendant was established by the overwhelming weight of the evidence. The judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.


author: Wiseman, J. By the Court.

text:
    The State of Ohio, Appellee, v. Cope, Appellant.

      (No. 1893
    Decided April 30, 1946.)

      Mr. M. H. Heck, prosecuting attorney, Mr. M. J. Gilbert and Mr. Fred M. Kerr, for appellee.

      Messrs. Kelly & Magsig, for appellant.
   Wiseman, J.

This, is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio. The defendant, Haskell Cope, was charged and found guilty of murder in the second degree for killing Jackie Ellen Bennett, 15 years of age.

For his first assignment of error, defendant contends that the trial court erred in refusing to grant a continuance of the case after it developed from the voir dire examination of prospective jurors that two of them admitted having read the Dayton newspapers which had carried articles stating that the court had refused to accept the defendant’s plea of guilty manslaughter and ordered him to stand trial. The record shows that this same matter was presented' to the court on a motion for new trial which was overruled; that the court in its opinion found that 20 prospective jurors were selected before either side was called upon to exercise its or his peremptory challenges ; and that counsel for the defendant could have excused these two jurors if they saw fit, but did not avail themselves of this privilege. There is nothing in the record to show that these two jurors were prejudiced by anything which they may have read in the Dayton newspapers. They were properly qualified t© sit as members of the jury. The failure of the trial court to grant a continuance did not constitute error.

For his second assignment of error the defendant contends that the trial court erred in refusing to make available to counsel for the defendant a copy of the typewritten statement signed by the defendant and given to Detective Pendell. The record shows that when Detective Pendell was on the witness stand he testified that several days prior, to the trial he had examined this typewritten statement. However, he stated that he testified from his memory in regard to oral statements ihade by the defendant immediately after the crime was committed. Later, he was asked whether he was not testifying from what he remembered from the defendant’s oral statement and what was in the written statement which he read a few days previously. In answer to this inquiry the witness testified, “I suppose.” That written statement was not used by the witness to refresh his memory while on the witness stand. The witness testified that prior to the taking of the written statement the defendant had made an oral statement and that he later reduced to writing his oral statement and attempted to cover everything that the defendant had stated orally. The witness testified that the defendant stated he shot at the person in the room “with the purpose of intending to kill whoever it was; the form of whoever it might be.” . The written statement does not contain this admission on the part of the defendant. The record does not disclose whether the witness relied on his memory when he testified relative to what the defendant stated to the witness immediately after defendant’s arrest. The written statement was after-wards produced in court and introduced in evidence. Ample opportunity was given to counsel for defendant to recall the witness and examine him in regard to the contents of the written statement. In view of the state of the record, we do not believe that the refusal of the court to require the state to produce the statement at the time Detective Pendell testified constituted error.

For his third assignment of error the defendant contends that the trial court erred in refusing to direct a verdict of “not guilty” at the close of all the testimony. This assignment of error will be considered in connection with assignments of error numbered 10 and 11.

For his fourth assignment of error the defendant contends that the trial court erred in failing to grant defendant’s motion for mistrial due to the absence of William .Tally, one of the jurors, when the court, in the presence of the other 11 jurors, issued a bench warrant for his immediate arrest, where the absent juror had the opportunity to read the Dayton newspapers which carried a news item that the absent juror was subject to a fine up to $250 by reason of his failure to appear.

For his fifth assignment of error the defendant contends that the trial court erred in failing to grant defendant’s motion for a mistrial due to the misconduct of William Tally, juror, which evidenced his total, disregard of the responsibilities of a fair and impartial juror and which resulted in the court later holding him. for contempt of court. The record in this case shows that on Friday afternoon at the time the members of the jury were excused, they were instructed by the court to return at an early hour on Saturday morning for the purpose of hearing arguments of counsel and the submission of the case to them. On Saturday morning, one of the jurors, William Tally, failed to appear at the appointed hour. The court issued a bench warrant, directed to the sheriff, to find William Tally and bring him into court. The sheriff was unable to locate William Tally and so reported to the court. Thereupon, a discussion took place between counsel and the court as to whether the trial should proceed with 11 jurors. Because of the lateness of the hour, the court permitted the jurors to decide whether they wished to proceed on that day or return on Monday: morning. The jurors having-agreed to return on Monday morning, the court continued the matter until Monday. Over the week end the Dayton newspapers carried a news item to the effect that because of his failure to appear, William Tally was subject to a fine up to $250. On Monday morning William Tally and the other jurors appeared and the case was argued and. submitted to the jury. After the verdict of the jury was returned, the court excused all the members of the jury with the exception of William Tally. He was ordered to appear before the court in answer to a charge of contempt of court for his failure to appear on Saturday morning. He was examined by the court and, not being able to purge himself of contempt of court, was fined $100 and ordered committed to the county jail until payment of the fine. There is nothing in the record to indicate that either William Tally or any other member of the jury read the newspaper accounts of this incident. The record does not show that William Tally or any other member of the jury was prejudiced against the defendant by reason of this unusual happening. Under all the circumstances, we are of the opinion that the trial court followed the proper procedure after William Tally failed to appear as a juror. Furthermore, by waiting until after the case had been submitted and the verdict returned, the trial court removed any possibility of prejudice on the part of William Tally or other members of the jury in their consideration of the case.

