text:
    QUESTIONS ON TRIAL FOR HOMICIDE.
    [Circuit Court of Butler County.]
    Alfred A. Knapp v. State of Ohio.
    Decided, January 5, 1904.

      Criminal Law — Extra Judicial Confessions — Must be Corroborated by Proof Aliunde Corpus Delicti — Admission of Confession of Other Crimes not Cured by Charge of the Court^-Province of Jury Invaded by the Court.

    1. It is a well settled rule that a conviction can not be had on an extra judicial confession by the defendant of the crime, unless the confession is corroborated by proof aliunde corpus delicti.

    2. It is not necessary in an indictment for homicide for the state to set out the manner or means of the death, but where the manner and means are set out it is incumbent upon the state to prove the death substantially as alleged.
    S. A confession of a number of crimes, including the one for which the defendant is on trial, is not rendered competent as a whole by an instruction from the court to the jury that only that part of the confession can be considered which relates to the crime under investigation.
    4. A charge that “in all doubtful cases this presumption [of innocence] is sufficient to turn the scale in favor of the defendant,” is erroneous in that it does not give the defendant the full benefit of reasonable doubt of his guilt.
    5. The charge “sane men who are innocent as a rule do not make confession of crime,” is erroneous for the reason that it is capable of more than one meaning, and in that it is an expression of experience as to the conduct and actions of men, and an invasion of the province of the jury.
    Swing, J.; Giffen, J., and Jelke, J., concur.
   The plaintiff in error prosecutes this action in this court to reverse the judgment of the Court of Common Pleas of Butler County, wherein he was found guilty of murder in the first degree for the killing of his wife, Hannah G. Knapp, on December 22, 1902.

The indictment charged said Knapp in the following language :

“Then and there unlawfully, purposely and of deliberate and premeditated malice, with his two hands did seize, grasp and press the neck and throat of her the said Hannah G. Knapp then and there, with his two hands aforesaid unlawfully, purposely and of deliberate and premeditated malice did choke and strangle with the intent her, the said Hannah. G. Knapp unlawfully, purposely and of deliberate and premeditated malice to kill and murder of which said choking and strangling she the said Hannah G. Knapp then and there instantly died. ’ ’

In order to convict Knapp under this indictment, it devolved upon the state to prove that said Hannah G. Knapp came to her death in the manner set forth in the indictment.

The state produced evidence showing that the body of Hannah G. Knapp was found in the Ohio river, near New Albany, Indiana, about February 1, 1903; that she was last seen alive in company with Alfred A. Knapp, her husband, on the evening of December 21, 1902; that said Alfred A. Knapp was seen on the morning of December 22, 1902, with a box near the Miami river a short distance below the city of Hamilton; that he left Hamilton on that day and went to Cincinnati, Ohio; that he told conflicting stories about the absence of his wife; that he -sold their household furniture and gave away her clothing; that shortly afterwards he went to Indianapolis, Indiana, and shortly after that married another woman; and the state introduced considerable other evidence tending to show that said Knapp knew that his wife would never return, and all of which evidence tended to show that said Knapp knew that his wife was dead and that he was in some way connected with her death.

After the discovery of the body of his wife Knapp was arrested in Indianapolis, Indiana, and brought to the city of Hamilton, where shortly afterwards he made a conféssion to Mayor Charles S. Bosch and the chief of police of said city, in whose custody he was at the time.

In this confession said Knapp confessed to having killed his wife in the manner set forth in the indictment, and that he had placed her body in a box and placed it in the Miami river below the city of Hamilton on the morning of December 22, shortly after he had killed her.

Does the confession of Knapp taken in connection with the other evidence sustain the conviction ?

It is a well settled rule of law in this country that a conviction can not be had on the extrajudicial confession of the defendant unless corroborated by proof aliunde of the corpus delicti. 6 Am. & Eng. Enc. Law (2d Ed.), 582, and numerous authorities there cited, including Blackburn v. State, 23 Ohio St., 146.

The third proposition of the syllabus in this case is as follows:

“Although extrajudicial confessions alone are not sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence. ’ ’

The corpus delicti is thus defined:

Corpus delicti is a term in criminal law, and means literally the body of the offense or crime charged.” 7 Am. & Eng. Enc. Law (2d Ed.), 861, and authorities there cited. Among which is People v. Simonsen, 107 Cal., 345 (40 Pac. Rep., 440), wherein the court says:
“The term ‘corpus delicti’ means exactly what it says. It involves the element of crime. Upon a charge of homicide, producing the body does not establish the corpus delicti. It would simply establish the corpus.”

In Pitts v. State, 43 Miss., 472, it is said:

“In felonious homicide it consists of two substantial fundamental facts; first, the fact of the death of the deceased, and, second, the fact of the existence of criminal agency as the cause of the death.”

In People v. Palmer, 109 N. Y., 110, 113 (16 N. E. Rep., 529, 530), the court says:

“A dead body is found with the skull mashed in upon the brain, under circumstances which exclude any inference of accident or suicide. There we have direct evidence of the death, and cogent and irresistible proof of the violence; the latter the cause and the former the effect; both obvious and certain, and establishing the existence of a criminal fact demanding an investigation. These facts proved, the corpus delicti is established.”

In 3 Greenleaf, Evidence (16th Ed.), Section 30, page 36, this is said:

“The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the act itself was done; and, secondly, that it was done by the person charged, and. by none other.”

A great number of authorities might be cited to the same effect. Under the law as thus stated, the corpus delicti in this case would be the production of the dead body of said Plannah G. Knapp, together with facts which showed that she met her death by being choked or strangled to death.

The state has alleged that she came to her death in that way, and in order to sustain a conviction under the indictment these facts must be proved, and outside of Knapp’s confession there must at least be facts which tend directly to prove them.

We have each of us gone over the evidence in this case very carefully, and we fail to find the least evidence outside of Knapp’s confession that Hannah G. Knapp came to her death by being choked or strangled.

The dead body is found floating in the river. This simply proves the corpus; if there is any crime connected with the death, something else must be shown. How did the person die — by disease, accident, suicide, or violence; if by violence, what kind of violence — was she drowned; was she poisoned; was she shot; was she stabbed; was she beaten, or was she choked to death ? As far as this body is concerned, this record fails to disclose a single item of evidence that this woman met her death by violence, in any manner whatever. No bullet hole, no cut, or stab, no fracture of bones or bruise on the body, and no poison in the stomach. As to how this person came to her death absolutely all is conjecture or surmise unless we look to Knapp’s confession, and it is there alone that we find any evidence as to how this woman met her death. In other words, the crime of killing this woman by choking and strangling is shown only by Knapp’s confession, and under all the authorities this is not enough; there must be some other evidence of the killing in the manner set out in the indictment with which the confession must be considered before conviction can be had.

It was not necessary for the state to allege the manner and means of the death of Hannah G. Knapp. An indictment could have been found against Knapp charging that said Hannah G. Knapp met her death at the hands of said Alfred A. Knapp by manner and means unknown to the state. But having set out the manner and means of death, it was incumbent on the state to prove substantially the death as alleged.

It is claimed by plaintiff in error that the court erred in admitting in evidence a certain paper written by said Knapp. This paper is as follows:

"Confession of Alfred A. Knapp.
“On June 21, 1894, I killed Emma Littleman in a lumber yard in Gest street, Cincinnati. And on August 1, 1894, I killed Mary Eckert in Walnut street opposite the Y. M. C. A. building in Cincinnati. And August 7, 1894, I killed my wife Jennie Knapp under the canal bridge at Liberty street and threw her in the canal in Cincinnati. And in July, 1895, I killed Ada Gebhart in Indianapolis, Ind. And on December 22, 1902, I killed my wife Plannah Knapp at 339 South Fourth street in Hamilton, Ohio, and threw her in the river out by Lindenwald. This is true.
“Alfred A. Knapp.
“Hamilton, Ohio, Feb. 26, 1903.
“I make this statement by my own free will and not by the request of any officer or any one else.
“Alfred A. Knapp.”

This was signed by witnesses and sworn to before C. S. Bosch, mayor.

So much of said confession as relates to the killing 'of Hannah G. Knapp is admittedly competent, and all the rest of the so-called confession is admittedly incompetent.

The court also permitted the prosecuting attorney to read the whole of the confession to the jury, and also permitted the jury to take the same on retirement to consider their verdict.

On the receipt of the evidence and the reading of the same by the prosecutor, and allowing it to be taken by the jury, the court said to the jury that it was only offered for the purpose of proving the killing of Hannah G. Knapp, and on two of the occasions said to the jury that they were to disregard all portions of it which did not relate to the killing of Hannah G. Knapp; and when the prosecutor read the paper to the jury the judge said to the jury that they should not permit the statements in said confession to prejudice them as they were only trying the defendant for the killing of Hannah G. Knapp.

