author: Scribner, J.

text:
    (Sixth Circuit—Wood Co., O., Circuit Court
    April Term 1896.)
    Before Haynes, Scribner and King, JJ.
    CHAS. H. DENNIS, v. N. L. HANSON, and WILLIAM WEDDELL, as executors of the will of JAMES DUNIPACE, deceased.

      Parol lease of land for five years coupled with possession — Might of lessor to evict by proceeding in forcible detainer—
    Where a lessee enters into possession of lands under a verbal lease for ’ five years, and has occupied and cultivated them, and made improvements thereon and paid the rent stipulated in the verbal agreement, he can not be evicted by the lessor or his executors during such term under a proceeding in forcible entry and detainer.

      Practice — Power of Circuit Court to reverse judgment of Justice of Peace — Quaere:
    Has the Circuit Court the power to reverse the judgment of a Justice of the Peace, in a case taken on error from such Justice’s court " to the Common Pleas, and coming on error from the Common Pleas to the Circuit Court? ’ ■
   Scribner, J.

On the 4th day of April, 1895, N. L. Hanson and William Weddell, as executors of the last will and testament of James Dunipace, deceased,filed their complaint in forcible detainer against Charles H. Dennis, before one Abel Comstock, a Justice of the Peace in Plain township, Wood county,Ohio. The complaint reads as follows:

“To Abel Comstock, a Justice of the Peace in and for the township of Plain, county of Wood, and state of Ohio. The undersigned,N.L.Hanson and William Weddell,executors of the estate of James Dunipace,deceased,residents of the county of Wood, state of Ohio, do hereby make our complaint against Charles H. Dennis,of said county and state, for this: That the said Charles H. Dennis, has ever since the first day of April, 1895. and now does still unlawfully and forcibly detain from the undersigned, possession of the following premises, situate in the township of Perrysburg, in said county of Wood, and described as follows: All those parts of River Tracts numbered seventy and seventy-one, then and now in his possession, and being those parts of said River Tracts belonging to the estate of said decedent.

“The said Charles H, Dennis first entered upon said premises as the tenant of the said James Dunipace, deceased, and unoer a verbal lease with him, which lease expired on April 7th, 1893; and on March 30th, 1893, the undersigned duly served on said Dennis, as required by law, notice, in writing, to leave said premises on April 7th, 1893.

1-ü By consent of complainants said Dennis has been allowed to remain on said premises until April 1st, 1895,since which later date he has unlawfully and forcibly held possession of said premises.

“On the 19th day of February,1895,the undersigned again duly served upon the said Charles H. Dennis, as required by law, notice in writing to leave said premises by April 1st, 1895.

“The undersigned ask process of restitution.

“Dated this April 14th, 1895.” (Signed by the parties).

A summons was duly issued by the justice of the peace on this complaint, which was made returnable April 10th, 1895. Service of this summons was regularly made, and at the time fixed therein the parties appeared. A jury was demanded by the defendant,and the case was,by consent,continued until July 12th,1895,for trial. On that date the parties appeared with witnesses and counsel, and thereupon trial was had before the justice and a jury Testimony was submitted ón both sides. At the close of the argument certain requests or instructions to the jury as to the rules of law governing the rights of the parties were made, which will be noticed further on.

The trial justice charged the jury very fully and particular as to the issues to be considered by them,and as to the rules of law applicable and which should determine the rights of the parties. He refused certain instructions requested by counsel for the defendant, and in his charge to the jury gave certain propositions which the defendant excepted to.

The verdict of the jury, which was rendered April 12th, 1895, was in favor of the defendants, and reads as follows:

“We the jury duly empanneled and sworn in the above entitled cause do find that the defendant is guilty in manner and form as the plaintiffs hath in their complaint set forth, and that the same and the matters therein stated, are true.”

The justice of the peace thereupon overruled a motion o£ the defendant for a new trial, and rendered a judgment of restitution in favor of the plaintiffs below, and also for costs and an order of restitution to issue.

A bill of exceptions embodying all of the testimony given at the trial and the charge of the court to the jury and the action of the court upon the several requests to charge, was duly allowed and filed, and constitutes a part of the record.

The motion for a new trial in its material parts is as follows:

“The defendant moves the court to set aside the verdict and grant him a new trial in this cause for the reasons : —

1. That said verdict is not sustained by the law, and is contrary thereto.

2. That said verdict is not sustained by the evidence, and is contrary thereto.

3. That errors of the law occurred upon the trial which were prejudicial to the defendant, in the admission of evidence and the refusal to admit evidence against defendant’s objection, and in the charge of the justice to the jury, and in his refusal to charge as requested by defendant, and in other respects as shown by the record, all of which were excepted to by the defendant at the time.”

A petition in error to reverse the judgment of the justice of the peace was filed in the court of common pleas, and the judgment of the justice was affirmed.

The errors assigned are substantially those constituting the basis for the motion for a new trial.

1 he case is now before us upon a petition in error filed in this court by the defendant, by which he seeks to reverse the-judgment of the justice of the peace as well as that of the common pleas. The complaint filed in the forcible detainer' proceedings contains the following direct allegation as to-the agreement with the owner under which the defendant entered into possession of, 'and enjoyed the premises in-question : — ■

“The said Charles H. Dennis first entered upon said premises as the tenant of said James Dunipace,deceased, under a verbal lease with him, which lease expired on April' 7th, 1893, and on March 30th, 1893, the undersigned duly served on said Dennis, as required by law, notice in writing-to leave said premises on April 7th, 1893. By consent of complainants, said Dennis has been allowed to remain on said premises until April 1st, 1895, since which later date-he has unlawfully and forcibly held possession of said premises.”

It is proper, also, in this connection, to call attention to* the language contained in the notice given by the executors-to the defendant on March 2t9h, 1893; also to what they state id their notice given by them February 11th, 1895,

“Perrysbnrg, O., March 29th, 1893.

“To Charles H. Dennis, Perrysburg, Ohio. Sir: We wish you to leave the following premises now in your occunation, to-wit: That part of River Tracts numbered seventy and seventy-one in Wood county Ohio, occupied by you under your verbal lease from James Dunipace, deceased. Your compliance with the notice, by Apiil 7th, 1893, will present any legal measures being taken by us to obtain possession.”

Another notice reads thus:—

“Perrysburg, Ohio., February 11th, 1895. Mr. Chas. H. Dennis, Perrysburg, O. Dear Sir: We wish you to leave the following premises now in your occupation,to-wit: That part of River Tracts numbered seventy and seventy-one in Wood county, Ohio, occupied by you under verbal lease, originally with James Dunipace, deceased, and now with the undersigned. Your compliance with this notice by March 10th, 1895, will prevent any legal measures being taken by us to obtain possession. (Signed) N, L. Hanson, William Weddell.”

And again:

“Perrysburg, Ohio, Feby. 19th, 1895. To Ohas. H. Dennis. Sir: You having expressed a desire for more time in which to close up the season’s operations on the farm, take notice that we wish you to leave the following premises now in your occupation, to-wit: That part of River Tracts numbered seventy and seventy-one in Wood county, Ohio, occupied by you under verbal lease, formerly with James Dunipace, now deceased, and more recently with the undersigned. Your compliance with this notice by April 1st, 1895, will prevent any legal measures being taken by us to obtain possession.

“Respectfully yours, “William Weddell, N. L. Hanson.”

