author: Crow, J.; Hughes and Warden, ,JJ.,

text:
    IMPLIED WARRANT IN BAILMENT FOR HIRE.
    Court of Appeals for Hardin County.
    The Thompson Spot Welder Company v. The Dickelman Manufacturing Company.
    Decided, April 22, 1921.

      Contracts Covering Bailments for Hire — Implied 'Warranty that Machine Lease on a Rental Basis — Will do the Work for which it is Intended — Sales and Bailments, How Distinguished.

    1. In a contract of bailment for hire where the bailor knows the use to be made of the property, there is an implied warranty that the property shall be reasonably fit for said use.
    2. Where in such a case there is a written contract, such warranty will be implied therein, unless the implied warranty be incompatible with • the express warranty, or unless by other language of the contract there is a preclusion of such implied warranty.

      Stillings & Johnson, for plaintiff in error.

      Smiclc <& Soge-, for defendant in error.
   Crow, J.; Hughes and Warden, ,JJ.,

concurring.

Plaintiff in error who was plaintiff below, sued for unpaid quarterly rentals of an electric welding machine known as a spot welder, under a written contract, the material provisions of which are the following:

The machine to be leased for use by defendant in the manufacture of corrugated metal corn cribs, and to be in condition for attachment of wiring for electrical current; installation to be made by defendant, and the apparatus kept in repair by the latter who should also furnish alternating current of specified voltage at the machine “to weld two pieces seven gauge of sheet metal of a total thickness of -”; and plaintiff “guarantees that the apparatus shall be well made of suitable material and free from electrical and mechanical defects”; and if at any time defendant desired to return the machine, in good condition, less ordinary wear, f. o. b. plaintiff’s factory, same might be done by giving plaintiff in writing, a “quarter’s notice,” and paying all sums due plaintiff to the date of such return.

The machine was installed by defendant in its factory.

Defendant remitted to plaintiff the first quarterly installment for the use of the machine shortly after the latter had been received at its factory, bnt before operating the same, and the second quarterly installment was remitted by defendant to plaintiS subsequent to the controversy which arose over the alleged failure of the machine to do the work for which defendant obtained it. In other words, defendant paid plaintiff from the 14th of February, 1918, the date from which it claims to have received . the machine, until the 13th of August, 1918, prior to which latter date it ceased use or attempted use of the machine.

The main defense in defendant’s answer is in substance as follows; that prior to the execution of the written contract in controversy, it was engaged in the manufacture of metal corn cribs, and that toy circulars and correspondence plaintiff represented to defendant that the machine would without skilled' labor weld the metal sheets used by plaintiff in the construction of corn cribs, sixty per cent, stronger than when joined by bolts or rivets as had been the process in defendant’s factory, and that said metal sheets could be satisfactorily welded by said machine which machine would be adaptable for defendant’s said work; that plaintiff sent a personal representative to its factory, who inspected the work proposed to be done by the said machine, and said representative after having made- such inspection assured defendant that the machine would weld and join together the parts of the crib in a perfectly satisfactory manner and that the same would be entirely suitable for said work, and recommended that defendant use the type of machine provided for in the contract; that defendant had no knowledge 'concerning the ability of the machine to perform the work for which it intended to use the machine; that defendant relying solely on said representations, entered into the contract; that all said representations so made by plaintiff were untrue; that on the 2nd of July, 1918, defendant took the machine out of its factory, packed it for shipping, and notified plaintiff that it would not do the work as represented, that it would deliver the machine to plaintiff, and requested that the latter direct defendant where - it desired the machine delivered, but that plaintiff neglected to give defendant shipping directions, and that defendant thereafter shipped the machine to plaintiff.

The testimony introduced in behalf of defendant abundantly tends to prove its said defense, and to further prove that noiAvithstanding the attempt of plaintiff to make the machine operate as contemplated by the parties, it failed to do so after reasonable effort by defendant’s employees.

The trial resulted in a verdict and judgment for defendant.-

The trial court eliminated from the case defendant’s averments of special damage resulting from work imperfectly- done by the machine on cribs shipped by defendant to customers, and restricted the defense to an extinguishment of plaintiff’s claims for the rentals subsequent to the first two quarterly periods which, as already stated, defendant had paid.

Defendant did not question the right of plaintiff to retain the two payments, and does not attack by cross-petition in error the correctness of the trial court’s action in removing from the case, its right to recover special damage. Consequently those two -matters will not be discussed.

In submitting the case to the jury, the trial court treated the transaction as- though there had been a sale of the property by plaintiff to defendant, rather than a bailment for hire, and applied the law governing implication of -warranty of fitness for use, Avhere the particular purpose for which an article is sold is made known to the seller and reliance is placed by the.buyer on the skill or judgment of the seller.

Upon that action of the trial court plaintiff in error relies for reversal of the judgment.

Two questions are involved in the position of plaintiff in error:

1. Is there such essential similarity ¡between a sale of personal property, and a bailment for hire, as requires or justifies application of the same rule relative to warranty of fitness?

The only basic facts whi'ch distinguish a sale from a bailment are the requirement of restoration of the article delivered, and whether title passed from the one to the other.

Implication of warranty of fitness of the article sold for a particular purpose, existed under special circumstances, at common law, and now is statutory in Ohio. The same reasons, namely, considerations of ordinary integrity, upon which the implication existed at common law, manifestly justify a like doctrine in relation to a bailment for hire, at least when attended by parallel facts, because with the exception just pointed out, there is no difference between a sale of personal property and a letting of it for hire.

The exact question in hand has not been decided in any reported case in Ohio. However, iff 6 Corpus Juris, at page 1117, it is stated that in a bailment of hiring there is imposed on the bailor, in the absence of specific contract or representation, an obligation that the article hired shall be reasonably fit for the purpose of its intended use, when such purpose has been made known to the bailor prior to the 'bailment, and the doctrine thus expressed is supported ¡by numerous cases there cited.

We therefore accept and adopt as correct, the legal principle there stated, and approve the action of the trial court in its recognition and application to the instant case, notwithstanding the inadvertence in referring to plaintiff and defendant as seller and buyer instead of bailor and bailee.

2. There being present in the contract in issue, an express warranty of proper construction, suitableness of material, and freedom from electrical and mechanical defects, it is necessary to decide whether the implied warranty can obtain, in view of the rule which prohibits parol evidence in relation to written contracts.

This feature of the ease can be disposed of by the simple test of whether the implied warranty is irreconcilable with the one expressed, inasmuch as there is no language in the contract precluding an implied warranty, that is to say, the contract itself does not provide that it contains all the obligations of the respective parties.

It is a general rule that an express warranty in a written contract, excludes therefrom an implied warranty on the same suhject, but both an express and an implied warranty may exist, when compatible with each other. Elliott on Contracts, Volume 1, pages 227 and 228, and cases there cited.

In the present ease there is no repugnancy between the provision that the machine shall be well made of suitable material and free from electrical and mechanical defects, and the implied warranty that it should be reasonably fit for the known purpose for which plaintiff rented it to defendant, in view of the added fact that defendant had no knowledge concerning the adaptability of the machine to its use prior to thé execution of the contract.

Finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: ÍÍOUCK* J.

license: Public Domain

text:
    JURISDICTION OF ACTIONS ON SMALL PROMISSORY NOTES.
    Court of Appeals for Perry County.
    The Columbus Wholesale Company v. T. H. Brown.
    Decided, November 10, 1921.

      Several Causes United in One Petition — Become but One Cause of Action — When There is Nothing to Show that They did not Arise out of the Same Transaction — Statute Liberally Construed to Prevent Multiplicity of Suits.

    A petition filed in the common picas court for recovery of $220 with interest, alleged to be due on four promissory notes each of which is for less than $100, presents but a single cause of action and is not open to demurrer.
   ÍÍOUCK* J.

This case is here on error from the common pleas court of Perry county.The basis of the suit was to recover the sum of $220, with interest at six per cent, from October 10, 1918, the said sum alleged to be due and owing on four promissory notes executed by the defendant and made payable to the plaintiff.

The record in this ease, as appears from the journal entry in the common pleas court, entering judgment against the plaintiff and dismissing its petition, reads as follows:

“This day the attention of the court being called to the- fact that plaintiff’s petition contains four causes of action and that each of said causes of action are less than the sum of $100, the court finds that there is no jurisdiction in this court to hear and determine the matters set up in saiid petition, and the court therefore dismisses plaintiff’s petition at costs of plaintiff and judgment is rendered against plaintiff for costs and execution is awarded against said plaintiff.”

The question here presented is, did the trial judge err in dismissing plaintiff’s petition? An inspection of the pettion discloses the fact that but one cause of action appears therein, and not four. In other words the four notes are set forth in one cause of action and a judgment is prayed for in the sum of $220, with interest.

No motion was filed 'by the defendant to make said petition more definite or certain, and we further find that no motion was filed requiring plaintiff to separately state and number its causes of action if more than one was claimed.

Therefore the question presented by the record for determination by this court is, did the common pleas court have jurisdiction to heai’ and determine the matters set up in said petition?

Section 11215 of the General Code of Ohio providesi::

‘1 The court of common pleas shall have original jurisdiction in all civil eases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace * * *. ”

It will be observed that by the provisions of said section of the General Code, the common pleas court shall have original jurisdiction in all civil cases where the sum in dispute exceeds $100, which sum is the limit of the exclusive jurisdiction of a justice of the peace.

Section 11306 of the General Code- provides:

‘1 The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, or both, when they are included in any of the following classes. First, the same transaction. Second, transáctions connected with the same subject matter, etc., etc.”