In permitting this paper to go to the jury, and permitting the prosecutor to read it to the jury, and permitting the jury to take the same with them on retirement to consider of their verdict, we think the court erred.

It is a horrible, cold-blooded recitation of crime, having few equals in criminal history, and can scarcely be read by any one without producing the feeling that the man is insane or a fiend incarnate. How is it possible for any one having heard such a recitation of crime as this to disregard or not to be prejudiced by it?

The state had already proven two confessions by Knapp. But it is not shown that so much of this confession as relates to the killing of Hannah G. Knapp might not have been admitted without putting in the statements as to the other killings; the statement as to each of the other killings could very easily have been obliterated or cut out, and left intact that portion of the statement which was clearly competent.

There are also two errors assigned in the charge of .the court that we desire briefly to refer to.

The court in its general charge made use of the following language :

‘ ‘ In all doubtful cases this presumption is sufficient to turn the scale in favor of the defendant. ’ ’

Clearly this is not a correct statement of the law.

Every person charged with crime is presumed to be innocent, and unless the jury beyond a reasonable doubt find him guilty the defendant is entitled to be acquitted.

The court also charged the jury as follows:

“Sane men who are innocent, as a rule, do not make confession of crime.”

It seems to us that this was erroneous in the court. The language itself, possibly, is capable of two or three different meanings. The judge, in overruling the motion for a new trial, and commenting upon this portion of the charge says that immediately after he delivered the charge some bystanders spoke to him and put a meaning on it different from that which he intended. The defendant had already made confessions in this case, so that probably the meaning was that this man was either insane or guilty, from the fact alone that he had made the confessions, without taking into consideration any other question in regard to the corpus delicti, or anything that the evidence showed in that respect, which the jury is bound to consider. But, aside from the fact of making a statement which was inaccurate, and subject to be misconstrued, we have this objection to this portion of the charge, “sane men who are innocent, as a rule, do not make confession of crime; ” we do not understand this to be a rule of law that a judge may charge the jury; but we take it, rather, that the judge is telling the jury what his experience of the actions of men is, and in that respect he usurped the power of the jury. It is not for the court to say to the jury what his experience of men in certain matters is; this is the exclusive province of the jury; it is their experience of the conduct and actions of men that is to be applied to the testimony in the case, and not that of the court. State v. Tuttle, 67 Ohio St., 440.

It seems to us, therefore, that the court erred in this particular portion of the charge.

There are a great many other grounds of error alleged in this case; we have considered them all, but we do not think that the points are well taken. Therefore, we find no other errors in the record other than those pointed out.

No doubt this fearful recitation of crime made by this man aroused a very strong feeling in this community against him; naturally it would; we can not help but feel that such is the case, and that this man is a criminal almost without parallel in the history of the law, certainly without any parallel in the history of this court; but this court can not change the law; we have to administer the law as we find it; we can not set ourselves up as to making one law for this man, and another law for another; we must administer the law as we find it and understand its meaning.

Thomas H. Darly, for plaintiff in error.

Warren Gard, Prosecuting Attorney, for the defendant in error.

For these reasons we think that a new trial must be granted to the defendant in this case.


source: Caselaw Access Project

license: Public Domain

text:
    REPAIR OF A TURNPIKE AS REQUIRED BY ORDINANCE.
    [Circuit Court of Hamilton County.]
    The Village of Milford v. The Cincinnati, Milford & Loveland Traction Company.
    Decided, January 22, 1904.

      Turnpike — Company in Default for Repair of — As Required by Its Franchise — Mandatory Injunction to Compel Repair — What Constitutes Repair.

    1. While equity never decrees an ouster or forfeiture, a court of chancery may by mandatory injunction require performance of the conditions under which a corporation exercises its franchise.
    2. “Repair” of a turnpike means a filling up of holes and an evening up of the surface in such a manner that the ordinary and expected travel of the locality may pass with reasonable ease and safety.
    Jelke, J.; Giffen, J., and Swing, J., concur.
   We find on the evidence that The Cincinnati, Columbus & Wooster ’ Turnpike through the village of Milford is not in the condition of repair required by section third of the ordinance of August 4, 1903, and that The Cincinnati, Milford & Loveland Traction Company, defendant herein, is in default in this regard, and has failed in the performance of this condition of its franchise.

Injunction can not be resorted to, to work an ouster or to forfeit a franchise. Equity never decrees a forfeiture. A court of chancery may, however, by mandatory injunction or decree for specific performance require the performance of the conditions under which a corporation exercises a franchise.

The difficulty about such an order or decree in this ease is the continuing supervision which its enforcement would entail upon the court.

This objection only furnishes one more reason why a court of chancery should be slow to intervene, but is not a conclusive obstacle, and when public rights are involved a court of chancery will not shrink from the maintenance, through its duly appointed officer, of such continuing supervision necessary to preserve the rights of the public. See Note 1 on page 31, Pomeroy on Contracts, citing Joy v. St. Louis, 138 O. S., 1, and other cases. In the case at bar there is excuse for defendant’s dereliction in that the weather has made it impossible to do this kind of work since Thanksgiving day.

There is also another reason why defendant should not at this time be enjoined in that it is under contract in its franchise to have its cars in operation by March 3d, 1904.

An injunction as prayed for will be denied, but under plaintiff’s general prayer for equitable relief the court will order defendant company to put said road in the repair required by the ordinance, that is, “cause said turnpike to be put in repair from gutter to gutter with number two broken stone ’ ’ by March 31, 1904.

There can be little or no sincere doubt as to what “repair” here means. It does not mean a new road made to a new grade, but it does mean a filling of all the holes and an evening up of the surface.

“To keep a street in repair is to have it in such state as that the ordinary and expected travel of the locality may pass with reasonable ease and safety” (75 N. Y., 231).

The condition of the ordinance is plain and defendant manifestly up to now has not lived up to it. Defendant is not expected to repair the damage caused by the water-works commission.

If defendant company can not understand what to do under the ordinance and the foregoing, the court will appoint its own supervising engineer to direct the work.


author: Parker, J.,

text:
    SALE OF OLEOMARGARINE AT RETAIL.
    [Circuit Court of Lucas County.]
    Vernon M. Williams v. The State of Ohio.

    Decided, March 1, 1902.

      Oleomargarine — Statute Governing the Sale of as Butter — Proprietor of Store Responsible for Yiolation of by a Cleric — Notwithstanding Directions to the Cleric — Trial—Evidence.
    1. Where an affidavit charges one with unlawfully selling oleomargarine, and the evidence shows that the sale was made hy an employe who was authorized to sell the article, this is not a vari- ■ anee. It was not necessary to allege that the sale was made hy an agent or employe. In misdemeanors all are principals.
    2. In a prosecution for selling oleomargarine as butter, in violation of Section 4200-17, Revised Statutes, where the oleomargarine was sold by a clerk in the store of the accused, who was engaged in the business of selling oleomargarine to the public, with other merchandise, and who authorized its sale by his clerks, in the ordinary course of business, it is'no defense that he had instructed such clerk and all of his clerks in the store not to sell eleomargarine, except under its true name and marked and labeled as required by said act; and testimony to prove such instructions was properly excluded.
    3. One who engages in the business of selling oleomargarine to the public and permits and authorizes its sale by his clerks or employes, is bound to see that the law regulating its sale is complied with, and if it is violated by such employes or clerks, the employer is liable under the statute.
    Hull, J.; Haynes, J., concurs; Parker, J., dissents.

       Affirmed by the Supreme Court, without report, January 12, 1904.

   The plaintiff in error was prosecuted under Section 4200-17 of the Revised Statutes, which is one of the sections providing against the sale of adulterated foods and drugs. This section prohibits the sale of oleomargarine except under its true name and when properly marked and stamped. The defendant was tried before a justice of the peace, or city judge of the city of Toledo as he is called, and a jury, and found guilty. A motion for a new trial was filed and overruled, and a fine of $50 and costs was imposed upon the plaintiff in error. It was to reverse this judgment that proceedings in error were brought in the court of common pleas and in this court. The judgment of the justice of the peace was affirmed by the court of common pleas; and it is sought here to reverse the judgment of both courts below.

After providing in Section 4200-13 against manufacturing articles in imitation of butter and cheese, and in 4200-15 for a penalty, 4200-16 provides that:

“No person shall manufacture, offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine, which contains any methly (methy) organe, butter yellow, annatto, analine dye, or any other coloring matter.”