The testimony of the defendant relating to the terms of his occupancy is contained in the record,and is as follows:- — -

“I had a conversation with N.L. Hanson in the spring of 1893, soon after the death of Mr. Dunipace, in which he asked me what the agreement was under which I occupied the farm, and I told him that Mr. Dunipace and I had agreed that I should occupy the farm for five years from the timo I went into possession of it, and if it was satisfactory to both of us at the end of that time, I was to have if for two years more. I also told bim that I was to have one-half of the crop, and I was to deliver the other half in the market for Mr Dunipace as his share, but I was to be paid for hauling the same to market. And I told him I went into possession of the farm on the 7th day of April, 1892, and that my five years began on that day. Mr. Hanson said the executors could not recognize a lease for that time unless it was in writing. I told him that this lease was not in writing. Soon after that, that is on the last of March, 1893, I received from Mr. Hanson a letter, dated March 30th, 1893, — the paper which is here shown me marked Exhibit“E” — and enclosed with it a notice for me to quit the premises. (Exhibit11 A. ”) The papers which jou have shown me — Exhibits “E” and “A” — are the letter and notice referred to. A few days after this Mr. Hanson and Mr. Weddell came out to the farm and asked me if I was going to stay on the place, I said to, them that I did not care whether I stayed or not. They said you had better stay and continue right along as you have been doing. And afterward, in August, 1893, I called upon Mr. Hanson when he was picking plums in his garden, and asked him if he wanted the place, and said, ‘if you do, I will give you the place next spring;’ and Mr. Hanson said ‘we had a little trouble in the spring, but I had forgotten all about that; you go on and run the place just as you have been, and that will be satisfactory.’ Nothing more was said about it, and no objection to my staying was made by either Mr. Wedd'ell or Mr. Hanson until Mr. Hanson served the notice on me to quit, which was on the 11th day of February, of this year. That notice was to quit on the 10th day of March, 1895. The paper which you show me,Exhibit “B, ”is the notice to which I refer. Between the 7th of April, 1893, and the 11th of February, 1895, both Hanson and Weddell were on the place a good many times,and neither of them either said anything about my leaving,or made any complaint about my staying, or about the way I was running things. I have always claimed to them that I was occupying under my verbal lease from James Dunipace, deceased. I claim that I did not have any new lease from them, and was not occupying under any new arrangement with them. I accounted to them for half the crop of the second year ending April 7th, 1894, and delivered it to them, and I have kept a strict, account of the crop of this year, but I have not yet settled with them for all of that. I never refused to settle, but when Mr. Hanson came there on the 11th of February, I told him that I would settle, but I was not ready to do so that day, and then he handed me the notice of that date which he had brought with him and had in his pocket. I divided the wine in the cellar, putting the landlord’s share on one side and mine on the other, and I never touched theirs. My share of this wine made from the grapes on the place is about 800 gallons, and it is worth fifty cents agallón- — I have been selling it for that.”

It clearly appears from the record that the defendant entered into possession of the 'premises in question about the 7th of April, 1892, under and by virtue of the verbal lease entered into with -Tames Dunipace, and that by the terms of this verbal lease it was agreed that the defendant should' occupy the said premises for the full term of five years, and by virtue of said lease he did so occupy and enjoy them down to the date of the commencement of this action in forcible detainer.

Under this state of facts, what were, and are, the rights of the respective parties in and to the possession and enjoyment of said premises? It was claimed in behalf of defendant that under the foregoing state of'facts the lessee became the tenant from year to year during the entire term of five years, and that the landlord could not put an end to the tenancy without giving him six months’ notice to quit, and that such notice must be to quit at the end of some certain year of such term occurring six months after the giving of such notice.

Counsel for plaintiffs claiming that the defendant was a mere tenant at will. The court refused to give this request of the defendant, and among other things, instructed the jury as follows:

‘"The defendant claims to hold and occupy the premises by virtue of the lease made during the lifetime of Mr. Dunipace. It is conceded by all parties that the lease the de-' fendant claims to hold under, is a verbal lease, and is a lease for five years. A lease of that kind is void. It does not convey anything no entitle him to expect to derive any benefit from it. Now,real estate can be conveyed by a verbal agreement and part performance where something has been done in pursuance of and in carrying out the contract; that takes it out of the statute of frauds, and the contract is under such circumstances enforcible. Supposing in this case that Mr. Dunipace had verbally agreed with the defendant that he would rent him the premises for five years. Now, the defendant goes away, and then comes back to take possession of the premises by virtue of that agreement. Mr. Dunipace has changed his mind, and he says,!I have no wish to carry out the contract that was made between you and I,’ there would be no remedy in law for Mr. Dennis whereby he could recover possession of the premises. The defendant might have a right of action perhaps against Mr. Dunipace for damages; a suit for damages might be sustained, but under the law he could in no way compel the owner of the premises to comply with this verbal contract."

It is clear from that portion of the charge that the justice is stating a hypothetical and argumentative case by way of illustration of the doctrine that he lays down to the jury,that such a contract is void and cannot be enforced under the statute, can not be taken out of the statute. Well, now it was upon this state of facts, and upon the instruction given by the justice, that the verdict of the jury, finding that the complaint of the executors — plaintiffs—was true, was returned. I may remind the. parties once more that according to the complaint filed with the justice cf the peace upon which this trial was had,that the defendant,Dennis, entered upon said premises as the tenant of James Dunipace, under a verbal lease, which lease expired of April 7th, 1893, and that according to the record,the notice served by the plaim tiff3 upon the defendant, it was expressly averred in each ■ of the notices that were given, that the defendant had entered into the possession and occupancy of the premises in controversy under a verbal lease with the owner, James Dunipace, deceased. It is clearly established by the record, and it is not questioned in the case, but what this defendant who entered upon these premises under this verbal lease,entered into the possession of the land in question here, — occupied it for a fixed term of five years — occupied and enjoyed the premises down to the commencement of this action, and, for aught that appears here, is still in possession under that lease Well, waiving the question argued by counsel to the jury on the trial as to whether such a lease, being in parol and not executed according to the formalities prescribed by law, created a tenancy from year to year, or a tenancy at will, let us come directly to what, as appears to us, is the material thing, whether or not here is a contract for the enjoyment of an interest in real estate for a fixed term under which possession was given by the owner,' — taken and enjoyed by the tenant under such circumstances as takes the case out of the statute of frauds, and protects the lessee against any attempt to evict him.

Now, in the case of Grant v. Ramsey, 7th Ohio State Reports, p. 15, this question was fully considered and determined by the Supreme Court as we understand it.

In this case the question was very fully considered by all the members of the Court, and a very able opinion was delivered, which I propose to quote somewhat. I will first, however, read from the syllabus of the case, or so much of it as bears upon this question: — “A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according of its terms, be withdrawn wholly from the operation of the statute of frauds. ”

This was an action brought to recover certain installments of rent which had accrued upon a parol lease of the lands. The syllabus goes on: “In such a case, the tenant cannot, by a voluntary abandonment of the premises during the term, terminate his further liability to pay rent, .although the landlord may have neglected to execute a written lease according to the agreement of the parties, unless the abandonment appears to have been on account of such neglect.” Coming now to the opinion of the court at page 164: “We proceed then to the consideration of the secondjjuestion .- Was the contract, upon which the plaintiff in the court below brought suit, void by the-statute of frauds? Or,|beirig a parol contract of lease for more than one year, and less than three, would it be taken out of the statute of frauds^by part performance?” The Court then reads the'[statute, and proceeds:

“The plaintiff in error claims that the contract in this case, being by parol, was void, first, because it was for an interest in lands; and secondly, because it was not to be performed within a year. It is admitted that the contract was not in writing; the term is shown by the former recovery to have commenced-December 12th, 1853, and extended until April 1st, 1855, (more than one year;) it is admitted that the lessee went into possession of the leased premises under the lease, and enjoyed them for several months, paying rent according to the contract, as the installments fell due. Under these circumstances, had the lease been only for one year, would it still have been void under the clause of the statute relating to leases and interests in lands? If void as to one party, it must have been equally so as to the other. If it would have bound the lessor so that he could not at pleasure eject the tenant, it must have also bound the lessee for the payment of rent.

“We suppose it to be no longer questionable in this state, that a parol lease for one year, where the tenant is put into possession, is valid, notwithstanding the terms of the statute. In Wilber v. Paine, 1 Ohio Rep. p. 251, where a parol contract was made to clear and fence a lot of ground, the party so clearing and fencing to have the privilege of raising a crop of corn on the premises,the landlord entered and gathered a crop. The assignee of the tenant brought trespass, and a question was made as to whether the contract was within the statute of frauds. The court held that it was taken ont of the statute by part performance. They say: ‘It has been frequently held on the circuit that the delivery and possession on a parol agreement was sufficient to take it out of the statute, and we see no reason to reverse the rule or to reject the principle upon which it is founded. When the existence of a contract is evidenced by a change of possession which must result from the joint act of the parties, the mischief intended to be remedied by the statute is scarcely to be apprehended. The fact as far as it goes,is as satisfactory evidence of the existence of a contract as a memorandum in writing c juld be; and it may be added, that under such circumstances, to enforce the statute and leave the party who had been put into possession by virtue of an agreement, to be treated as a wrong-doer, would not only be repugnant to justice, but would make the statute a shield and protection for injustice.5 We have decided that a parol lease of a farm for one year, after the lessee had been putin possession, was valid,and that the tenant might defend his possession against his landlord as well as against a stranger. ’ ’

Further on, on page 169, the judge proceeds:-—

“But we have found no case in which it has been held that where a contract for an estate or interest in lands is by part performance taken out of the provisions of the statute of frauds which relates in express terms to real con tracts, it may still be held void as within the provisions of the same statute which relates to agreements not to be performed within a year. Lands are usually sold by contracts which are not to be fully performed within one year, and such we apprehend has been the character of most of the real contracts which have been held by courts to be taken out of the statute by part performance. But if it is necessary from considerations of equity, and in order to suppress fraud-, that courts should hold parol contracts for real estate, which may • be fully performed within one year, to be taken out of the statute by a change of possession and the making of improvements upon the premises, these considerations lose none of their force where the parties have acted still longer on the faith of the contract, and improvements have been continuously made for years.”

