author: Summers, J.

text:
    (Second Circuit — Miami Co., O., Circuit Court,
    Oct. Term, 1896.)
    Before Shearer, Summers and Wilson, JJ.
    PEARSON ET AL v. STEPHENS.

      Feebill for officers Miami County unconstitutional.—
    The act, passed April 21, 1896, (92 Ohio Laws, 567), entitled: “An act relating to the duties and compensation of certain county officers and their assistants in Miami county,” is an act of a general nature, limited in its operation to Miami county, and is therefore void under Art. 2, section 26, which requires all laws of a general nature to have a uniform operation throughout the state.
    Error to the Court of Common Pleas of Miami county.
   Summers, J.

The act referred to in the syllabus provides that the compensation of the auditor, treasurer, probate judge, sheriff, clerk of the court of common pleas, recorder, prosecuting attorney, infirmary directors and coroner of Miami county, and of their assistants, shall be by annual salary. It provides for the collection of such fees, etc,, as are now or may hereafter be allowed by law for the performance of official duty by any of the officers mentioned, and the payment of them to the county treasurer, and the keeping of accurate accounts thereof in books to be provided for that purpose. It provides that if any of the officers mentioned wilfully fails to perform any duty required of him by the act, or knowingly violates any provision thereof,he shall be fined not exceeding five thousand dollars, cr be imprisoned in the penitentiary not less than one year nor more than five years, or both.

The defendant in error, a tax-payer of the county, commenced this action, in the court of common pleas to enjoin the auditor and county commissioners from expending any of the funds of the county in the purchase of the books required to be kept by the act, on the ground that the act is unconstitutional.

The law is claimed to be unconstitutional, because:

1. It is a law of a general nature, and does not have a uniform operation throughout the state.

2. It provides compensation for said officers different from that provided for similar officers in the other counties of the state.

3. It imposes duties upon said officers not imposed upon similar officers in the other counties of the state.

4. It creates a new crime, punishable by fine and imprisonment, which applies only to the officers of Miami county.

The defendants filed a general demurrer which was overruled, and not desiring to plead further, judgment was rendered against them,and they prosecute error to this court.

The question for determination is the constitutionality of this act.

Art. 2, section 26, provides, that, “All laws of a general nature shall have a uniform operation throughout the state, ’’

The operation of the act is limited by its terms to Miami county, and its validity, therefore, depends upon whether it is a local law, or a law of a general nature. Counsel for plaintiffs in error claim that the supreme court has determined that a law relating to the compensation of the county officers of a particular county, is of a local, and not of a general, nature.

A law similar to this was upheld in State v. The Judges, 21 Ohio St. 1, and the decision in that case is decisive of this, so far as this court is concerned, unless the act under consideration there is distinguishable from the one involved here, or subsequent decisions of that court require a different holding. Of the act under consideration in that case, White, J., says, (page 10,) “The act was intended to provide for a condition of things in its nature local to Hamilton county/’

The compensation of the county officers in the eighty-eight-counties of this state was provided for by general laws, applying to all the counties, until 1870, and still is, excepting as to several attempted to be withdrawn under classification.

No reason is apparent from the provisions of this act, or assigned in the argument of counsel, for making an exception of Miami county. So that if whether a law is of a general nature is to be determined, not by general rules, but by the consideration of each case as it arises, as is said by McIlvaine, J., in the State v. Powers, 38 Ohio St. 54, 63, where this question was involved, it may well be claimed that State v. The Judges, supra, is not decisive of this case.

The proper construction of section 26, article 2, has been the subject of so frequent and such able discussion by our supreme court that any attempt to do more than try to make proper application of the reasoning of the judges .of that court would be presumptious.

In Kelley v. The State, 6 Ohio St. 271, an act conferring special jurisdiction on the court of common pleas in certain counties was held to be in conflict with this section, and Scott, J., says, (page 272):

“The constitution contains in general terms' the express and significant provision that ‘all laws of a general nature shall have a uniform operation throughout the state.’ Const., art. 2, sec. 26.
“The 4th article provides, in the 3rd section, that, ‘courts of common pleas shall be held in every county;’ and in the 4th section, that ‘The jurisdiction of the courts of common pleas and of the judges thereof shall be fixed by law.’
“Section 8 prescribes the extent of the jurisdiction of the probate court in the following language: ‘The probate court shall have jurisdiction in probate and testamentary matters,’ etc., etc., ‘and such other jurisdiction in any county or counties as may be provided by law.’
“We have, then, in the constitution, first, a general, unqualified, and positive prohibition or limitation of legislative power, forbidding the giving of a partial operation to any law of a general nature — or in its own affirmative terms requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely or define with precision, it may be said that the character of a law, as general or local, depends on the character of i,ts subject-matter. If that be of a general nature, existing throughout the state, in every county, a subject-matter in which all the citizens have a common interest — if it be a court organized under the constitution and laws, within and for every county of the state, and possessing a legitimate jurisdiction over every citizen, then the laws which relate to and regulate it are laws of a general nature, and by virtue of the prohibition referred to, must have a uniform operation throughout the state. But the courts of common pleas in Ohio are an organization of a general nature, for the organic law of the state provides for their existence in every county; they are an important agency in the administration of justice throughout the state, and are by law clothed with a jurisdiction over every citizen. The laws then which relate to and regulate their organization and jurisdiction are laws of a general nature, and are imperatively required to have a uniform operation throughout the state. They can not be withdrawn from the operation of the plain constitutional prohibition unless by an exception contained in the same instrument. And that exemption, to be effectual, should be as explicit as the prohibition itself.
“It must be found in express terms, or, at least, arise by implication fair and necessary. But it is not claimed that the constitution contains any provision which in express terms excepts laws prescribing the jurisdiction of the courts of common pleas from the requirement of a uniform operation.
“As to the extent of this jurisdiction, its only provision is “the jurisdiction of the courts of common pleas and of the judges thereof shall be fixed by law.’ Certainly there is no exemption from the rule in this language; on the contrary, the jurisdiction is spoken of as one and therefore uniform as to be “fixed,’’and therefore not varying with every county line. But it is enough to say that the language does not, even remotely, imply any exception from the general rule.’’

The rule here laid down does not appear difficult of application. The difficulty is, in the absence of any rule, to c,istinguisb the character of the subject matter of the particular law under consideration from the character of the subject matter of some law held, under stress of local conditions, not to be of a general nature.

In McGill v. The State, 34 Ohio St., 228, the discussion of this subject is especially full and able, and the dissenting opinion of Okey, J., seems to be supported by the better reason.

In that case Boynton, J., says, this section is taken from the constitution of California, and that California borrowed it from the bill of rights of the constitution of Iowa, and then, after quoting from several decisions of the supreme ■court of California, says, (240.)

“This holding (of the California supreme court) was founded on the reasoning, that the provision of the constitution of that state, having been taken from the constitution of Iowa, and the term being clearly defined by the latter clause of the Iowa section, the convention that borrowed it must be presumed to have borrowed its meaning, and designed that it should establish the same rule of legislative action, which, by express definition, it is made to establish in the constitution from which it was taken.”

The rule of construction on which this -holding is based does not apply in the construction of constitutions. In sucii case the question is not, what did the convention which framed the constitution intend, but what did the people who adopted the constitution understand or intend the provision to mean,and there is no presumption that they either knew or intended to adopt the meaning given it elsewhere.

Endlich on the Interpretation of Statutes, sec. 530, note. Thurman, J., in Exchange Bank of Columbus v. Hines, 3 Ohio St., 1, 46, 47; Cooley’s Const. Lim. (6th Ed.) page 80.

Art. 1, Sec. II. Declaration of Rights, of the constitution of California, 1849, is as follows: “All laws of ageneral nature shall have a uniform operation.”

Art. 1, sec. 6. Bill of Rights of the constitution of Iowa, 1846, is as follows:

“All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. ”

Art. 3, sec. 30. Legislative department, of the constitution of Iowa, 1846, is as follows:

“The general assembly shall not pass local or special laws in the following cases:
“In all cases above enumerated, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.”'

That the latter clause of sec, 6, art. 1, of the Iowa Bill of Rights defines the preceding clause, “All laws of a general nature shall have a uniform operation,” is doubtful. This latter clause of sec. 6, art. 1, of the Iowa Bill of Rights is sec. 23, art. 1, of the Indiana Bill of Rights,' of the constitution of 1851, and the preceding clause is not in the Indiana Bill of Rights. And if the latter clause of sec. 6, art. 1, of the Iowa Bill of Rights does not define the preceding clause, it is still more doubtful that the adoption by California of the preceding clause carried with it the latter clause also. But be this as it may, there can be little doubt that the construction given to sec. n, of the Declaration of Rights of California, cannot be applied to sec. 26, art. 2, of our constitution'.

The California cases, discussed by Boynton, J., in McGill v. The State, 34 Ohio St., 228, 241-242, are to the effect that uniform operation means an operation which is equal in its effect upon all persons or things upon which the law is designed to operate at all; and that “the nature of a given statute, as being general or special, must depend, in a measure, upon the legislative purpose discernable in its enactment.” The provision of our constitution is: “All laws of a general nature shall have a uniform operation throughout the state.” The character of the subject matter, not the legislature, determines what operation the law must have; if that is of a general nature,the law must have a uniform operation throughout the state and it is not sufficient that it has “an operation which is equal in its effect upon all persons or things upon which the law is designed to operate at all,” if it is designed to operate upon persons or things in only part of the state.