As has already been stated, no motion having been filed to require plaintiff to separately state and number its causes of action or to make its petition more definite and certain, therefore it appears on the face of the petition that there is but one cause of action, and further there is nothing in the petition to affirmatively show or disclose that the several notes set out in said cause of action do not arise out of the same transactions or that they are not connected with the same subject of action, and therefore as against a demurrer t'o said petition we are bound to hold and do hold that said petition is good.

fflm. Frielich, for plaintiff in error.

Jno. T. Ryle,- contra.

We think the rule is well settled in Ohio that the amount' claimed in the petition determines the jurisdiction of the court of common pleas.

In the case of Brumaugh v. Worley, 6 O. S., page 598, Judge Swan, speaking for the court says:

‘ ‘ The jurisdiction of the court of common pleas depends upon the amount claimed in the petition. If that be less than $100 the court has no jurisdiction.”

The rule in Ohio is well settled that pleadings are liberally construed, and our Supreme Court has so stated with reference to the statutory provisions governing this case, as appears in the case of Railroad Company v. Cook, 37 O. S., page 272, where the judge announcing the opinion stated:

"There is no doubt that this section should be construed liberally for the purpose of preventing multiplicity of actions.”

It follows from what we have already said that we are of the opinion that the petition in question contained but one cause of action and the amount sought to be recovered, $220, with interest, is clearly within the jurisdiction of the common pleas court, and that the judgment of said court in dismissing said petition was erroneous and prejudicial to the rights of the plaintiff in error.

Judgment of the common pleas court reversed and case remanded to that court for further proceedings according to law.

Shields, J., and Patterson, J., concpir.


text:
    WHAT MUST BE SHOWN IN ORDER TO WARRANT THE SETTING ASIDE OF AN ARBITRATION.
    Court of Appeals for Hamilton County.
    Pfleger v. Renner et al.

    Decided, March 29, 1920.

      Arbitration — Aioard of Arbitrators Final, when — Mistake Justifying Setting Award Aside — Arbitrator not Disqualified, when — Knowledge of Relationship at Time of Submission.

    1. An award rendered in a common-law arbitration, which conforms in all respects to the requirements of the submission, is binding upon the parties where the parties have agreed that the award shall be final and conclusive upon them and there is no fraud or such manifest mistake as naturally works a fraud.
    2. In order to warrant a court in setting aside an award of an arbitrator on the ground of manifest mistake, it must appear that there is a mistake of such a character that the arbitrator would have corrected it himself had it been called to his attention.
    3. An award of an arbitrator, who had been selected by plaintiff and defendant to settle a controversy, will not be set aside or corrected on the ground that the arbitrator became disqualified by the fact that defendant had employed one A as attorney, the said A being a client of the arbitrator, where the facts show that A had been appointed one of the receivers of a railroad company, whose principal counsel was one B, who was a law partner of the arbitrator, and that B exclusively handled the receivership matters in the federal court. The- relation of attorney and client between defendant and A was merely nominal.
    4. In such case counsel for plaintiff having been aware of the relation between defendant and A cannot on that ground later complain of the award in the arbitration to which they voluntarily submitted with knowledge of the relation.

      Paxton, "Warrington <& Seasongood and Oscar W. Newman,, for plaintiff.

      Rufus B. Smith, for defendant Otto Renner.

      Graham P. Hunt, for defendant Mary Renner.

      Coleman Avery, for defendant John R. Schindel.

      Suire & Rielly, for defendant The Central Trust Company.
    Fakr, J. (of the Seventh District, sitting in place of Cushing, J.).

       Motion to require the Court of Appeals to certify its record in this case overruled, and motion to dismiss petition in error sustained by the Supreme Court, June 22, 1920.

   The original action was to set aside or correct an award of an arbitrator to whom a controversy had been referred. It will be necessary to give a resume of certain facts.

In 1909, the plaintiff, Otto Pfleger, who had been a judge of the court of common pleas of Hamilton county, Ohio, upon the completion of his term of office, entered the practice of law in association with defendants Otto Renn.er and his brother, the late Philip Renner. While the precise terms of the arrange-men are in dispute, it appears that plaintiff was to act as trial counsel and to present in court such eases as might, be turned over to him from time to time by the firm of Renner & Renner, and the fees earned in such cásese were to be divided equally between him and the firm. He was also to have the right to attend to and rebuild his own practice, and was to have the benefit of the services of the clerks and office employees of the firm in such eases.

During the year 1916 a client of the firm of Renner & Renner had a claim against the estate of Laura Ogden Whaling. Through information received from this client plaintiff came into contact with one Charles P. Devou, and an action to set aside the will of Laura Ogden Whaling was instituted. There was associated as counsel one Herbert Jackson, and plaintiff prepared the petition, signing the names of the attorneys for plaintiff, including his own name and that of the firm of Renner & Renner. Thereafter it developed that there was a large number of other persons who might be interested in the will contest, and that the plaintiff secured employment on behalf of a great number of said parties in interest, making contracts with them in his individual name and for contingent fees.

Plaintiff contends that thereafter, and some time prior to the death of Philip Renner, he agreed with Philip that he should take over the entire ease and make an equitable adjustment as to the fees.

He then continued making preparations for the case and for a period of years made an exhaustive study and investigation preparatory to trial. The evidence shows that he used great diligence and skill, interviewing more than two hundred witnesses. It will not be necessary to enumerate the work in detail, but it included the taking of depositions, the examination of authorities, the interviewing of witnesses and the procuring of statements and affidavits.

Philip Renner died in November, 1916, but, in substantially all the other cases which were turned over to him from the Renner office, plaintiff’s' relation remained the same after Philip’s death as it had been before.

About February, 1918, negotiations for the compromise of the case were begun, and, on May 25, 19.18, a settlement was effected whereby all the contesting heirs received a total sum of $131,000. Of those heirs, numbering over three hundred, about 87 per cent, were represented by the parties to this action and the remainder had other counsel. By agreement, among all the lawyers for the respective parties, but in the absence of Otto Renner, it was agreed that before distribution of the fund of $131,000 certain fees should be paid to those lawyers who had borne the burden of the work. $12,500 was awarded to the plaintiff, $1,000 to the firm of Renner & Renner, and other sums to a number of attorneys who had participated in the active conduct of the preparation and in the settlement. Thereafter, a dispute rose between plaintiff and the Renners about the division of the fees and emoluments growing out of the ease, and, in July, 1918, the plaintiff and the defendants Otto Renner and Mary Renner, widow of Philip Renner, who participated individually and as administratrix of the estate of her husband, entered into an agreement of arbitration^ by ilie terms of which the parties were to make full statements and offer testimony without regard to technical rules of evidence, as to whether or not the firm of Renner & Renner was entitled to share in the fees which came from parties with whom plaintiff had signed contracts in his individual name, and, if so, to what extent. The whole matter was to be submitted to the defendant John R. Schindel, as arbitrator, and the parties agreed to abide by and perform and fulfill the award to be made by him.

It was admitted by the Renners that plaintiff w00 entitled to one-half of said moneys. Accordingly he was allowed to draw this, and a sum of $20,000, being substantially the other half, was deposited in bank, and the arbitrator was authorized to draw cheeks in favor of the several parties for the amount that he might award'to each. He was also given the power to fix the amount of and to draw compensation for his services.

The parties then appeared before the arbitrator, who heard the testimony' of witnesses almost every day for a period of several weeks, though the hearings did not consume the business time of every day. About March 31, 1919, the arbitrator rendered his award, which found that the firm of Renner & Renner was entitled to a substantial part of all the fees, including the $12,500 item, which plaintiff contends was in the nature of a personal gift by the heirs and their attorneys to him. The arbitrator awarded to him the sum of $1,550 of this amount, and divided all the other fees equally between them, including the $12,500 item, and all other fees and emoluments accruing either to him or to the firm from the litigation in the Whaling will ease.

Prior to the rendition of what has been termed the award, the arbitrator wrote what he called an opinion, in the course of which he set forth substantially what was emboidied in the award, but fixing his own fee at $1,000. In the final award this fee was fixed at $l,500t, there having intervened some further labor on the part of the arbitrator, who granted what the parties termed a “rehearing.”

The plaintiff brought suit in the superior court of Cincinnati, alleging that the arbitrator, whom he entitled a “referee,” made gross mistakes in his findings of fact and of law and rendered a finding which is so egregiously wrong as to work a fraud upon this plaintiff. From the decision of the superior court denying relief, plaintiff appeals, and the matter is heard de novo.

The plaintiff now makes and urges the further claim that the arbitrator became disqualified by reason of the employment by defendant Otto Renner of Rufus B. Smith as his attorney, when said Smith was a .client of the arbitrator, though that was unknown to the plaintiff.

On the last point, this court heard evidence in the form of oral statements, all parties waiving the requirement of testimony under oath.

The relation of the parties upon which this last claim is founded grows out of the following. In the year 1914 an action was brought in the United States district court for the southern district of Ohio, wherein the court appointed as-receivers for the Cincinnati, Hamilton & Dayton Railroad Company Judson Harmon and Rufus B. Smith. Their principal counsel was Morison R.' Waite. Defendant Schindel was his law partner, and this fact was admittedly known to all the parties. Mr. Waite personally attended to the litigation in the federal court involving the receivership until the happening of certain events in 1919. The testimony shows, however, that the firm acted as local counsel for the receivers, and the firm of which counsel for plaintiff was a member was in litigation with the receivers in five cases, in all of which the firm of Waite & Schindel, or Waite, Schindel & Bayless, 'was counsel of record. The receivership matters in the federal court were handled exclusively by Mr. Waite. After the sale of The Cincinnati, Hamilton & Dayton Railroad properties, pursuant to the order of the federal court, The Toledo & Cincinnati Railroad Company on July 9, 1917, took over the properties and assumed all the liabilities of the receivers. Thereafter, in 1919, litigation o.f the receivers. Thereafter, in 1919, litigation was still being carried on in the name of the receivers, though in fact for the use and benefits of The Toledo & Cincinnati Railroad Company, and, in coneetion with these proceedings, the defendant Schindel signed an application for rehearing in the United States circuit court of appeals for the receivers in the summer of 1919, and later signed a petition for certiorari in the supreme court of the United States in the same capacity.