In a case reported in the 8th Ohio State Rep. p. 257 Richardson v. Bates an action had been brought upon a land contract for the lease of land for a period of five years.The lease had not been executed according to the requirements of the statute. The court held there that an action to recover the stipulated rent could not be maintained. And in the course of the opinion delivered in that case, Judge Sutliff says this: — -

“The record shows that the plaintiff by his petition predicated his rights to recover solely upon the indenture set forth in his petition. ' He did not aver a part per-’ formance, and ask to have the instrument reformed and then enforced. Nor does his petition state a delivery of possession by the plaintiff, and occupancy by the defendants; but the right of action is placed solely upon the obligations imposed upon the defendants by the instrument set forth.”

In this proceeding, in the complaint filed with the justice of the peace, it is averred distinctly, and the record shows that the parties were proceeding on the assumption that that was true; that the tenant entered into the possession of the premises and was holding them under a verbal lease entered into by the owner and the lessee; and it appears in the record that the lessee had not only entered and occupied under the rental agreement which had been entered into, but he had cultivated and paid rents; that he had conducted himself in all respects as a man might be expected to conduct himself who had entered and was in possession of the premises under a lease with the owner.

Well now, under this state of facts it appears to us that he was entitled to be protected in his possession of these premises. That the owner,or the executors, had no right to interfere and evict him from the possession and enjoyment of the premises which he had entered' upon under the parol contract; that the doctrine of the Court in the case of Grant v. Ramsey, as laid down and as suggested in the case of Richardson v. Bates, is applicable here,and that under that doctrine the defendant was entitled to be protected against an action brought to evict him from the possession of the premises. In this case of Richardson v. Bates, the Judge says that the plaintiff in his petition predicated his right to recover solely upon the indenture set forth in his petition. He did not aver a part performance, and ask to have the instrument reformed, and then enforced. Nor does the petition state a delivery of possession by the plaintiff, or an occupancy of the defendants.

Jason Barber & R. S. Parker, for Plaintiff in Error.

Troup & Dunn, D. K. Hollenbeck, for Defendants in Error.

There is a question arising in this case of importance, and it may be proper to consider it. The action of these executors was based entirely upon the statute allowing proceedings in forcible entry and detainer. As in the case of Richardson v. Bates,the lessee did not undertake to set out byau independent proceeding in a court possessed of general equity jurisdiction of the facts,the execution of the contract and taking possession under it, and ask for specific relief and for the reformation of the contract; but he defended himself upon the facts as they appeared upon the complaint of the plaintiff, and upon the testimony submitted, We think he was entitled to protect himself against a proceeding for eviction; a proceeding by which it is sought to oust him, under facts which the executors themselves have set out in their complaint,and upon which they base their right to disturb him in his possession of the premises.

In conclusion, and upon the whole, it is the judgment of this court that the court of common pleas eired in affirming the judgment of the justice of the peace, and it is ordered that the judgment of the common pleas court be-reversed,and,as there is some doubt as to the power and right of this court to reverse the judgment of a justice of the peace, the case is remanded to the common pleas court with instructions to enter such judgment as it should have entered, a judgment of reversal of the judgment of the justice of the peace, and.a dismissal of the proceeding, with costs.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit—Huron Co., O., Circuit Court,
    May Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    SMITH v. THE STATE OF OHIO.

      Transfer of prosecution from Common Pleas to Probate Court not authorized—
    1. Section 63C7 Rev. Stat., authorizing the prosecuting attorney of' certain counties to proceed in prosecutions in which the probate-court has jurisdiction, either in the probate court or court of common pleas at his election, does not authorize a transfer of any such prosecution from the common pleas, when once filed there, to the probate court.

      Prosecution upon mere information of public prosecutor without' charge upon affidavit—
    2. Cinder art. 1, sec. 14, of the Constitution, no person can be placed on trial for a crime against the law of this state upon the mere-information of a public prosecutor, nor until he has been charged with the commission of such crime upon oath or affirmation. An. indictment being founded upon oath or affirmation, of course, satisfies the requirements of the constitution.
    Error to the Court of Common Pleas of Huron County.
   Haynes, J.

In the case of Charles Smith v. the State of Ohio, the petition in error is prosecuted for the purpose of reversing’ the judgment of the court of common pleas, which judgment affirmed the judgment of the probate court of this county, wherein the plaintiff in error, Charles Smith, was prosecuted, for misdemeanor, convicted and sentenced for punishment,, both fine and imprisonment, I believe.

The record filed and attached to the petition in error, filed-in the court of common pleas, discloses that at the November term, 1891, the following entry was made on the journal of the court of common pleas: “The State of Ohio v. Charles Smith. Indictment for allowing saloon to be open on Sunday and selling intoxicating liquor on Sunday.” Also the following entry in same case on November 30th, 1891: “By consent of attorneys, this cause is transferred to the Probate-Court.” Attached-to that petition'is also aseries'of entries in the journal of the Probate Court, the first of which is as follows: “The State of Ohio v. Charles Smith, December-'8th, 1891. This day the transcript of the proceedings had in the common pleas court in this cause was tied herein. Said Charles Smith being charged with allowing saloon to be open on Sunday and selling intoxicating liquor on Sun•day.”

“December 14th, 1891. This day came T. H. Kellogg, prosecuting attorney, and.filed herein information in both indictments upon the transcripts from the court of common pleas, heretofore filed.”

It then notes continuances from time to time until April 18th, 1892, when it recites that “This day came the State of Ohio by J. R. McKnight, Prosecuting Attorney, and the defendant, Charles Smith, in person and by his counsel, and thereupon the defendant filed á motion for continuance, on consideration whereof the court overruled said motion. Thereupon the said defendant filed a motion to quash the first count of the information, which was argued by counsel, '& etc. and was overruled.

Thereupon a jury was called, trial had, and a verdict was returned: “We, the jury in this case, find the defendant Charles Smith, guilty in manner and form as he stands •charged in the first and second counts of the information.”

Afterwards a motion for a new trial was made, and sen-^ fence was imposed upon the defendant. Whereupon, the ■court asked the defendant if he had any thing to say why judgment should not be pronounced against him, and he having nothing to say, “it is therefore ordered and adjuged that on the first count of information, the said Charles Smith pay afineof $25.00 and the costs of these proceedings, taxed ■at $--, and be confined in the county jail 10 days, and until the fine and costs are paid. And on the second count of said information, said Charles Smith pay a fine of $50 and the costs of this proceedings taxed at $---■, and be confined, in the county jail 20 days, and until the fine and costs are paid.”

With that, a■ bill of exceptions was taken upon the overruling of the motion for a new trial, and the case was presented to us at Toledo for an order suspending the judgment until the case could be heard here, and now the case has been argued by counsel and submitted for decision.

I may say, without going through in detail, it appears that the indictment was returned by the grand jury. Beyond that, it nowhere appears that the defendant was ever arrested upon that, nor upon a charge' made upon an affidavit of any party before an examining magistrate.

So far as appears by the record, an indictment was found by the grand jury upon evidence taken before it, and that indictment having been returned to the court of common pleas, these proceedings were had which I have stated.

The first question that arises here is whether the probate court, by virtue of this proceeding, obtained any jurisdiction whatever to prosecute the defendant for the alleged offenses. The statute, section 5467, provides:

“All recognizances which shall or maybe taken by any justice of the peace in said counties, or other officers in said counties authorized to take the same, and all transcripts of criminal cases within the jurisdiction of said probate court, as defined by law, may be returned either to the probate court or common pleas of said counties; and the same shall be returned to one or the other of said courts forthwith after the commitment of the person charged with the offense, or after the taking of a recognizance for his appearance before one or the other of said courts.”