Section 4200-17, under which this plaintiff in error was prosecuted, provides as follows:

“Every person who shall offer or expose for sale, sell or deliver, or have in his possession with intent to sell or deliver, any oleomargarine, shall keep a white placard not less in size than ten by fourteen inches, in a conspicuous place where the same may be easily seen and read, in the store, room, stand, booth, vehicle or place where such substance is offered or exposed for sale, on which shall be printed in black letters, not less in size than one and one half inches square the words ‘oleomargarine sold here,’ and said placard shall not contain any other words than the ones described; and no person shall sell or deliver -any oleomargarine unless it be done under its true name and each package has on the upper side thereof a label on which is printed in letters not less than five-eighths of an inch square the word ‘oleomargarine’ and in letters not less than one-eighth of an inch square the name and per cent, of each ingredient therein.”

The plaintiff in error was charged with a violation of the provision contained in the latter part of this section, which provides that “no person shall sell or deliver any oleomargarine, unless it be done under its true name, and each package has on the upper side thereof a label on which is printed,” etc. The affidavit charged the defendant below with selling oleomargarine personally; it did not charge that he did it through a clerk or agent, but simply charged that Williams—

“* * * did unlawfully sell to one Myra Heisey, also of said county of Lucas, a quantity of oleomargarine, the same being then and there a substance not pure butter, containing less than eighty (80) per cent, of butter fats, towit, eight and three hundredths (8.03) per cent, butter fats, which said substance was then and there made as a substitute for, in imitation of, and to be used as butter; that then and there said oleomargarine was not sold under its true name; but was then and there sold as, for, under and by the name of butter; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.”

The evidence in the case showed that if a sale was made, it was made by a person in the employ of the plaintiff in error, and not by him personally; and it is claimed that this constitutes a variance between the evidence and the affidavit.

The offense provided for in this section is a misdemeanor, not a felony, and all parties to the commission of the offense are principals. In the case of Anderson v. The State, 22 O. St., 305 (an intoxicating liquor case), the indictment charged Anderson, the defendant below, with the sale of liquor personally; the evidence showed it was sold through an agent. On page 308 of the opinion the court say:

“Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offense, are either principals or accessories. In offenses less than felony, all are principals.”-

In the case of The State v. Basserman, 54 Conn., 88, referring to a liquor statute, the court say:

“Under that statute a delivery by an agent is in all respects the same as a delivery by the vendor himself.”

Section 4200-17, makes no express provision for the sale through an agent or servant, as is done in some statutes; but simply provides generally that “no person shall sell or deliver,” etc. If the oleomargarine was sold by a clerk or employe of Mr. Williams, with his authority, the sale then would be made by him, the same as though he had made it personally, and, in our judgment, the affidavit is sufficient, and there was no substantial variance. It was not necessary to allege that the sale was made through an agent. There is a common pleas decision in this state that holds otherwise; but there are no authorities cited in that decision, and the judge finally found that the evidence was not sufficient to warrant conviction' in any event.

The chief question in this case is, whether, if the oleomargarine was sold by the authority of the defendant below, through a clerk, it would be a defense for him to show that he had given directions and instructions to this clerk, and to all of his clerks, not to sell oleomargarine except under its true name, and unless stamped and marked as required by law.

The defendant below offered to testify that he had given such directions; upon objection being made by the state, he was not permitted to do so, but the objection was sustained and the testimony excluded; and the case as finally submitted to the jury, under the charge of the court, excluded from their consideration anything of this kind. It is urged by -counsel' for the plaintiff in error that there can be no criminal intent, no conviction of a criminal offense of any kind, where the defendant himself has not been' a party to the offense, where he has not knowingly committed any offense personally, and in this case it is claimed, and it was offered to show that he had given instructions to his employes not to sell the oleomargarine, except according to the provisions of this statute.

On the other hand, it is urged by the state that under a statute of this kind and similar statutes providing against the sale of adulterated foods and drugs, one who authorizes another to sell is bound to know that the law is being complied with by his agent and employe, and that it would have been no defense for Mr. Williams to show that he had given instructions— private instructions to his clerk not to sell oleomargarine except in accordance with the law — that if, in fact, it was sold from his store, sold there by his authority, he would be guilty of a violation of this statute, if sold contrary to its provisions by the clerk, notwithstanding his instructions.

Questions similar to this have arisen more often perhaps in prosecutions under statutes providing against the sale of intoxicating liquors than in any other class of cases; but the Supreme Court of this state has had before it some cases arising under the food laws, where they have laid down certain principles, which we think control this case, although no ease exactly like this has been before the Supreme Court.

In the case of The State v. Kelly, 54 O. S., 166, the defendant was charged with selling adulterated food; he sought to show in his defense that he had no knowledge that the food was adulterated, but believed it to be pure, and sold it in good faith; and in the trial before the justice of the peace, this instruction was requested—

“"While it is not necessary to charge knowledge in the affidavit, want of knowledge and absence of intent is a valid defense. You will carefully weigh the evidence of all the witnesses, and if the evidence discloses that the defendant bought the molasses he is charged here with selling for pure New Orleans molasses and honestly believed it to be such, that still believing it to be pure he sold it as such without intent to deceive the purchaser thereof as to its true character, you must acquit the prisoner.”

This instruction was refused and upon Kelly’s conviction the case was taken on error to the common, pleas court and the judgment reversed there and the ease went to the Supreme Court on exception to the reversal, and the exception was sustained. The Supreme Court say in the syllabus of the case:

“1. An affidavit to charge a violation of the act of March 20, 1884, Section 8805 (Giauque’s Revised Statutes), ‘to provide against the adulteration of food and drugs,’ need not charge that an adulterated article of food is sold to be used as human food.
“2. In a prosecution under said act, it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.”

Judge Shauck, in delivering the opinion of the court said:

“The first section of the act of March 20, 1884 (Section 8805, Revised Statutes), provides ‘that no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act.’ Other provisions of the statute are devoted to definition of the terms used in the first section, and to prescribing penalties for the violation of the act. It is not doubted that molasses to which glucose has been added is an article of adulterated food within the meaning of this statute.
“The act does not in terms require, to constitute an offense against its provisions, that the adulterated articles of food shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a want of such knowledge shall constitute a defense. Both conclusions stated in the decision of the court of common pleas are, therefore, wrong, unless there are justifiable inferences from the purpose and indicated policy of the act.
“The act is not a provision for the punishment of those who sell adulterated food or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is indicated by its title. It is ‘an act to provide against the adulteration of food and drugs.’ It is a plan devised by the General Assembly to protect the public against the hurtful consequences of the sales of adulterated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, of the adulteration of the articles which he offers for sale. The provisions of the act are appropriate to the purpose, indicated by its title. It would have been inconsistent with that purpose to provide for the trial of such immaterial issues as the object of the vendor in making a sale or of the extent of his knowledge touching the quality of the article sold. Those who produce the adulterated articles whose sale is forbidden may live without the state. Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the Legislature, they can not in case of a statute whose provisions are unambiguous and whose validity is clear, defeat its purpose by construction.
“The correct view of statutes of this general nature is stated by the Supreme Court of Massachusetts in Commonwealth v. Murphy, 42 N. E. R., 404: ‘Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the Legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it, if it is.’ ”

In the last paragraph of the opinion Judge Shauck says:

“In the enactment of this statute it was the evident purpose of the General Assembly to protect the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to require the seller at his peril to know that the article which he offers for sale is not adulterated, or to demand of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.”

The doctrine of this case, at first blush, might seem to be in conflict with the general principles of criminal law— that one might be convicted of an offense where he had no criminal intent or purpose and no knowledge at the time that he was violating a law. But the rule seems to be, as laid down by the Supreme Court, that one who sells food is bound to know that he is not violating these statutes for the protection of the public against the adulterating of foods, and as the court say in the concluding paragraph, it was the purpose of the General Assembly to require the seller at his peril to know that the article which he offers for sale is not adulterated.

But this doctrine of our Supreme Court was by no means a new doctrine, and it has been so held in many states. In the case of Commonwealth v. Savery, 145 Mass., 212, it is said:

“It is no defense to a complaint for keeping intoxicating liquors with intent unlawfully to sell the same, that the liquors were upon the defendant’s premises by mistake, and he did not know they were intoxicating, if he intended to sell them, and they were in fact intoxicating.”

In this ease the defendant was a liquor seller; he was not permitted under the statute of Massachusetts to sell beer containing more than three per cent, of alcohol. It is claimed that he sold by mistake beer containing more than three per cent. of alcohol, without knowledge that it contained more alcohol than the statute permitted; but the Supreme Court of Massachusetts held that that was no defense, he was bound to know it, “at his peril.”