It is contended that the relation of attorney and client existed between defendant Schindel and Rufus B. Smith, which was unknown to plaintiff, and -which rendered it improper for Schindel to act as arbitrator after Judge Smith was- employed by defendant Otto Renner to represent him in the arbitration.

We are of opinion that at the time of the arbitration the relation of attorney and client between Schindel and Judge Smith was merely nominal, and that Judge Smith had no interest in the litigation being carried on in the name of Judson Harmon and himself. In contemplation of chancery, therefore, the contention is without substance.

We are further of opinion that apart from these matters in the federal court, to w'hieh we have just alluded, counsel for the plaintiff were aware of the relation between Smith and Schindel, and, cannot, on that ground, now compalin of the award in the arbitration to which they voluntarily submitted with knowledge of the relation. See 5 Corpus Juris, 66, and Robb v. Brachman, 38 Ohio St., 423.

Moreover, we are of opinion from the facts shown that there was np fraud or impropriety or misconduct of any sort, either constructive or actual, on the part either of the arbitrator or counsel for the defendant.

The contention of the parties with respect to the award and its effect has been elaborately briefed and argued. The arbitration in question was a common-law arbitration and was not pursuant to tbe Ohio statute. The law is well established. Where parties make an agreement to arbitrate and provide that the award of the arbitrator shall be final and conclusive upon them, and a trial is had pursuant to the terms of the agreement, and an award is rendered, which in all respects conforms to the requirements of the submission, such award, in the absence of fraud or of such manifest mistake as naturally works a fraud, is binding upon the parties. Corrigan v. Rockefeller, 67 Ohio St., 354.

We have already disposed of any question of fraud. What, then, is the nature of “such manifest mistake as naturally works a fraud” and which entitles a party to relief against an award of an arbitrator? It will not be profitable to set out the authorities, nor to attempt to discuss them in detail. A mere error of judgment on the part of an arbitrator is not “manifest mistake.” If such were the case, an agreement to arbitrate could always be subject to attack by the party who asserted the claim iu good faith, and which the arbitrator did not sustain. To. such a person there is always a mistake on'the part of an arbitrator. To warrant a court in setting aside an award on the ground of manifest mistake it must appear that there is a mistake of such character that the arbitrator, had it been called to his attention, would have corrected it himself.

In Burchell v. Marsh et al., 58 U. S., 344, the supreme court, in speaking of the effect of an award by arbitrators, quotes from Knox v. Symmonds, 1 Vesey Jr., 369, as follows:

“To induce the court to interfere, there must be something more than error of judgment, such as corruption in the arbitrator, or gross mistake, either apparent on the face of the award, or to be made out by evidence; but in case of mistake, it must be made out to the satisfaction of the arbitrator, and that if it had not happened, he should have made a different award. ’ ’

And then the court says:

"Courts should be careful to avoid a wroug use of the word ‘mistake,’ and, by making it synonj'mous with mere error of judgment, assume to themselves an arbitrary power over awards. ’ ’

Again, in conclusion, the court says:

"If they [the arbitrators] have given their honest, incorrupt judgment on the subject-matters submitted to them, after a full and fair hearing of the parties, they are bound by it.”

The contentions made in the hearing before the arbitrator are reargued here. Enough has been shown to convince the court that there was submitted to the arbitrator a series of questions that were by no means easy of solution, and which might well have been bitterly contested in litigation.' It is not the duty of this court to examine anew each of the contentions of law and fact which the arbitrator was called upon to determine. The parties by their agreement have seen fit to choose their own forum to contest these questions. When parties submit a matter to arbitration, they incur the risk of honest mistakes that their chosen umpire may commit. To the mind of every person against wdiom a decision by an arbitrator is rendered the award necessarily -works an injustice. That does not, of itself, constitute sufficient grounds to impeach the determination.

We are of opinion, therefore, that plaintiff has not made out a case sufficient to warrant the court in granting the prayer for equitable relief.

Decree accordingly.

Shohl, P. J., and Hamilton, J., concur.


author: Pardee, J.

text:
    JURY FINDING THAT A DEFENDANT CHARGED WITH MURDER HAS BEEN FOUND SANE MAY BE SHOWN.
    Court of Appeals for Summit County;
    Edward Moffett v. State of Ohio.

    Decided, December 12, 1921.

      Criminal Law — Defendant Charged with Homicide Demands . Inquiry as to his Sanity■ — Jury Finds Him Sane — Finding of Jury Admissible in Trial under the Indictment — Discretion of Court in Granting Continuances.

    1. The discretion lodged in trial courts as to the granting of continuances will not be regarded by a reviewing court as abused, when six weeks intervened between the date counsel were appointed to defend the accused and the day when the case was brought to trial and a continuance was refused.
    2. The special proceeding provided in Section 13608, for determining whether an accused person is sane before putting him to trial under an indictment, is in the nature of a preliminary hearing in the principal case which can be invoked only by the defendant; and where such an inquiry, conducted in accordance with statutory provisions, results in a verdict declaring the defendant sane, objection does not lie on his part to the introduction by the state of such finding in his trial under the indictment.

      Owen N. Roderick and Ray B. Watters, for plaintiff in error.

      Arthur W. Boyle, Prosecuting Attorney, and RdwOrd 8. 8heck, Asst. Prosecuting Attorney, for defendant in error.

      Motion to require the 'Court of Appeals to certify its record in this case overruled by the Supreme Court, March 14, 1922,

   Pardee, J.

Plaintiff in error, referred to herein as the defendant, was indicted by the April, 1921, grand jury of Summit county, Ohio, for the crime of murder in the first degree, for the hilling of his wife, Nora Moffett, on the 29th day of March, 1921. On the 28th day of April, 1921, he was arraigned, entered a plea of not guilty, and being unable to employ counsel to defend himself,1 on May 2, 1921, the court appointed counsel for that purpose. Thereafter, a special venire was issued for jurors to try said case, returnable on Monday, June 6, 1921. On tbe 3d day of June, 1921, the attorneys for said defendant suggested to the trial court that he was not sane, and presented to the court a certificate of Dr. D. H. Morgan, a reputable physician of said county, as provided by law in that respect. On said day the court ordered a special jury to be impaneled to try the question of whether or not said defendant was then sane, and the hearing on this question was set for June 7, 1921, and a jury was drawn and a special venire issued, returnable on that day. On said last above named date a jury was impaneled and sworn to try said issue, and evidence was offered by the accused and the state, and said case was continued from day to day until Saturday the 11th day of June, 1921, on which day, after arguments of counsel and the charge of the court, a verdict was returned toy the jury finding the defendant sane. On Monday, the 13th day of June, 1921, the case went to trial upon the indictment, a jury was impaneled and sworn, and after hearing the evidence both for the state and the defendant, the arguments of counsel and the charge of the court, on the 17th day of June, 1921, the jury found the defendant guilty of murder in the first degree, as charged in the indictment. A motion for a new trial was duly filed by the defendant, which was overruled, sentence ordering execution was pronounced upon him, and the case is now here on a petition in error to reverse that judgment.

The defendant in his trial on the indictment did not deny that he killed his wife in the way and on the date set forth in the indictment, but, as his defense, claimed that he was insane at the time of the act and was therefore not responsible for tbe crime he committed. The defendant claims as grounds for setting aside the judgment entered in the case, and for a new trial, the following, to-wit:

(1.) That the court erred in refusing to grant the defendant a week’s time after the case was heard on the question of the insanity, for the further preparation of his case, and for the purpose of procuring one of his witnesses;

(2.) That the court erred in refusing to allow the defendant to inquire of prospective jurors on their voir dire, if they would consider the various degrees of murder that would be explained to them by the court, even though it had been shown beyond a reasonable doubt that the defendant killed his wife;

(3. That the court erred in the rejection and admission of evidence, prejudicial to the rights of the defendant;

(4.) That the attorneys for the state were guilty of misconduct in referring to the trial -in which the defendant was adjudged sane;

(5) That the attorneys for the state were guilty of misconduct in their argument to the jury.

We will consider the several points raised by the defendant in the order above named.

As to the first assignment of error: The case went to trial •upon the indictment, on the 13th day of June, 1921, and on that date the defendant asked- for a continuance of one week for further preparation of the case, and for the reason that Dr. Morgan, one of the doctors who examined the defendant for insanity, and a material witness, was out of the state, -and would not be able to be present. The defendant was indicted on the 23d day of April, 1921, and on the 2d day of May, 1921, the attorneys for the defendant were appointed by the court. Whether the court should give the defendant further time rested entirely in the sound discretion of the court, and we feel that the time allowed between the appointment of counsel and the day of trial gave the defendant ample' time to prepare his case and procure the attendance of his witnesses, and the court did not err in refusing to grant the continuance.

As to the second assignment of error: We do not believe that it is a rule of law that the defendant is entitled to pick out questions of this kind and submit them to prospective jurors, as the presumption is that the jury will follow the instructions of the court as given to them, and the proper way to test them on this point is to ask them generally in reference thereto. Any other rule would result in needless questions and confusion. We find no error in this respect.