Thereupon it provides that the prosecutor may, at his election, proceed in either of said courts with the prosecution. That is, in cases in which the probate court has jurisdiction.

“The accused shall be bound to appear therein and to answer his recognizance, and on demand by the prosecuting-attorney, the probate judge, or clerk of the court of common pleas, shall certify the recognizance and all other papers in the case, returned to his court by the justice or other officer, to the court in which the prosecuting attorney elects to pro. ceed. ” '

That is the only statute we find. There is no authority for the transfer of a criminal case from the court of common pleas to the probate court of this county.

There is a statute, section 6454a, which authorizes the transfer of certain cases in Cuyahoga county from the court of common pleas to the probate court. The traixsfer therefore, of this case, in the manner stated in the record, by the court of common pleas of this county to the probate court, conferred, in our judgment, no jurisdiction whatever upon the probate court to proceed with the prosecution.

Section 6457, has a provision:

“The prosecuting attorney of any such county may file his information originally in the probate court, without a preliminary hearing before an examining court, upon the proper affidavits being filed therein, and the judge shall issue his warrant for the arrest of the defendant, who, when arrested, shall be taken before said judge, and thereupon, if not discharged, be recognized to appear at the next term of court, or in default thereof to be committed to the jail of the proper county. ”

It will be observed here that the. condition upon which the prosecuting attorney may .file an information originally in the probate court and proceed to have the party arrested and tried in that court, is when proper affidavits are filed charging the party with the crime. The propriety of that will be seen by referring to the decision of the Supreme Court in 3 Ohio State, in the case of Gates & Goodno v. the State, decided in 1854. The Supreme Court decided that “the general rule established by ‘an act defining the jurisdiction and regulating the practice of the probate courts’, is that prosecutions shall originate in a proceeding before some officer who can hear testimony and decide upon its sufficiency to put the accused on his defense before the pTobate court. ”

At that time all prosecutions should be commenced before an examining magistrate, and from that come up to the probate court; but with the passage of the act which is embodied in section 6457, the prosecuting attorney was allowed to file an original information in the probate court, when the proper affidavits had been filed, so that that court occupied a double position of probate court and examining court so far as jurisdiction is concerned.

In 1880, a case came before the Supreme Court which led toa very full discussion of the question,following some other decisions that had been had at that time and followed 3 Ohio St. 293. There is quite a full discussion of it in the case of Eichenlaub v. The State. That was the casein which there had been sworn out a search warrant, and certain property had been found, but the proceedings with the search warrant were not in accordance with the statute. The prosecuting attorney of the county, however, filed an information in court, the party was arrested and brought before’ the court, tried and found guilty of receiving stolen property. The question came up as to whether that court had jurisdiction.

This is the syllabus of the case: “One charged with the commission of a misdemeanor was prosecuted by information, and the information being unsupported by oath or affirmation, the accused moved to quash it for that cause-, which motion was overruled. Held, that in overruling such motion, there was error. ” It isa case that is quite fully discussed, and cites article first, section 14, of the constitution.

Without going into the reading of the case, it is sufficient to say that the gist of the case is embodied in the followingy citation from the opinion, of the court:

“We regard the section quoted (art. 1, section 14) assert- . ing this important principle: that no person shall be placed ■on trial for a crime against the law of this state upon the mere information of . a public prosecutor, nor until he has been charged with the commission of such crime upon oath ■or affirmation. An indictment being founded upon oath or affirmation, of course, satisfies the requirements of the constitution. ”

It will be seen therefore, that there was no law for the filing of the indictment that was returned into the court of common pleas in the probate court, if, indeed, it was ever filed there. It was among the papers loosely, and it is assumed that it was filed there. We think the paper itself .gave the court no jurisdiction, and in that position we are fortified by the case that was decided by the Supreme Court ■of this state in 11 Ohio St. 497. That action was in the nature of a civil action. It appeared that the Dayton & Western Railroad Company had entered upon some land, and used it for railroad purposes under an agreement stipulating that they should pay for the land. Certain arbitrators were chosen, but they were unable to agree. Thereupon the owner of the property, Hugh Marshall by name, brought an action by way of injunction to compel the parties to pay the price of the land, or cease to use the road. The railroad company demurred to the petition, and afterwards such proceedings were had that the following entry was made:

“This cause coming on to be heard upon the demurrer ■of the defendant to the complainant’s bill, and the court being advised, do overrule the demurrer, and thereupon, by consent of parties, the defendant files his answer and submits to the following decretal order, to-wit:’’ (It will be observed that the railroad company filed its answer, and it consented to the decree which was made,) to wit: “That the defendant shall, within sixty days from this date, by their proper officer, to-Vit, the president of the company, make out a statement containing a specific description of each parcel of the complainant’s property and rights specified in the bill, which they have taken and occupied in the construction and for the use. of their railroad, and within the' time aforesaid they file the same with the probate judge of this county preparatory to an assessment of the damages sustained by the complainant by reason of said appropriation and use of his property for the purpose aforesaid, and the' compensation which he ought to receive therefor, and further equities be reserved until the next term of this court, to-which time this cause is continued.”

The company afterwards refused to comply with the order, and, it seems, they had a mandamus by way of contempt.

Thereupon, the court raised the question whether the' probate court had jurisdiction to hear and determine that' case.

The first paragraph of the syllabus of the case, is as follows:'

“The probate court,under the act of,April 30, 1852, to provide for compensation to owners of property taken for use-of corporations, has a special and limited jurisdiction to be-exercised in the cases, and in the mode prescribed in the act; and that court cannot, under an order of the court of' common pleas, and to carry into effect that order, take jurisdiction of a case, or proceed in a mode not authorized by the act. ”

After some discussion of the question, the court say:

“Assuming these views to be correct, as applicable to an ordinary proceeding under the act, it is manifest that the present proceeding can only be sustained on the ground that' it was had in vitrue of the decretal order of the court of' common pleas, in the suit in chancery pending between the-parties. This leads to the inquiry, whether it was competent for the probate court to exercise a jurisdiction conferred, not by the statute, but by the order of another court. And we think it was not within the competency of the court of' common pleas to confer, or the probate court to acquire' and exercise, jurisdiction in this mode.”

That is to say, the court could only have jurisdiction in¡ the case by the exercise of the statute. It received its jurisdiction in that manner.

It will be observed in the statement of the case that no question was raised as to the jurisdiction of the court before the trial. We have had occasion to discuss somewhat the rules that should govern a court in a case of that kind, or what the rights of the State might be in that respect.

Section 5472 of the statutes provides that, “The provisions governing criminal proceedings in the court of common pleas shall so far as applicable, govern like proceedings in the probate court. ”

Provision is made in the statutes governing proceedings in criminal cases or the filing of motions, pleas in abatement and demurrers; and after trial, after a verdict, section 7353, provides that:

“A motion in arrest of judgment may be granted by the court for either of the following causes:

“1. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of such offense not being within the jurisdiction of the court.

“2. That the facts stated in the indictment do not constitute an offense. ” *

Now, light may be thrown on this from the case in 27 Ohio State, wherein Carper had been indicted for playing a certain game called draw poker,and had pleaded guilty to the accusation, and afterwards he raised some objections to being punished for the offense.

The court discussed some of the effects of these statutes, and says:

“By section 195, (which is now in the section I have read) he may plead, in arrest of judgment,

“1. That the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within tho jurisdiction of the court.”

And they say, ‘We suppose, notwithstanding the plea of guilty, the defendant may object to the jurisdiction of the court, or the grand jury, over the subject matter, or that no offense was charged against him, but not for any defect of form or manner of stating the facts, if there was a substantial charge of an offense.”

We suppose it to be a rule of law very well established that consent of parties cannot confer jurisdiction of the subject matter upon a court, and we are clearly of the opinion from these authorities and the general principles of law, that where a person is prosecuted under the statutes for a misdemeanor punishable by imprisonment and fine, that he may at any time raise the question as to the jurisdiction of the court over the suit in which he is convicted.