The case of Commonwealth v. Wentworth, 188 Mass., 441, is a ease where a man was prosecuted for keeping for sale naphtha under a false name. Plis defense was that he did not know that the article which he had was naphtha, he supposed that it had none of the dangerous qualities of naphtha; but the court said in that case:

“We are of opinion that the court correctly ruled, that the question whether the defendant had knowledge that the articles kept by him was naphtha was immaterial. The statute does not make a guilty knowledge one of the ingredients of the offense. It is like the statutes against the sale of intoxicating liquors, or adulterated milk, and many other police regulations; it prohibits the acts of selling or keeping for sale naphtha under any name, not because of their moral turpitude, of the criminal intent with which they are committed, but because they are dangerous to the public.”

The case of Commonwealth v. Farren, 9 Allen, 489, was a milk case. The Supreme Court of Massachusetts in that case say:

“A person may be convicted of selling adulterated milk, under St. 1864, C. 122, Section 4, although he did not know it to be adulterated, and an averment in the indictment that he had such knowledge may be rejected as surplusage.”

The State v. Hartfield, 24 Wis., 60, was an intoxicating liquor case, and is perhaps in conflict with some of the former decisions of our own Supreme Court in eases of selling intoxicating liquors to a minor. The Supreme Court of Wisconsin holds:

“The sale of intoxicating liquors to a minor is an offense under Section 1, Ch. 128, Laws of 1867, though the vendor does not know that the purchaser is a minor. ’ ’

The evidence in the case was that the defendant inquired of the purchaser his age, and it was represented that the person was of full age; he was in fact six feet and one inch in height, and defendant believed in good faith that he was of age. But the Supreme Court of "Wisconsin held that was no defense; that he was bound to know.

It is urged that to hold here that Mr. Williams might be convicted although he had given directions to his clerk not to sell except in accordance with the law, would be contrary to the former decisions of the Supreme Court of this state, especially in liquor cases, and particularly a case in the 22d O. St., where it was held by the Supreme Court that that constituted a defense in case of selling liquor. The Supreme Court, however, in the case of The State v. Kelly, 54 O. St., 166, seem to have had no difficulty in discriminating between the rules that had been laid down in liquor cases and the rules that ought to be laid down in the case of selling adulterated food. There is this to be said in liquor cases the law provides that the penalty for a violation of the statutes may be imprisonment, as well as a fine, and a violation of the food statute is punishable by a fine only. It provides that whoever violates any one of the provisions of the statute shall pay a fine of $50. Whether that makes any difference in the rule it is not necessary to determine. The Supreme Court, however, in the ease in the 54th O. St., hold clearly and positively that lack of knowledge is no defense in a prosecution under this statute for selling 'adulterated food; and that was as much in conflict with the former holdings of the Supreme Court upon that question in liquor cases, if there is any conflict, as it would be to hold that a vendor of oleomargarine, who sold it through his clerk, contrary to his instructions, would be liable under this statute, if the clerk did not comply with the law. The Supreme Court has held in many cases of selling intoxicating liquor that want of knowledge is a defense, tracing the doctrine back to the old case in the 8th Ohio, page 230 (Birney v. The State of Ohio), where a person was prosecuted for concealing a slave, and his defense was that he did not know that the mulatto was a slave.

In the ease of Miller v. The State in the 3d O. St., 476, the Supreme Court held in a liquor case, in the syllabus as follows:

“To convict of'a violation of the second section, it is necessary to aver in the information and prove on the trial that the seller knew--the buyer to be- a minor; and to convict of a violation of the third section, it is necessary to aver and to prove, in like manner, that the seller knew the buyer to be intoxicated, or in the habit of getting intoxicated.”

The case of Crabtree v. The State, 30 O. St., 382, was another case of selling to a minor, where it was held that want of knowledge was a defense. This is in the syllabus:

“In prosecutions under Section 3 of the act ‘to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio’ defendant may show, to rebut proof of knowledge, by his own and other persons’ testimony, that shortly prior to the time of the alleged unlawful sale he made inquiry of persons well acquainted with the person charged in the indictment as a person in the habit of getting intoxicated; and also show what information he obtained from such persons. His good faith and due care in seeking and obtaining such information, as well as the proper effect thereof under all the circumstances, are to be left with the jury.”

On page 387 of the opinion, the court quotes from Mr. Bishop as follows:

“ ‘And when this good faith and this due care do exist, and there is no fault or carelessness of any kind, and what is done is such as would be proper and just were the fact what it is thus honestly believed to be, there is no principle known to our criminal jurisprudence by which this morally innocent person can be condemned because of the existence of a fact which he did not know and could not ascertain. On the other hand, to condemn him would be to violate those principles which constitute the very foundation of our criminal jurisprudence. Honest error of a fact is as universal an excuse for what would be otherwise a criminal act as insanity.’ ”

And in the case of Farrell v. The State, 32 O. St., 456, a liquor case, a man was charged with selling intoxicating liquor, and his defense was that he did not know it was intoxicating liquor, that he bought it under the name of bitters, supposing it was a harmless compound, and that it contained no alcohol, it was so represented and sold to him, he kept it honestly and sold it honestly believing it to be non-intoxicating, just as in the 54th O. St., the party sold the food, believing it to be pure; and the Supreme Court held in that case that that would be a good defense; the second paragraph of the syllabus is as follows:

“A person indicted for selling intoxicating liquors, in violation of the provisions of Section 1 of the act to prvide against the evils resulting from the sale of intoxicating liquors in the state of Ohio, may, on the trial, show that at the time he bought the articles it was represented to him to be free from alcoholic properties — that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and belief.”

The question is discussed at some length. In the opinion the court say:

“The accused interposed two defenses — first, that the bitters sold was free from alcoholic properties; and, second, that if the bitters did, in fact, contain alcohol, and was intoxicating by reason thereof, he was wholly ignorant of such fact; that he bought the bitters upon information and in the belief that the bitters was free from alcoholic properties, and sold it free from all intention of violating the statute.”

And further on page 460:

“We are unable to see why the proposed testimony was not competent. The accused’s intention at the time of the sale was involved in the issue. It was competent to show that, from the circumstances of the ease, he was free from culpable purpose, and one of the circumstances tending to show freedom from guilty intention in the sale was the fact, if fact it proved to be, that he bought the bitters under the information and belief that it was an article free from alcoholic properties; that he sold it honestly believing, from information obtained at the time of the purchase, that it was not an intoxicating liquor. We think the testimony would have tended to show good faith and want of guilty intention on the part of the accused.”

I have called attention to these former decisions of the Supreme Court for the purpose of showing that when they came to construe and interpret this food law in the 54th O. St. they did not apply those rules, nor any such principles as are laid down in the last ease from which I have read. But they held that under the statute which prohibits the sale of adulterated food or drugs, the seller of such articles sold them at his peril, and that the burden was upon him to ascertain whether they were pure or not; although in the ease just cited, 32 O. St., 456, the court held that it constituted a good defense in a liquor ease for the vendor to show that he did not know that the article he was selling was intoxicating liquor. The liquor case in the 22d O. St., p. 5, it is urged should control this case. The syllabus of that case is as follows:

“Where, in a prosecution for unlawfully selling intoxicating liquor, it appears by the evidence for the state that the sale was made by the agent of the defendant in charge of the establishment where the liquor was sold, it is competent for the defendant to rebut the presumption of prima, facie agency, which the evidence makes against him, by showing that the sale was, in fact, made without his authority and against his directions.
“2. But the directions to the agent, forbidding the sale, must be in good faith; for however notorious or formal they may be they can have no effect, if they are merely colorable. The fact of agency is to be determnied by the real understands ing between the principal and agent.”

And in the opinion on page 308, the court say:

“The rule as to the conclusive effect of the prima facie or apparent authority of an agent ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused, in such case, has the right to rebut the presumption of prima facie agency, which the evidence makes against him, by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions.”

To hold that Williams was liable for what his clerk did contrary to instructions would appear perhaps to be in conflict with this decision; but it seems to us that it would be no more in conflict with the holding in that case than the decision of the Supreme Court in the 54th O. St. was with some of the former decisions in liquor cases. But the Supreme Court decided that case without citing or attempting to reconcile the decision with the former decisions of the court in liquor cases. They there laid down the broad doctrine that these food statutes are for the protection of the public, and that it is wholly immaterial to the public whether the seller had knowledge that the food was adulterated or not. The statute does not provide against one willfully and knowingly selling adulterated food, but it provides absolutely against its sale, and the Supreme Court say that the question of knowledge is immaterial and suggest that to hold otherwise would interfere very materially with the practical enforcement of the statute and say that a court ought, where it can do so, to construe and interpret a statute in such a way that it may be enforced in a manner to carry out the purpose and object of the Legislature.