The seventh assignment of error has been withdrawn.

For his sixth, eighth, ninth and twelfth assignments of error, the defendant contends that the court erred in refusing to - give three of the defendant’s special instructions before argument, in failing to instruct the jury as requested -by the defendant immediately after the court had finished his charge, and in charging the jury on second-degree murder, the defendant contending that there was no evidence to support a charge of second-degree murder. The defendant requested the court to give before argument special charge No. 2, which was refused, and which is as follows:

“If you find from the evidence that the defendant was aroused from his sleep and aroused to an honest impression there was a burglar in the room, and due to an inherent and subconscious fear that the night-season intruder was bent upon mischief either to the person or property of himself or to the other lawful occupants of the home, spontaneously, and proceeding from an unconscious internal impulse, shot at the form of what he believed to be a burglar, then the mistaken killing of Jackie Bennett' would be excused in law and your verdict should be ‘not guilty.’ ”

We believe that this charge was properly refused as it did not require the jury to find that the defendant had reasonable grounds to believe, in protecting himself, the other occupants of the' home and his property, he was in imminent danger of losing his life or suffering great bodily harm.

The third special charge submitted by the defendant, which was refused by the court, is as follows:

“I charge you as a matter of law that the mere presence of an unknown person at night in an unlighted room occupied by another is sufficient'to justify the occupant to believe that the unknown person has entered his room with a felonious intent.”

We know of no principle of criminal law in Ohio which would justify the court in giving this charge. It was properly refused.

The defendant requested before argument a special charge which is as follows:

“If you find that the facts and circumstances surrounding this fatal shooting can be reasonably reconciled with a theory of the defendant’s innocence, your verdict should be ‘not guilty.’ ”

The substance of this special charge was covered in the court’s general charge and for that reason we are-of the opinion that the court did not commit error in refusing to give this statement of law as a special charge before argument.

We are of the opinion that the court properly charged the jury with respect to second-degree murder, as there is sufficient evidence in the case to justify the court in submitting the case on that issue.

After the court had finished its general charge, it inquired of counsel as follows:

"Do counsel for plaintiff and defendant desire any further charges?

"Mr. Gilbert: No, your Honor.

"Mr. Magsig: No, your Honor.”

Then follows this statement from Magsig, one of the attorneys for the defendant:

"The defendant excepts to the charge as given for the reason that nowhére did the court instruct the jury that in determining whether or not the defendant under all the circumstances acted as a reasonable, ordinary, prudent man would act, nowhere did the court instruct the jury that they should take into consideration his background and education or lack of education, or any other mental deficiency that might have any effect whatever on his acting as a reasonable, prudent man would be expected to act.”

We assume that, although counsel for defense first stated he had no additional charges to offer, from the state of the record he did make a request for further instructions. From the statement of counsel, it is not very clear what test he wished the court to apply. It is clear, however, that the court was requested to instruct the jury that it should take into consideration the defendant’s background, education, lack of education or any mental deficiency that might have any effect whatever upon his “acting as a reasonable, prudent man would be expected to act.” The test is not what a reasonable, ordinary, prudent man would do under the same or similar circumstances. The failure to give further instructions as requested by counsol for defendant, together with the court’s general charge in which the court laid down an improper test, constituted error. In the general charge was the following statement:

“The test of whether or not the defendant, Haskell Cope, had reasonable grounds to believe as he did, if you so find that he did, is: What would an ordinary, reasonable, prudent person do under the same or similar circumstances? In considering this you will take into consideration all the facts and circumstances surrounding this happening.”

Where the defendant defends on the ground of self-defense or excusable homicide, the test to be applied is not what “an ordinary, prudent person” would have done under the same or similar circumstances, or whether the force used was that which a person of “ordinary firmness” would use to repel an assailant. The true test is whether the particular person on trial believed and had reasonable grounds to believe that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger would be by taking the life of his assailant although in fact he was mistaken as to the existence or imminence of the danger. Marts v. State, 26 Ohio St., 162; Napier v. State, 90 Ohio St., 276, 278, 107 N. E., 535; State v. Sheets, 115 Ohio St., 308, 309, 152 N. E., 664; Nelson v. State, 42 Ohio App., 252, 181 N. E., 448.