This question having been raised and submitted tó the court, we hold there is only one conclusion to be arrived at in this case, and that is, that it is shown in the record, that the probate court obtained no jurisdiction whatever to prosecute the defendant for this offense; in other words, that it obtained no jurisdiction to hear and determine the alleged offense set out in the information that was filed by the prosecuting attorney. If our position is correct in that respect, ' the alleged errors that occurred during the trial are of no moment whatever.

The court of common pleas having affirmed the judgment of the probate court, the order of this court will be that the judgment of the court of common pleas be reversed, and, proceeding to render the judgment that the court of common pleas should have rendered, the judgment of the sentence of the probate court will also be reversed, and an order will be made directing that court to dismiss the information for the reason that it has no jurisdiction whatever to hear and determine the question raised in it. The costs that were made upon the petition in error in the court of common pleas and the costs made upon the petition in error in this court, will be adjudged against the State. The probate court having no jurisdiction, there can be no adjudication of the costs in that court by any court.

S. M. Young, for Plaintiff in Error.

J. S. McKnight, Prosecuting Attorney.


author: Hale, J.

text:
    (Eighth Circuit—Summit Co., O., Circuit Court
    Sept. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    COTTELL v. THE STATE OF OHIO.

      Several counts in indictment describing same crime, constituting one transaction, proper. —
    Where the alleged crime constitutes but one transaction, and the indictment contains several counts, each describing the same transaction, to meet any phase of the testimony which might be developed on the trial, this is entirely proper and in accordance with the universal practie in this state, and a motion to compel the Prosecuting Attorney to elect upon which count he would proceed to trial, is properly overruled.

      Facts tending to disprove defense of alibi.

    The defense claiming that the accused did not leave the house where he stayed the night of the homicide, evidence tending to show whether the doors of the house were locked or otherwise, was competent.

      Circumstance tending to show motive for presence of accused at the house where crime committed.— 1
    Where in an indictment charging the accused with murder,the third and fourth counts charge the murder to have been committed in an attempt to commit a rape, which counts are nollied and the trial proceeds under the other counts containing no such charge, yet testimony tending to show the feelings of the accused toward the woman in question would not be incompetent as bearing upon the counts nollied,but competent as a circumstance accounting for his presence at the residene of the victims at the time of the commission of the crime.

      Insanity as defense■—
    The burden of proof to establish the defense of insanity in a criminal case, rests upon the defendant, but a preponderance of the evidence is all that is necessary for that purpose — What will amount to insanity or unsoundness of mind, to amount to a legal defense for crime defined.

    Error to the Court of Common Pleas of Summit County.

      Note—The judgment below in this case was reversed by the Supreme Court, without report, October 27, 1896, but with the following entry: “Reversed for error in the charge of the court as to the degree of proof required to establish the defense of insanity; no other error found in the. record. ” See, also, Kelch v. State, 36 W. L. B., 267, 55 Ohio St —.

   Hale, J.

The plaintiff in error, Romulus Cotell, was tried at the Npril term of the court of common pleas of Summit county, upon an indictment containing four counts, charging him' with murder in the first degree in killing Alvin N. Stone, The alleged date of. the crime was March 29, 1896.

During the progress of the trial, the'third and fourth counts in the indictment were nollied with the consent of the court.

The plaintiff in error was convicted of murder in the first degree on the first count of the indictment, and acquitted on. the second count. A motion for a new trial was overruled by the court, and a death sentence imposed. A bill of exceptions was taken, apd the record brought to this court for review.

1 At the commencement of the trial, counsel for plaintiff in error moved the court to require the prosecuting attorney to elect upon which count of the indictment he would proceed to trial. This motion was denied, and an exception noted.

In this ruling of the court there was no error. There was but one transaction constituting the alleged crime; a some-, what different description of that transaction was contained in each count of the indictment, to meet any phase of the testimony which might be developed on the trial. This was entirely proper, and we believe in accordance with the universal practice in the courts of this state.

2. Did the court err in any of the rulings in the admission and rejection of evidence?

The exceptions noted to the rulings of the court are quite numerous, but only a few of them merit discussion. The first of these to be noted is, however, of vital importance, and demands careful consideration-.

To maintain the charges in the indictment, the State called as a witness, Mr. James Doran, and proposed to give in evidence to the jury certain statements by the plaintiff in error, in which, it was claimed, he had confessed that he was guilty of the crime charged in the indictment.

To the introduction of this testimony counsel for the plaintiff in error objected,.on the alleged ground that the confessions sought to be shown in evidence were not voluntarily made by plaintiff in error, but were forced from him by promises of advantage to be gained thereby, or by fear of some threatened calamity if the confession was withheld.

The contention then was on the part of the State that the confessions sought to be given to the jury were voluntarily made by the plaintiff in error; and by the defense the contention was that they were not voluntarily made, and therefore incompetent.

It will be seen that the competency of this evidence depended upon the fact as to whether. they were voluntarily made or not.

To solve that question,five witnesses were examined touching the circumstances under which those statements were made by the plaintiff in error. These witnesses were: James Doran, James Burlison, George M. Wright, L. A. DeCello and B. M. Wanamaker.

This testimony was taken in the absence of the jury, and the trial court found as a fact, from all this testimony, that, the statements sought to be given to the jury were voluntarily made by plaintiff in error.

To hold this testimony to be incompetent, this court must reverse that finding of fact made by the trial court.

We have carefully read the testimony of each of those-witnesses, and have reached the conclusion that we would not be justified in reversing the finding of the trial court-upon that issue. ' Indeed, we have reached the conclusion that the trial court correctly weighed that testimony, and from’ it all reached the correct conclusion. The objection to-the introduction of this testimony, therefore, was properly overruled.

The witness Charles H. Sackett, called by the State, was-asked to describe the condition of the room where the homicide took place soon after the homicide, and having given, as best he could, a description of the room, was asked this question: “Could you have gone to bed without getting-your feet bloody on that side?” To which question an objection was sustained, and exception taken.

After the witness had exhausted his knowledge of facts concerning the condition of the room, the extent of the blood upon the floor, etc., the plaintiff in error was not entitled to his opinion sought by the question excluded by the court. There was no error in this ruling.

The witness Orange S. Treat, called by the State, soon, after the homicide went to the house of Edward Porter where the plaintiff in error resided. In answer to various questions he had related in part what took place at Porter’s house, and among other questions was asked this: “Do you remember how Mr. Porter opened the door? A. I think he-opened the door very readily.’’ The plaintiff in error asked the court to exclude this answer, which was overruled, and an exception taken. The witness then further answered, “He-certainly took hold of the latch and opened the door readily. ” And this also the plaintiff in error moved the court to exclude from the jury, which was overruled, and defendant excepted. We think this testimony was entirely competent. As a circumstance bearing upon the fact whether Cottell had left the house of Porter during the night, it was entirely proper to show whether he was behind locked doors or other-, wise, and this testimony had some bearing upon that fact.

During the progress of the trial, witnesses called by' the State were permitted to testify to certain acts of Cottell having a tendency to show an infatuation on his part for Flora Stone.

It is said that such testimony could only have a bearing in support of the third and fourth counts of the indictment, which counts charged Cottell with the commission of the crime while attempting to commit a rape upon the person of’ Flora ¡Stone.

We do not agree with counsel in this claim. We think it was entirely competent under either count of the indictment to show the feelings of Cottell toward Flora Stone. His infatuation for her is a circumstance proper to be considered in accounting for his presence at the Stone residence that night.

Flora Stone, a witness called by the State,having testified to certain stdtements or expressions made by the murderer •when in the house at Stone’s, was asked this questionr “When he said these words,‘where is the other one, ’ tell us-whether you recognized his voice.” To which question am objection was overruled, and exception taken.

We think this question was entirely competent, — as competent as it would have been to ask her if she saw the person in the room. There is no suggestion in the question that she recognized the voice as the voice of Cottell. That fact was elicited by a further question.

The witness Wright, called upon the part of the State, gave an account to the jury of an interview he had with Cottell, stating that as he left at the close of the interview, Cottell said to him, “You think lam innocent, dont’ you.” He was then asked, “What was his appearance when you turned?” His answer was, “His face, especially his eyes, had a remarkable look of terror and wildness in them, such as one seldom sees.” Objection was taken to the answer, not to the question. The answer may be a little vivid in its expression, but we are not prepared to say incompetent.