I will refer to another case which tends to support the contention of the plaintiff in error (Barnes v. State, 19 Conn., 397), in which the court say:

“Where it appeared in such prosecution that the sale complained of was made by the clerks of the .defendant, and he offered evidence to show that he had given such clerks specific directions to sell no liquors to common drunkards, it was held that such evidence was admissible. ”

I will say that this was also an intoxicating liquor case. It was decided by a divided court, two judges of the five, Chief Justice Church and Judge Waite, dissenting from that proposition of the syllabus.

The record in the case at bar shows that Mrs. Hisey, the purchaser of this article, went into Mr: Williams’ store, ealled “the Adams Street Butter Market,” one evening between 9 and 10 o’clock; she found a young man behind the counter, dressed as a clerk, with a large apron on; she ealled for a pound of butter ; he went back into the room to a large refrigerator, or some such apartment, and brought out a roll of something that looked like butter. It was a trifle over a pound, very little, and he charged her thirty cents for it. The price of oleomargarine at that time was but fifteen cents a pound. It was not stamped nor marked, but was sold to her as butter. The evidence in the case further shows that the oleomargarine was colored to look like butter, in violation of another section of the food laws. This young man was selling goods in the ordinary way. The next morning she undertook to use some of the commodity she had purchased and discovered it was not butter, but oleomargarine. She thereupon complained to the authorities, and the deputy commissioner of the dairy and food department went to the store a few days later, and this same young man was found behind the counter selling goods. The analysis of the article showed that it contained eight per cent, of butter fats, instead of eighty per cent., as required by law.

• The defendant testified that this young man had no authority to sell anything. This question, with the other questions óf fact, was left to the jury; and there was ample evidence to warrant the jury in finding that he did have authority to sell. The defendant admitted upon the witness stand that he did not reprimand the young man for selling Mrs. Hisey oleomargarine upon the occasion in question; he said that he had a cashier and perhaps one more clerk besides this young man, and offered to show that he had given them all instructions not to sell oleomargarine except in accordance with the statute. This evidence was excluded. Mr. Williams’ testimony sheds some light on the way this business was carried on, or was in this particular case, at least. . According to his testimony, he purchased this oleomargarine from another person under a contract that the dealer from whom he purchased it would pay all fines and costs that might be imposed upon Mr. Williams and employ counsel for him in case of trouble, and defend any prosecutions that were commenced against him.. While that perhaps does not shed very much light on the question involved here, it indicates that it was contemplated by the parties that there would probably be criminal prosecutions. The evidence shows, as I have suggested, that the oleomargarine was colored so as to look like butter.

The question is, whether, if it were shown that Williams had given private instructions to his clerks not to sell oleomargarine except according to law, that would constitute a defense. A majority of the court are of the opinion that it would not, and that this testimony offered was properly excluded. If this oleomargarine was sold by a duly authorized clerk, it was a sale by Mr. Williams, as much as if it had been sold by him. He was engaged in the oleomargarine business, although his place of business was called a “butter market.” He knew, of course was bound to know, what the provisions of this statute were. We think that this case is within the principles laid down by the Supreme Court in the Kelly case, 54 O. St., 166.

When a man offers oleomargarine for sale in his store in the open market, along with butter, or otherwise — an adulterated article of food, the sale of which is prohibited, except upon certain conditions — the duty is imposed upon him to see that the laws of the state are complied with. lie may sell it and attend to the matter of sale himself, if he sees fit; but if he prefers to leave it to clerks or others whom he employs, he does so at his peril; and if the provisions of these sections of the statute are violated, he must suffer the penalty imposed by law. These provisions are in the nature of police regulations, as the Supreme Court has said, for the protection of the public. This statute should be so construed by the courts as to admit of its practical enforcement. To hold that by private instructions ■to a clerk a person in the oleomargarine business might escape prosecution or punishment, would go a long way, it seems to us, toward destroying the beneficial effects and purposes of this law. In many cases such goods are ordered by telephone, and the clerk is not seen; there is no way of identifying him. We think it is not imposing an extraordinary hardship upon one who engages in selling adulterated food, to require him to see, at his peril, that the law of the state is complied with. Where the article is sold by his authority, it is not like a case where a party has prohibited his clerks from selling the article at all, or where the clerk without any authority has sold the article, or where some one has come into his store without authority and sold the article. But here is a case where the party is engaged in the business of selling, where he intends to sell it, and where his clerks are authorized and employed to sell it.

A paragraph from Greenleaf on Evidence, we think is in point (Vol. 3, p. 21); I will read a portion of it:

“But where a statute commands that an act be done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the crew, the owner and officers being alike ignorant of the fact, yet the forfeiture is incurred, notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law in these eases seems to bind the party to know the facts and to obey the law at his peril.”

Chittenden & Chittenden, for plaintiff in error.

Walter Brown, for defendant in error.

"We think in holding as we do, we are following the principles and spirit of the case in the 54th O. St. In the absence of a decision directly in point, we are of the opinion it ought to be the law, and we hold it to be the law, that where one engages in a business of this kind, he does it at his peril, and that the duty is imposed upon him to know that those whom he employs to sell this article to the public obey the law in the manner of selling it, and in case they do not, that he, as the principal and proprietor of the establishment, is liable to pay the penalty-assessed by the statute. We feel that any other holding would practically destroy this statute and thwart the object and purpose that the Legislature had in view. We believe it to be a wholesome law and that it should be construed so that it may be enforced.

The judgment will be affirmed.

Parker, J.,

dissenting.

As indicated in the opinion delivered by my associate, we are not in accord on one proposition involved in this case. The defense, or one of the defenses attempted to be established by the evidence was fairly stated by Judge Hull. The defendant undertook to show that he had, in good faith, instructed all of his employes that they were not to sell oleomargarine,. except it were first stamped or labeled as required by the statute, and that this sale was made by one of his employes authorized to make sales, but that he was in ignorance of the fact, and, so far as he was concerned, it was in violation of his will and his express instructions.

Now it will be noted that this prosecution here is not for adulterating food, but for selling oleomargarine without stamping it or labeling it, as required by law; and it will be remembered that it is not unlawful in Ohio to sell unadulterated oleomargarine; that it is quite as lawful, providing the regulation as to stamping it is observed, to sell oleomargarine as it is to sell sugar, silks or cotton, or other merchandise. There is certainly by the law no more inhibition against or disfavor shown to the keeping for sale and selling of this article than there is the keeping for sale and selling of intoxicating liquors. The penalties for unlawful sales are not so heavy. Nevertheless, it is made a crime to sell oleomargarine, unless the label is put upon the package. It is not made a crime to keep it without a label upon it, but it is made a crime to sell it without labeling it. Therefore, the vendor may lawfully keep it in his possession, with the purpose of selling it, and that does not thereby violate the law. He need not label it until he comes to make the sale; and, therefore, he may keep it in bulk, as I take it from the evidence was done in this case; so that when a person applies to buy, such quantities may be sold, whether a pound, two pounds, or more or less, as the person applying for the article desires; and after the package is made up of the quantity desired, before it goes out of the possession of the seller, it must be labeled.

It seems to me that the principle laid down in the case of The State v. Kelly, 54 Ohio St., 166, does not reach this case, for an entirely different principle is there involved; and it is significant (though my associates seem to think that the court there was departing from principles announced in well considered cases that have stood the test of years and are the settled law of the state) that the court there does not refer to any of those cases, does not criticize them, does not reflect upon them or indicate any purpose to depart from them at all; and, in my opinion, it was not the purpose of the court to do so, and the court has not done so, but the decision in the case of The State v. Kelly, supra, is entirely consistent with the principles of the criminal law theretofore announced by the Supreme Court in the cases referred to by my brother in stating his views of this case. In this case, we have not, as we have in State v. Kelly, supra, a question of scieivter, or guilty knowledge; neither have we a case presenting a question of the purpose with which the goods were sold. But we have simply the question: Did the defendant do the act? The defense, as I understand it, goes to that question. The defendant undertakes to show that he did not do the act. Of course it would not be sufficient to show that he had simply given secret instructions to the clerk; nor would it be sufficient to show that he had given public and notorious instructions to the clerk not to sell unless he observed the law. The defendant must convince the jury that he has, in good faith, forbidden and tried to prevent sales, except as authorized by law. The jury must so find, in order that the defendant shall be exonerated, and that the defendant here undertook to prove, but he was not permitted to do it. We have simply the question whether the defendant had a right to undertake to show, as indicating his innocence, that he had, in good faith, instructed his clerks to not sell this article, except when labeled according to law; whether he had a right to offer evidence to prove that he had, in good faith, forbidden them to sell it otherwise. Therefore I feel that I am not called upon to express any opinion upon what the evidence indicates as to the real knowledge or purpose of the defendant in the case upon this point and issue, which was not permitted to go to the jury.