As to the third assignment of error: We have been over all of the various questions asked in the trial and all the objections and exceptions referred to, and about which the plaintiff in error complains, and while we find some errors in the rulings of the court upon the admission of evidence, we do not find any errors, singly or together, which we consider prejudicial to the defendant and which prevented the defendant from having a fair trial.

As to the fourth and fifth assignments of error: The fourth and fifth errors complained of by the defendant will be considered together, as they principally grow out of alleged misconduct by the prosecuting attorney, made in reference to the special trial had in regard to the sanity of the defendant. If the trial court was right in keeping out reference to this former trial, then the prosecuting attorney was wrong in making reference to the same, and it would be such prejudicial error as would require a reversal of the judgment on that account, and the admonition of the court to the jury in his general charge to disregard the same could not and would not rare such serious errors. If the trial court was wrong, then the prosecuting attorney had a rigjhb, under general rules applicable thereto, to refer to the former trial, in his examination of prospective jurors, examination of witnesses, and in argument to the jury, and it would not be error for him to do so, although the trial court had ruled otherwise.

These alleged errors arise from the statements of the prosecuting attorney in the examination of prospective jurors and during the trial of the ease and in argument to the jury, about the special jury trial where the defendant was found sane. In the trial upon the indictment, the defendant relied entirely upon the plea of insanity as a defense and offered in evidence the testimony of many witnesses in that respect. The state then in rebuttal offered in evidence the testimony of many witnesses to overcome that defense, and offered in evidence the verdict of the jury in the special trial in which the defendant was found sane. This latter evidence offered on behalf of the state was excluded by the trial court. In the argument to the jury by the state, frequent reference was made to this trial, notwithstanding the trial court had excluded it, and each time the attorneys for the defendant promptly directed the court’s attention to the same and in each and every instance the trial court ignored the objection, and defendant each time took exception. The- trial court in his general charge attempted to correct this seeming neglect on his part by directing the jury to disregard the same.

, In order to arrive at a proper conclusion as to these errors it has been necessary to study the statutes of Ohio and other states authorizing a special jury to be impaneled to try the question of whether the defendant is sane at the time of such special trial, and the general rules of evidence in regard to proving insanity as a defense to crime. Under the Ohio rule, insanity at the time of the commission of the alleged offense is a complete defense, but the burden of proving the same rests upon the defendant and he 'must prove it by a preponderance of the evidence. In order to prove and disprove it, evidence of the conduct, sayings and actions of the defendant on the day of the crime and both before and after that day is properly admitted as tending to show and prove his mental condition at the time of the crime. This is generally shown by the testimony of witnesses who have known him and been in such association with him as to be able to say whether he has acted rationally or irrationally. Frequently adjudications have been allowed to be offered in evidence to prove or disprove insanity of the accused at a time not too remote from the date of the commission of the crime. These adjudications in both civil and criminal cases have been admitted solely upon the ground that they prove the mental condition at the time the special finding was made, and only tend to prove and have a bearing upon the mental condition at the time of the alleged crime, and are in no way conclusive of the mental condition at that time, and are admitted only as one item of evidence bearing thereon, and like all other evidence, the jury is to be the sole judge of the weight to be given to the same. Adjudications of this character are not even prima evidence of the mental condition at the time of the offense set forth in the indictment, and frequently are of little weight as evidence. In the early case of Wheeler v. State, found in the 34 O. S., p. 394, an inquisition of lunacy held four years before was held admissible:

“On A’s trial for a crime, lie relied on insanity as a defense, and as evidence tending to prove the defense offered a record from the probate court, showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum. Held, that the evidence was admissible.”

In another case recently decided by the Supreme Court of Washington, being the case of State v. Champour, and found in the 74th Pacific Reporter, on page 557, the court says in the 4th paragraph of the syllabus:

“Where, on a prosecution for murder, the defense was insanity, the main trial being suspended while a special jury tried the issue of sanity, it was proper to admit in evidence the record of such proceedings, showing the verdict of sanity, though such record was not conclusive.”

And on pages 559, and 560 of the opinion, the court says:

“We think the testimony was properly admitted, as other testimony was admitted, bearing on the question of insanity —not as conclusive evidence but simply as competent evidence, although some, courts hold such testimony to be conclusive of insanity at the time the special verdict was rendered. Thus, in People v. Farrell, 31 Cal., 577, the court held that the verdict of a jury called to try the question of the sanity of the defendant, the verdict being that he was insane, was conclusive that he was insane at the time the verdict was rendered, and was therefore admissible in evidence on his trial for the offense, as tending to show that he may have been insane when the offense was committed. Of course, the same reasoning would sustain the admission where the verdict was one of sanity. Under this authority the following instruction asked by the counsel for appellant: ‘The court instructs you that the verdict of sanity returned by the jury is only presumptive evidence, but not conclusive, of the defendant’s sanity upon the day when the said verdict was rendered, and said verdict shall not have any bearing upon the question of defendant’s sanity or insanity at the time he was accused of assaulting Lottie Brace’ — was properly refused, for, while a portion of the instruction may have been correct, the latter portion, which was the most pertinent to the issues involved, did not state the law. In Wheeler v. State, 34 Ohio St., 394, 32 Am. Rep., 372, where the defendant relied on insanity for a defense, and as evidence tending to prove the defense, offered a-record from the probate court showing that four years previous to the commission of the alleged crime an inquest had been held in that court, and that he had been adjudged insane and confined in an asylum, it was held that the evidence was admissible.”

In the Kentucky case of Smedley v. Commonwealth, 127 Southwestern, page 486, in the 8th syllabus the court holds:

“Where accused relied on insanity at the time of the commission of the crime, and there was evidence that during the time of the commission of the offense he was addicted to the use af drugs impairing, if not “destroying, his mind, the inquest of lunacy, held at the same term of court at which the trial occurred, was admissible.”

And on page 488 the court in its opinion says:

“We are further of opinion that appellant’s complaint of the exclusion by the court from the consideration of the jury of the record containing the writ, judgment, and other proceedings in the inquisition of lunacy offered in evidence by appellant to show that he had properly been found and adjudged of unsound mind shortly before his trial is well founded, for the exclusion of this evidence was error.”

In a ease decided by the Supreme Court of Tennessee in 1914, being the ease of Bond v. State, 165 Southwestern, on page 229 in the third paragraph of the syllabus the court holds:

“Evidence of insanity after the commission of the offense charged is competent to enable the jury to determine the state of accused’s mind at the time the offense was committed.”

And on page 232 of the opinion the court says:

“Upon the foregoing authorities, we also think, that the court should have admitted the verdict of the jury and the judgment of the court upon the defendant’s plea of present insanity. This was a judicial declaration that the defendant was insane. It is true that it established his insanity at a period of time subsequent to the date of the alleged offense; but evidence of subsequent insanity is competent for the consideration of the jury in determining the state of the defendant’s mind at the time of the offense.”

See also: Reeves v. State, 65 South. 518; People v. Farrell, 31 Cal. 576; State v. Perry Bowsher, 7 Ohio Dec. Reprint, p. 442; State v. Dominick O’Grady, 5 O. Dec. p. 654; 7 A. L. R. 568-608, inc.

If the findings in a lunacy inquest in an ex parte proceeding are admissible in a criminal case, as was held in our own state in the ease of Wheeler v. State, supra, where the patient was not represented by counsel, and the proceedings were conducted without a jury, it seems to us that a regularly constituted and conducted adversary proceeding between the sanne parties, especially provided by law, to determine the sanity of the dei'e.nlam at tl at time, demanded by the defendant as a matter of right, in a court of justice presided over by a judge, where the defendant was present in person and by counsel and where he had a jury impaneled and sworn and met the witnesses face to face, that the result of such a trial finding the defendant sane would be competent and proper evidence under proper instructions on the trial under the indictment, as bearing upon the mental condition of the accused at the time of the perpetration of the crime. This special proceeding is provided for the benefit of the defendant and is a preliminary hearing in the principal case, to determine whether the defendant is sane before putting him upon trial under the indictment. This special proceeding cannot be invoked by the state, and before the jury provided for therein, can be called, affirmative action must be taken by the attorney for the defendant. The Sections, 13608 et. seq., under which the special proceedings we¡re conducted, were originally passed by the Legislature of this state to provide a quick and uniform rule for the determination of the question as to whether the defendant was then insane. We do not believe the Legislature intended to give the accused the right to invoke this special privilege and then have him repudiate the result when that result is unfavorable to him. We therefore find that the court did commit error in refusing to allow the state to offer such finding as evidence and to refer to it in the trial, unless it is prohibited by Section 13610 of the General Code of Ohio, which reads as follows:

“If three-fourths of the jurors do not agree, or the verdict is set aside, another jury shall be impaneled to try the question. If the jury find the accused to be sane and no trial has been had on the indictment, a trial shall be had thereon as if the question had not been'tried. If the jury find him to be not sane, that fact shall be certified by the clerk to the probate court, and the accused, until restored to reason, shall be dealt with by such court as upon inquest had. If he is discharged, the bond given for his support and safe-keeping shall contain a condition that, when restored to reason, he shall answer to the offense charged in the indictment, or of which he has been convicted, at the next term of the court thereafter and abide the order of such court.”

The words of the above section upon which the defendant relies are as follows:

“If the jury find the accused to be sane and no trial ha^ been had on the indictment, a trial shall he had thereon as if the question had not been tried.”

If this contention is true, the general rule as heretofore found by us is completely nullified. If the trial shall proceed as if the question had not been tried, then no reference whatever could or should be made to anything that transpired in the preliminary trial. .When the jury is being impaneled and though one or more of them are disqualified because of some connection with the preliminary trial, reference could not be made to these facts of disqualification and the defendant as well as the state might be prevented from having a fair trial.