During the cross-examination of the witness Edward Porter, called by the State, he was asked the following question: “Ramio always spoke kindly of the Stone’s, did he not?” To which an objection was sustained, and exception taken. In passing upon this question the court stated to counsel that they might show fully the relations existing between the accused and the Stones, and all facts and circumstances bearing upon that question, but could not in this general way give the declarations of the accused in his own behalf.

It is very clear that there was no prejudicial error in the exclusion of this question for which the case should be reversed.

Without considering this branch of the case any further, we will simply say that we haxe examined very carefully each and every exception noted to the admission and exclusion of testimony, and we find nothing in all these exceptions of which the plaintiff in error has any just ground for complaint

We think the trial court in all the rulings upon the questions of evidence,gave the prisoner the benefit of any doubt that might exist as to the rule of law, and that certainly no error intervened in these rulings for which the judgment should be reversed.

Again, several exceptions are taken to the charge of the court.

First. — It is claimed that the court did not correctly define the cr-ime of manslaughter.

The court said to the jury,“Manslaughter is where killing is unlawful, but without malice, without deliberation or premeditation or purpose to kill; whoever kills another without malice, either express or implied, but while in the commission of some unlawful act, is guilty of manslaughter.”

It is not claimed that this is not a correct statement, so far as it goes.

It is true, intention or purpose to kill may be present in the crime of manslaughter, where the killing is without malice, upon a sudden quarrel; but so far as it could have any application to the present case, we think that the court properly defined the crime ofjjmanslaughter.

However that may be, there is no clainqthatjjthe court did not properly define the crime of murder in the first degree, The jury convicted the accused of that crime, hence it was wholly immaterial whetherjthe crime of manslaughter was correctly or incorrectly defined. It was without any prejudice whatever to the plaintiff in error.

Upon the subject of the purpose or intent to kill, the court charged the jury: “The purpose or intent to killin general, is proved by the circumstances,byjwhat a party does and says, the manner of inflicting wounds, the instrument used, and its tendency to destroy life. If palpably calculated to take life, it may be presumed to be 'so intended.”

Exception was taken to this statement — not as we understand it that it was not a correct statement ofjjthe law, but that the jury should have been cautioned in connection with this statement that no inference of’premeditation and deliberation could be drawn from the use of a deadly weapon; in other words, it is said that the juryjmight have misapplied this correct statement of the law.

We do not believe that any such inference is authorized.

It is further insisted that the court erred greatly to the-prejudice of the plaintiff in error, in the instruction's given to-the jury on the subject of insanity, and more especially as to the extent of the burden of proof which rests on the defendant in a criminal case, to establish that defense.

The rule upon this subject has been many times announced by the Supreme Court of the state, and is this: “The-burden of proof to establish the defense of insanity in a criminal case, rests upon the defendant, but a preponderance-of the testimony is all that is necessary for that purpose.’’

The rule of the law applicable to a criminal case, where am issue of insanity of defendant is made, was considered by-the Supreme Court in the ease of Clark v. State, 12th Ohio R. 483. The charge of the trial court to the jury in this case-which had been reviewed by the Supreme Court, was adopted by the trial court of Loeffner v. The State, 10 Ohio State, 598. The language adopted by that Court,and stated as the law of the case, was, so far as applicable to the point under-discussion, as follows: “In trying this question, you will bear in mind that the law presumes every person of the age-of fourteen years or upward, to be of sufficient capacity to-form the criminal purpose, to deliberate and premeditate upon the act which malice, anger, hatred, revenge or other-evil disposition might impel him to perpetrate. To defeat, this legal presumption which meets the defense of insanity at the threshold, the mental alienation relied upon by the-accused, must be affirmatively established by positive or circumstantial proof. You must be satisfied from the evidence-that the perverted condition of the faculties of the mind, indicated in the main question which I have already stated,, as excusing from crime, did exist at the time Sells was killed. It is not sufficient if the proof barely shows that such a state of mind was possible, nor is it sufficient if it merely shows it to have been probable; the proof must be such as to-annul the legal presumption of sanity; it must satisfy you-that he was not sane. ’ ’

The correctness of this charge was certainly considered, and determined by the Supreme Court in thejreview of that •case. It must have been the subject of some! discussion at' •least, for the conclusion reached was not concurred in by all the members of the court.

The ninth paragraph of the syllabus reads: “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 cause, 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.”

These two cases are cited with approval by the Court in Bergin v. The State, 31 Ohio State, 111, Judge Gilmore, after quoting from the charge of the.court as follows: “To defeat the legal presumption of sanity which’meets^the defense of insanity at the threshold, the burden of establishing mental alienation of the accused affirmatively rests upon the accused”- — -says: “The counsel for the motion admits that this is held to be the law in Ohio, but ably argues that it is not good law. If the question was an open one, a majority of the court would be in favor of the rule as it stands, and inasmuch as the rule has been so long established and so repeatedly recognized in this state, as shown by the cases below cited, the court is unanimous in the 'opinion that it should not be changed by judicial action.” He cites Clark v. The State, 12th Ohio, 483; Loeffner v. The State, 10 Ohio St. 599; Silvus v. The State, 22 Ohio St, 90; Bond v. the State, 23 Ohio St. 349; Weaver v. The State, 24 Ohio St. 584.

In the case at bar the court upon the subject of the burden which rested upon the defense to establish insanity,instructed the jury: “He (plaintiff in error)'haé interposed, to meet the claim of the State,the plea of unsoundness of mind or imbecility, and this plea, whilst he must make it good by a preponderance of the testimony, in order to avail him or excuse him from the crime committed, if he did commit one, is to receive - due and careful consideration at your hands. In the first place, the law presumes every person who has reached the age of discretion, to be of sufficient capacity as to be responsible for crime, and therefore the burden of establishing the defense of insanity or mental weakness of the accused, affirmatively, to the satisfaction of the jury, rests upon the defendant. It is not required, however, that this defense be established beyond a reasonable doubt, but 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.”

After defining insanity that constitutes a defense to a criminal charge, the court adds; “It is not enough, I say to you, that the proof barely show that such a state of mind was possible, nor is it sufficient if it merely shows it to have been probable; the proof must be such as to overcome the legal presumption of sanity; it must satisfy you that he was-not sane. ”

“Again I say to you, that if the proof satisfy you of his sanity at the time of the committing of the act, though such defenses are not uncommon in the law, yet it must be regarded by you as a full and complete humane defense when satisfactorily established. If not satisfactorily established, then it should not avail the prisoner at the bar as a pretext or means of escaping punishment imposed by law.”

This is the language-employed in Loeffner v. The State, and approved by the Supreme Court.

Again the court upon this subject said to the jury: “I» regard to the eighth proposition as I have enumerated them above, ascertain whether the accused at the time of the act of killing, was sufficiently clear in intellect to weigh and appreciate his act; did he know the nature and quality of. his act, and his relations to the person whom his act injured; did he know that that act was wrong,and had he will power enough to resist and abstain from the act; was he a free agent to choose the right and reject the wrong? If you find these facts substantially as I have stated, in favor of the State and against the accused, then the defendant is not entitled to an acquittal on the ground of insanity or defect of reason. If you find that the contrary has been established by a preponderance of the evidence on the part of the accused, then that would end your investigations, and your verdict should be, not guilty of any crime. It is not sufficient to show that the accused at the time of the act of killing,, was possibly or probably insane; the proof must be such as to overcome the presumption of sanity, and by a preponderance of the testimony establish his insanity.”

It is true the court here has said that “it is not sufficient to show that the accused at the time of the act of killing was possibly or probably insane;” but this is only a part of a sentence,the remaining language of which is,“the proof must be such as to overcome the presumption of sanity, and by a preponderance of the testimony establish his insanity.”

It is plain that by the terms “possibly” and “probably insane” the court meant something less than the establishment of the fact of insanity by a bare preponderance of the testimony, and the jury could not have been misled as to the true rule.

Again, the plaintiff in error was convicted of murder in the first degree. Among other instructions given to the jury to be observed in determining the degree of the crime, the court said to the jury this: “As bearing upon the question of deliberation and premeditation, an essential element of murder in the first degree as I have before explained to you, ascertain whether the accused, at the time of doing the act, if you find that he did it, was so far affected by insanity, partial or temporary, or by reason of a diseased, weakened and impaired intellect, as to interfere with,or in any manner affect his powers of mind, as to deliberate and premeditate, design and purpose as to the act charged against him; give it careful consideration, as bearing upon the degree of crime for which he is responsible under the several counts of the indictment. If, therefore, in your consideration of the fourth proposition that I have above submitted to you, you find that the accused was so far deprived of reason, judgment,memory, orjfree-will, as to be incapable of forming the design to kill,' or of deliberating and premeditating upon it, then you will so find according to the fact.”