In the Nelson case, wherein the defendant pleaded self-defense, the Court of Appeals held that the trial court accurately defined self-defense by instructing the jury “that the defendant could invoke that doctrine if in the careful and proper use of his faculties he bona fide believed, and had reasonable grounds to believe, that the killing was necessary.” However, in the general charge the court instructed the jury that “it must appear that the circumstances were sufficient to excite the fear of a reasonable person similarly situated, and that the defendant acted in good faith.” This charge was held to be erroneous. Judge Mauck followed that observation with the following statement:

“While the courts of this state have not always pursued an even course in defining the fear which one must entertain in order to rely upon self-defense, it seems now to be finally determined that guilt is personal, and that the conduct of any individual is to be measured by that individual’s equipment mentally and physically. He may act in self-defense, not only when a reasonable person would so act but when one with the particular qualities that the individual himself has would so do. A nervous, timid, easily frightened individual is not measured by the same standard that a stronger, calmer, and braver man might be. State v. Sheets, 115 Ohio St., 308, 152 N. E., 664.”

The charge of the- court in the instant case being erroneous, was it prejudicial? Section 13449-5, G-eneral Code, provides, inter alia, that a judgment of conviction shall not be reversed for “any misdirection of the jury unless the accused was or may have been prejudiced thereby.”

In the case of Napier v. State, supra, the court held that although the charge of the court was erroneous, it could not have prejudiced the rights of the defendant and therefore was not reversible error. In the case of State v. Witsel, 144 Ohio St., 190, 58 N. E. (2d), 212, it appears that the Court of Appeals found the trial cou'rt committed serious error in the improper admission of evidence, and the Court of Appeals, in its opinion, held:

“We do not have the slightest difficulty in determining that the evidence was ample to support the conviction establishing the guilt of the defendant beyond a reasonable doubt and hence the first assignment of error that the verdict was against the manifest weight of the evidence is overruled * * *. Being convinced as we are, that the defendant was proven guilty, we hesitate to grant a new trial and we have sought in every way possible to find ways and means to obviate it.”

The Supreme Court reversed the judgment of the Court of Appeals and, in commenting on that portion of the opinion of the Court of Appeals above quoted, said:

“Although this court is not required to pass upon the weight of the evidence presented by the record in this case, yet from a review of the evidence we are of the opinion that the Court of Appeals was justified in its observation as above quoted and that the jury had ample justification in rendering a verdict of guilty, entirely aside from the objectionable evidence which is now the subject of consideration.

“Under the circumstances shown by the record, this court cannot find affirmatively, as required by the statute, that the defendant was prejudiced by the error occuring at the trial and now complained of by him, in view of the caution and direction given to the jury by the trial judge concerning the evidence in question. ’ ’

Even though the charge of the court was erroneous in the instant case, the question is still raised as to whether such error was so prejudicial as to warrant a reversal. The court is required to consider all' the evidence in this case as well as the' charge to the jury in its entirety in order to determine whether this defendant had a fair trial and whether there was ample evidence to justify the jury in finding the defendant guilty of murder in the second degree.

The record in this case shows the following facts:

The defendant was 38 years of age at the time the crime was committed. He was born and reared in the state of Tennessee. He left school while in the fifth grade and helped his father by working on a farm. At the age of 19 years he married and shortly thereafter was arrested for operating a motor vehicle without the owner’s consent and was sentenced to serve a year and a day in the penitentiary. After being released from the institution and living a short time with his wife, they separated and were later divorced. In 1935, while living with his mother in Cookville, Tennessee, he met Mary Bennett, the mother of two daughters, Opal and Jackie Ellen, who lived with her. Her husband had been previously killed in an accident. The defendant and Mary Bennett never married but to them one child, Bobby, was born, who is now over eight years of age. Later the defendant went to Bichmond, Indiana, where he was employed, and, upon learning that Mary Bennett had in the meantime moved to Dayton, the defendant left Bichmond, Indiana, and went to live in Dayton with Mary Bennett. At the time the defendant first called on Mary Bennett in Dayton, she and her children were living in one room. Within two or three weeks they moved into a two-room apartment in the same building, at which time the defendant and Mary Bennett began to cohabit as husband and wife. This relatiqnship continued for a period of two years and in October 1944 a separation occurred due to differences which-had arisen between defendant and Mary Bennett. Within a few days after their separation, the defendant was arrested and charged with possession of illegal gasoline stamps and was sentenced to a term in the federal reformatory at Ashland, Kentucky. During the time the defendant was in the federal reformatory, Mary Bennett moved into a one-room apartment, where she continued to live with her daughter, Jackie, and her son, Bobby, her other daughter, Opal, having been married some time previous. On April 24, 1945, the defendant was released from the Ashland reformatory and immediately went to Dayton and found Mary Bennett living in the one-room apartment containing only one bed which was used by Mary Bennett and her daughter, Jackie,, her son sleeping on a pad on the floor. In the evening of the day on which he returned, a discussion took place between the defendant, Mary Bennett and her daughter, Jackie, relative to their living arrangements. In order to permit the defendant immediately to begin his illicit relationship with Mary Bennett, Jackie was told she would be required to spend the night in the home of a girl friend, Betty Dean. The next day Mary Bennett did not go to her place of employment but spent the day with the defendant. In conversations which took place between the defendant and Mary Bennett it was generally agreed that the defendant should go to Richmond, Indiana, and there is some evidence indicating that Mary Bennett planned to accompany him, and that Jackie and Bobby should live with an uncle until the end of the school term. Jacide was required to spend the second and third nights with her girl friend. On the evening of the murder, the defendant and Mary Bennett discussed with Jackie their plan to have her live with her uncle. Betty Dean testified that on this evening when Jackie came to her home, Betty observed that Jackie had been crying, and upon being questioned, Jackie stated that she had been crying because she was expected to live with her uncle whom she disliked.

