text:
    BENEFICIAL ASSOCIATIONS.
    [Cuyahoga (8th) Circuit Court,
    April 2, 1903.]
    Hale, Marvin and Winch, JJ.
    Carl Halle et al. v. District Grand Lodge No. 2, I. O. B. B.
    1. Benefit Associations May Limit Payment of Benefits to Particular Heirs.
    Although members of mutual benefit associations cannot designate as beneficiaries persons outside the classes specified in the statutes regulating such associations, they may limit the payment of benefits within the classes designated by law. Hence, a benefit association organized under 69 O. L. 82, which provides for the formation of such associations “for the purpose of mutual protection and relief of members, and for the payment of stipulated sums of money to the families or heirs of deceased members,” may provide, by by-law that in case a member fails to make any designation as to whom his endowment shall be paid, it shall be paid to his wife, or if there is no wife, to his children or grandchildren, and in case there be none such, then no endowment shall be paid.
    2. By-law of Benefit Association Disposing of Endowment of Deceased Member in Default of Certain Heirs, Valid.
    Where the by-laws of a mutual benefit association require a member to designate a beneficiary and upon his failure to do so provide that the benefits shall be paid to certain heirs in an order_ named, there being no such heirs as are specified in the by-laws, the association has the right to designate what shall be done with the endowment.
    Error to the court of common pleas.
    S. A. Grossner and H. Prousser, for plaintiffs.
    Horr & Loewenthal, for defendant.
   WINCH, J.

Carl Halle, Manuel Halle, Moses Halle, Bertha Goldsmith, Regina Rheinhard, Caroline Skall and Minnie Goldsmith, alleging that they are the sole heirs at law of Aaron Halle, deceased, brought their action in the court below against District Grand Lodge No. 2, I. O. B. B., to recover certain benefits which they claimed to be due from said lodge, alleging that the lodge is a corporation organized under the laws of the state of Ohio for the purpose of mutual protection and relief of its members and for the payment of stipulated sums of money to the families or heirs of deceased members of such association, and that it has certain powers, etc.

The language of the allegations regarding the objects of the order is taken from the act of April 20, 1872 (69 O. L. 82). Although this act has been amended since 1872, we have taken it that the original act controls in this case, as there is no allegation or proof that subsequent amendments of the law have been taken advantage of by the association.

The petition states that Aaron Halle became a member of the defendant association in 1874 and remained such until his death in 1897; that in 1874 he became a participating member of its covenant and endowment fund, paid all dues and assessments, and died on April 23, 1897, at Cleveland, in good standing, never having designated who should be his beneficiary, and leaving no widow, nor children, nor grandchildren. Due notice of his death was given and proof thereof was made according to the printed rules and regulations of the order.

Section 11 of the by-laws of the order provides in, substance that each member shall make a designation as to whom his endowment money shall be paid at his decease.

Section 12 of the by-laws provides who may be thus designated, to wit: “A member or members of his family, blood relatives, or a dependant or dependants of such participating member, or charitable or benevolent institutions or associations, including a lodge of this order for some specific benevolent purposes.”

Section 13 of the by-laws construes the designation “wife and children” or “family,” and provides who shall receive the benefits upon the prior decease of a designated beneficiary and directs upon the prior death of all designated beneficiaries the money shall pass to the emergency fund under Sec. 18 of the by-laws and be controlled by .the provisions of said section, and, if not distributed thereunder, shall lapse and become a part of the reserve fund.

Section 14 of the by-laws provides that in case a member fails to make any designation as to whom his endowment shall be paid, the endowment shall be paid to his wife, and, in case there be no wife, then to his children, then to his grandchildren, and in case there be no wife, children nor grandchildren, no endowment shall be paid, subject, however, to the provisions of Sec. 15 of the by-laws.

Section 15 provides that any member who may be a member of a home for aged or infirm or of any similar charitable institution may designate such home or institution as a beneficiary, and shall not be entitled to make an_v change, etc.

Section 18 provides that in any case where there may be no one entitled to demand payment as beneficiary on the death of any member, the trustees of the endowment fund may pa}' over the endowment on such death, or such part thereof as they may deem advisable, into a fund which shall be known as the emergency fund, and the trustees are empowered to pay from that fund to such members of the family or blood relatives of the deceased member so dying without valid designation of such charitable institution which may have assisted him, as the trustees may. deem worthy of relief, and any portion of said fund not so applied by the trustees shall lapse and'pass into and become part of the reserve fund. A reserve fund is provided for in Sec. 9, from which endowments shall be paid whenever they exceed the current receipts.