Again, a witness for the state might be called who had testified to something in the former trial directly opposite or contradictory to his present testimony, and yet the defendant would be deprived of the right to impeach his testimony under the well known rules of evidence. Other instances might be given, but we think the foregoing are sufficient to demonstrate clearly that the Legislature did not intend by the use of these inapt words to bring about any such condition in so important a matter as the prosecution of a man for felony, where his very life might be at stake, as in this ease. But we do believe that these words were intended to have a broader and more useful purpose and that they are intended to preserve and secure to the defendant the protection of the defense of insanity which he had before these sections were enacted, add. that those sections should not impair that right. Any other rule would nullify some of the most sacred rights of the accused and could easily prevent him from having a fair and impartial trial. We therefore hold that these words do not and that the Legislature did not intend to have them construed in the narrow manner contended for by the defendant.

Upon the testimony offered as to the insanity of the defendant at the time of the crime, we feel that the defendant did not sustain the burden of proving it by a preponderance of the evidence as required by law, and in our judgment the evidence was not sufficient to raise a reasonable doubt in the mind of the jury in relation thereto.

The other errors complained of by the defendant have been noticed by us, but we do not think they are of enough importance to require especial notice here.

The defendant in our judgment has had a fair and impartial trial. He has had able attorneys appointed by the state to represent him, they have been diligent and painstaking in the preparation of his ease, they have presented it to two juries and to two courts ably and well, and that he must now suffer is because of his own act in violation of the laws of God and man. We have given considerable time and thought to the law and evidence in this case and do not find any errors which were prejudicial to the defendant and which prevented him from having a fair trial. The judgment is therefore affirmed.

This court having on the application of the defendant granted him a stay of execution in order that he might prepare and present his case to this court, it is now ordered that the execution of sentence pronounced upon him by the trial court be carried out as provided by law on Friday, March 24, 1922, and a journal entry may be prepared accordingly.

Washburn, P. J., and Treash, J., concur in judgment.


author: Hamilton, J.

text:
    PROPERTY OWNERS ESTOPPED FROM DENYING VALIDITY OF STREET ASSESSMENT.
    Court of Appeals for Hamilton County.
    Wilder et al. v. The City of Cincinnati. Roebling et al. v. The City of Cincinnati.

    Decided, March 1, 1920.

      Assessments — For Street Improvement and Laying of Water Mains Included in Same Ordinance — Effect of Signing t>y Property Owner of Petition for the Improvement.

    1. A single ordinance may include both a provision for paving a street and the laying of water mains, by virtue of Section 3812, General Code, which provides, among other improvements, for the laying of water mains, paving, grading, etc., and that the legislation may include any one or all of these things.
    2. Where an improvement is made under Section 3836, General Code, upon a petition subscribed by over three-fourths in interest of the owners of property abutting said improvement, an assessment for said improvement may be made against the property subscribed by the petitioners in excess of one-third the valuation thereof, or in excess of the benefits conferred, especially where the request for the improvement was made with knowledge of the legislation, the plans, and estimates of cost.
    3. Property owners who petition for street improvements and obtain the improvements asked for are estopped to deny the validity of the assessment, where, when they filed their petition, they knew the method of improvement, the plans and estimated cost, and the improvements were made in compliance with the petition.

      Oliver 8. Bryant, for plaintiffs.

      8aul Zielonka, city solicitor, and Frank K. Bowman, assistant city solicitor, for defendants.

      Judgment modified and affirmed as modified by the Supreme Court, May 31, 1921.

   Hamilton, J.

Plaintiff, James "Wilder, together with three other owners of property abutting Trenton avenue, from West Eighth street to the corporation line in the city of Cincinnati, Ohio, bring this action to enjoin the collection of assessments levied to .pay the cost of improving said Trenton avenue.

It is claimed that the assessment is illegal in that the legislation providing therefor included both paving and the laying of a water main, which are distinct and separate improvements and require separate legislation, and that the city, under said improvement legislation, constructed a sewer in said street, which is included in the assessment; that the assessment was made by the abutting feet and without regard to the benefits conferred; that the assessment exceeds the benefits conferred and is greatly in excess of one-third the market value of the lots after the improvement was made.

The ease of roehling et al. v. The City of Cincinnati et al., involves the same propositions and by agreement is consolidated with the Wilder case and both cases are considered together. The following state of facts appears:

■On June 11, 1912, a petition signed by the owners of more than three-fourths in interest of the property abutting on Trenton avenue, including the owners of the abutting property here in question, was filed in council, requesting that sewer connections and the street be made on said Trenton avenue, and for an extension of the trunk sewer, and urging immediate action.

Thereupon, under the direction of council, the engineering department of the city returned an estimate of the cost of the improvement, together with plans and specifications for the same, which estimate was in the sum of $31,052; and, thereupon, on March 11, 1913, the necessary resolution of necessity was passed, which provided that the cost of intersections and 2 per cent, of the total cost be paid by the city and the remainder assessed by the front foot on the abutting propertyi

On the same day a second petition was filed by said property owners requesting the paving, “the same as the ordinance is now introduced in council, ’ ’ and asking that the paving be done from West Eighth street to Foley Road. It appears that Foley Road is near the corporation line.

The improvement was made and the assessing ordinance duly passed.

The plaintiffs suggest some question as to the formality of the wording and presentation of the petition, but as no particular formality of wording or presentation is required under the statute we do not consider this objection well taken. The petitions were clear as to the improvements desired, and they were filed with council.

It is claimed that the legislation is illegal for the reason that it contains two subjects, to-wit, the paving of the street' and the laying of water' mains. The defense is that all necessary and legal steps to comply with the statute which authorizes the assessment were properly taken; and in addition thereto is the defense of estoppel.

The incorporation in a single ordinance of legislation for street improvements and the laying of water mains is authorized by Section 3812, General Code, which provides, among other improvements, for • the laying of water mains, paving, grading, etc., and that the legislation may include any one or all of these things.

The subject is a street improvement. and under 'Section 3812, General Code, may be made as an entirety. All or any portion of different classes of improvements enumerated in this section may be embraced within one general improvement, which shall be provided for by resolution of necessity as provided in Section 3814, General Code.

It will be noted that the second petition was filed with full knowledge of the passing and contents of the resolution of necessity and of the estimates of cost on file in the city council, which estimates showed the cost would approximate ten dollars per front foot.

The including of the provision in the resolution of necessity for the laying of water mains and the including of the cost thereof in the assessing ordinance was, therefore, not- illegal on that account. Baldwin et al v. Springfield et al., 10 N. P., N. S., 65, and Page v. City of Columbus, 15 C. C., (N. S.), 40, affirmed, without opinion, 86 Ohio St., 333.

We will next give consideration to the claim that the assessment is illegal for the reason that it exceeds the benefits conferred on the property and that it exceeds One-third the market value thereof.

The improvement was made under Section 3836 General Code, upon a petition subscribed by three-fourths in interest of the owners of the property abutting said improvement. That section provides:

“* =>:< * the entire cost of any improvement of such street or highway, without reference to the value of the lands of those who subscribed such petition, may be assessed and collected * * # in a manner to be indicated in the petition, or if not so indicated, then in the manner which, may be fixed by the council. * * * When the lot or land of one who did not subscribe the petition is assessed, such assessment shall not exceed thirty-three per cent of the tax value of his lot or land.”

It is admitted that the amount assessed exceeds the value of the property in question. Section 3836 provides that when the petition field by the property owners does not indicate the manner in which the assessment shall be made, council may fix by' legislation the method. The petition not providing the manner, the council was empowered to do so under this section, and it fixed a manner by the front foot assessment, this being one of the- methods provided by law.

The question then is, Under Section 3836 can an assessment be made against the property subscribed by the petitioners in excess of one-third the valuation thereof, or in excess of the benefits conferred 1

Plaintiffs mainly rely upon Birdseye v. Village of Clyde, 61 Ohio St., 27, in support of their proposition. We do not t.hfnk that case, however, is authority here. In that case it was held that the landowner was not estopped to object to the assessment because he had acquiesced in the construction of the improvement and had petitioned therefor. It does not appear, however, that the court had under eonsideratitm Section 3836, nor that three-fourths of the property owners had joined in the petition. It appears that the improvement was made under a special statute for the improvement, -and it was held that it was not to be assumed that the plaintiff waived the benefit of the general statute because he asked for the work, and the general statute provided that no assessmnt should be made on -any lot or land for an assessment in excess of twenty-five per cent, of the value. But, in the ease at bar, the petitions bring the improvement under Section 3836, which provides that the assessment could be made in a manner which may be fixed by council, and that the entire cost could be assessed without reference to the value of the lands of those who subscribed to the petition.

Further request for the improvement was made with knowledge of the legislation, the plans, profiles and estimates, and with this knowledge an additional petition, urging the improvement, was placed on file. Acting upon the petition, the legislation, and the petition filed with knowledge of the legislation and the estimates, council proceeded with the improvement and incurred the expenses thereof. It may be said further in construing Section 3836 that additional emphasis is given to the right to -assess without reference to the value of the land, by the following clause: “When the lot or land of one who did not subscribe the .petition is assessed, such assessment shall not exceed thirty-three per cent, of the tax value of his lot or land.” It, therefore, appears clear from the reading of the statute that while those who did not sign could only be assessed one-third of the value of their lots or lands, those who did sign could be assessed without reference to the value.

• We are of opinion, therefore, that the necessary steps to ■make the assessments legal under the statute were taken by the city under the terms of the statute, and that the assessments should be upheld. However, if there was any defect in any of the proceedings of the city, imperiling the assessment, it would seem the petitioners were estopped under the circumstances of the ease to question the assessment.