We have all looked for authorities with considerable diligence along this line of agency; we have found some which seem to me to be directly in point; we have found none except such as hold that if the defendant shows that he has in good faith instructed or directed his agents, and they violated the law in opposition to his will, he can not be convicted. In other words, that where there is another free moral agent intervening to defeat his will and purpose, and that other free moral agent does the act, it is not the act of the defendant, and to punish the defendant is to punish him for the act of another; a result which, I declare, with all due respect for those from whom I differ, seems to me to be obnoxious and abhorrent to the sense of justice of the average man. I read from Bishop’s New Criminal Law, Section 218:

“By general doctrine, it is no crime for a man to employ a servant in a lawful business; and, if the servant commits a crime therein, the master is not liable. But we shall see further on that the master may be so careless in selecting his servant as to become answerable criminally for acts done in the service. And it appears from some of the older books that a sheriff is indictable for a mere negligent escape suffered by a deputy; for example, his jailor; because he ‘ought to put in such a jailor as for whom he will be answerable.’ But we may doubt whether in this sort of a case the doctrine of responsibility would be carried so far now, in the absence of special circumstances; and it seems in a general way to be settled that he can not be held criminally for the conduct of his deputy,, though he may be liable in proceeding quasi criminally, for the enforcement of civil rights. Further to illustrate, * * *
“Section 219. In Liquor Selling. — Under the statutes forbidding the sale of intoxicating drinks without license, and the former ones against selling goods to slaves without the consent of their masters, it is sufficient in defense that the sale was made by the defendant’s clerk, unauthorized either absolutely or by implication. And it is the same though the statutory words are ‘by agent or otherwise.’ Still we have cases in liquor selling which carry the liability of the employer very far.”

Cases are there cited, to some of which I will refer briefly; the case of Hipp v. The State, 5 Blackford, 149, Supreme Court of Indiana. The syllabus of that case is as follows:

“The general rule is, that a master is liable in a civil suit for the negligence or unskillfulness of his servant, when he is acting in the employment of his master; but that he is not subject to be punished by indictment for the offenses of his servant, unless they were committed by his command or with his assent.”

In the case of The State v. Dawson, 2 Bays, 360, the Supreme Court of South Carolina holds:

“Upon an indictment for trading with a negro, with a ticket from his master or person in whose charge he was, contrary to the act of the Legislature in such case provided. Verdict: Guilty. Motion for a new trial.
“On the trial of this ease at Georgetown, it appeared that the defendant kept a small retail store in the neighborhood, and that the prosecutor’s negro had been seen carrying corn to this store, and delivering it to a clerk, who had the care of the store.
“The Attorney-General then contended that the evidence had brought the defendant clearly within the meaning of the act, which, declares ‘that if any shopkeeper, trader, or other person, shall at any time after the passing of the act, by himself or any other person, directly or indirectly, buy or purchase from any slave in this state any corn, rice, peas, or other grain, bacon, flour, tobacco, cotton, indigo, blades, or any other articles whatsoever, or shall deal, trade or traffic with any slave whatever, not having a ticket or permit so to deal, trade or traffic, or to sell any such article, from the master or owner of such slave, or such other person as may have the care and management of such slave, every such person, shopkeeper and trader shall, for every such offense, forfeit a sum not exceéding two hundred dollars, to be recovered by bill, plaint or indictment, one half to the informer, and the other moiety to the state, in any court of competent jurisdiction in the same.
“The Attorney-General then argued, that, although the evidence had not proved that the defendant himself had received the corn, yet it was delivered to his clerk or storekeeper, who was defendant’s agent, and therefore it was presumable he had defendant’s orders for it, and consequently that he was chargeable under this indictment.”

Then the arguments upon the other side are given.

“The presiding judge (Waites) told the jury that he thought the evidence not sufficiently strong to convict the defendant, without some knowledge of the fact had been brought home to him, or some general order or direction had been proved to have been given to his clerk for that purpose.”

The verdict was guilty, and the per curiam is as follows:

“There ought to be a new trial in this case, as there is no knowledge of this fact brought home to the defendant, nor any general directions proved against him; and, although the prosecution might be maintained against the clerk who received the corn, yet there is no proof to charge the defendant, as was very properly laid down by the presiding judge on the trial.”

Another ease that has been referred to and commented upon somewhat by my associate is that of Barnes v. State, 19 Conn., 398. I again call attention to that case, because it is a case that seems to be cited in the text books generally and a case which seems to have received the approval of law writers and of courts, and especially because it has received the express approval of the Supreme Court of the state of Ohio in the case of Anderson v. The State, in the 22d Ohio St., 305; and in this connection I mention a fact to which my attention had not been drawn until my associate began or was in the course of the delivery of the opinion here, namely,, that notwithstanding it is evident that in the state of Massachusetts, ignorance of the quality of the liquor sold — that is to say, as to its alcoholic or intoxicating quality — is no defense, yet it is distinctly held in the state of Massachusetts, as being entirely consistent with that doctrine, that it is a defense to show that the act was done by an agent and in opposition of the will or direction of the employer; so that I think the two doctrines are not at all obnoxious, the one to the other. Now the syllabus of this case has already been read, and I desire to read briefly from the discussion by Ellsworth, Judge, and while it has been indicated that there was a dissenting opinion, that which is approved by the Supreme Court of Ohio is the opinion of the majority, and not the dissenting opinion. I read from Barnes v. State, supra, 405:

“But in another ruling of the court we are constrained to say that there is error. The accused (a statute witness) was offered to testify that the sale was made without his consent, and contrary to positive instructions given to his clerk, by whom the sale was made, if made at all. The accused insists that the word ‘agent’ shall be taken in its common acceptation; that the relation of principal and agent is a matter of fact to be left to the jury, and not an inference of law for the court. If he is right, the testimony should have been received, as conducing to prove there was no agency in fact. The true inquiry, then, is, what does the statute mean by the term ‘agent?’ A just interpretation must be our guide. If construed either way, it will not, we think, exceed the power of the Legislature, though we should be induced, from necessity only, to put upon a common word an uncommon and technical meaning, particularly in the construction of a penal statute. It certainly does not mean that a person is another’s agent in every transaction, because he sustains towards him that general relation. Nor does it mean every one who professes to represent another; nor every one who acts as clerk of another in his shop, or office, or business; nor every one who sells liquor on his employer’s premises, without, and contrary to, his instructions. Obviously courts can attach no other than the usual meaning to the word ‘agent,’ unless unequivocally forced to by it, the clear language or eonstruction of the statute. An. agent is an actual bona fide representative of his principal, in the particular transaction, with his consent or concurrence. What shall be sufficient evidence of it in any ease does not belong to the present inquiry; the relation must be made out by proof, more or less particular, according to the circumstances. We speak only of criminal cases, for we admit that in civil matters, to prevent imposition or fraud, the relation of principal and agent is assumed by courts to exist where it does not, in truth, exist. We are confident this statute has not introduced a new principle of law into our criminal code; but this word ‘agent’ is used in order to guard against a too technical construction of a criminal statute; a caution not really needed in this ease, but very natural with such men as make our laws.
“Besides, it must be remembered, that selling spiritous liquor is, generally, a lawful business; it becomes unlawful only in particular cases. A grocer, a druggist, a physician, may sell it for medicinal purposes, and for other purposes if it is not to be drunk on the premises, and is not sold to common drunkards and persons addicted to habits of intoxication. Within these limits, he may direct his clerk, student or servant to act for him, and forbid him to go further. The sincerity of the order must be judged of by the jury; it may be sincere and proper, and might have been in this case; at any rate, we can not say, that per se it must have been otherwise.
“In Commonwealth v. Nichols, 51 Mass. (10 Metc.), 259, 262, 263, the Supreme Court of Massachusetts, in a prosecution on their statute for selling spirituous liquors, hold this language: ‘We think that a sale by a servant, in the shop of the master, is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without license; that the relation of these parties; the fact that defendant was in possession of the shop, and was the owner of the liquor, and that the sale was made by his servant, furnish strong evidence to authorize and require the jury to find the defendant guilty. But we can not say that no possible ease can arise in which the inference from all these facts may not be rebutted by proofs; unexplained, they would be sufficient to convict the party. So, too, it should be understood, that merely colorable dissent, or a prohibition not to sell, however, publicly or frequently repeated, if not made bona fide, will not avail. But if a sale of liquor is made by the servant, without the knowledge of the master, and really in opposition to his will, and in no way participated in, approved or countenanced by him, and this is clearly shown by the master, he ought to be acquitted.’ ”

The ease contains some further discussion and citation of authorities.