There is ample evidence from which the jury could conclude that on the third evening at the time Jackie left her home she stated to her mother that she might return later but if sbe did not she would see her mother in the morning, and that this conversation took place in the presence of defendant. Mary Bennett testified that on that evening she asked her daughter Jackie whether she wished to eat, whereupon Jackie replied that when she came back she would probably eat something. The evidence shows that on each of the three evenings which the defendant spent in this one-room apartment, he and Mary Bennett occupied the bed and Bobby slept on the floor; that the defendant placed the pistol on the chair near the head of the bed each evening; that on the third evening he cleaned the gun; that Jackie returned to the apartment with her friend, Betty, shortly after 11 o’clock for the purpose of getting a bottle of shampoo which was in the room; that she had a key to the door, unlocked it and went inside; that the one-room apartment was on the second floor; that Betty remained standing at the foot of the stairs; that a short time after Jackie entered the room a shot was heard, whereupon Betty called several times for Jackie and upon getting no response went upstairs and knocked on the door; that after Betty knocked several times, the door was opened and Betty asked where Jackie was; that both Mary Bennett and the defendant told her that Jackie was inside and was all right. This incident is denied by the defendant, but is supported in part by Mary Bennett, who testified also that the defendant grabbed her and pulled her away from the door and sat her on the chair immediately in front of him and that when he turned to put his clothes on, she left the room. She further testified that the defendant stated that he wanted to get his clothes and gun and get away. She testified that she persuaded him to stay; that she went to a lower room and called Mayberry; that the defendant still wanted to leave and that she and May-berry kept him from going; and that the defendant said, “They would kill him.” The police were called and arrived at the scene within a few minutes, took the defendant into custody and removed Jackie to the hospital where she died as a result of a gunshot wound in the forehead.

The defendant claimed that he was told by the children of Mary Bennett that while he was in the federal reformatory someone had broken into the apartment; that he laid the gun on the chair for protection; that on the night in question he was awakened by a thud which he described as a sound made by a heavy object falling to the floor; that he saw an object moving in the room and took the gun, pointed it at the object, and fired; that the firing of the shot awoke Mary Bennett; and that the lights in the room were turned on and he then discovered he had shot Jackie Bennett. The defendant claimed he placed the gun on the chair as a protection against an intruder but admitted that it was always his custom to put a gun under the pillow. He stated that on the night in question Mary Bennett placed the gun on the chair but he finally admitted that he had placed the gun there. In his statement to the police he said that it was the opening of the door that awoke him; that he fired the shot without making any move or any outcry and without making an investigation as to whether it was a man or woman or one of the occupants of the room; and that he thought the person in the room was a burglar.

There is no evidence that the apartment had been previously burglarized except the statement of the defendant. He denied stating to Mary Bennett that he was going to get out of there, denied telling Betty Dean immediately after the shooting that Jackie was all right, and denied that he was making an effort to get away when arrested, although the arresting officer testified that in his opinion defendant was attempting to make an escape. The defendant testified that he had purchased the gun from a pawnbroker who took the stand and testified that he had never seen the defendant and had not sold the gun to him.

On the question of identification, Mary Bennett testified that before the lights were turned on in the room she identified the person as her daughter, Jackie, by the buttons on her coat and by the dress she wore. Immediately after the arrest, the officers made a test of the room by turning out the lights. They testified that objects could be distinguished in the room, which testimony was supported by the testimony of Mary Bennett that objects in the room could be seen as well as things hanging on the wall.

A motive for the crime was not definitely proven. However, it is not incumbent on the state to prove motive. The proof or lack of proof of the motive is a circumstance to be considered by the jury, together with all other evidence in the case, in determining the guilt or innocence of the accused. However, there was evidence presented from which the jury could have reasonably concluded that the defendant had lived with several women in Dayton and another woman in Detroit who had a child by him. On the first evening after defendant’s return from'the federal reformatory, Jackie was required to leave her room in order that the defendant might share the bed with her mother. The jury could have reasonably concluded that his desire to immediately renew illicit relations with Mary Bennett furnished a motive for killing Jackie, who on the third night disturbed him by returning to the bedroom. The court properly instructed the jury in regard to the proof or lack of proof of a motive.