That the provision of the California constitution as construed by its supreme court'was not comprehensive enough to subserve the purpose of its adoption is evidenced,perhaps, by tbs fact that its constitution of 1879 contains the following provisions relating to this matter:

“Art. 4, sec. 25, The legislature shall not pass local or special laws in any of the following cases enumerated, that is to say:
“First. Regulating the jurisdiction and duties of Justices of the Peace, Police Judges, and of Constables.
“Second. For the punishment of crimes and misdemeanors.
“Third. Regulating the practice of courts of justice.
“Fourth. Providing for changing the venue in civil and criminal actions.
“Fifth. Granting divorces.
“Sixth. Changing the names of persons or places.
“Seventh. Authorizing the laying out,opening,altering, maintaining, or vacating roads, highways, streets, alleys, town plots, parks, cemeteries, graveyards, or public grounds not owned by the State.
“Eighth. Summoning and impaneling grand and petit •juries, and providing for .their compensation.
“Ninth. Regulating county and township business, or the election of county or township officers.
“Tenth. For the assessment or collection of taxes.
“Eleventh. Providing for conducting elections,or designating the places of voting, except on the organization of new counties.
“Twelfth. Affecting estates of deceased persons, minors or other persons under legal disabilities.
“Thirteenth. Extending the time for the collection of taxes.
“Fourteenth. Giving effect to invalid deeds, wills or other instruments.
“Fifteenth. Refunding money paid into the State treasury.
“Sixteenth. Releasing or extinguishing, in whole or in part, the indebtedness, liability, or obligation of any corporation or person to this State or to any municipal corporation therein.
“Seventeenth. Declaring any person of age,or authorizing any minor to sell, lease, or encumber his or her property.
“Eighteenth. Legalizing, except as against the State, unauthorized or invalid acts of any officer.
“Nineteenth. Granting to any corporation,association, or individual, any special or exclusive right, privilege or immunity.
“Twentieth. Exempting property from taxation.
“Twenty-first. Changing county seat.
“Twenty-second. Restoring to citizenship persons convicted of infamous crimes.
“Twenty-third. Regulating the rate of interest on money.
“Twenty-fourth. Authorizing the creation, extension,or impairing of liens.
“Twenty-fifth. Chartering or licensing ferries, bridges or roads.
“Twenty-sixth. Remitting fines,penalties,or forfeitures.
“Twenty-seventh. Providing for the management of common schools.
“Twenty eighth. Creating offices or prescribing the powers and duties of officers in counties, cities, cities and counties, township, election or school districts.
‘ ‘ Twenty ninth. Affecting the fees or salary of any officer.
“Thirtieth. Changing the law of descent or succession!
“Thirty-first. Authorizing the adoption or legitimation of children.
“Thirty-second. For limitation of civil or criminal actions.
“Thirty-third. In all other cases where a general law can be made applicable.

Attention is directed to the twenty-eighth, twenty-ninth and thirty-third items.

The constitutions of all the western and southern states, as well as some of the eastern states, contain lists of similar restrictions, and Mr. Bryce well says, (The American Commonwealth, 470,) “the fullness and the minuteness of these categories of restrictions show that the mischiefs arising from improvident or corrupt special legislation must have become alarming. ’ ’

And sec. 53, of art. 3, of the Missouri constitution of 1875, not only inhibits local or special law's in a very long list of cases,and directs that in all other cases where a general law can be made applicable no local or special law shall be enacted, but also provides: “And whether a general law could have been made applicable in any case, is hereby declared a judicial question, and as such shall be judicially determined without ^ regard to any legislative assertion on that subject. ”

Sec. 26 of art. 2, of our constitution was intended to prevent the mischiefs arising from special legislation; and while the subject matter of some of the restrictions comprised in these lists is not of a general nature, an unrestricted construction of our provision would reach the same end. This provision of our constitution is found in the ar- . tide which relates to the legislative power, and not in the Bill of Rights, as are the Iowa and California provisions. It is in the article relating to the legislative power that these restrictions are found in the constitutions of the states previously indicated.

In State v. Bargus, 53 Ohio St., 94, 107, Shauck, J., says:

‘In volume eighteen, Laws of Ohio, published in 1820, the acts of the general assembly were published under the titles of “Acts of a General Nature” and “Acts of a Local Nature,” and these titles-were used consistently during the thirty years following that date and preceding the adoption of the present constitution. It can hardly'.be doubted that in this manner these terms became familiar to the people, and their meanings were determined by such familiar usage. The laws published as “Acts of a General Nature” were not always of uniform operation throughout the slate, for that was not required by any provision of the constitution then in force. In the adoption of sec. 26, art. 2, of the present constitution, the phrase “Laws of a General Nature” was employed in the sense then familiar to designate the acts, which, as experience had demonstrated, should have a uniform operation throughout the state.”

This being true, it was apparently not only unnecessary to particularize, but much better to adopt the general restriction that legislation with respect to general subjects must be by general laws having a uniform operation throughout the state.

The constitution of 1802 contained no such provision. This provision is a restriction upon the legislative power,and having been incorporated in the present constitution to prevent abuses arising under the former,should receive a'broad and not a narrow construction.

The constitution did not create the counties, but recognized them as existing sub-divisions of the state. Sec. 1, art. 10, is as follows: “The general assembly shall provide, by law, for the election of such county and township officers as may be necessary.” And sec. 20 of art. 2, provides: “The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers.”

Sec. 8, art. 4. After specifying the jurisdiction of the probate court adds — -“and such other jurisdiction, in any county or counties as may be provided by law. ’ ’ Ranney, J., in Giesy v. C., W. & Z. R. R. Co. 4 Ohio St., 308, 321, says: “The words ‘in any county or counties,’ were probably used rather as enabling than restrictive language, and were designed to permit the general assembly notwithstanding the provision of sec. 26 of art. 2, requiring “all laws of a general nature to have a uniform operation throughout the state” — in its discretion, to confer upon the probate court more extended powers in some counties than in others.’ This was approved in Railroad Co. v. O’Harra, 48 Ohio St., 343, 354. Sec. 1, art. 10, contains no such enabling words, and the reasoning upon which it was held, in Kelley v. The State, 6 Ohio St. 269, that a law relating to the jurisdiction of the court of common pleas was one of a general nature, leads to the same conclusion as to a law creating county offices, and if the law creating the offices must be general and of uniform operation throughout the state, then a law prescribing the duties or fixing the compensation of the incumbents is one of a general nature, because such is the character of its subject matter, not inherently so, but made so by the constitutional provision, sec. 1, art. 10.

The constitution of 1851, art. 4, sec. 16, provides for the election of a clerk in each county. That the legislature regarded the subject matter as one of a general nature is evidenced by the fact that from the beginning down to 1870 all laws creating such offices, prescribing the duties and fixing the compensation of the officers, have been general and of uniform operation throughout the state.

Of those fixing fees or compensation the following are referred to: Chase’s Statutes, page 1770; Curwen, vol. 1, page 457; Swan’s Statutes, page 387; Swan & Sayler, 370. And until the passage of this Miami county law, there is nothing to indicate a change of this legislative view.

Such laws as those considered in State v. The Judges, 21 Ohio St., 1, (Hamilton county fee bill), McGill v. State, 34 Ohio St., 228, (Cuyahoga county jury law), Hart v. Murray, 48 Ohio St., 605, (Cuyahoga county justice of the peace act), State v. Brennan, 49 Ohio St., 33, (Hamilton county stationery keeper), do not indicate any change of view, but only serve to show more emphatically than the former laws that such was the legislative view, for, while eách was designed to meet a local want, each was attempted to be by classification-disguised in the form of a general law.

Whether or not any of these laws could have been upheld by reason of the classification or attempted classification of the counties it is not necessary to consider.

The argument in State v. The Judges, 21 Ohio St., 1, grounded upon the supposed results of requiring a law relating to the compensation of county officers to have a uniform operation, could have been urged with more force in Hixson v. Burson, 54 Ohio St., 243, and Grove v. Leidy, 9 O. C. C. 272; for in some parts of the state materials for the construction of improved or macadamized roads are abundant, while in other parts they are wholly absent, and the population or necessity may be such as to make practicable at one place what would be folly at another. Moreover it is not necessary that the legislature should fix the fees or salary, or graduate them by population. In Cricket et al. v. The State, 18 Ohio St., 9, 21, sec. 20, art. 2, was under consideration, and it was held:

“The duty enjoined by this section in regard to fixing the compensation of officers does not require the general assembly to fix the sum or amount which each officer is to receive, but only requires that it shall prescribe or ‘fix' the rule by which such compensation is to be determined.”

If the law is one of general nature; then as is well said by Scott, J., in Kelley v. The State, 6 Ohio St., 270, 272:

“It cannot be withdrawn from the operation of the plain constitutional prohibition, unless by an exemption contained in the same instrument. And that exemption, to be effectual should be as explicit as the prohibition itself.”

In Hixson v. Burson, 54 Ohio St., 243, sec. 26, art. 2, was again under consideration, and Burket, J., in a very able opinion, reconsiders the whole matter. The rule laid down in Kelley v. The State, 6 Ohio St., 270, is approved and in the opinion are these significant words:

J. A. McMahon and Long & Kyle^tox Plaintiffs in error.

A. F. JBroomhall, for Defendant in error.

“This conclusion has been reached after mature deliberation, and we might say with regret, as it involves the overruling of the second syllabus of the case of State ex rel. Hibbs v. The Commissioners of Franklin county, 35 Ohio St., 458. With the highest regard for the eminent jurist who wrote the opinion in that case, and the able judges who then composed the court, we tried to reconcile that case with the provisions of the constitution, but were unable to do so, and we therefore reluctantly overruled the second syllabus.”