We are of opinion that the only grounds under which there could be legal objection to the assessment would be whether or not Section 3836 was constitutional as giving the power to assess beyond the special benefits conferred. The law is well established that although a law authorizing an improvement, and assessment therefor, is found to be unconstitutional, a party -who has petitioned for and received the full benefit of the improvement, may be compelled to pay for that benefit under the terms of the law. This is on the theory of an implied contract, the terms of which may be sought in the invalid law, and which arises when the full consideration has been received by the party against whom the contract is sought to be enforced. (O’Brien v. Wheelock, 184 U. S., 450.) In the case at bar, the plaintiffs in fact received the full consideration from the contract. They obtained the improvement asked for, so far as the doing of the work and the incurring of the expense is concerned. They knew the method of the improvement when they filed the last petition. They knew the estimated cost per front foot.' They knew the improvement included the laying of water mains and sewer, and it appears that the assessment therefor was less than the estimated cost. We are .therefore of opinion that the plaintiffs are estopped to deny the validity of the assessment. Shepard v. Barron, 194 U. S., 553; Murphy v. Sims, Treas., et al., 7 C. C., (N.S.), 193, affirmed 76 Ohio St., 626, and Tone v. Columbus 39 Ohio St. 281.

The cases cited in the brief of counsel for plaintiffs are clearly distinguishable from the case at bar. In the case of Winchell v. Village of Dennison, 27 C. C. (N. S.), 284; 5 Ohio App., 103, council did not comply with the plaintiff’s petition and tho method of assessment was different from that asked for in the petition. The case of Walsh v. Barron, Treas, 61 Ohio St., 15; was one where no petition was filed. In that ease defendant Walsh did not petition for, promote or participate in the making of the improvement.

For the reasons above stated, and from authorities cited, we find that the assessments are valid liens on the property, and the injunction will be denied..

Injunction denied.

Shohl, P. J., and Cushing, J., concur.


author: Houck, J.

text:
    HOW ALLEGED MISCONDUCT MUST BE BROUGHT INTO . THE RECORD.
    Court of Appeals for Morrow County.
    Charles R. Smith v. Moses C. Rogers et al.
    Decided, February 3, 1922.

      Misconduct — Remarlas in Hearing of the Jury — To he Regarded as Prejudicial must have Related to a Material Matter — What the Record muct Show — Proof as to the Law of Another State — Competency of Evidence.

    1. The dialogue between counsel and the court, at the trial below of the case at bar, related to an immaterial question not decisive of any issue in the case, and does not afford a basis for reversing the judgment on the ground of misconduct. Moreover, in order to preserve the rights of one claiming to have been prejudiced 'by such conduct, the record- must affirmatvely show the matter objected to, the court’s ruling thereon, and the entering of an exception thereto. Such rights are not preserved by the mere statement of counsel, “I want to take exception to the remark of the court.”
    2. The method of proving the written law of other states, provided by Section 11498, is not exclusive. Oral testimony may be introduced in that behalf, and it is not error to admit the testimony of an attorney, learned in the law of another state, as to -the law of that state on the point in issue.
    3. In an action involving land in which it is claimed a fraud was perpetrated with reference to the title, it is error to strike out the testimony of a witness who was a joint maker of the deed and who said in effect that “she was afraid the sale of the land' would get them into trouble.”
    T. B. Mateer, for plaintiff in error.
    W. P. Vaughan and J. C. Williamson, contra.
   Houck, J.

The parties here stand in the same position in this court as they stood in the court below, and will be referred to hereafter as the plaintiff and defendants.

The plaintiff brought suit in the common pleas court to recover damages in the sum of $1,568.88, by reason of his eviction from a certain tract of land, lying and being in the state of Tennessee, and for which he had obtained from defendants, for a good and valuable consideration, a deed of general warranty.

Defendants in their answer aver, in substance, that in the suit in which plaintiff claims to have been evicted from the lands in question, that said plaintiff conspired with said evictors, and for the purpose of defrauding and wronging defendants, and for the sole purpose of constituting a breach of the covenant of warranty in the deed of plaintiff, agreed with evictors that he would not appear in said trial and defend same, and that he did not appear, but permitted default judgment to be taken against him and in favor of said evictors; that said agreement was a fraud upon the rights of defendants, and that said pretended decree of eviction against said plaintiff was fraudulent and void, and of no legal force.

The plaintiff in his reply makes a general denial of all charges and claims of fraud, as set forth in the answer of defendants.

Trial was had to a jury in the common pleas court, and a verdict returned for the defendants. A motion was filed for a new trial, which was overruled, and the case is here on a petition in error and a bill of exceptions for review, the ultimate relief sought being a reversal of the judgment entered for the defendants.

The errors for which it is claimed a reversal of said judgment should be had are as follows:

1. Misconduct on the part of counsel for defendants, in the presence of the jury, aided and abetted by the trial judge, in which the attorney for (plaintiff was charged with altering the pleadings, without the consent of the court or the approval of opposing counsel.

2. Error in admitting testimony offered by defendants.

3. Error in rejecting testimony offered by plaintiff.

We have carefully read all the testimony taken in the case, and examined all the exhibits offered in the trial; also read with much interest the briefs filed by counsel.

Coming now to the alleged errors upon which it is sought to reverse the judgment below, let us first discuss the charged error as to the misconduct of counsel and trial judge.

The following is the entire record, and all that occurred at the time:

“Be It Remembered, That at the October term, 1920, to-wit: Tuesday and .Wednesday, December 14 and 15, 1920, before the Honorable C. II. Wood, and a jury, the plaintiff by his attorney, T. B. Mateer, took exceptions to the following statement made by attorney for defendants, W. P. Vaughan, viz.:
Atty. Vaughan: There is one thing I want to call the attention of the court to in this matter. After this petition was filed there was a motion filed to require the plaintiff to separately state and number his causes of action in his petition, and to show what, if any, expense was incurred by plaintiff under each cause of action. 2. In case the above request is not granted, then defendants move the court to strike out of the petition all that portion beginning with the words: ‘plaintiff says that relying on said deed,’ and ending with the words, ‘in defending his rights to said lands.’
And the court on that motion sustained the defendants, and plaintiff was given leave to amend by interlineation; the interlineation, which was made at the time, is in these words, after alleging they had been to the expense down there: ‘which defendant agreed to repay to plaintiff.’ We let that pass and filed our answer. After the answer was filed, in which we set up the statute of limitations of the state of Tennessee, without any permission from the court somebody has interlined in this petition in these words: ‘prior to the 1st day of May, 1916.’ That was not in the petition at the time it was filed and was not there at the time we filed our answer, but is there now.
Atty. Mateer: The entry will'show it; the entry will show leave was taken to insert those identical words, and I was just looking for the entry.
Atty. Vaughan: These were the words entered at the time the motion was sustained: ‘which defendant agreed to repay to plaintiff.’ At that time we had not set up the-statute of limitations, and I do not know as it would be material in this case.
Court: I noticed that last evening in looking over the case; I did not remember it before.
Atty. Vaughan: It was not put there'at the time.
Atty. Mateer: There is an entry authorizing this interlineation.
Atty. Vaughan: The entry is on the court docket, made by the court itself.
Court: You say you do not think it will be material ?
Atty. Vaughan: I do not think it will be material, but do not like to have pleadings tampered with in that way.
Atty. Mateer: I object to that remark of counsel. I do not want any insinuations; but it is in my handwriting.
Atty. Vaughan: I say, I saw the pleadings at the time the answer was filed,, and it was not there.
Atty. Mateer: They were all inserted at the same time.
Atty. Vaughan: There was nothing of that bind there when we filed our answer.
Atty. Mateer: There is such a motion on file. Where are the papers? And leave given by the court to amend by interlineation. I will go and see if I can find the papers.
Court: Mateer, you better come back and try your case.
Atty. Mateer: I want to take exceptions to the remark of the court.”

Was this colloquy between counsel, and the remark of the trial judge, all of which occurred in the presence of the jury, prejudicial to the rights of the plaintiff in error?

The rule is well settled that errors or irregularities, which do not within themselves establish and clearly show prejudice to the substantial rights of the losing party, are not grounds for setting aside the verdict of the jury. Even substantial errors will not warrant such action on the part of the reviewing court when no injustice has been done the party complaining. Any improper remark made by the trial judge in the presence of the jury, which has a tendency to prejudice their minds in favor of the prevailing party, and against the unsuccessful party, is erroneous, yet such will not warrant a reviewing court to set aside a verdict and judgment in a case, unless it clearly appears that such remark or statement of the judge was materially prejudicial to the losing party, and madé with refer*ence to something that was decisive of the case.

In the instant cause it will be observed that the dialogue between counsel was as to an immaterial question — one conceded not to be decisive of the issues raised by the pleadings — but, •upon the other hand, one not determinative of any material fact or legal question in the case. It will further be observed that there was no ruling of the court upon the claimed exceplion. Therefore, if we had been inclined to do so, we might have passed this claimed error, but we have not done so, but have given it attention because counsel for plaintiff relied so much upon it as one of his grounds for a reversal of the judgment below. ■

An objection and exception are necessary in order to lay the foundation for a review of the rulings of the trial court. Objections are made to the court, and after its ruling upon the question an exception may be noted. Objections are to the court, and the exception is and must be taken to such ruling. In the ease at bar the judge — so far as is disclosed by the record — never ruled upon the remarks and statements claimed to have been prejudicial to plaintiff’s rights. In order to have preserved the rights of plaintiff the record should and must affirmatively show the matter objected to by plaintiff, the court’s ruling thereon, and an .exception noted thereto. Counsel’s statement, “I want to take exceptions to the remark o£ the court,” is not sufficient to present for review, the question here attempted to be raised. But passing this, we find no error prejudicial to the plaintiff in the statements of counsel for defendants, and none in the remark of the trial judge.