A general demurrer to the petition was sustained by the common pleas court.

Attention is called to the fact that the plaintiffs claim to be the sole heirs at law of the decedent member, but they do not claim to be the wife, children or grandchildren, or any of the heirs at law designated in the by-laws as entitled to be beneficiaries under the designation of members.

It is contended by plaintiffs that Aaron Halle having died without designating any beneficiary, they are entitled to his endowment because the law under which the order is organized provides that it may pay “stipulated sums of money to the families or heirs of deceased members,” and that they are the heirs of Aaron Halle within the purview of said statute, and he had no family. They claim that the law and the by-laws of the order make a contract in their favor, and that the by-laws of the order cannot be in conflict with the law, and if they are, the statute prevails. They claim that in so far as the by-laws limit the payment of benefits, upon failure of designation, to certain heirs, excluding nephews and nieces, for instance, such as plaintiffs are, the by-laws are invalid.

It is well settled in this state that the scope of the by-laws cannot be greater than that of the law. State v. Mutual Benefit Assn. 42 Ohio St. 579.

The authorities cited by counsel for plaintiff hardly bear out their contention that the association cannot decline to take the benefit of the whole law, and cannot limit the classes who may be designated by the members as beneficiaries or who may receive benefits where no valid designation is made. They are rather in line with the case above referred to, for instance:

In the case of the Supreme Council American Legion of Honor v. Perry, 5 N. E. Rep. 634 [140 Mass. 580], under a statute authorizing the creation of corporations, for the purpose of assisting the widows, orphans, or other relatives of deceased members or persons dependent upon deceased members, it was provided in the by-laws that in the event of no designation the benefit was to go to the dependent heirs of the deceased member, and it was held that a member could not direct by will that a person not within the class contemplated by the statute should receive the benefit of a certificate issued to him, even if the terms of the certificate permit such disposition to be made. In this case the benefit fund was bequeathed by the member to a person to whom he was engaged to be married, but to whose support he had contributed nothing and who was not dependent upon him.

In the case of Britton v. Supreme Council, 18 Atl. Rep. 675 [46 N. J. Eq. 102], the same law of Massachusetts was under consideration, and the court held that a member could not designate a creditor in no wise related to or dependent upon him as his beneficiary, and having done so, there was such failure to designate that the fund would go to the “legal heirs” mentioned in the by-laws, who were construed to be the next of kin of the member.

In the cáse of Alexander v. Parker, 33 N. E. Rep. 183 [144 Ill. 355; 19 L. R. A. 187], the statute regulating the organization of such corporations “for the purpose of assisting the widows, orphans, or other persons dependent upon deceased members,” and the by-laws providing for the payment of benefits to a member’s wife, children, etc., and lastly, to any other person dependent upon him, it was held that a member could not designate as his beneficiary his affianced wife who was not dependent upon him.

To the same effect is the case of Baldwin v. Begley, 56 N. E. Rep. 1065 [185 Ill. 180], where the claimant was a niece of the deceased member’s wife,' and the by-laws provided for the payment of benefits only to the families, heirs, blood relatives, affianced wife of, or persons dependent upon the member.

We are satisfied that while members of mutual benefit associations cannot designate as beneficiaries persons outside the classes specified in the statutes regulating such associations, and while such associations cannot provide for the payment of benefits to persons outside the classes mentioned in the statutes, such associations may limit the payment of benefits within the classes designated by law. If the law provides that benefits may be paid to heirs, generally, the by-law may specify what heirs and limit and restrict the beneficiaries to certain heirs.

Defendant claims not only that plaintiffs are not the wife, children or grandchildren of the deceased member, within the meaning of the bylaws, and so not entitled to any benefits, but that there being no wife, children or grandchildren] all benefits have lapsed and it is indebted to no one by reason of the endowment membership of Aaron Halle. Plaintiffs claim that the by-laws providing for the lapsing of benefits are invalid, being contrary to the spirit of the statute and in an indirect manner provide for the payment of benefits to institutions beyond the purview of the statutes. We do not see how plaintiffs’ claims to the fund are bettter established by showing that some other payment provided for under the by-laws is unlawful.

If plaintiffs have no right to the fund that settles this case, whether the association may afterwards make unlawful use of the money or not. Order of Mutual Companions v. Griest, 18 Pac. Rep. 652 [76 Cal. 494].