The defendant contends that no difficulty arose between liirn and Jaclde, -and that their relationship had been entirely friendly. It is contended that, since the defendant bore no ill will towards Jackie, the state failed to show malice. It was not encumbent on the state under the peculiar circumstances in this case to prove that the defendant bore any ill will towards Jackie. The defendant is charged with second-degree murder, the elements of which are a purposeful and malicious killing of another. Where a defendant is charged with murder in the second degree, malice may be presumed from a purposeful and unlawful killing with a deadly weapon. Did the defendant here purposely kill the person he found in the room? If he intended to kill the person he found in the room, and there was evidence in this case from which the jury could have concluded that he did, even though he was mistaken as to that person’s identity, the doctrine of transferred intent would apply, and the defendant in this case would be charged with the intentional and purposeful killing of Jackie Bennett. The purpose to kill is proved by circumstances; by what a party does and says, the manner of inflicting the wounds, the instrument used, and its tendency to destroy life. When the defendant awoke, found some person in the room, took the gun, aimed at a vital spot, and fired, under the circumstances in this case and in light of the testimony with reference to the ability to identify the person and objects in the room, the jury was justified in finding that the defendant intentionally and purposely killed the person in the room.

Was the commission of the act justified or excusable? Before the jury was warranted in finding the defendant was justified or excused in committing the act, it would be required to find that the defendant honestly believed, and had reasonable grounds to believe, that he was in imminent danger of death or great bodily harm and that his only means of escape from such danger would be by taking the life of the person he found in the room, although in fact he was mistaken as to the existence or imminence of the danger. After considering the evidence as to the manner in which the crime was committed and all the surrounding circumstances, i. e., the cleaning of the gun by the defendant on the evening of the murder, his evasiveness as to whether he or Mary Bennett placed the gun on the chair on the night in question, his knowledge that Jackie might return later 'that night, the evidence that objects in the room could be identified, the evidence that Jackie was identified before the lights were turned on, the evidence that Jackie was a girl 15 years of age, and the evidence in this case as to defendant’s desire to flee the scene of the crime; we are of the opinion that the jury on this issue was amply justified in finding the defendant did not have -reasonable grounds to believe that he was in imminent danger of death or great bodily harm. Once the jury had arrived at this point in the consideration of the case, it was required to find that the defendant had not sustained his claim that the homicide was justifiable or excusable. Any intentional killing without a legal justification or excuse, and not within the realm of voluntary manslaughter, is a malicious killing. Where a wrongful killing has been proved, a presumption is raised that simple malice is present and, consequently, that the crime is murder in the second degree. 21 Ohio Jurisprudence, 60, Section 21. This court is of ihe opinion that there was ample evidence to support the verdict of the jury that the defendant was guilty of murder in the second degree.

As to the question whether the charge as given misled the jury, all the evidence relative to the type and character of the defendant as an individual, his education, experience, general background and bis general powers of comprehension as reflected in his testimony must be considered.' After giving careful consideration to all the evidence in regard thereto, we are of the opinion that the defendant differed only slightly, if at all, as an individual from the ordinary person, and that consequently the jury was not misled by the charge as given.

The improper test as applied by the trial court was based on the assumption that the defendant was awake and rational. However, the defendant’s principal defense was that he fired the shot before he was sufficiently awake to appreciate the effect of his act. The court fully covered this situation by giving a special charge requested by the defendant, which was definitely favorable to him. The substance-of such charge was that the defendant’s act was excusable in law and he should be acquitted if the jury found that the defendant was aroused to an honest impression that there was a burglar in the room and that the defendant, on the spur of the moment, shot at the form of what he believed to be a burglar before he was sufficiently awake to properly appraise the situation confronting him. The jury rejected this theory of defendant’s case.

After considering the charge in its entirety and the fact that the court in substance did charge the jury in two separate findings to the effect that the defendant should be acquitted if the jury "found that he honestly believed, and had reasonable ground to believe, he was in imminent danger of death or great bodily harm, we do not believe, and therefore cannot say, that the jury may have given a different verdict had the proper test been applied. On the whole, we are of the opinion that the defendant had a fair trial; that the charge of the court, although it was erroneous, was not of such import as to mislead the jury; and that consequently any error which might appear was not prejudicial to the defendant.

For his third, tenth and eleventh assignments of error the defendant contends that the trial court erred in refusing to direct a verdict of “not guilty” at the close of all the testimony; and that the verdict was against the manifest weight of the evidence and contrary to law. In view of the evidence in this case, we are of the opinion that the court properly overruled the motion for-a directed verdict, and that'the verdict was amply supported by the evidence. We have already commented on the law applicable to the issues in this case and find that the verdict and judgment of the court were not contrary to law and that the court did not commit prejudicial error.

The judgment is affirmed.