2. Did the court err in admitting the testimony of E. E. Henry ?

Mr. Henry testifies that he is a lawyer, of Pikeville, Tennessee, and has been since 1897, and as such is familiar with the laws of said state on the question of limitations in real actions, but more commonly known as the seven-year limitation^ as to real estate, coupled with adverse possession for said time. He then quoted Sections 4456 and 4457 of Thompson and Shannon’s Code of Tennessee, 1917 edition.

Counsel for plaintiff urges this was prejudicial error, and insists that Section 11498, G-. C., provides the exclusive method of proving statutory law of other states.

This is one of the methods, but we do not think it is exclusive. But, upon the other hand, we find and hold that the proof offered in the present case was proper and sufficient, and clearly establishes the statute as claimed by the defendants.

We cite tbe following authorities as being decisive of the question here raised:

"'Notwithstanding the provisions of Section 11498, G. C., (then 5244 R. S. of Ohio), which provide the method by which the statutes of other states may be proved in Ohio, they may also be proved by oral testimony of persons learned in the law who testify as experts with respect thereto.” Brady v. Palmer, 19 C. R., page 688.
1 ‘ On the trial in the common pleas court, to prove the existing law of Pennsylvania governing savings institutions in making loans on interest, both sides produced evidence in the shape of printed copies of statutes, and books of reports of cases adjudicated in the local tribunals; and plaintiff introduced the depositions of witnesses learned in the law, and of long and extensive practice in the courts of that state. In the light of the evidence thus furnished by the record, we are not disposed to reject the conclusions arrived at by the court below.” Larwell v. Hanover Savings Fund Society, 40 Ohio State, page 280.

3. Was it prejudicial error to exclude the testimony of Susannah Smith as to a conversation had with Martha M. Rogers, one of the defendants?

At pages one and two of the record Susannah Smith testified as follows:

“Q. You may state your name to the jury.
Ans. Susannah Smith.
Q. What relation are you to the plaintiff, Charles R. Smith ?
Ans. I am his wife.
Q. Do you remember the occasion of his purchasing of land in Bledsoe county, Tennessee?
Ans. Yes sir.
Q. AVhere was the deed, or in whose office was the deed prepared?
Ans. Mr. Powell’s office.
Q. AVho was present besides you and Mr. Smith?
Ans. Mr. Rogers and Mrs. Rogers.
Q. Did you have any conversation with either Mr. or Mrs. Rogers that day?
Ans. Not with Mr. Rogers, but with Mrs. Rogers.
Q. AYhen was it relative to the time of the delivery of the deed?
Ans. It was after the deed was made and we were going home.
Ques. And what did she say to you? (Question objected to by the defendants.)
Court : That was after the delivery of the deed ?
Atty. Mateer: Yes sir.
Court: Was she a joint maker of this deed?
Atty. Mateer: Yes sir, a joint maker all the way through.
Court : She may answer. Objection overruled. Defendants except.
Áns. As we were leaving Mr. Powell’s office, Mrs. Rogers said to me, she said, ‘I am sorry I sold the land,’ she'said. ‘I am afraid it may get us into trouble.’ And I said, ‘Why?’ She did not answer me.
Atty. Williamson: We ask that that be stricken out.
Court : That may go out, and the jury will not consider it.
Atty. Mateer: Upon what theory?
Court: What she might have thought would not have any bearing in this case.
Motion to strike out sustained, to which ruling of the court the plaintiff at the time excepted.”

From the pleadings and the evidence it is clear that the real issues in the ease were as to whether or not defendants had the legal title to the land in question, and whether or not plaintiff perpetrated a fraud upon the defendants in his suit to quiet the title to said premises, which resulted in the eviction of plaintiff from same.

The conversation of the witness, Susannah Smith, was with one of the defendants herein, Martha M. Rogers, and a joint maker of the warranty deed upon which the recovery in this case is predicated. We are clearly of the opinion that the answer of the witness Smith, in which she stated what Mrs. Rogers- told her about the transaction, was proper, and related to a fact that was in issue, and was concerning a fact to be established in the ease by the evidence, and was proper testimony to go to the jury for its consideration.

We find and hold the action of the trial judge in this respect was erroneous, and prejudicial to the rights of plaintiff, and the judgment of the common pleas court should be reversed.

Upon a careful review of this case, as presented by the record before us, we are of tbe unanimous opinion that tbe judgment of the common pleas court should be reversed, upon the ground and for the reasons hereinbefore set forth.

Judgment reversed, and cause remanded to the common pleas court for a new trial.

Shields, J., and Patterson, J., concur.


author: AxiLEEAd, J.

text:
    TRIAL FOR MURDER IN PERPETRATION OF ROBBERY.
    Court of Appeals of Franklin County.
    Bandy v. The State of Ohio.

    Decided, March 31, 1921.

      Criminal law — Charge of court in trial for murder in perpetration of robbery — Lesser offenses not in issue, when — Rejected documents should be attached to bill of exceptions,, when — Contradictory statements of defendant admissible in rebuttal, when — Scope of cross-examination confided to discretion of trial judge — Special requests submitted as a series — If some are erreoneous, all may be rejected.

    1. Under an indictment for murder committed in perpetration of a robbery, where the undisputed evidence tends to prove the corpus delicti as charged and the only controverted issue upon the trial is as to the identity of the accused, the trial court is not required to charge as to murder in the second degree, or manslaughter, nor to offer forms of verdict for such lesser offenses.
    2. A document proposed and rejected as evidence should be made a part of the bill of exceptions and brought before the reviewing court in order to have the question of its admissibility reviewed.
    3. Where the accused becomes a witness in his own behalf on the trial, contradictory statements made to a police officer while in custody of such officer (proper foundation being laid therefore in the examination of said accused on trial) may be offered in .rebuttal for the purpose of impeachment.
    4. To a certain extent, and within certain limitations, the scope of cross-examination is confided to the discretion of the trial court, and a reviewing court will not reverse for error in such cross-examination unless such discretion is abused or the legal limitations of cross-examination violated to the prejudice of the complaining party.
    5. Where special charges are requested to be given as a series the entire series may be rejected if some are erreoneous.
    6. Proper cautionary instructions urging the jury to agree may be given, and such instructions, if free from the element of coercion, do not constitute reversible error.

      Error to the Court of Appeals for Franklin county.

      ' M. L. Bigger and John II. Cooper, for plaintiff in error.

      Hugo N. Schlesmger, prosecuting attorney; B. J. O’Donnell and Charles G. Baffin, for defendant in error.

      Affirmed by the Supreme Court, May 3, 1921.

   AxiLEEAd, J.

Henderson Bandy was charged with the murder of Homer R. Day, while engaged in perpetrating a robbery. The jury returned a verdict of murder in the first degree, with a rcommendation of mercy. Bandy was sentenced in accordance with the verdict. The undisputed evidence, presented on the trial, is that Homer R. Day, a taxicab driver, had received two passengers at Chillieothe, Ohio, for transportation to Colum« bus, Ohio. In making the trip Day passed through the village of S'hadesville, and reached a point along the Hartman farms, some distance south of Columbus. He was found by G. M. Watkins, 'Samuel D. Blake and Clark Miller, lying upon the highway mortally wounded. Day was removed to the office of Dr. W. H. Blake, Shadesville, and thence by ambulance to Grant Hospital, Columbus, where he died a few minutes after his arrival. The physicians testify that he died from the effects of a gunshot wound. The bullet evidently entered from the back or shoulder, passing through the vital organs and leaving through the abdomen. The physicians also testify that 1he clothing bore undoubted evidence that the gun was fired at close range. The parties who found Day testify that his pockets were turned inside out and that he was stripped of all valuables. It appears clearly that Day’s car was also driven away,' and it was afterwards found near Livingston avenue in the south part of the city of Columbus.

Day himself made certain declarations in the interim preceding his death. These • statements were properly and sufficiently qualified as dying declarations and were admitted in evidence as such. The law regards dying declarations as evidence. The consciousness of impending death takes the place of an oath. The dying declarations of Day were transmitted to the jury through the evidence of witnesses who were present. It is true that the testimony of these witnesses is not alike in all the details. It would be somewhat strange if it were so. Their testimony, however, is substantially the same as to all essential facts. Day’s dying declaration is' to the effect that he was shot by one of the occupants of his automobile. His declaration is also clearly to the effect that the occupants of the automobile purposely committed the murder and that it was done in the perpetration of robbery. Day’s statement is also clearly to the effect that the crime was committed by the persons who became his passengers at Chillicothe, Ohio, and that they could be identified by certain men in Chillicothe.

It is claimed that there was some confusion in the evidence as to which one of the passengers in the taxicab actually shot Day. That fact was not vital or important except as one of the details. No matter which one fired the shot both were liable as principals for the murder. Section 12380, General Code.

Day’s dying declaration has every impress of truth and is undisputed. It is, therefore, clearly established by the undisputed evidence that Day was murdered by the occupants of his car in the perpetration of a robbery. We think it clear from the record that the material facts so stated were not challenged by the defense.

The controverted issue was as to the identity of the perpetrators.

The state claimed that Henderson Bandy was one of the' two men who jointly committed the crime. Considerable evidence was offered by the state to connect Bandy with the commission of the offense.

The opening statement of counsel for defendant is as follows:

“Mr. Cooper: If the Court please, and Gentlemen of the Jury, briefly, we expect the evidence to show that this man could not have committed this crime and that he is, therefore, innocent of the charge.”