In this matter stare decisis finds little, if any, room; while to sustain this law is not merely to open the door to, but to invite, and will be followed by, the enactment of a horde of so-called local laws creating different county offices-in each of the eighty-eight counties of the state and prescribing different duties for the same office, as well as fixing different salaries for the performance of similar duties. To uphold this law is to confess that the constitution has not invested the courts with power to prevent legislation relating to the counties of a character .which it is admitted is the bane of our cities.

Until the present time the general assembly has been able to prescribe the fees of county officers by general laws, excepting in the cases already noticed where local conditions were supposed to call for special legislation. No reason is apparent for the exception attempted to be made by this statute, and if it is no longer practicable to fix the compensation of county officers by general laws, it still is practicable by general laws to prescribe the rule.

The judgment will, therefore, be affirmed.


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court,
    April Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    J. W. SWARTZ v. THE STATE OF OHIO.

      Bigamy — Marriage defined—

    1. To constitute marriage, though it is not essential that the statutory forms be complied with, it is essential when such forms are omitted, that each of the parties contract with thé other that they will, from the making of such contract, sustain to each other the relation of husband and wife so long as they both shall live, and this must be followed by cohabitation.

      Same Adultery—
    2. Adultery, however long continued, does not constitute marriage. Common Latv Marriage in Ohio—
    3. Though the relations between persons of opposite sexes may be illicit in their inception, yet this does not preclude the subsequent making of a valid marriage contract between them, without the statutory forms.

      Evidence required to shoto bigamy—
    4. To establish the former marriage of one on trial for bigamy, where it is not claimed that such former marriage was in conformity with the statute, the same circumstances are admissible in evidence as are admissible to establish the same kind of a marriage in á civil case, and such circumstances may be sufficient to exclude ell reasonable doubt.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

This case comes here upon a petition in error to reverse the judgment of the court of common pleas.

Swartz was indicted by the grand jury of this county for the crime of bigamy, the charge being that he, being at the time the husband of Henrietta McConville Swartz, was on the 26th day of November, 1895, married to Kittie B. Stoner, in this county. The indictment was under section 3081, of the Revised Statutes, which reads: “Whoever, having a husband or a wife, marries another, is guilty of bigamy, ”

That the marriage of Kittie B, Stoner was celebrated at the time charged, is admitted, and upon the trial before a jury in the court of common pleas, Swartz was found guilty of the crime charged in the indictment, the only question being whether, at the time of the last marriage, the woman Henrietta was his wife. There was no claim that he had ever been divorced from her, and she was living at the date of the marriage with Kitty, so that the real issue, the only issue, was whether Swartz and Henrietta ever sustained to each other the relation of husband and wife.

The evidence in the case clearly shows that for between nine and ten years the plaintiff in error and Henrietta Mc-Conville Swartz lived and «cohabited as though they were husband and wife; that they were recognized by all their acquaintances, recognized in the church, and in the stores where they traded, as husband and wife; that they were the parents of two children, both of whom took the name of Swartz, and were brought up and treated as the children of married persons, and by these people as their parents — their lawful parents. If there was ever a case where, in a criminal proceeding, it would do to say that the marriage was established by reputation and cohabitation, certainly this is that case, provided there is not a difficulty to which I call attention, and that is this: That it is said and fairly shown that this relation between Swartz and Henrietta, when it began, was an illicit relation, and recognized by them as such. They made visits to several places together; they treated one another as husband an wife, and yet under circumstances that show they did not then understand that they had made the contract by which they were to be husband and wife; but before many months after their relations began, they became members of one household, and substantially for all the years afterward, which was something like nine years, they were members of one household, to all appearances sustaining to each other the relation of husband and wife.

Our attention is called to authorities to the effect that where the relations between a man and woman at the beginning are illicit, they must be presumed to have continued to be thus until the contrary is shown; but here every action of these people for nine years was consistent with their being husband and wife, and inconsistent with any other relation except upon the theory that they were voluntary adulterers during all this time; and that, being such adulterers, the children born in this adulterous relation, were treated by them both as their legitimate children. The son, without objection on the part of the father, was christened with one of the father’s Christian names; the daughter was christened with the name of his sister. Swartz effected insurance upon his life for the benefit of these two children. He registered twice at least as a voter, specifying that he was a married man, spoke of Henrietta uniformly as his wife, and never, from about the time that she first became pregnant, up to about the time of his last marriage, does there seem to have been anything in his conduct inconsistent with his having entered into the marriage relation with Henrietta. The authorities are numerous to the effect that in a civil action, a marriage may be shown by reputation and continued cohabitation; and we think the court was right in saying to the jury that such relations might be shown in a criminal case, by the same kind of evidence,cautioning them,as he carefully did, that before they could find the accused guilty, the evidence must be such as to exclude all reasonable doubt, Now,that there maybe the relation of husband and wife subsisting between parties where there has been no ceremony of marriage, is absolutely settled, not only in very many other states., but in this state as well; see the case of Cobb v. The R. R. Co., 35 Ohio St. 94. Nobody makes a question here that Swartz may not have been the husband of Henrietta, though no marriage ceremony such as is ordinarily recognized- — -I mean, that which is provided for by statute, has taken place. Among the authorities that have been examined is the case of Mary Eliza Hines and others v. Kate McDermitt et al., 91 N. Y., 451. In the opinion in that case is a very elaborate discussion of the evidence necessary to establish the marriage relation. It has citations of so many authorities, both in America and England, that it is an instructive case in this matter. It is true that was a civil action,but it demonstrates the evidence upon which the marriage relation may be found. And remembering our criminal statute, that if one has a wife and marries another, he thereby commits the crime of bigamy, it seems to us, if the evidence establishes beyond a reasonable doubt to the jury the contract which is necessary in order to constitute a marriage where there has been no ceremony of marriage as that is ordinarily understood, then • the parties are to each other husband and wife. In 91 N. Y., the case to which I have referred, the relation between the parties commenced in adultery. They did not, at the outset of their cohabitation, take one another for husband and wife. They went from England to Paris in 1871. While they lived in England prior to their journey, they were living in adultery. The journey was an adulterous journey, and there was no evidence, except that of reputation and continued cohabitation, that after they reached Paris, either in Paris or elsewhere after they left England, there was an agreement of marriage between them; but the court inferred that they promised each uther, while in Paris, that they would be to each other as husband and wife.

In the case of Andrew J. Yates against Sam Houston, 3 Texas, 433, a question was whether one Tabitha Harris was the wife of one John Jiams. Their cohabitation began in adultery when Jiams had a wife living. No proof, except her long absence from home and friends, was offered to show that this former wife was not living at the time of the trial; yet the court held- that the presumption was that she was dead, and that the continued cohabitation of Jiams and Tabitha, after such presumption of the death of the former wife, should be held to establish a marriage between them. Other authorities to the same effect are found as follows: 14 Encyclopedia of Law, 527 and 529; 52 Mich. 464 and 467. In the case of The State of Minnesota against Elmer Worthington, 23 Minn. 528, this language is used in the syllabus: “The presumption that a cohabitation,illicit in its inception, remains such in character during its continuance, is one of fact for the jury,and not one of law. ” In the same case, at page 535, the court, in its'opinion, makes the following quotation from Bishop’s work on Marriage and Divorce:

“Though the intercourse between the parents may have been admittedly wrongful and illicit in its inception, because of some illegal impediment to marriage, yet after its removal, slight circumstances may, and ought, in a doubtful case, to be pressed into the service for showing that the parties have converted what was at first unlawful, into a subsequent lawful union.”

The court instructed the jury carefully as to what was necessary in order to justify them in finding that the marriagerelation existed between Swartz and Henrietta.

Special objection was made to the language of the court when he stated that the contract so made between the parties would be as valid in Ohio as though a chime of bells played a wedding march and a half dozed bishops and clergymen assisted at the celebration before a thousand people; that neither a bishop or other clergymen, nor a civil magistrate, need assist people in contracting marriage,

The court had preceded the statement complained of by defining a common law marriage as “A simple agreement between one man and one woman, who may lawfully so contract, that they will take one another as husband and wife thenceforth, and that they will sustain this relation thenceforth so long as they both shall live, with the mutual understanding that neither one nor both can' rescind the contract' or destory the relation followed by cohabitation; when they do this they are married.” Then follows the sentence already mentioned: “And their marriage is just and valid in Ohio as though a chime of bells played a wedding march, and a half dozen bishops and clergymen assisted at the celebration, before a thousand people.”

Heisley & Seltzer, for Plaintiff in error.

T. L. Strimple, for Defendant in error.

We think there was no error in this or any other portion of the charge, to the prejudice of the plaintiff, in error. The definition of the common law marriage was a correct statement in the law in Ohio. The jury were carefully instructed that unless they found beyond a reasonable doubt that the relation of husband and wife existed between Swartz and Henrietta, they could not find him guilty without direct evidence of the contract having been entered into, and that unless they found from all the evidence that such contract had actually been entered into between them, they must find him not guilty. We think that under the evidence the jury might well find the defendant guilty of bigamy.