By-law 14 provides that if there is no wife and no children or grandchildren, no endowment shall be paid, subject to the provisions of Sec. 15 authorizing the member to designate a charitable institution as his beneficiary. Section 18 directs that in any case where there may be no one entitled to demand payment as beneficiary the money may be paid into the emergency fund, from which payments may be made to needy members of the deceased member’s family, blood relatives, or a charitable institution, if the trustees deem them worthy, and any portion not so paid by the trustees shall lapse and go into the reserve fund, from which other endowments are paid when the receipts are inadequate for their payment.

The authorities seem to hold that where the by-laws of a mutual benefit association require the member to designate a beneficiary, and upon his failure to do so, provide that the benefits shall be paid to certain heirs in an order named, upon failure of the member to designate a beneficiary and there being no such heirs as are specified in the by-laws, the order has the right to designate what shall be done with the endowment. Arthur v. Beneficial Assn. 29 Ohio St. 557, 560; Hellenberg v. District No. 1, 94 N. Y. 580; Maryland Mut. Ben. Soc. v. Clendinen, 44 Md. 429; Order of Mutual Companions v. Griest, 18 Pac. Rep. 652 [76 Cal. 494] ; Eastman v. Mutual Relief Assn. 62 N. H. 555; Loewenthal v. District Grand Lodge No. 2, 49 N. E. Rep. 610 [19 Ind. App. 377].

Following these authorities we find that the demurrer was properly sustained, and there is no error.

Judgment affirmed.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    JUDGMENTS.
    [Cuyahoga (8th) Circuit Court,
    May 25, 1903.]
    Hale, Marvin and Winch, JJ.
    D. W. Dellenbarger v. C. F. Hunger et al.
    When. Judgment Should be Entered on Verdict.
    Judgment may be entered immediately upon the coming in of the verdict, where the suit was begun before May 2,1902, but should be entered in accordance with Act, 95 O. L. 351 (amending Sec. 5326 Rev. Stat.), where suit was begun since said date.
    Error to the court of common pleas.
    H. M. Beckley and T. H. Johnson, for plaintiff.
    Frank Higley and Treadway & Marlatt, for defendants.
   WINCH, J.

May 2, 1902, the legislature amended Sec. .5326 Rev. Stat., to read as follows:

“That when a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration immediately after the time allowed by law for the Ming of a motion for a new trial, if such motion has not been Med; if a motion for a nezv trial has been Med then such judgment shall be entered only when the court has sustained such verdict by the overruling of such motion for a new trial and shall upon such overruling of said motion be then immediately entered

The amendment consisted in adding the words in italics.

Under the old law the Supreme Court held that the clerk might enter judgment on a verdict before the time for filing a motion for a new trial had elapsed. Young v. Shallenberger, 53 Ohio St. 291 [41 N. E. Rep. 518].

May 9, 1902, a jury in the common pleas court rendered a general verdict in favor of C. F. Hunger and against D. W. Dellenbarger and C. E. Dellenbarger in a suit which had been pending in said court since 1900.

On the same day judgment was entered on the verdict.

May 10, 1902, D. W. Dellenbarger filed his motion for a new trial,

July 11, 1902, the motion for a new trial was overruled.

December 22, 1902, D. W. Dellenbarger filed his motion to vacate and set aside said judgment because of mistake of the clerk and irregularity in the proceedings of the court. The mistake and irregularity alleged is the entering of the judgment immediately after the rendition of the verdict and before the overruling of the motion for a new trial.

January 20, 1903, the motion to vacate and set aside the judgment was overruled and to reverse this ruling a petition in error was filed in this court.

The only question involved in this case is whether the old statute applies or the new one. The clerk entered up the judgment in accordance with the old statute, and he made no mistake and there was no irregularity if the old statute applies. But the legislature, seven days before the verdict was rendered, amended the statute, and if the amended law is to be applied to this case the entry of judgment was premature and the trial court should have vacated the judgment and first heard the motion for a new trial.

The act of May 2, 1902, provided that it should take effect and be in force from and after its passage. It is strictly a remedial statute; that is, it affects the remedy only and not the cause of action. It changes the procedure in court and does not affect the rights of the parties; it regulates the action of the court and its officers in determining the rights of the parties.

The action was pending between the parties for nearly two years before the statute was amended. Such contingency is provided for in Sec. 79 Rev. Stat., the first part of which reads as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner effect (affect) pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not effect (affect) pending actions, prosecutions, or proceedings, unless so expressed.”