Now the language of the Supreme Court of Ohio in the case of Anderson v. The State, 22 Ohio St., 305, is very much like that used in these cases, and Barnes v. The State, supra, and Commonwealth v. Nichols, 51 Mass. (10 Metc.), 259, are cited with approval by the Supreme Court of Ohio in that case. In Anderson v. State, supra, the statute which the Supreme Court had under consideration used the language “whoever sells by agent or otherwise,” and Chief-Justice White says:

“To bring the person within the operation of the act, the-elements which constitute the offense must attach to him. He must make the sale. It is immaterial whether he does it directly or indirectly. The object in using the phrase, ‘by agent or otherwise’ was to show expressly and unequivocally that the act was intended to embrace every means that the person charged might employ in effecting the illegal sale..
“The rule as to the conclusive effect of the prima facie or apparent authority of an agent ought not to be applied to the enforcement of a criminal statute where such statute is fairly susceptible of a different construction. The accused in such case has the right to rebut the presumption of prima facie agency which the evidence makes against him by showing, if he can, that the criminal act was, in fact, committed without his authority and against his instructions.
“Strictly speaking, the legal relation of principal and agent does not exist in regard to the commission of criminal offenses. All who participate in the commission of such offenses are either principals or accessories. In offenses less than felony all are principals. But when it in fact appears that the person accused in no way participated in the commission of the criminal act, he ought not, by construction, to be made punishable for it.
“Of course, the directions to the clerk or agent forbidding the sale must be in good faith to be of any avail. For, however notorious or formal such directions may be, they can have no effect if they are merely colorable. The fact of agency is to be determined by the real understanding between the principal and agent.”

If the employer may be held accountable criminally for infractions of this law by his employes, notwithstanding the Iona fide instructions and efforts of the former to prevent unlawful sales, then he is so much at the mercy of his employes that if one of them should purposely disregard his instructions and violate the law with a malicious purpose of getting his employer into trouble, that fact could not be shown for the purpose or with the effect of exonerating the employer. I repeat, such results are not in harmony with the spirit of fairness and the humane principles permeating our criminal law.

Now, as I have said, it seems to me that in the case of State v. Kelly, supra, there is no departure by our Supreme Court from well settled principles respecting the question of scienter in prosecutions for violations of statutes respecting the adulterating of food, and that there is no indication of any purpose to depart from, or to qualify the rule laid down by the Supreme Court in the case of Anderson v. The State, supra. And, for my part, upon a mere apprehension of what the Supreme Court might possibly do, I am not willing to decide contrary to what I understand to be at present the express holding of the Supreme Court of Ohio.

Therefore, I dissent.


text:
    BOND OF A RESIDUARY LEGATEE.
    [Circuit Court of Cuyahoga County.]
    Henry A. Tidd, Administrator, v. Meliss Bloch et al.
    Decided, March 15, 1904.

      Bond — Executed by a Legatee for Payment of Debts of Estate — Is a Lien as Against Such Legatee Upon Beal Estate — Conveyed in Trust for the Protection of the Surety — Rights of the Surety May Be Determined in a Suit to Sell the Realty — But Costs and Expenses of Administration Must be Fixed by the Probate Court— Appeal.

    1. The bond of a residuary legatee to pay the debts of the estate is a lien as against the legatee upon realty conveyed in trust for protection of the surety on the bond.
    2. An action to sell such realty has all the essentials of a civil action, and may be brought in either the court of common pleas or the probate court, and in either court in which, the suit may be brought, or on appeal, the rights of the several parties in the subject matter may be determined.
    3. But the probate court having exclusive jurisdiction to settle the accounts of executors and administrators, it is incompetent, where such a suit is brought in the common pleas, for that court to attempt to fix the costs' and expenses of administration.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Appeal by plaintiff.
   Aaron Blocb, late a resident of this county, died intestate, in March, 1897. By his will he made certain bequests, and then bequeathed, after payment of his debts, all the residue of his estate to his widow, Meliss Bloch, the plaintiff in error, and named her as executor of his will. She declined to act as executor, and thereupon the probate court of this county appointed Claude D. Fish administrator with the will annexed of the estate of said deceased. On the 27th day of October, 1897, the probate court, on motion of said Meliss Bloch, removed said administrator, making upon its journal the following entry:

“On this 27th day of October, 1897, the motion for the removal of the administrator filed by Meliss Bloch, widow and legatee under the will of Aaron Bloch, came on to be heard upon the exhibits and testimony, and was argued by counsel; whereupon the court, being fully advised in the premises, does find that the bulk of the assets of said estate consist of the capital stock in the Bloch Billiard Table Company; that by the terms of the last will and testament of the decedent, Meliss Bloch, after the payment of small legacies, is the residuary legatee of all said property; that she is capable of acting in her own right; that the debts of said estate are due to sundry persons in the amount of $670 and upwards; that with the payment or security of the debts, the further administration of the estate, to-wit, the management of said capital stock, can best be subserved by permitting the legatee to manage the same herself; that said administrator has committed no acts of malfeasance or misfeasance in office, but.has been a faithful, diligent and efficient administrator, and was not incompetent, nor did he procure said trust by misrepresentation, fraud or otherwise, and said administrator is in no sense impeached by this order. It is therefore hereby ordered and adjudged that the motion to remove the administrator and terminate the trust, be and is hereby granted, and the administrator is hereby ordered to make his final settlement within ten days, and the further administration of this estate, at the option of said legatee, be conducted by her and in pursuance of the statute authorizing a residuary legatee to give bond to pay debts,which shall be given to the approval of the court within ten days.
“On this 30th day of October, 1897, it appearing to the court by certificate of the Clerk of the Court of Common Pleas that one of the heirs of Aaron Bloch has begun an action in the court of common pleas to contest the will, and it appearing to the court that Meliss Bloch, residuary legatee under said will, should give a sufficient bond to answer for the assets of said estate, if the will of said decedent should be set aside, it is thereupon ordered that she give bond as residuary legatee in the sum of $18,000, on or before November 10th, 1897, conditioned according to law, with sureties to be approved by the court, and the order of October 27th, 1897, in regard to said bond is modified accordingly. And it further appearing to the court that the former administrator has filed his final account and makes claim for compensation, the same is set for hearing November 4th, 1897, at 10 a. m., together with the application of said Meliss Bloch for her appointment as executrix, she having filed her affidavit as to what said estate consists of and the probable value thereof.”

Thereupon the said Meliss Bloch applied to The National Surety Company to become surety upon her bond, ordered by the probate court as hereinbefore set out. And on the 6th day of November, 1897, said surety company did execute a bond as surety for said Meliss Bloch, and the same was filed by her in said probate court, in pursuance of its said order. Said bond reads as follows:

“Enow All Men By These Presents, That I, Meliss Bloch, as principal, and The National Surety Company, a corporation, and George Bloch as sureties, are firmly held and bound unto the state of Ohio, in the penal sum of eighteen thousand ($18,-000) dollars, for the payment of which sum, well and truly to be made to the said state of Ohio, we do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally by these presents. In witness whereof, we hereunto subscribe our names this 6th day of November, A. D. 1897.
“The condition of the above obligation is such, that if the above named Meliss Bloch, sole- residuary legatee and devisee of Aaron Bloch, and sole executrix of the last will and testament of Aaron Bloch, deceased, late of the city of Cleveland, county of Cuyahoga and state of Ohio, shall pay all the debts and legacies of the said Aaron Bloch, deceased, and the just charges of the administration, and shall pay over said estate to the person entitled thereto in case the will of the said Aaron Bloch be at any time set aside, then this obligation shall be void, otherwise the same shall remain in full force and virtue in law.” Here follow the signature of the parties.

Upon the filing of said bond as aforesaid the court entered the following upon its journal:

“Now comes Meliss Bloch, residuary legatee, and presents her bond as such, in the sum of $18,000, with Geo. R. Bloch and the National Surety Company as sureties, to the approval of the court, and it is ordered that said estate be turned over to her. ’ ’

And later said court entered the following upon its journal:

“It appearing to the court that Meliss Bloch, the residuary legatee herein, has filed her bond as such, the order hereinbefore made is found to be complied with” and the personal estate of the deceased was thereupon delivered to her by the administrator hereinbefore named. No letters testamentary were ever issued to the said Meliss Bloch.

At the time of the execution of said bond by the surety company the said Meliss Bloch together with her son, George R. Bloch, entered into an obligation in writing to said surety company, whereby they agreed to pay certain premiums to it for the giving of said bond, and whereby they undertook and agreed to indemnify said company from loss on account of said bond, the language of the obligation in that regard being as follows:

“That we will at all times indemnify and keep indemnified the company and hold and save it harmless from and against any and all demands, liabilities and expenses of whatsoever kind or nature, including counsel and attorney’s fees, which it shall at any time sustain or may incur by reason, or in consequence of having executed said instrument, and that we will pay over, reimburse and make good to the company, its successors and assigns, all sums and amounts of money which the company or its representatives shall pay or cause to be paid or become liable to pay, under its obligations upon said instrument, or as charges and expenses of whatever kind or nature, including counsel and attorney’s fees by reason of the execution thereof, or in eonneetion with any litigation, investigation or other matters connected therewith, such payment to be made to the company as soon as it shall have become liable therefor, whether it shall have paid ont said sum or any part thereof or not.”