We affirm the judgment of the court below.


author: Price, J. Day, J.,

text:
    (Third Circuit — Seneca Co., O., Circuit Court,
    May Term, 1896.)
    Before Seney, Day and Price, JJ.
    THE STATE OF OHIO v. LEVI MARTIN MILLER.

      Warrant giving initials of first and middle name'fpnly, not void—

    1. A warrant for the arrest of an accused party, in all other respects legal, but describing hind by the initials of his first and middle name, 'is not void for-that reason, and the same is a sufficient process to justify the officer in making the arrest ;-and this is so, if the affidavit upon which the warrant is issued, contains a similar description of the accused,

      Arrest under such warrant — Strategy of officer to effect arrest— Heading warrant after arrest—
    2. Where the officer holding such warrant, finds the accused armed with deadly weapons, ready to resist arrest by taking his life, such officer has the right, without first producing the warrant, to disarm the accused, and to use necessary strategy and deception for that purpose, in order to make the arrest without peril to his own life; and it is sufficient in such case, to produce and read the warrant, if requested, after the accused is so taken into custody.

      Killing officer on attempt to arrest — When murder in first degree—
    3. Where the accused, knowing that the officer is on his way to arrest him, arms and prepares himself to resist arrest, even to the taking of tfie officer’s life, and he purposely kills such officer in his attempt to disarm and arrest him, such killing is murder in the first degree.
    (Note — The judgment in this case was affirmed by the Supreme Court, December 19, 1896. See 36 W. L. B. 358.)
    Error to the Court of Common Pleas of Seneca county.
   Price, J.

At the October Term of the court of common pleas of Seneca county, held in the year 1895, the plaintiff in error was indicted by the grand jury of the county for the murder of one August Schultz, on the 23rd day of October, 1895, in said county.

In this indictment the accused, the plaintiff in error, wa3 described by name, as follows: Leonard J. Miller, alias Levi J. Miller, alias Leon J. Martin, late of said county.

. On or about the 1st day of November of that year the accused was arraigned in open court, and plead not guilty to said indictment,' and the court fixed the 16th day of December, 1895,. a|3 the time of the trial on the issues thus joined, and trial was had, which resulted in a verdict of guilty as charged in the indictment.

The defendant filed a motion for a new trial, which- contained the following grounds, in substance,, to-wit:

1. The verdict is not sustained by sufficient evidence, and is contrary to law.

2. That the court erred in admitting evidence produced by the State, and also in excluding evidence offered by the defendant.

3. That the court erred in the charge to the jury.

4. That the court erred in refusing to instruct the jury as requested by the defendant.

5. That the instructions given ■ were contradictory and misleading.

The court overruled the motion and passed sentence on the prisoner, to suffer the penalty attached to murder in the first degree — death.

We are asked to reverse this judgment, set aside the verdict and grant a new trial, on the grounds above stated, and we have a voluminous bill of exceptions containing all the evidence, rulings of the court on the trial, and its charge to the jury and the requests made by the accused for certain instructions to the jury in his behalf. We have carefully gone over the entire record, and have considered all questions raised in the record and by argument of counsel, and it is now our duty to pass upon and determine them in accordance with our bpst judgment and knowledge of the law.

It is disclosed that on the 28th day of October, last, Ezra Smith appeared before Mayor Rex, of the'city of Tiffin, and made two affidavits against the plaintiff in error, but described therein by name as “L. J. Martin.” One affidavit charged that “L. J. Martin”- was, on that day, guilty of carrying concealed weapons. The other affidavit charged that, on that day, ‘‘L. J. Martin” unlawfully assaulted said Ezra Smith, with the intent, and with deliberate and premeditated malice, to kill him, the said Ezra Smith. These offenses were alleged to have been committed in Seneca county, Ohio, at the times referred to, and the affidavits were, in form and substance, sufficient to charge the two offenses attempted to be charged, if they were not invalid by reason of the omission of the first, or Christian name of the accused, and the description of him by .initials merely, as “L. J. Martin.”

The warrants issued on these affidavits contained the substance at least of the charges made in the affidavits, and commanded the marshal of the city of Tiffin to take into his custody the said “L. J. Martin,” and safely keep him and have his body forthwith before him, the mayor, to answer said charge. Such is the tenor and effect of these warrants, which were regular in form in all respects to constitute them valid warrants for the arrest of the accused, unless invalidated by the want of his first name by merely describing him by initial letters, “L. J.”

These warrants were delivered to August Schultz, the deceased, who was then marshal of the city of Tiffin, for execution, and he took to his assistance officer Sweeney of the same city, and they proceeded to the home of the accused in the evening for the purpose of making the arrest. In attempting to disarm the accused in his house, and take his gun from him, he drew a revolver, fired it so that one ball entered the vital parts of the marshal and caused his death in a short time thereafter.

On the trial of this cause in the court below, as well as here, counsel-for the accused claim that the affidavits and the warrants issued thereon were invalid, for the reason we have stated; that no person is named therein as being guilty of any offense — that “L. J.- Martin” named no one; that without a further designation or description of a full first name, or an averment that such name was unknown, or without giving some name, and saying that the true name is unknown, the affidavits and warrants were so far void as to afford no protection to the officer attempting to execute them.

Is this position tenable? If it is, it has much to do with the subsequent facts of the case.-

We must observe at the outset that there is a vast difference between a void affidavit or a warrant, and one that may contain such defects and variances in descriptions, which, on the trial, will warrant a discharge of the prisoner. There may be such mis-description of the injured party or the subject-matter of a crime that will acquit the party when the facts are produced at the trial. But the fact that such mis-description exists, and that the facts as to the name of the injured party or description of the subject-matter of the offense are very different from the charge in the affidavit and warrant, does not render the warrant for arrest void, but only ground of acquittal, for such variance, where .it is, in law, material.

In criminal procedure at common law, if a party is indicted by any other than his true name,he may for plea in abatement of the action, say it is not his true name — that there is a misnomer in the indictment; but he must-first give in such plea his true name. This plea, known as a plea in abatement, may be denied by the State, and an issue is thus made up to be tried by a jury, and if the jury find the facts as pleaded, the accused would be discharged because of the misnomer, although in fact he may be the guilty party. But he may bo indicted by his true name and the first indictment be abandoned. But what is proven by this common law rule? Certainly not that the indictment is void, but that on that plea allowed to him as a right in the strictness of criminal procedure he was not properly described or named in the indictment. See Wharton’s Criminal Law, sections 53@ and 537.

The question of misnomer at common law,being an issue triable to a jury, worked an acquittal if the plea was sustained, from the simple fact of misnomer; but the jury did not dispose of the indictment -and declare it void, for it stood as the basis for the arrest of the one who might bear that name, if the facts pointed to him as the guiltv party.

In the case of Smith v. The State, 8 Ohio, 294, cited in behalf of plaintiff in error, it was held, under the common law practice, that after verdict, it was too late to raise the question of omission of the first name. In that case the accused was described as “W. E. Smith" in the indictment, and the case proceeded to trial, and conviction followed. On motion to arrest judgment, Smith raised the question of misnomer, or the use of initials for his name. The court held that it was too late; that the only mode of taking advantage of that point was by plea in abatement, and the sentence was executed. This is a clear holding that the indictment and conviction were both good against “W, E. Smith," and that a plea in abatement, before trial on the facts as to the crime, was the only way of being benefited -by the fact of misnomer.

Under the modern rules of the criminal code, if such plea of misnomer is made, it does not discharge the accused, but the true name is entered on the docket, and,the case proceeds thereunder. See 7254, Revised Statutes of Ohio.

In Bishop on Criminal Procedure, section 685, we find the following doctrine:

‘‘There is no reason why a man should not be known as well by a- single letter for his name as by many letters. Hence', if one is commonly designated by initials for his Christian and middle name, so that their use indicates plainly who is meant, it is the doctrine to which the tribunals have been tending and most of them have reached, that such initials are adequate in the indictment. To render this doctrine available,the man must be known by the initials. And allegation by the initial, and mere proof by the whole name without explanation, or the contrary, appear not to be inadequate; though, in such .case, it would seem, the question is for' the jury. Some courts have deemed that, when one is indicted by initials for his Christian name, a plea in abatement will be available, yet the proceedings will be good after a verdict.

A very full and instructive discussion of the effect of a misnomer of the accused, under our Criminal Code, is found in Lasure v. The State, 19 Ohio St. 43.

These affidavits and warrants were not void. If the question of name or misnomer was to be raised in defense, the time and place for it was before the mayor, and, when raised there, as we have seen, the true name would have been entered and the cause proceeded to trial.

The marshal, having these warrants to execute, was clothed with the authority to make the arrest, and to arrest the right man was more important than to arrest him under a correct name.

The deceased marshal, August Schultz, bearing these warrants, and accompanied by an assistant, Sweeney, entered the house of the plaintiff in error for the purpose of making the arrest. They attempted to disarm him of his gun, and as they succeeded, Martin, or Miller as he is now named, drew forth from beneath a blouse a revolver and shot the marshal. He staggered from the room, having received two bullet wounds, .and he died shortly afterwards, on the way to Tiffin.

There is no controversy as to who inflicted the wounds which proved fatal. The revolver in the hands of the plaintiff was the weapon that caused the fatal wounds.

Under the facts and circumstances which may be detailed later on, is the plaintiff in error responsible in law for the killing of Schultz; and if so, in what degree of homicide as defined by our statute?