It not being expressed in the act of May 2, 1902 (95 O. L. 351), regulating the time of entering judgment on a verdict that said act shall apply to pending actions, prosecutions and proceedings, it does not apply to actions pending at the time of its passage. In such pending-actions judgment should be entered according to the old law; in actions begun since the passage of the amendment, judgment should be entered according to the new law.

The case at bar was a pending action within the meaning of Sec. 79 Rev. Stat. at the time of the passage of the amendment of May 2, 1902, and we find no error in the overruling of the motion to vacate and set aside the judgment.

It does not appear that the plaintiff was in any manner prejudiced or deprived of any rights by the premature rendition of judgment on the verdict. He filed his motion for a new trial and the court heard it. If the court had refused to hear the motion for a new trial, or if, hearing and granting it, the court had refused to set aside the judgment, there would have been such error as to entitle plaintiff in error to relief in this court.

The judgment is affirmed.


author: VOORHEES, J.

text:
    CONSTITUTIONAL LAW — INDICTMENTS.
    [Delaware (5th) Circuit Court,
    June Term, 1903.]
    Voorhees, McCarty and Winch, JJ.
    (Judge Winch of the Eighth Circuit sitting in place of Judge Donahue.)
    Pearly W. Gage v. State of Ohio.
    1. Anti-Trust Law — Sufficiency of Indictment.
    An indictment under the act of April 19, 1898 ( 93 O. L. 143; Sec. 4427-1 Rev. Stat. et seq.), charging that the accused, between two given dates, “was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of The Delaware Coal Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers, and consumers in the sale and transportation of coal,” does not contain facts sufficient to constitute an offense against the laws of the state of Ohio.
    2. Sections 4, 5, 6 and 7 of Said Act are Unconstitutional.
    Sections 4, 5, 6 and 7 of said act are in violation of the constitution of the state of Ohio, and of the constitution of the United States, for the reason that they create criminal offenses, prescribe proceedings thereunder, and provide penalties for the violation of any of the provisions of Sec. 1 of said act, by all combinations of capital, skill, or acts by two or more persons, firms, partnerships, corporations, or associations of persons, without regard to whether such combinations deprive individuals or the public of dny legal right, and are, therefore, unconstitutional and void.
    3. Effect of Plea of Guilty to an Insufficient Indictment.
    A plea of guilty to an indictment which does not contain facts sufficient t© constitute a crime, will not prevent a prosecution in error by the accused t© have such judgment reversed.
    Error to the court of common pleas of Delaware county.
    George W. Carpenter and H. W. Jewell, for plaintiff in error.
    Edward T. Humes, prosecuting attorney, and Hon. E. M. Wick-ham, for defendant in error.
   VOORHEES, J.

Plaintiff in error was indicted under the act of April 19, 1898 (93 O. L. 143; Sec. 4437-1 Rev. Stat. et seq.), known as the Valentine anti-trust law.

„ To this indictment he demurred upon the grounds, first, that the facts therein stated do not constitute an offense against the laws of the state of Ohio; and, second, that the statutes under which said indictment was presented and returned are in violation of the constitution of the state of Ohio, and of the constitution of the United States.

The demurrer was overruled, and plaintiff in error excepted. He then pleaded guilty to the indictment, and filed his motion in arrest of judgment upon the same grounds stated in his demurrer. This motion was overruled and exceptions taken thereto. Plaintiff in error was then sentenced, to which he also excepted, as fully appears upon the record. Error is prosecuted to this court on the ground that the lower court erred in overruling the demurrer and motion in arrest of judgment.

The indictment charges that “on the first day of November, 1902, with force and arms, in said county of Delaware, and state of Ohio, and until this sixth day of January, 1903, said Pearly W. Gage, late of said county of Delaware, was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of The Delaware Coal Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, contrary to the form of the statute in such case made and provided,” etc.

Testing the sufficiency of the indictment in this case on demurrer, it will aid materially to notice some facts that are not alleged or charged.

It is not alleged that plaintiff in error, or the association to which it is alleged he belonged, was engaged in the sale or transportation of coal; or that he, or said association, was in a position to influence or affect the price of coal to consumers, or that they attempted to do so. It is not alleged that the members of the association were not themselves the purchasers and consumers mentioned therein, and that they were not simply seeking to protect their own rights and interests in the purchase and transportation of coal.

It is not alleged that the association mentioned was not a partnership of which the plaintiff in error was a member, or that whatever agreement may have been made between them was not made between themselves as partners in the usual and ordinary methods in which partnerships are 'formed and their business carried on.