Judgment affirmed.

Hornbbck, P. J., and Miller, J., concur. '

(Decided May 17, 1946.)

On Application for rehearing.

By the Court.

This court in its original opinion found that the trial court committed error in its charge to the jury, but that the error was not prejudicial because this court was convinced that the defendant was guilty and that there was ample evidence to support the verdict of the jury. Because of the rule laid down in the case of State v. Witsel, 144 Ohio St., 190, 58 N. E. (2d), 212, this court is of the opinion that the error committed is not prejudicial.

The application for .rehearing is denied.

Application denied.

Hornbeck, P. J., Wiseman and Miller, JJ., concur.


author: Doyle, J.

text:
    Kaczmarek, Appellant, v. Murphy, Appellee.
    (No. 3807
    Decided November 13, 1946.)

      Mr. Clarence A. Irwin, for appellant.

      Messrs. Buckingham, Doolittle & Burroughs, for appellee.
   Doyle, J.

Kaczmarek, a soldier on leave from the army of the United States, was injured while riding as a passenger in an automobile driven by his hostess. He brought this action against the driver of another automobile, which, while proceeding in the opposite direction on a public highway, skidded into the car in which the complainant was riding and caused the vehicular collision which resulted in the injury.

Before the case came on for trial, the defendant died, from causes other than the accident in question, and the administrator of his estate was substituted as defendant.

For convenience, reference shall be made herein to the parties as plaintiff and defendant.

The facts, as a jury could have found them, are these:

A family group, riding in two automobiles, was proceeding southerly on Home avenue in the city of Akron. The litigant Kaczmarek was a passenger in the second car, which followed the first car at about four car lengths distance. The street was covered with ice and was slippery. The progress of the cars brought them to a decline in the highway. There was here observed a car driven by the defendant, Dr. Murphy, proceeding in the opposite direction on the highway, and “coming around the bend of the hill going north.” The back wheels of this 'car were spinning on the ice, arid the car was skidding as it progressed up the hill. When it neared the two approaching vehicles, a part of this vehicle went off of the pavement, on its right side and onto the berm or shoulder of the highway. The driver thereupon attempted to bring his car back on the paved portion of the highway, and, while skidding, the car “lunged” several times in the direction of the first car, which was turned onto the extreme right of the road by the driver thereof to avoid collision. The defendant’s car continued to skid, and as it proceeded while skidding back onto the pavement, it continued onto the opposite or “wrong” side of the highway and into collision with the second car, which, as a result thereof, was knocked off of the roadway and into a telephone pole. As stated before, the plaintiff was a passenger in this car and was injured as a result of the mishap.

It seems proper to'conclude this recitation of facts by quoting the testimony of one of the several eyewitnesses: “I observed Dr. Murphy’s car coming up the hill skidding, his back wheels spinning around. I observed him turn the car, the wheel. It skidded over to the right-hand side of the road, skidded off the pavement. Then I observed him wrench the wheel and pull, try to pull it on to the pavement and skid into the car behind us.”

The trial court, at the close of all of the evidence, upon motion duly made by the defendant, arrested the testimony from the jury and entered judgment for the defendant. Following the overruling of a motion for a new trial, the case was appealed to this court on questions of law for a consideration of the errors assigned. The present opinion is directed toward the only one of importance, which is in the following form: “ [Error in] arresting the evidence from the jury without submission of the cause to them and rendering judgment for the defendant.”

A trial court in directing a verdict in favor of a defendant, or in arresting the testimony from the consideration of the jury and rendering judgment for a defendant because of the insufficiency of the evidence to establish a cause of action, must assume the truth of the evidence supporting the facts essential to the claim of the plaintiff, as well as the establishment of all the facts which the evidence proves- or tends to prove or support, and of all reasonable inferences which a jury might draw therefrom. And after such assumption, having given the evidence a construction “most strongly” in favor of the plaintiff, if the court can say that, on any essential issue, reasonable minds can come to but one conclusion and that conclusion adverse to the plaintiff, the court should enter a judgment for the defendant. But where, from the evidence, reasonable minds may reach different conclusions upon any controlling question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the ground that it is manifestly against the weight of the evidence, because this question is not then before the court. Painesville U. T. Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683; Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246; Wilkeson, Admr., v. Erskine & Son, Inc., 145 Ohio St., 218, 61 N. E. (2d), 201.

It may be assumed that the trial judge had before him the above rules. In applying them, he made this observation prior to the entry of the final judgment:

‘ ‘ The Court: I want this to be in the record, that the burden is upon you, the plaintiff, to produce evidence of negligence, and it is the opinion of the court that you have failed entirely to show negligence. It could not be inferred from the fact that the car skidded and that is all the evidence we have.”

Does the evidence sustain the court’s ruling, and does it condemn the injured plaintiff to bear his loss without requital at the hands of the court alone?