The accused in the court below, under his plea of not guilty, also defended on the ground that he was insane at the time of the killing — if not generally insane, was laboring under insane delusions, which dominated his faculties and mind to such an extent that he was not a free agent, and should not be held accountable for his acts.

This is a meritorious defense when made out, and should receive full consideration by the court and jury.

It is well to understand what the rule of proof is where such defense is made, for we find that very many of the exceptions to the charge of the court, and to his refusal to charge, go to the rule laid down for the guidance of the jury.

It has been urged with great force upon us, that if, after hearing all the evidence in the case, there is reasonable doubt of the guilt of the accused, including a reasonable doubt as to his sanity, the jury should acquit. In other words, if from all' the evidence in the case, they entertain a doubt as to the sanity of the accused, it is the duty of the jury to acquit, on the principle that it should appear as a result of all the evidence that it was a sane person who committed the crime. Many decided cases have been cited and read to us, but they are all from other states. Learned counsel who have spared no research in this case, have cited none from the courts of our state, although the question has many times been pressed upon their consideration.

Like the rule on the plea of self defense, our courts have laid down and adhered to the rule, that where insanity is interposed to excuse the taking of human life, such defense must be established by a preponderance of the weight of the evidence.

We find this rule laid down in Clark v. The State, 12 Ohio, 483. It is endorsed as the law in Farrer v. The State, 2 Ohio St. 54. It is reconsidered and adopted in the case of Loeffner v. The State, 10 Ohio St. 598. I read from the 9th syllabus of this case, not as any new law to counsel, but as bearing upoix the proposition involved.

“As the law presumes every person, who has reached the age of discretion, to be of sufficient capacity to be responsible for crimes, the. burden of establishing the insanity of the accused affirmatively to the satisfaction of the jury,on the trial of a criminal case,rests upon the defense. It is not necessary, however, that this defense be established beyond a reasonable doubt; it is sufficient, if the jury is reasonably satisfied by the weight or preponderance of the evidence that the accused was insane at the time of the commission of the act.”

Also in the case of Bond v. The State, 23 Ohio St. 349. The question seemed to be urged again to the Supreme Court, and the Supreme Court, adhering to the doctrine laid down in the authority I have just read ’in the 6th syllabus, says:

“The burden of proof to establish the defense of insanity in a criminal case rests upon the defendant, but a mere preponderance of the testimony is all that is necessary for that purpose. ’

In the presentation of the claim made in some of these cases for a different holding in our Supreme Court, we observe that many of the cases cited to us in this case, were cited to our Supreme Court; but we still have the uniform holding against the doctrine urged here, and the doctrine in Ohio still is, that insanity must be made out affirmatively, by the weight or preponderance of the evidence The court below was right in this case in putting the burden of proof upon the defendant to establish the defense of insanity,and so instructing the jury as to how to consider the evidence, and wherever the defendant requested the court to give different instructions, it did not err in refusing them.

But on this subject, and bearing upon it, the court, on page 1273 of the record, did charge as follows:

“If the jury find that the defendant, at the time of the shooting, and for some weeks and months before, was laboring under the delusions that the community was ¿gainst'him,that his Creator was against him, that his soul was lost, although he may have known right from wrong in the' abstract, may have known it was wrong to commit burglary, or larceny, or arson, orto take life, yet if these delusions so far dominated his mind and actions that he acted on them and was controlled by them, , and the act he did was the product of them, then he is not guilty.”

And on page 1274,in modifying a request, the court gave this charge:

“The defense of insanity presented in this case is entitled to your full and impartial consideration. It is necessary for the defendant to establish the defense of insanity by a preponderance of the evidence. To the commission of the crime of murder in the first degree, mental capacity for deliberation and premeditation are essential. If the evidence shows that this essential capacity was probably wanting, or, if you believe from a preponderance of the evidence that the accused was insane when the homicide was committed; that at the time he was actuated by insane delusions, then there may be reasonable and substantial doubt of his capacity for deliberation and premeditation, If the homicide was committed in a manner that would be criminal and unlawful if the accused were sane, the verdict should nevertheless be not guilty, if the killing was the off-spring or product of mental disease in the defendant.”

The court here relaxed the rule somewhat, but it was decidedly in favor of the defendant,and should not be cause of complaint.

We think the law was fairly given to the jury on this defense, and we go now to the evidence relied upon to sustain it.

Is the verdict supported by the evidence as to this issue?

When the accused was nineteen years of age, he ran away from his home in Darke county, and came to this community. He changed his name by dropping his last name, Miller, and gave his name as Martin, Leon or Levi J. Martin, under which name he passed until about or near the time of his marriage, perhaps eighteen months prior to the homicide. He had told his employer and others he had no parents, brothers or sisters, or other relatives. He caused this impression and understanding to exist about eight or nine years, when' he disclosed it to the woman he shortly afterwards married. Several years prior to his marriage he united with the Dunkard Church of which a large membership existed in his neighborhood,and which was the church of his father and mother in Darke county,and he was taken into that church under his assumed name. Such papers as required his signature were signed by the assumed name, Martin, Leon, or Levi, or some other first name, and he was largely and generally known thereby. It appears that about two years prior to the homicide he had a dispute with his business partner, Ezra Smith, over a small difference of accounts, and' .the claim was left for suit, but was finally compromised with considerable bad blood between them, and accompanied with angry words towards each other. But while settled in law, it was not settled in fact, in the mind of the defendant, and he still felt that he had been wronged. At all times in his history he had been bashful or rather morose in disposition, but at the same time sensitive in his nature, and seemed to keenly feel any injustice done him. He told his intended wife of his deception, and on her advice went to visit his parents at the old home, and returned in a lighter mood Under advice of a friend he confessed to his church the wrong he had done in concealing his identity, and thus the truth of this part of his life became known to his neighbors and acquaintances, and no doubt to his enemy, Ezra Smith.

He became impressed with the thought that he had been guilty of a heinous offense against his church and society, in what he had done and the life he had lived. As a member of the church, which seeihed to be somewhat strict in its rules of conduct, the thought of the deception practiced weighed, no doubt, heavily upon his mind. ■

On the afternoon of the 23rd of October, he stealthily assaulted Smith while he was at work in the field, which assault lead to the attempted arrest and the homicide. It is said that he was despondent, melancholy, for sometime prior — frequently prayed aloud at-his barn, and elsewhere-—concluded his soul was lost; that everybody was against him, was laughing at him; that the community was against him, and his God was against him. By his own statement on the stand, he said that his assault on Smith was for thb purpose of using him as he suspected others were intending to use him — castrating him. It is also in evidence that after the trouble with Smith, he either fancied or feared that the newspapers had said something about him, and procured back numbers of some, and subscribed for others, to see if anything had been published concerning him.

On the afternoon after his attack on Smith he was informed by Sheidler, who came to the aid of Smith, that they would “attend to him later,” — meaning for drawing his revolver upon them. He saw them stop and converse with Souders, a near neighbor — supposed they were on the way to Tiffin for the officers, and went to Souder’s home with gun in hand, and there expressed the belief that Smith had gone for the officers to arrest him.' In his excitement or frenzy he there threatened, with drawn knife, to cut out the heart of Smith; to let the officers come, he was ready for them; and when reproved for the threat he had made, and admonished as to the duty of the officers, and his duty in regard thereto, that they would - only come to do their duty, he used the threatening language, “let them come; I am ready for them;” that he would die in his tracks, had not been shooting all summer for nothing, would shoot all the damned officers in the whole community. ; Here, too, after having been chided by Mr; and Mrs. Souders, he said his soul was lost, that he could not be saved now; he.was a' very devil.

This is a summary of' the facts relied upon to establish insanity, or insane delusions.

What are the other facts in the case? He was a man of fair-intelligence, of business capacity, and familiar with all of his business affairs. He was upright- with his neighbors in the ordinary affairs of life. His memory was not in any way or at any time confused, up to the day of the' homicide. We have heard of no case of paroxysm'of passion.' He had no delusion that any one was seeking his life. To-none of his intimate acquaintances during all these years did it occur that he was insane generally or partially.

He had contemplated a hunting trip to the west with a neighbor, and this fact is used to some extent to explain the amount of powder and number of guns found upon the premises.

His nearest neighbor and best friend never suspected insanity in any degree, although he was with him a good portion of each year. That afternoon, at Souder’s house,he made a settlement with him of some business affairs, and later at his own house, settled with Souders the account of' a neighbor, knowing the amount by memory,and then wrote an intelligent receipt for the payment made. This was not more than four hours before the homicide.

It is in evidence, and as bearing on this subject, that while in jail at Fremont, the defendant planned or contemplated means of escape by the use of a powerful acid upon the bars at the windows of the jail, and correspondence which he there had with another prisoner, letters which he admits he wrote, show that his mental faculties are far from being deranged.

He went on the witness stand in his own behalf as a witness. His evidence — ready comprehension of the questions put by his counsel, the long and searching examination in chief and the cross-examination, present him as more than the ordinary witness.

Aside from the opinions of medical men and neighbors, what might well be deduced from the foregoing facts?

He had capacity to reason, and had knowledge of right from wrong. He had not lost control of his will. He had the power of self-controh He could do or refuse to do, as seemed to him agreeable.