So the jury must have found that the mind of the accused was not so weakened or so far affected by insanity, partial or temporary, that he was incapable of deliberation or premeditation.

There were in fact two propositions made by counsel for the accused, and two given to the jury. One defining that insanity that excuses from crime and which, if found by the jury, would authorize a verdict of not guilty; the other defining that degree of insanity or mental weakness that would reduce the grade of the crime below murder in the first degree. Under the last proposition, the jury were told, that partial insanity,or an intellect so weak as to leave the accused without the power to deliberate and premeditate, was sufficient to reduce the grade of the offense to murder in the second degree — a much less degree of insanity would excuse these elements of murder in the first degree than would excuse from the entire criminal act, and yet the jury found that even this partial insanity did not exist; that the accused had the power to deliberate and premeditate on the act done.'

It may therefore be doubted whether the charge complained of was at all prejudicial to plaintiff in error.

In addition to what#I have quoted, the court, at the request of the counsel for the plaintiff in error, instructed the jury as follows: “In order to convict the defendant of murder in the first degree, you must find that the act was done purposely, of deliberate and premeditated malice; and purposely,in this case,implies an act of the will,an intention, •a design to do an act. It pre-supposes the free agency of •the actor. Deliberation and premeditation require action of the mind. They are operations of the intellectual faculties, and require the exercise of reason,reflection, judgment and decision, and cannot happen in any case where the faculties of the mind are deranged, destroyed or d’o not exist. The crime of murder in the first degree can, therefore, only be perpetrated by a free agent capable of acting or abstaining from an action. He must have a sane mind, capable of reason, reflection and premeditation and under the control of the will.”

Again:“If you find that the defendant actually, committed the homicide complained of, and that he was not insane •within the legal definition of that term at the time of its •commission, and if you also find that while not so insane he was in fact of so weak mind as to be incapable of premeditating or deliberating upon the act; or that he was not fully conscious of his purpose or act, or that he was without the power of determining the true nature and character of the act, then the act would not be murder in the first degree, but murder in the second degree, and you should so find.”

Upon careful review of the charge of the court as applicable to the case made in the proof, we are of the opinion that the plaintiff in error has no just ground of complaint of the law as stated to the jury by the court upon the subject of insanity and of the burden of proof on the accused to establish that defense.

After the rendition of the verdict, the court overruled a motion fora new trial, to which exceptions were noted.

The grounds relied upon for a motion for a new trial were:

1. That the verdict was against the weight of the evidence.'

2. Misconduct of jurors during the trial of the case, and incompetency of a juror by reason of having expressed an opinion.

8. Newly discovered evidence.

If we are right in the rulings already made upon the admission of the confessions of the plaintiff in error, we see no> foundation for the claim that the verdict is contrary to the evidence.

Without stopping to review the entire testimony, which we have most carefully considered, we can reach no other conclusion than that the statements to which reference has been made, of the plaintiff in error, in connection with the many facts and circumstances disclosed in the evidence, fully justified the jury in the conclusion reached.

Upon the question of the alleged misconduct of jurors, the court took the sworn testimony of witnesses produced by the defense, and after patiently hearing that testimony, came to the conclusion that there was no such misconduct of the jurors as to authorize the granting of a-new trial, and in this, we think the court was entirely correct.

As to the claim that one of the jurors had previous to the trial expressed an opinion unfavorable to the plaintiff in error, we think the evidence considered as a whole, failed to show that any statement was made by the juror which should disqualify him to sit in the case.

Certainly there was nothing in the claimed newly discovered evidence which would authorize the granting of a new trial,

On a careful review of this entire record, we reach the conclusion that the rights of the plaintiff in error, at every stage of the proceeding, were fully protected by the trial court, and that there is no error upon this record for which a new trial should be'granted.

Messrs. JR. M. Wanamaker, Pros. Attorney, and B. W. Saddler, Attorneys for State.

Harvey Musser and JE. F. Voris, for Accused.

Judgment affirmed.


author: Smith, J.

text:
    (First Circuit—Butler Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Cox, Swing & Smith, JJ.
    JUSTIN GREISS, et al., v. JOSEPH WILKOP, et al.

      Chattel mortgage executed by partnership firm — Signed by one member only—
    Where a chattel, mortgage, authorized by all members of a firm of co-pkrtners, is signed by one of them only, first in his individual name and then in the firm name, but not by the other members of the firm individually, and there is nothing to show that it should not be valid unless signed by all the partners individually,, the mortgage is valid.

      Note of firm given for debt of former firm of same membership— A firm of co-partners has the right to give its firm note for a debt of a former partnership of which all the partners in the new firm were members.

      Uncertainty or error in description of debt—
    A chattel mortgage is not invalid as to third persons on account of uncertainty in the description of the debt intended to be secured, when, upon the ordinary principle allowing extrinsic evidence to apply a written contract to its proper subject matter, the debt intended to be secured may be shown as between the parties. The lien is not affected by a clerical inaccuracy in the description of the debt.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

It is claimed that the court of common pleas erred in overruling the motion of plaintiffs in error for a.new trial, and in sustaining the mortgages giyen by the firm of J. ■Stenger & Co. to Joseph Wilkop, and to J. N. Busken for the full amount thereof.

Two objections are urged against the Wilkop mortgage ■which was given to secure a note of $725, made by the firm of J. Stenger & Co. to him, shortly before such partnership had made an assignment to Mr. Granger, for the benefit of its creditors. This note of $725 represented two other notes, one for $200, dated Oct. 2, 1890, admitted to^have been given after the formation of the firm, and the other for $500, given May 9, 1890, as it is claimed, by the firm of J. Stenger & Co., when another person was a member of such firm, and for which it also is claimed the last firm was not liable, and therefore, that in so far as this note is concerned, the $725 note was without consideration. We doubt whether it sufficiently appears that the!'$500 note was not given by the firm which assigned, but we are of the opinion that the assigning firm had the right, in good faith, to give the note of the partnership for the indebtedness of the former partnership for which the members of the new firm were liable.

It is further objected that the mortgage to Wilkop was not signed by Geo. H. Buskirk, a member of the firm of J. Stenger & Co., in his individual capacity, and therefore that under the facts in the case the mortgage was invalid.

It appears from the evidence that' this mortgage, as well as the one to Busken, had been prepared by Mr. Granger on the direction of Stenger, both members of the firm having authorized the execution of mortgages to Wilkop and J. H. Busken. Mr. Stenger first executed them by signing his name individually, and then in the firm name of J. Stenger & Co., the mortgages both purporting to be the act of the firm. A blank line was left between the name of Stenger and the name of the firm, which Mr. Granger, and probably Mr. Stenger expected to be signed by Mr. Buskirk the other partner. He was not then present, but on the-same afternoon came to Mr. Granger’s office and signed his name to his father’s mortgage, but by mistake, or otherwise, omitted to sign his name to the Wilkop mortgage. We are of the opinion that the mortgage was valid without his signature. It was regularly signed in the name of the-firm, and no stipulation of any kind made that it was not to be binding until signed by Busken, but directions were left by Stenger to have it filed first- — -and that was done. The-assent of the firm, thereto, was sufficiently given.

It is further claimed that the Busken mortgage did not operate to secure a large part of the debt claimed, for two-reasons: 1st. That in the condition of the mortgage itself and in the affidavit made to it by the mortgagee, a claim is-made on a note dated Feb. 28, 1891, for $500, which was endorsed by said J. H. Busken, the mortgagee, for the use and-accommodation of said firm of John Stenger Co., and discounted by the National Lafayette Bank, of Cincinnati, and which the affidavit made by Busken (to show that the mortgage is taken to indemnify him against loss thereon,) alleges to be then held by the Lafayette Bank. No such note is produced or proved, but one is produced dated May 27, 1891, which is said to be the one meant, and which the evidence tends to show was probably given in renewal of' that of Feby. 28, 1891, described in the mortgage, and which was so descibed by mistake.