The mere skidding of an automobile on an icy street does not necessarily prove negligence of the driver of the car. See Kohn, Admx., v. B. F. Goodrich Co., 139 Ohio St., 141, 38 N. E. (2d), 592; Satterthwaite v. Morgan, Jr., 141 Ohio St., 447, at p. 453, 48 N. E. (2d), 653.

Skidding, however, may so occur in connection with acts or omissions of the operator as to warrant a finding of negligence in the operation of a car. And if there is evidence showing or tending to show that an automobile skidded into a collision with another car, lawfully operated on a highway, because of a lack of ordinary care of the driver of the skidding car in the operation thereof, such circumstances make a case for the jury. For, while proof that the car skidded is not necessarily proof of its negligent operation, proof of circumstances which so connect the skidding with such operation that reasonable minds could reach different conclusions as to whether the car was operated properly, makes a case for a jury. If the negligent operation of an automobile caused a car to skid, and damage to others from such skidding results, such negligence, if established, has the same consequences as to liability as negligence of any other character.

In this case it appears that the slippery condition of the highway, the grade of the hill on a curve, the attempt while skidding to drive from a position partly on the berm back onto the improved portion of the highway against the approach of oncoming cars, are circumstances for the consideration of a jury, in determining whether the skidding into a collision was unavoidable or whether it was due to a lack of ordinary care in the operation of the car. See Dowd-Feder Co. v. Schreyer, 124 Ohio St., 504, 179 N. E., 411; 5 American Jurisprudence, Automobiles, Section 273 et seq., and cases cited; 58 A. L. R., 264 et seq., annotation; 113 A. L. R., 1005 et seq., annotation; 151 A. L. R., 888 et seq., annotation.

In further support of our conclusion that the evidence justifies the submission of this case for the consideration of a jury, attention is directed to the testimony of several witnesses who stated that the defendant made declarations that the accident was his “fault.”

The driver of the car in which the plaintiff was riding testified that immediately after the crash the defendant said to her-: “Oh, I am so sorry, little girl. I am so sorry. Are you hurt? It is all my fault.” Other witnesses testified that the defendant said at the scene of the accident “that he had lost control of his car, he was at fault.”

While there is no fixed rule that in civil cases generally an opponent’s extrajudicial admission is sufficient, without other evidence, to lay the foundation for a recovery, and while- a voluntary offer of assistance or expression of regret, made upon an impulse of benevolence or sympathy, may not necessarily be considered an admission of culpable causation, if the surrounding circumstances indicate, not merely an act of benevolence, but an admission of.fault and responsibility for the accident, made by an alleged tort-feasor, who was characterizing his own conduct, the evidence has strong probative value, and its admissibility as evidence cannot be questioned. And it is especially substantial evidence when coupled with the circumstances depicted herein.

Examination has been made of the original record in Freas v. Sullivan, 130 Ohio St., 486, 200 N. E., 639, and it is there shown that the hereinafter-quoted syllabus in the case was actuated by the admission in evidence of the following testimony of a Mr. Figg, who had no connection with the accident: “Well, he [the defendant] said he had an accident and he felt as though he would be responsible for it, it was his fault.”

“8. Admissions of an alleged tort-feasor, made two weeks after a collision, relative to his individual responsibility in causing such collision, are competent against such tort-feasor.”

From the facts heretofore related, describing the events of the accident, coupled with the admission of the defendant of a lack of due care (Eldridge v. Barton, 232 Mass., 183, 122 N. E., 272), the members of this court determine that the trial court committed prejudicial error in withdrawing the case from the consideration of the jury and rendering judgment for the defendant.

Judgment reversed and cause remanded.

Washburn, P. J., and Stevens, J., concur.


author: By the Court.

text:
    In re Estate of Marshall.
    (No. 3871
    Decided November 23, 1945.)

      Mr. J. Paul McNamara and Mr. H. E. Gingher, for the motion.

      Mr. E. W. Kilbourne, contra.

   By the Court.

This cause is submitted-on motion of appellee to dismiss the appeal for two reasons: First, because appellant, Mary M. Yon Schmidt, failed to file her assignments of error and briefs in accordance with Rule YTI of the rules of this court, and, second, because of failure to file a bill of exceptions in the trial court within 40 days after the overruling of the motion for new trial.

The motion will be overruled.

Rule VII provides for dismissal for failure to file brief within the time fixed, unless good cause is shown why the appeal should not be dismissed.

Sometime since, counsel for appellant tendered an entry granting leave to file assignments of error, brief and bill of exceptions, in which we interpolated, “if duly filed in the trial court” on or before the first day of December 1945. That entry has been approved by two members of the court, but has not-been spread upon the record because counsel for appellee had objected to such action. The objection was followed by the motion under consideration.