The jury might well conclude, in weighing all this evidence, that owing to his sensitive nature and theretofore bashful and modest disposition, Martin (or Miller), when the church and the public, and especially his enemy,Smith, came to the knowledge of his deception, his assumed name, etc., suspected and finally believed that he was the object of remark and jest at the hands of the people; that they were against him; that his offense was great against the church, and his thoughts and brooding over the subject led him to despair of his .soul’s salvation. In this spirit he might seek to see what newspapers had said of him. In short, he may have become sour at, and estranged from, the community, and’ he may have thought it was at war with him, and be so led to the point of recklessness, that he cared not what conflicts might arise between him and society or the officers of the law, and he might regard the officers of the law as representatives of the cause of his enemy, Smith.

What then? Is such a state of mind, insanity or insane delusion in law or in fact?

It is said in the case of Farrar v. The State, 2 Ohio St., that mere moral insanity is no defense. In Blackburn v. The State, 23 Ohio St. 146, our Supreme Court say:

“Where the defense of insanity is set up on the trial of an indictment for murder, it is not error to the prejudice of the accused to instruct the jury that the questions to be decided, as regards this defense, are these: ‘Was the accused a free agent in forming the purpose to kill? Was he, at the time, capable of judging whether that act was right or wrong? And did he know at the time that it was an offense against the laws of God and.man,’ ’’

These tests were submitted by the court in this case. We cannot say the jury was wrong in finding that the defense of insanity, or insane delusion, was not made out. In fact, looking at the whole evidence in the record, we cannot see that the defense is supported by sufficient evidence; but it was a question for the jury on the hearing of the case upon,the whole evidence.

This belief is strengthened when we consider another element of the case necessary to be proved beyond a reasonable doubt to sustain the charge of murder in the first degree, to-wit, deliberation and premeditation. And what we say here bears upon the entire transaction the night that the marshal was killed. Did the prisoner premeditate the killing and deliberate upon it? If so, it reflects upon his mental capacity as well as it fixes the higher degree of the crime. Especially is this true, if there is an absence of any provocation or éxcuse for his acts,

He had committed an assault upon Smith in the after noon. He was informed that he wou'd be attended to later. He saw Smith and Sheidler on the highway, and believed they were going to Tiffin to procure his arrest. He followed up to Soudere with gun in his hand. He threatened Smith, as we noted before, and there declared to kill all the officers; he would die in his tracks; had not been shooting all summer for nothing. He evidently then had his belt and knife and revolver upon him. In this' spirit he returned home. In the later evening, while Souders was at his house making the second settlement, he went to and looked out of the front window towards the road, seven or eight times. When the officers did come, and sought admission, he presented the gun at the door, and closed it. • He took his place in the corner of the room with gun presented, when his wife let them in.

It was here, if not before, that the accused put himself in the wrong. He did not wait for the officers to put him in- the worng. He anticipated and expected them, and so, although his wife had retired, he remained in expectancy, fully armed with gun, revolver and knife, the latter two concealed under his blouse.

The marshal asked him to put down his gun and was assured that he would not be harmed. He refused, and said once, perhaps twice, he would not be taken out of there alive. They were dressed as officers, and in fact we believe he knew they were officers who had come to arrest him.

To put him off his guard, no doubt, one of the officers informed him they did not want him; that they came to talk the matter over, and see what was the trouble — did not intend to arrest him. But he knew their purpose,and never for a moment let go of his gun,and kept it directed towards the marshal.

In this dilemma, was it required, or was it the duty of the marshal to inform Miller that he came to arrest him, or produce' his warrant? The doing of either might have caused the death of both the marshal and Sweeney. It was the right of the marshal, when Miller knew of his mission, to first disarm him of his deadly weapon so the arrest could be made; then the nature of the arrest, its cause, and the warrant, if called for, follow. In attempting the arrest of one accused of crime, who is found expecting the officer and is armed with deadly weapons to resist arrest, it is the right of such officer to use necessary strategy to disarm the accused before producing the warrant.

Did not the accused do at least part of what he had declared to be his purpose? Was his act not the result of full and ample deliberation and premeditation?

It must be borne in mind that the officers did not at any time assault plaintiff in error. They sought only to disarm him. He at no time doubted that their mission was to arrest him,for he did not put away his weapon' when told that they did not want him, did not intend to arrest him. He did npt change his attitude in the least, and it would have been the same had no such statement been made by the officers.

From the account given by Sweeney, Sheidler and Martin himself, his acts and conduct that fatal night were cool, calm and deliberate, and in no sense the result of excitement. He shot Schultz twice, and, as Sweeney went out the door, fired at him, and no doubt would have continued had he not been overpowered by Sheidler. Then he expressed himself,- “I will give up,” says one. “You have got me,” says another, and called to his wife to take Sheidler off, and called for his hat and coat, as they were about to take him away.

The jury might well find that the killing was of deliberate and premeditated malice, and without just cause or provocation. Such is the conclusion warranted by the evidence. It may have been the act of a desperate and reckless man, but of one who is responsible at law. His moral senses may have been blunted, benumbed, or perverted for the time being, but such is the case in almost every homicide, and there is scarcely an instance of such crime in which we cannot find scars on the moral nature and defects in the mental organization.

There is another part of the charge of the court which was excepted to at the trial.

Tne defense introduce expert witnesses on the subject of insanity. The state did likewise. Hypothetical questions were propounded and answers made to such questions. Non-experts, neighbors and acquaintances'of the defendant were examined as to their knowledge of the man, and gave their opinions as to his sanity. Some of these witnesses qualified under the rule in Ohio, but the grounds for their opinion in some instances were slight, in some cases the hj’potbetical question did not embrace all the facts developed in the case.

The court charged the jury on this class of testimony, and told them to receive such evidence with caution, and this admonition occurred twice in this branch of the charge. It was doubtless thought by counsel for the defendant that the court gave this caution too much prominence, and that it might have lessened the weight which such opinions might have with the jury. But the instruction of the court applied to both sides, and the character of the evidence pro and con, furnished good reason for the caution suggested.

In the case of Harrington v. The State, 19 Ohio St. 270, the Supreme Court say:

“instructions advising the jury of (he object for which particular items, of evidence are admitted, and cautioning them against being misled by their improper use, are certainly proper, and are often called for by the circumstances of the case; but the instructions ought to be so given as neither to withdraw the evidence from their consideration, nor to restrain them from giving to it, in connection with the other evidence in the case, such weight in respect to the matter which it tends to prove, as, in the light of reason and good sense, they may, as thus advised, believe it to deserve.”

We think the court kept within the rule here laid down and committed no error.

The charge covered every aspect of the case carefully and fully, and defined clearly the various degrees of homicide and the elements necessary to be present to establish each of the several degrees.

We find no error in the charge, and that the requests were properly modified and given.

There were exceptions taken to the introduction of testimony by the State, such as producing the clothes of the dead marshal, the gun, revolver, in the presence of the jury —questions concerning the amount of blood on the floor at the undertakers, etc.

The articles of clothing mentioned were not put in evidence, nor were the gun and revolver. They were properly present for inspection of the witness, so as to explain his evidence.

Taking the whole record, we find no substantial error in the introduction of the testimony on either side. In fact, the case was ably prosecuted, and the defense conducted with signal ability, so that all the facts were brought before the jury, and under the law as administered by the court, the prisoner had a full and fair trial.

J. C. Boyer and McCauley & Weller, for Plaintiff in error.

Geo. E. Scfiroth, for the State.

It is proper here to remark that among the hies of this case we find a supplement to the motion for a new trial, in which it is said that before the charge of the court, and before the verdict was rendered, and while the Prosecuting Attorney was making his argument, the Sheriff called out Company “E” of the Second Regiment of Ohio National Guards, and that these guards were on duty and stationed in and about the county jail and court-house, which continued during the deliberations of the jury, all of which was known to the jurors.

This, we say, is the ' language of the supplemental motion, and if the record disclosed that the statements made in it are true, if such facts appeared in the bill of exceptions as the truth of the case, we would be unanimous in reversing the judgment, for a verdict under such surroundings might be greatly influenced by the act of the sheriff. But the position seems to have been abandoned, and there is nothing whatever said about it in the bill of exceptions.

The judgment is affirmed, and cause remanded for execution of sentence.

Day, J.,

dissenting, holds: that, while there was no error committed during the trial, and the charge of the court was in the main correct, yet the court did not fully and sufficiently instruct the jury as to the degree of proof on the defense of insanity, when applied to the question of deliberation and premeditation, and that defendant’s request on this subject was unduly modified.

(Affirmed by Supreme Court, Dec. 19, 1896. See vol. 36 W. L. B.; No. 26, p. 358.)


author: Swing, J.

text:
    (First Circuit — Hamilton Co. O. Circuit Court,
    Jany. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    HATTIE S. KIRBY et al. v. DANIEL D. BROWNLEE et al.

      Rule in Shelley’s ease still a rule of property in Ohio — Will prevail over clearly expressed intention of grantor in deed—
    1. It is a fundamental principle in the construction of deeds and all other written instruments, that the expressed intention of the parties when ascertained, shall be carried out, but with the exception to this rule where applied to deeds, that when its terms come within the rule in Shelley’s case,that rule will prevail over the clearly expressed intention of the grantor, and this is still a rule of property in Ohio.