We understand the law to be that “ a mortgage is not invalid' as to third persons on account of uncertainty in the description of the debt intended to be secured, when upon the-ordinary principle allowing extrinsic evidence to apply a written contract to its proper subject matter, the debt intended to be secured may be shown as between the parties.” 11 Ohio St. 232; 12 Ohio St. 38. It is stated also that “a mortgage secures the debt, and not the note, bond, or other-evidence of it;” and therefore, when anote so secured is renewed, and a new one given in lieu of the first, the latter is secured by the mortgage. Kuhns v. McGeah, 38 Ohio St. 468, and authorities there cited.

It must bo conceded that the law is, that a mortgage debt, secured by a mortgage, ought to be so described as to be notice to subsequent purchasers or lienholders, or be sufficient at least to put them upon inquiry. But “the lien is not affected by a clerical inaccuracy in the description of the debt; as for instance, in the date of the note secured,, or in the time of its payment.” And “parol evidence is admissible to prove that the note produced is the note intended to be described.” Jones on Mortgages, Sec. 354.

In the case at bar the amount named in the consideration clause was the true amount. The condition of the mortgage, and the affidavit of the mortgagee thereto, described three notes — one of $500, dated Feb. 28, 1891; one for $600, dated April 4, 1891; another for $500, dated June, 1891, all executed by John Stenger & Go. and affiant as surety, discounted at, and now held by the National Lafayette Bank, and the Atlas National Bank. So far as the point now under consideration is concerned, this description was entirely accurate and sufficient, except that the note produced is dated May 27, ’91, instead ofFeb’y. 28, ’91. But the evidence shows that the note of May 27, ’91, was the note intended to be secured, having probably been given before the execution of the mortgage in lieu of that of Feb’y. 28, ’91, and an inquiry at the banks would have shown what the debts held really were. And we are of the opinion that the mistake made in the description of the note ought not to prevent the mortgagee from having the lien of the mortgage to secure the last note of May 27, 1891.

It is further claimed that the mortgage should not be held, to secure this note of May 27, ’91, or that of June 18, 1891, for the further reason, that the condition of the mortgage, and the affidavit to the mortgage, state that those notes were signed or endorsed as surety only, by John H. Busken, the mortgagee, when the notes produced show that they were not endorsed by him individually, but were endorsed by the firm of J. S. & G. H. Busken, of which the mortgagee was a member.

Ernest Behm, Att’y for Plaintiff in Error.

Ben. Taylor & Mr. Molony, for Defendant in Error.

Much of what we have said on the last question is applicable to this also. The evidence shows that by an arrangement between the members of said firm, if one of the partners desired to do so, he could use the firm name in such transactions, and he become liable to the firm for any loss occasioned thereby. We think, then, the mortgagee had such a liability to loss as he individually might protect himself against, and that the mode in which the mortgage states that the indorsement was made was sufficiently explicit, and the judgment of the court of common pleas will therefore b.e affirmed, with costs, but without penalty.


text:
    (First Circuit, Hamilton Co., O. Circuit Court,
    January Term, 1891.)
    Before Cox, Swing and Smith JJ.
    THOMAS McFARLAND v. C. S. McHUGH, et al.

      Former partner of firm — Inability for firm debts incurred after tvithdraival—

    Where one begins to deal with a firm after the withdrawal of a dormant partner of the same, the fact, that no notice of the .withdrawal of such dormant partner was advertised in the newspapers, would not make such dormant partner liable to such dealer for notes of the firm even if he believed when he sold the goods that such dormant partner was still a member of the firm, unless the latter had in some way held himself out as still a member of the firm.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

It clearly appears from the evidence in this case, that prior to Jan’y. 1, 1883, T. J. McFarland and his brother-had been carrying on the wholesale boot and shoe business in this city, as partners, under the firm name of McFarland & Co. On the day named that partnership was dissolved by the retirement of F. B. McFarland, and a new one formed between S. J. McFarland and his father, Thomas McFarland, who continued in the same business under the same name, and in the same place,until July 26, 1884, when this-partnership was dissolved by the withdrawal therefrom of Thomas McFarland, and a new partnership was then formed-between S. J. McFarland and Paul E. Rust, who under the-same firm name of McFarland & Oo. continued to carry on the business in the same room until Feb’y. 27, 1885, when the firm made an assignment. During the time that Thomas McFarland was a member of the firm, he took no part in the management of its business, which was conducted wholly by S. J. McFarland; all that Thomas McFarland had to do-with it, was to put in a certain amount of capital. It appears that on two or three occasions, in answer to inquiries-made of him, he stated that he was a partner in the business,, but the McFarland of the firm.who conducted the business-manifestly was T. J. McFarland, the son. After his withdrawal from such partnership, Thomas McFarland was not about the place of business, and had no connection with the-firm or its business.

After July 26, 1884, McHugh commenced the business-of the manufacture and sale of shoes- in this city, and in November or December, 1884, sold several small bills of goods to the then existing firm of McFarland & Co., which were paid for. On January 3rd, 8th and 23rd he sold other-bills to the firm,which gave to him three notes therefor. After the failure of the firm, McHugh brought suit on these-three notes against T. J. McFarland, Paul E. Rust and Thomas McFarland, the latter being joined on the theory that he was a member of the firm, or had held himself out as such. The two defendants first pamed made default,but Thomas Me Farland answered denying the averments of the petition and all liability for the debts.

The evidence further showed that the sign of “McFarland & Co.,’’ which was on the store prior to July. 26, 1884, was allowed to remain there, and McHugh testified that he saw it there in the spring of 1884, and also after the formation of the new firm. It also appeared, that after the retirement of McFarland, the new firm had the names of the two members, T. J. McFarland and Paul E. Rust, printed on the cards, letter heads and bills of the firm, and that McHugh saw them about the time of his dealing with McFarland & Co., and that a few of the old cards of the previous firm, which did not have thereon the names of the partners, were occasionally used. On the dissolution of the firm on July 26, 1884, notice of this fact was given to those who had previously dealt with it, personally, and T. J. McFarland testified that he also caused the notice of such dissolution to be published in the Enquirer or Commercial, of this city- — • but no. such notice was produced or otherwise proved, and the testimony of this witness was so indefinite and unsatisfactory on this point, that the case should be considered by us as though no such notice was published here.

But we see nothing in the evidence tending to show that McHugh, before July 26, 1884, had any knowledge that Thomas McFarland was a member of the firm of McFarland & Co., or that he (McFarland,) ever did or said anything that should have iuduced McHugh to think or believe that he was a member of the firm when he dealt with it. It is true that the court allowed McHugh to testify that in the autumn of 1884, before he sold the goods, two or three persons told him that Thomas McFarland was a member of-the firm, and that such was the general reputation in the community; but as we understand the statement of the trial judge, this was not admitted to prove the fact that he was such partner, but to show that McHugh dealt with the firm on the faith that he was, and as to the general reputation that it might be, so wide spread as to raise a presumption that Thomas McFarland must have heard of it, and took no means to correct it. It is very doubtful whether such evidence is admissible for any purpose. But, however this may be, the proof as to general reputation was wholly insufficient, and it is shown that no such reputation came to the knowledge of McFarland,and that all statements made to McHugh as to his being a partner, were wholly unwarranted, and that he was not warranted in relying upon them, and that there was enough shown and stated to him to put him on inquiry as to who composed the firm.

On this state of the case we think the law to be thus: — 1st. That if Thomas McFarland was a dormant partner in this firm, up to July 26, 1884, as we think the evidence shows that he was, and McHugh had never dealt with the firm while he was a member of it, as it is clear that he did not, the fact that no notice of the dissolution was advertized in a newspaper here, would not make Thomas McFarland liable to him for those notes, even if he believed when he sold the goods, that McFarland was a member of the firm, unless the latter had in some way held himself out to be a member of the firm, which is not claimed.

2nd. That if McFarland was an absolute or open partner, prior to July 26, 1884, and then entirely withdrew from all connection therewith, and McHugh had never dealt with the firm while he was a member thereof, and had no knowledge during that time that he was a member of the firm, and afterwards dealt with the new firm, McFarland having in no way held himself out as a member of the firm,and there being nothing to warrant McHugh in the belief that he was a member thereof, the fact that notice of such dissolution was not published, will not entitle him to recover against Thos. McFarland. 36 Ohio St., 135.

Beemelin & Beemelin, Atty’s for Plaintiff in Error.

Cowan, Ferris & Swing, Atty’s for Defendants in Error.

Under the law and the evidence,we think,the verdict and judgment against him were wrong, and should be reversed, with costs.