The spirit of Rule VII is not to penalize a party who has exercised due care in attempting to comply with the rule. The court determined, when it approved the aforementioned entry, that counsel for appellant had complied with Section 12223-8, General Code, respecting the preparation and filing in this court of the transcript of the docket or journal entries and original papers or transcript thereof as are necessary to exhibit the error complained of. The clerk at the time of the approval of the entry extending time for filing of brief had not filed the transcript in this court. In such situation, it is our opinion that it is only fair to appellant that she be given additional time, pursuant to the entry, within which to file briefs, etc. •,

It appears that a bill of exceptions may not be filed because the time within which, under the statute, it is required to be filed has elapsed. This alone, however, does not require a dismissal of the appeal as the errors assigned, or some of them, may be exemplified upon the record independent of the bill.

The motion will, therefore, be overruled and the entry, which we have heretofore approved, will be journalized, granting appellant until December 1, 1945, within which to file her assignments of error and brief. Exceptions will be saved to counsel for appellee.

Motion overruled.

Hornbeck, P. J., Miller and Wiseman, JJ., concur.


author: Hornbeck, P. J.

text:
    In re Estate of Marshall: Von Schmidt, Appellant, v. Marshall, Appellee.
    (No. 3871
    Decided February 16, 1946.)

      Mr. B. IF. Kilbourne, for appellant.

      Mr. J. Paul McNamara and Mr. H. E. Qingher, for appellee.
   Hornbeck, P. J.

This appeal is on questions of law from a judgment of September 7, 1945, of the Probate Court.

Four errors are assigned, the first of which is that the judgment was not sustained by sufficient evidence, and the fourth is that the court erred in the admission of irrelevant and immaterial evidence. As there is no bill of exceptions, the fourth assignment may not be considered, and as there is no bill or agreed statement of facts or findings of fact the first assignment may not be reached.

The second and third assignments may be encompassed in the general claim that the judgment is contrary to law.

The appeal is directed to an order following the confirmation, in all particulars but one, of the report of a special master commissioner named by the Probate Court upon objections and exceptions filed to the amended first and amended second accounts of appellant, Mary M. Yon Schmidt, executrix of the estate of Alma F. Marshall, deceased. The order fixed the amount of compensation for the executrix at one-half of the statutory fee, the sum of $1,557.22. Her application for extraordinary compensation was denied as was her application for an order allowing additional attorney fees.

The errors are directed particularly to the refusal of the court to allow the executrix her full statutory fee together with her extraordinary compensation and further compensation for her attorney, the sum allowed to her attorney being $1,200.

The brief of appellant evidently was prepared upon the theory that this court would have the advantage of the factual development upon which the master predicated his findings and report, and the judge, his order. This is not available. It is urged that the exceptions which were sustained to the accounts of the executrix involved transactions which were conducted in good faith and would not support a determination by the probate judge that the executrix had not faithfully discharged her duties as such executrix; and that the court did not so find.

It is true that the journal entry to which the assigned errors are directed makes no specific finding of any unfaithfulness by the executrix in the discharge of her duties, which is the sole basis upon which the court could have refused to allow her any compensation or to reduce her compensation as the court thought proper. Section 10509-192, General Code.

We may not resort to the opinion of the trial judge if it is at variance with any inference necessary to sustain the entry journalizing the opinion. It must be presumed that the journal entry, as filed, is lawful and that the' court had sufficient factual development to support it. The order followed a confirmation of the report of the master commissioner who found the executrix should restate her accounts and determined that many of her credits were improperly claimed. Those findings together with the evidence on which they were based were available to the probate judge and upon them he made the determination that the fee of the executrix should be limited to one-half of the amount fixed by statute. We presume, in the absence of testimony from which we might conclude that the court erred in factual determination, that there was support for the invoking of the applicable provisions of Section- 10509-192, General Code, which precluded, in the discretion of the probate judge, full allowance to the executrix by way of ordinary compensation and any award for extraordinary services. 23 Ohio Jurisprudence, 1362, Section 1384.

It is also urged that the amount of the statutory fee is not one-half of the sum to which the executrix is justly entitled. No statement of the total sum involved upon which computation of executrix’s fee should he calculated is set forth in the briefs and we have insufficient data before us to determine that the amount as carried into the entry is incorrect. If, inadvertently, there has been an error in computation of the amount of the one-half to which the court found the executrix entitled, it may even yet be corrected by the probate judge.

Finally, it is claimed that the executrix should have been authorized to pay her attorney extra compensation.

Section 10509-193, General Code, in part, provides:

“When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration.”

The court allowed and confirmed the payment to counsel for the executrix the sum of $1200 and refused any further compensation. We do not have before us any fact sufficient to overcome the manifest determination of the trial judge that the sum paid to the attorney was reasonable and sufficient under the statute. We have not discussed the many cases cited by counsel for appellant in his carefully prepared brief because we do not have available the probative facts to make them germane to the questions sought to be raised. The judgment is affirmed.

Judgment affirmed.

Wiseman and Millee, JJ., concur.