      Same — Case not within the rule.—
    2. Where the owner of land, in contemplation of marriage, jointly with her intended husband conveys such land to a trustee, to hold the same for her separate use and enjoyment during her life, at her death, her husband surviving her, the husband to enjoy the rents and profits thereof for his life, and on his death the property to go to grantor’s lawful heirs; and grantor dies before her said husband, the rule in Shelley’s case does not apply, but the fee on the death of grantor vests in her lawful heirs by force of the statute.
    Appeal from the Court of Common Pleas of Hamilton county.
   Swing, J.

This case is in this court on appeal, and was tried upon an agreed statement of facts.

The question in controversy arises out of the construction of the deed of Margaret Dickey. The facts connected with this deed are in substance these:

Patrick Dickey died intestate prior to 1832, leaving three children, his heirs: Mary, Margaret and Catherine, children by his second wife.
Patrick Dickey left an estate, a part of which is the matter here in controversy. His three daughters partitioned the estate left them; Mary, the oldest, taking her estate in severalty,and Margaret and Catherine taking theirs together.

The property was so held when the deed in controversy was made, which was on the 17th day of September, 1832. This deed recites:

“That whereas a marriage_ is intended between Charles Duffield and Margaret Dickey; and whereas it is agreed that certain real estate, the separate property of the said Margaret, shall be secured to the separate use of the said Margaret, her heirs and assigns, upon the terms and conditions hereinafter to be recited;
“Therefore, this indenture, made this 17th day of September, 1832, between Margaret Dickey of the first part, Aaron G. Gano of the second part, and Charles Duffield of the third part,
“Witnesseth: That the said Margaret, for and in consideration of the uses and trusts hereinafter mentioned, hath, and by these presents doth, grant, bargain and sell unto' the said Aaron G. Gano, all her undivided interest in the following property, to-wit: * * *
“To have and to hold the said described and other real estate to the said Aaron G. Gano, his heirs and assigns, forever, in trust nevertheless, and for the uses and purposes hereinafter to be expressed, to-wit: Upon the taking effect of the said contemplated marriage between the said Charles Duffield and Margaret Dickey, the said Aaron G. Gano shall hold all the real estate hereby conveyed, for the sole and separate use of the said Margaret, who shall enjoy and receive the rents and profits to be paid unto her own hands, for which her receipt, notwithstanding her coverture, shall be a sufficient discharge, and tó be for her own use and at her own disposal, so long as the said marriage contract shall remain in force between said parties. And upon this further trust, that in the event of the said Margaret’s decease, with or without issue having been born of said Margaret, to hold the same for the use of the said Charles Duffield, if he survive her, during his natural life, the rents and profits during such survivorship to be paid to him for his separate use; and also upon the further trust, that in case said contemplated marriage shall not take effect, and when the uses and trusts hereby created, shall, according to the terms in which they are created, have effected their objects and be terminated, then the said Aaron G. Gano, or his heirs, shall convey said real estate to whomsoever may then be the right heirs of the said Margaret.
“And also upon this further trust, that in case the said Aaron G. Gano, acting as trustee, shall be of opinion that all or any portion of said real estate might be advantageously sold, and the proceeds advantageously invested, upon and subject to the uses and trusts in this deed expressed and declared, and the said Charles Duffield and Margaret shall sign a written consent to such sale, to be made, executed, witnessed and acknowledged with, all the formalities necessary to the conveyance of real estate by a feme covert, then, and in that case only, shall it be lawful, and the said Aaron G. Gano is hereby authorized to effect such sale or sales, and to invest the proceeds upon and subject to the aforesaid uses and trusts; and the said Aaron G. Gano, for himself and his heirs, hereby agrees to accept the trusts hereby created, and covenants and agrees with the said Margaret and the said Charles Duffield, and that he and they will we and truly execute and perform all said trusts; and the said Charles Duffield hereby assents to and ratifies and confirms all said trusts. ’’

The subsequent facts which bear upon the controversy are, that on the following day Margaret Dickey and Charles Duffield became husband and wife. To them two children were born. Margaret Duffield died December 20, 1840, leaving her husband and two children surviving her. One of the children died in June, 1841, aged six years the other died in September, 1841, aged two years.

Charles Duffield re-married and died intestate in February, 1890, leaving ten children, the issue of the second marriage.

After the conveyance to said Gano, trustee, the undivided interests of Margaret and Catherine were amicably partitioned, and from that time each held her interest in severalty. Said premises have been held by said Gano and his heirs ever since, the said Charles having received the rents after the decease of his wife, up to the time of his death. ■ -,

There are three distinct interests claimed under this deed:

1st. The surviving children of Charles Duffield by his second wife, who claim one-half of the estate.
2nd. The heirs of May Dickey, the half sister of Margaret, who claim one-fourth of the estate; and
3rd. The heirs of Catherine, the full sister of Margaret, who claim the whole of the estate.

Jf the fee of this property was in Margaret Duffield at the time of her death, she dying intestate, it passed to her children; and when one of her children died, its share passed to the other child, and upon the death of the last child, the one-half of the estate- which came to it from its sister, would, under the law of Ohio then in force, pass to the father, Charles Duffield, and the half that came to the child dying last, directly from its mother, would have descended, as we think, equally to the heirs of Mary and Catherine Dickey. And -if the fee was not in Margaret Duffiield at her death, the children of Charles Duffield by a subsequent wife could, under no circumstances, be the right heirs of Margaret Duffield, to take upon the death of Charles Duffield. They not only could not take by force of the deed, but it would be unreasonable to suppose for a moment that Margaret, when she executed the deed, intended that they should. There was no possible tie that could bind them to her, or her to them.

We come now to the consideration of this deed. Did anything pass by it; and if so, what and to whom?

It is a fundamental principle of construction of deeds, and all written instruments, that the expressed intention of the parties, when ascertained, shall be carried out. It would be strange, indeed, if this were not true; for what would be the use of permitting one to execute a deed, or other written instrument, if the clearly expressed intention in the instrument was not to be enforced by the courts? But strange as it may seem, there is an exception to this rule when applied to deeds, and that is when the terms of the deed come within the rule in Shelley’s case, the clearly and unmistakable expressed intention of the grantor is not regarded, but an unreasonable and arbitrary rule of law is applied to defeat the expressed intention of the grantor; and this is still a rule of property in Ohio, although long since abolished in most of the states.

Although we have abolished all the fictions of the law, and are living in the age of progress ánd reason and common sense, and while everything in the law tends towards brevity, simplicity and directness, this rule in Shelley’s case still stands; not, however, regarded as it once was, as one of the wonders of wisdom of the law, but more in the nature of a freak, to worry and astonish new beginners and the uninitiated in the mysteries of the law. But this rule of law, we think, should not be extended beyond its well defined limits, either as a rule of. law or as a rule of construction. If this rule does not apply to this deed, Margaret Dickey took a fee under it, and therefore Charles Duffield could Jt^havebad no life estate, which in fact he did enjoy for nearly fifty years; for a fee swallows up and merges all other estates. A fee simple is the whole estate, and while it may be subject to a minor estate, such as a term for years, or a life estate, these must, from their very nature, precede the fee in their enjoyment; for no precedent created estate may follow a fee. The owner of the fee being the owner of the whole estate, may do as he pleases with the estate, and this would be in its very nature inconsistent with this, that a former owner of the fee had created a life estate, which was to come into a right of enjoyment after the termination of the fee; for there must be a fee to support a life estate. In this case the fee that supported the life estate of Charles Duffield could not have been in his wife, Margaret, for she died in 1841, and she dying intestate, if she bad this fee, upon her death, it passed to her heirs by force of the statute, and Charles Duffield’s rights would have been whatever the statute gave him.

The rule in Shelley’s case was adopted in England on the ground of public policy. The manifest and clearly expressed intention of the testator or grantor was defeated and held for nothing, and the one who was to take for life only, was vested with the fee simple in order to avoid the uncertain ties which might occur, as to who should enjoy the fee upon the termination of the life estate.

But as far as we know, this rule has never been applied to a deed of this kind. This deed, itself, is in the nature of a marriage settlement. Margaret Duffield was the grantor herself. She could not convey to herself a fee simple estate, for she already'had that. She might have placed the legal title in another with the equitable title to herself. But we see no rule of law in the way of giving to such a deed, the effect which its terms clearly indicate should be given it. We see no reason to question but what the grantor intended by the terms used in this deed that she should enjoy the rents and profits of this estate, if she should marry during her life; that if she should die before her husband, he should enjoy the same during his life, and at his deatb it should come into the enjoyment of whomsoever should then be her heirs.

The marriage took effect, and Margaret died before her husband, and he has enjoyed the estate for nearly fifty years. This was in accordance with her clearly expressed intention, and we think the remaining expressed intention, viz: that at the death of Charles Duffield it should be conveyed to whomsoever should then be her right heirs should be carried out. Her heirs, except as to ancestral property, would be those of the whole blood, This property she got by purchase, and therefore it shouffi go to the heirs of her sister Catherine, to the exclusion of the heirs of the half-sister, Mary.

Ramsey, Maxwell & Ramsey, for Plaintiff in error, Mary Roop.

Thompson, Richards dc Richards, for Plaintiffs in error, Heirs of Charles Duffield.

Thomas McDougall and Alfred C. Cassatt,for Defendants in error.