At the time of the giving of the foregoing instrument, the said Meliss Bloch and her said son, George R. Bloch, executed and delivered to E. H. Goff a warranty deed of certain real estate which was owned by the said Aaron Bloch at the time of his death. This deed was expressed to be in trust:

“To secure the National Surety Co. of New York for any loss, damages, cost or expense it may in any manner sustain by reason of having signed as surety a certain bond in the sum of $18,000 for the said Meliss Bloch as executrix and residuary legatee under a will of Aaron Bloch, deceased, late of Cuyahoga county, Ohio, which will has been probated and is being administered in the probate court of said county. When the liability of said surety company upon said bond shall have terminated and all premiums due to said company for executing the same shall have been paid, said trustee shall reconvey said lands to said Meliss Bloch, her heirs and assigns.”

As has already been said, under the will of Aaron Bloch Meliss Bloch was given all the property after the payment of certain' legacies and the payment of debts so that the real estate conveyed by this deed belonged to Meliss Bloch, subject to the payment of such debts and legacies and the costs and expenses of administering said estate. Presumably the reason for having George R. Bloch join in the deed was, that there was, at the time of its execution, a suit pending to set aside the will of the testator which, if successful, would give to the son an interest in this property as an heir, but as that suit was unsuccessful, it need not be considered in the determination of this case.

Later, without any further order having been made by said probate court in relation to Meliss Bloch, Henry A. Tidd was appointed by said last named court administrator de bonis non with the will annexed of the estate of said deceased. This appointment was vaild and had the effect to take from Meliss Bloch any right of further administration, if she had any such right. On the 18th day of May, 1899, he filed his petition, as such administrator, in said probate court, setting out that there were debts of said decedent remaining unpaid, and praying for an order authorizing him to sell the real estate of the deceased, described in said petition, it being the same as that described in the trust deed to Goff. In this action Meliss Bloch, the heirs at law of Aaron Bloch, deceased, The National Surety Company, F. H. Goff, trustee, and various parties having or claiming liens upon said real estate, created in the lifetime of said Aaron Bloch, were made parties defendant.

The several defendants answered, setting up their claims, and all consenting to a sale of the premises and that the avails of the sale should be brought into court and the rights of the parties thereto determined. Thereupon sale was ordered, made, reported and confirmed and the court then heard the case as to the rights of the several parties to the avails of such sale and entered its judgment thereon. From this judgment appeal was taken to the court of common pleas, where the' case was tried and judgment had.

The answer of The National Surety Company and F. H. Goff, trustee, sets up a claim for ..payments made and expenses incurred and premiums due under the agreement made with said company by Meliss Bloch and George R. Bloch, and claimed that under the trust deed said company had a lien on the interest of Meliss Bloch in said real estate. The present proceeding is brought by Meliss Bloch to reverse this judgment of the court of common pleas. Complaint is made that the court fixed the amount owing to the surety company under the obligation given to it by Meliss Bloch and George R. Bloch, and finding the same to be a lien on said premises as against Meliss Bloch.

It is argued, first, that as letters testamentary were not issued to Meliss Bloch, there was no authority for the giving of the bond by her on which the surety company was surety. The bond which she undertook to give and which the surety company supposed she was giving is provided for in Section 5997, Revised Statutes, and reads:

“If the executor is residuary legatee, he may, instead of the bond prescribed in the preceding section, give a bond in a sum and with two or more sureties to the satisfaction' of the court, with condition to pay all the debts and legacies of the testator and to pay over said estate to the persons entitled thereto, in case the will at any time be set aside.
“In which case he shall not be required to return an inventory, unless it shall be made to appear to the satisfaction of the probate court that an inventory should be made and returned, whenever it appears that the probable value of said estate is less than $500.
“The executor shall not be liable for legacies paid to legatees other than himself, after twenty-four months from the probating of the will, and before an action to set the same aside has been commenced; the legatee, however, shall be liable to repay the legacy and interest thereon if the will be set aside.”

It will be noticed that the bond given is in exact conformity with this statute, so that, without doubt, it could have been enforced against the surety company had letters testamentary been issued to Meliss Bloch.

As we view this case it is not necessary to determine whether the orders hereinbefore quoted, made by the probate court, constituted her the executor or not. There can be no doubt that the court might have made her such, by proper orders, even though no letters were issued to her. The letters are simply the evidence of her appointment. Just what language it would be necessary to incorporate in an order upon the court’s journal to constitute an appointment, we need not say, but it would seem difficult to use language more definitely declaring that one named as executor in the will should act in that capacity than was used when the court ordered that—

“The further administration of this estate, at the option of said legatee, be conducted by her in pursuance of the statute authorizing a residuary legatee to give bond to pay debts, which shall be given to the approval of the court within ten days,” and then, after a bond in exact conformity with the statute is given by her, and the court uses this language in its order:
“Now comes Meliss Bloch, residuary legatee, and presents her bond * * * to the approval of the court and it is ordered that said estate be turned over to her.”

But whether by this bond the surety company was bound to pay the decedent’s debts or not, it had the written undertaking, as hereinbefore shown, of Meliss Bloch, to indemnify it against any and all demands, liabilities and expenses, including counsel fees which it might sustain or incur by reason of having executed such bond and to pay the premiums for so executing it, and it had in the hands of its trustee, Goff, the deed to secure the performance of this agreement. It claimed to have made payments, to have incurred expenses and to be entitled to premiums on account of having so executed the bond. That being so, it would be entitled to reimbursement, and as against Meliss Bloch, it would have a lien on this real estate, whether the bond could have been enforced against it or not.

Meliss Bloch was the residuary legatee. This real estate, under the will of her husband was hers, provided she paid the debts and legacies and costs and expenses of administration. She agreed, for the purpose of keeping this real estate, that if the surety company would make these payments for her, she would repay them and also pay their expenses and the stated premium. If they did this for her she could not escape liability to them.

It is further complained that the rights of the company as against Meliss Bloch could not lawfully be determined in the proceeding to sell real estate.

Section 6137, Revised Statutes, provides that the executor or administrator, in order to obtain the necessary authority to sell real estate to pay debts, etc., “shall commence a civil action in the probate court or the court of common pleas,” etc.

Section 6142, Revised Statutes, provides that—

“In such action the widow of the deceased, and the heirs, devisees or persons having the next estate of inheritance from the deceased, and all mortgages and other lienholders, whether by judgment or otherwise, of any of the lands sought to be sold, and all trustees holding the legal title thereto or to any part thereof * * * shall be made parties.”

Section 6145, Revised Statutes, provides that the court in which such action is pending, shall have full power to determine the equities between the parties and to order a distribution of the avails of the sale according to the equities and priority of lien as found by the court.

This action, then, has all the essentials of a civil action, and may be brought either in the court of common pleas or in the probate court, and in whichever court brought, the rights of the several parties in the subject-matter of the action may be determined by scuh court. If brought in the probate court it may be appealed to the court of common pleas, as was done in this case, and the appellate court has the same jurisdiction as it would have had if the case had been originally brought in that court. Revised Statutes, Section 6407.

T. H. Johnson, for plaintiff.

Kline, Carr, Tolles & Goff, for defendant.

We hold, therefore, that the common pleas court had jurisdiction to determine the rights of the surety company as against Meliss Bloch, and its judgment in that regard is affirmed.

It is further complained that the court fixed by its order what credits should be allowed to the administrator and what unsecured claims should be paid by him.

Section 524, Revised Statutes, provides that the probate court shall have exclusive jurisdiction to settle the accounts of executors and administrators. Section 6407, Revised Statutes, provides for appeals to the court of common pleas “from any order, decision or judgment of the probate court in settling the accounts of an executor, administrator,” etc.

This appeal is distinct from the appeal provided for in the same section in proceeding for the sale of real estate. It follows, therefore, that the court of common pleas exceeded its jurisdiction in determining what credits should be allowed or disallowed to the administrator and what unsecured claims should be paid by him.

The judgment of the court of common pleas is to be so modified as to order the administrator, out of ’the avails of said sale, to pay to said surety company the amount found due to it from said Meliss Bloch, or so much thereof as shall not be required for the payment of debts of the deceased, and the costs and expenses of administration as the same shall be fixed by the probate court upon the settlement of the accounts of said administration in that court.