The burden of the defense was an alibi. Evidence was offered tending to prove that Bandy was in Columbus, Ohio, during the entire day and evening of the homicide and therefore could not have been in Chillicothe, nor present at the time of the murder. Bandy himself testified and denied any connection whatever with the crime. No evidence was offered and no issue was raised but to the effect that the murder as charged was committed by the occupants of the car. No evidence was offered and no claim was made tending to dispute the circumstances of the crime nor to reduce the grade of the offense. As the evidence stood, if Bandy was identified beyond a reasonable doubt as one of the perpetrators of the crime he was guilty as charged in the indictment. If the evidence did not so identify him as one of the perpetrators of the crime, then he was entitled to an acquittal. We think there was no foundation for any intermediate grade. The trial court charged the, jury upon murder in the first degree and refused to charge or furnish verdicts for any lesser grade of murder. The jury were charged that if the evidence was not sufficient to convict defendant of murder in the first degree he should be acquitted.

Counsel for plaintiff in error challenge the correctness of the court’s charge in this respect. It is claimed that the court had no right to limit its charge to murder in the first degree or acquittal, and that it was the province of the jury under Section 13.692 to fix the grade.

It is not important in the status of this case to express an opinion as to whether a possible or supposable state of evidence might justify a charge upon the lesser or included offenses. The charge of the court should be limited to those features which the evidence tends to support. While the charge of the court should not go beyond the indictment, it is equally well settled that it should be appropriate to the evidence. In the case at bar the defendant, Bandy, was either guilty of murder in the first degree, as charged, or he was not guilty, and the court properly so limited its charge.

This proposition is settled in Ohio by the cases of Dresback v. State, 38 Ohio St., 365, and State v. Schaeffer, 96 Ohio St., 215.

The state after proving the corpus delicti offered evidence tending to connect Bandy with the homicide.

William H. Duncan, a traveling salesman, who had known Day for several years, met him on the date of the homicide at the Warner House in Chillicothe talking with a man whom he positively identified as the defendant Bandy. Clarence J. Haggard, the keeper of the Canteen Restaurant at Chillicothe, and referred to in the dying statement of Day, testifies that Bandy resembles one of the men he saw with Day. There were other witnesses whose testimony also tended to prove that Bandy was in Chillicothe on February 10, 1919, the date of the homicide.

Mrs. Maggie Stergle, a boarding and rooming house keeper, with whom Bandy had roomed and boarded, testifies that on February 15, five days after the homicide, Bandy called at her place and in the course of the conversation admitted that fichad shot and killed Day. Her evidence also tended to prove that the motive was robbery. Mrs. Stergle is corroborated in some of the details by other witnesses who were in the hour/' at the time. She also testifies that she received a letter from Bandy the following week. This letter was dated at Jackson. Ohio, but the day of the month is not given. In the letter thm statement is found:

“Now if you hear anything let me no.”

The state also offered the testimony of certain witnesses residing at Jackson, Ohio, where Bandy at one time lived, that they knew Bandy and that he was in Jackson, Ohio, on February 18, 1919, offering to sell a certain watch and gun. Bandy states that he was in Jackson the week before the homicide, and that he caused the letter to be written and sent to Mrs. Stergle at that time, but denies in toto the affair with Reynolds and others.

The room occupied by Bandy at the home of Mrs. Skinner was, after the arrest, searched by the officers and certain articles were found either in his room or in other parts of the house.

The defendant took the witness stand and positively denied that he was at Chillicothe on February 10!, 1919, or had any connection whatever with the murder. He also claimed that be was at work during the whole of the working hours of that day at the plant of The H'ulse Manufacturing Company in Columbus, Ohio, and-that he was at and around the home of Mrs. Skinner (where he roomed and boarded), during the evening and night of that day. He is corroborated by Mrs. Skinner and others as to his whereabouts in the evening, and by Sherman Henderson as to his being at work on that day. Sherman Henderson was the foreman at. the Hulse factory and testifies that he made one and sometimes two rounds of the shop and from such inspection made up the time of the different workmen. He testifies that the time book shows that Bandy worked full time on-February 10, and that he was paid full time therefor. The conflict of evidence on the subject of Bandy’s identity and connection with the homicide was a question of fact for the jury.

Various errors in the admission and rejection of evidenciare assigned as a ground of error.

We find no prejudicial error in-the admission of evidence as to the finding of the gun, the keys and other articles in Bandy’s room and about the Skinner home. It may be that these articles were not a formidable part of the evidence, nevertheless in a case involving as this does to a certain extent circumstantial evidence a latitude must be allowed. So also as to the evidence of the Jackson witnesses in respect to his exhibition of various articles and his offer of them for sale. The courts are accustomed to allow a certain latitude as to the conduct of an accused after the commission of the offense as tending to show guilty demeanor and' his connection with the offense charged. It is claimed by the plaintiff in error that the trial court erred in admitting in evidence the letter to W. A. Bandy. This was offered on the cross-examination of Mrs. Skinner who testified for the accused. We think it had a bearing upon the relationship between the witness and the defendant Bandy, and therefore was competent on the question of credibility.

The mere fact that an item of evidence tends to prove another crime does not render it incompetent if it has a bearing upon the case on trial. The trial court at the time of the admission of this evidence stated: that it was competent upon the question of credibility, and we agree that it was.

It is earnestly argued that the trial court erred in excluding, the time book of the Hulse factory. We have carefully considered the evidence in this respect. Henderson used the book to refresh his recollection and testified fully from the contents of the book. We are not advised by the record what, if any, additional facts the introduction of the book would disclose, hor is the boob attached to the bill of exceptions or otherwise brought before the reviewing court.

In the case of Palmer v. Yarrington, 1 Ohio St., 253, it was held that a document proposed to be offered in evidence and rejected should be made a part of the bill of exceptions in order to have the question of its admissibility tested in the reviewing court. See also Cincinnati Iron Store Co v. Trustees Cincinnati Southern Railway, 9 C. C., N. S., 103.

Under the present state of the record we are bound to sustain the trial court in excluding the time book of The Hulse Manufacturing company. There is no sufficient showing upon which a reviewing court could hold that its exclusion was prejudicial.

It is also claimed that the cross-examination of Mrs. S'tergle, a witness for the state, was unduly restricted, and that the cross-examination of the defendant Bandy and his witness Mrs. Skinner was unduly enlarged, and the direct examination of said witness unduly limited, and that in the case of Mrs. Skinner the court improperly reprimanded her as to her manner of giving testimony in certain respects. Upon consideration of the record we are unable to find that the trial court abused its discretion in these respects. The testimony as to what the alleged priest said and did at the home of Mrs. Skinner was competent so far as it tended to explain the presence of the various articles in the room of Bandy and in the home of Mrs. Skinner. We think the trial court did not err in refusing to follow this incident into its collateral bearings or to go beyond the purpose for which it was admitted.

Objection is made to the introduction in evidence of the examination of Bandy before the chief of police. This evidence was offered in rebuttal. A proper foundation for its admission- was laid in the cross-examination of Bandy and we think his statement before the chief of police was competent in rebuttal.

Some twenty-one special charges were filed with the clerk and requested before argument. These were all refused and a general exception was noted.

There is no request for the giving of these charges separately. Some of them were clearly erroneous and some were repetitious. These facts would justify the trial court in refusing the entire series. French v. Millard, 2 Ohio St., 44; Walker v. Lessee of Devlin, 2 Ohio St., 593; Cincinnati & Harrison Turnpike Co. v. Conkle, 86 Ohio St., 117.

■ An additional instruction was also asked before argument, but was, in our judgment, properly refused. The recital therein, that the evidnce tending to show guilt was circumstantial, was misleading, because it was not entirely so. The dying declaration of Day in connection with the identification of the parties was direct rather khan circumstantial evidence.

We have carefully read and examined the general charge. We have heretofore discussed the court’s charge in respect to the grade of the offense. There are other objections made to the general charge, principally in relation to the trial court’s statement of the law of reasonable doubt and of the presumption of innocence.

■While the law of reasonable doubt is not stated in the exact phraseology of the reported eases we find no essential difference.

We think the charge as a whole contains no prejudicial error.

Counsel for plaintiff in error particularly object to the cautionary instruction of the court in respect to agreement, when the jury was brought in from its deliberations. It is claimed that the statements of the trial court tended to coerce the jury into a verdict.

The main portion of the court’s remarks, including those relating to the expenses of the trial to both parties, was in our judgment unobjectionable. Some inference is drawn by counsel from remarks relating to the failure of the trial court to obtain quarters for the jury over night. It is claimed that there is a suggestion, or possibly inference, that the jury might be compelled to remain in the deliberation room over night. Assuming all that might be claimed for this by counsel for plaintiff in error the record shows that the .jury were at 11:30 p. m. quartered in the ITartman Hotel for the night, and returned at 8 a. m. and continued in deliberation until about 9 a. m., when the verdict was reached and returned. ¡We think under the circumstances there was no perjudicial error in such statement. The jury were not held in deliberation an unreasonable, period, and the fact that they did not agree until the following morning is a clear indication that the possibility of their being kept in the deliberation room over night should not be held to have had a tendency to coerce the verdict or operate as a restraint over the free deliberations of the jury.

This is an important ease. The question has been very fully and ably presented by the prosecuting attorney and his assistants as well as by the attorneys for the accused. Counsel for the defense are especially to be commended for their very earnest and painstaking and conscientious defense of their client.

¥e have carefully considered the record in connection with the points made in argument and brief and have reached the conclusion that there is no prejudicial error in the record and that the verdict of conviction is not contrary to the manifest weight of the evidence.

Judgment affirmed.

Fernbding and Kunkle, JJ., concur.