It was urged in argument that there were two contingencies that might have happened, viz:

1st. That the marriage might not have been consummated; and 2nd, that Charles Duffield might have died before Margaret; and that in either event, this fee could not have passed to the heirs of Margaret, since the living have no heirs. We think it might be a sufficient answer to these objections to say that these contingencies did not happen, and that the contingencies which were clearly provided for having happened, that effect should be given to them. As to the first contingency, we are of the opinion that the terms of the deed in any event were not to take effect unless the marriage took place, and the fee would have remained in Margaret. As to the other contingency, that Charles Duffield should die before Margaret, it is not free from doubt; but we are of the opinion that she would have enjoyed the life estate with remainder to her heirs. Our construction of this deed differs from that given it by two able judges of our Common Pleas and the Superior courts, but after as thorough an examination as we are able to give them,we are clearly of the opinion that their construction is not correct. A decree will be granted, giving the estate to the heirs of Catherine.

(Affirmed by the Supreme Court, without report, December 1, 1896.)


author: Finley, J.

text:
    (Third Circuit — Hancock Co, O., Circuit Court,
    Dec. Term, 1896.)
    Before Day, Price and Finley, JJ.
    WILLIAM E. SNYDER v. GEORGE H. WALKER.

      Employer and employe — Breach by Employe of Contract for fixed time — Suit for icages — Employer’s right to recover damages for breach of contract.—
    1. Where an employe, hired for a fixed period at a fixed salary, leaves his employer without his consent and without just cause, before the end of the period for which he was employed, and brings suit against his employer to recover wages for the time he served, the employer may interpose such breach of contract as a complete defense against any recovery on the part of such employer.
    2. The employer in such action is not restricted to showing such breach of contract by way of defense only ; but, in a proper case, may go further, and by way of cross-petition in such action, recover of the employe such damages as he may have sustained in consequence of such breach of contract by the employe.
    Error to the Court of Common Pleas of Hancock county.
   Finley, J.

The defendant in error brought suit against the plaintiff in error to recover for about six months’ wages, which he claimed were due him u-nder a contract of hire for an indefinite period at $125 per month.

The defendant below, Wm. E. Snyder, by way of defense to plaintiff’s action, answered that the service had been rendered by the plaintiff under a contract of hire for one year, at a salary of $1,500.00 per annum, and that plaintiff, without just cause and against his consent, had left him at the end of six months and refused to work any longer, and was therefore not entitled to recover.

By way of cross-petition, Snyder alleged that Walker had been hired as a skilled pattern maker, and that just about the time when his busy season began, and when he needed his services most, Walker left him and refused to make any more patterns, and that by reason thereof he was specially injured in his business in a manner which he specifically sets forth in his cross-petition, and he thereforej'prays judgment against Walker for his special damages, sustained by reason of Walker’s breach of contract.

This cross-petition was put in issue by the reply of Snyder, and the case went to trial on the issuesjthus raised, resulting in a verdict for plaintiff for thejEull amount of his claim.

The case is here on error to reversejthe judgment of the court of common pleas, and the principal assignment of error relied on is that the court erred in excluding evidence offered by Snyder 'tending to maintain the allegations of his cross-petition, and error in takingjiromjthe jury all consideration of that question.

Did the court below err in these particulars? It is evident, from a full examination of thejrecord, as developed by the conduct of the trial, that jit was contended by the plaintiff, as the law of the case, that if itjshould be made to appear to the jury that he had forfeited his^right to recover by reason of his own breach of an entire contract, the measure of the breach of his conduct would be thejforfeiture of his unpaid wages, and no moré. In other words, that if the contract was an entire one, namely, thatjthe plaintiff was to work for the defendant for a period of one year, at the fixed price of $1,500.00 per year, and the jury should find that to be the contract, and further find that he left the-service of the defendant without just cause therefor, against defendant’s consent, that he would forfeit and lose his pay, which would be in the nature of a penalty for his own breach of the contract, and that the defendant could not go beyond that amount, or recover other or further damages in consequence of his breach of the contract, regardless of what his damages might actually be.

On the other hand, it was contended by defendant on the trial of the case, and defendant’s¿|cross-petition was framed upon the theory that, if it should appear on the trial that plaintiff had forfeited his right to recover in the action in consequence of his breach of the entire contract, in estimating defendant’s damages for the breach thereof, he would not be limited to defeating plaintiff’s right to recover by showing the breach of contract alone, but that he could go further and recover'such actual damages growing out of the transaction as were directly caused by plaintiff’s wrongful act.

On the trial of the case, the defendant undertook,on this theory, in support of his cross-petition, to give testimony tending to show that he was directly injured in his business by reason of the breach of the contract on the part of the plaintiff. To the introduction of such testimony, the’ plaintiff objected, and the court sustained such objection, to which defendant then excepted. Some of the objections were well taken, as the proof offered was hearsay only. Other evidence offered was incompetent, for the reason, as appears of record, that the party was not competent and qualified to speak regarding the matter inquired of. Some of the testimony, however, was freed from these objections and was competent, unless the theory of the plaintiff was the correct one. If it is the law in a case of this kind, that for a breach of an employe's contract to serve for a fixed period, the only remedy left the employer is to interpose the breach of the contract as a shield and defense against a recovery of unpaid wages, and that he cannot be allowed, in such action, to recoup for the damages sustained by him in consequence of the employe's wrongful breach of contract, then this testimony would not have been competent, and was therefore properly rejected.'

It is apparent from the charge that the court took this view of the question, because it withdrew from the jury a consideration of damages growing out of the cross-petition of the defendant, in the following language:

“As to the question of damages claimed by defendant in his answer and cross petition in this case, for the alleged violation by Mr. Walker, the plaintiff, of his contract to work a year certain, gentlemen of the jury, you have nothing to do with that; that question is not in the case.”

To the exclusion of this class of testimony, as well as this clause of the charge of the court, the defendant below excepted at the time, and in his motion for a new trial alleges this action on the part of the court as ground for a new trial, and in his petition in error alleged that the court below erred in overruling his motion for a new trial upon these grounds.

We have carefully examined the pleadings, record and evidence in the case, and find no substantial error for which the verdict and judgment should be reversed, unless there was error upon the part of the court in excluding this class of testimony tending to show damages for defendant, as claimed in his cross-petition, and in charging the jury not to consider the question of damages claimed by defendant.

Did the court err in excluding testimony tending to show damages to the defendant as claimed in his cross-petition, and in taking from the jury all consideration of that question? We think it did. We think that the contract between the plaintiff and the defendant, if it be proved to be an entire one, was, nevertheless, mutual. That if on the trial of the case it should have been made to appear to the jury that the contract, on the part of the plaintiff, was that he should work for the defendant for the period of one full year, and on the part of the defendant that he should pay him for such labor the sum of $1,500.00 for said year, whether the wages were payable monthly or at the end of the year, that a breach of the contract on the part of either party, enitlted the other, who had been without fault, to recover the actual damages flowing from and directly caused by said breach of contract. To hold otherwise would enable one party to a contract to violate it with impunity and go scot free, though the other might sustain great loss from his wrongful act. ' Apply the rule in this case. Suppose, after making the contract, and after plaintiff had engaged in the performance of it, and made his arrangements accordingly, and moved his family to the city of Findlay, and rented a home for himself and family, and had otherwise been put to large expense in so doing, the defendant, Snyder, without just cause, had discharged him from his services, and refused to permit him to perform his part of the contract, would any one dispute that in an action against his employer to recover for a breach of the contract he might not recover such damages as he would prove were directly caused by the wrongful act of the employer?

Apply the rule on the other side of the question. Suppose, under this contract, the defendant had employed him ’'to do particular and peculiar work, requiring the knowledge and skill of an expert in this line of business, and suppose be had hired him at a price one-third or one-half less than an expert like him, peculiarly fitted to do his work, could be employed for, and he had hired him for one year, and in so hiring him had obtained a profitable bargain, and suppose the plaintiff, after making the bargain, had worked one week, and then, finding that he could get double as much wages somewhere else, should, thereupon, regardless of his contract, and in reckless violation of it, pull up in a busy season and leave his employer at a iime when his services, owing to their expert quality, were peculiarly valuable to his employer, and should refuse to perform his contract, could it be said the only remedy the employer had for breach of it would be the gain of plaintiff’s one week’s wages, which he had not paid ? Or is he not entitled to recover of the employe the full measure .of his damages growing out of the breach of the contract and-direetly resulting therefrom ? We think, clearly, that he would be. We think that the code contemplates, in an action of this kind, that a party defendant may recover by way of counter-claim, such damages as he sustained, provided they grow out of and are connected with the same transaction. And we think this view is'emphasized and sustained by section 5329, of the Revised Statutes, which provides as follows:

J. Poe, for Plaintiff in error.

JS. T. Dunn, for Defendant in error.

“Where a counter-claim or set-off established at the trials exceeds the plaintiff’s claim so established, judgment for the defendant must be given for the excess; or, when it appears that the defendant is entitled to any affirmative relief, judgment shall be given therefor.”

We think that the common law rule that a counter-claim, in 'an action like this, can only be used as a defense, is abrogated by the.statutes of Ohio, and that therefore a party may not only plead the breach of a contract by way of defense to’ a plaintiff’s claim, but can go further, and by way of cross-petition recover such damages as he may show he sustained in consequence of such breach of contract, within the limit that such damages must be referable to the breach of the contract, and flow directly thereform.

With this view of the case we hold that the court erred ih taking from the jury all consideration of damages claimed by defendant in his cross-petition, and erred in excluding testimony tending to establish such damage.

The judgment of the court will, therefore, be reversed, and cause remanded at the costs of defendant in error.

Day, J., dissents.