It is not alleged that whatever agreement was made to prevent competition was not made in connection with the sale of the business of the individual members to the association, or for the purpose of protecting the good will of such business.

It is not alleged that the association was formed solely for the purpose of preventing competition, or that that was its principal or primary object or purpose.

These facts not being alleged in the indictment, the indictment must stand on the facts stated, let the facts which are not stated be as they may; and facts not stated are, therefore, to be assumed most strongly in favor of the accused and against the state, in determining the sufficiency of the indictment on demurrer.

We must consider the facts that are alleged in the indictment, regardless of those not alleged.

If the indictment is good, it is because any agreement between two or more persons, one of the purposes of which is to prevent any competition, constitutes a criminal offense under this act, without any regard to the relationship of the parties, or the circumstances under which it is made, or whether it does or does not injuriously affect the public, or other individuals. I

Literally construed, the statute makes it criminal for two or more persons, firms, partnerships, etc., to make or carry out any contract, obligation, or agreement, by which they combine or agree not to sell any article below a standard or common figure; to fix values and to keep the price of such articles at a fixed or graduated figure; to settle the price of any article between themselves, or between themselves and others; to exclude all free and unrestricted competition among themselves, or among themselves and others, either in selling to or purchasing from others.

An agreement between two or more persons forms a combination between them. By this act an agreement between two persons is made as criminal as an agreement between many persons without limit as to number. It is made criminal for two or more persons to combine as partners, corporators, or otherwise, in ordinary business affairs to increase or reduce the price of commodities, or fix the standard thereof. It is made criminal for two or more persons to agree to limit or reduce the production of commodities, or to limit competition, or to make any agreement in relation to the price of an article, so as to preclude free and unrestricted competition between themselves, or between themselves and others. It is made criminal for two or more persons to create or carry out any restrictions in trade.

Undeb the literal reading of the statute all such agreements are made criminal, regardless as to whether such agreements work or cause injury to persons or the public. In other words, it is made criminal for two or more persons to directly or indirectly unite their interests, connected with the sale or transportation of any commodity, whereby its price may in any manner be affected.

The statute would cover and make criminal a contract ,fpr the protection of the sale of the good will of an established business, or that would unite any interests which might in any manner affect the price of their commodities.

The common law does not condemn all restrictions in trade, or all agreements to prevent competition, as illegal, or contrary to public policy. Our Supreme Court, in the case of Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596 [49 N. E. Rep. 1030; 41 L. R. A. 185], held:

“All agreements in general restraint of trade are against public policy and void; but agreements having such partial effect only, made in connection with the purchase of a business and its good will, shown to be reasonably necessary to the enjoyment of the good will of the business purchased, and not oppressive, may be enforced.”

Under our system of government, with its constitutional provisions everywhere in force, neither the legislative nor the executive department thereof, can fix the price at which any merchandise shall be sold for private use or consumption. To do so would be a taking of private property for private use. Private property can be taken for public use on making just compensation; but it cannot be taken for private use on any terms.

It is hardly necessary to cite authorities on this proposition; however, a leading New York case, Taylor v. Porter, 4 Hill 140, 143, may be mentioned.

The light to combine, form partnerships and joint stock associations, and to agree as to prices and productions, to raise and lower prices, as the necessities of the times and conditions of business may require, are not against public policy, nor unjust to the individual. This is an essential right, as part of the liberty of the citizen, of which no legislature can deprive him.

Every crime involves, at least in its final consummation, the violation of some legal right, of some individual, or class of individuals, or the public. Some crimes, such as conspiracy, consist only in the initial stage of a violation of a legal right, which has not gone so far as an overt act. But no act constitutes a crime in its initial stage, unless that act, in its final consummation, constitutes a violation of some legal right of some individual, or class of individuals, or the public. This principle is also fundamental. 4 Blackstone’s Commentaries 5.

Applying this principle to the statute under consideration, no agreement or combination of individuals can constitute a crime, unless the act complained of, when consummated, will deprive some individual, or class of individuals, or the public, of some legal right. In other words, there can be no legal injury to the public, unless there be a legal injury to some individual, or class of individuals, from the act which is the object of the agreement or combination.

The fault of the act under consideration is, that it is too general. It makes no distinction between legal and illegal combinations and agreements which prevent competition, or are in restraint of trade. Contracts which have always been embraced in those inalienable rights essential to the liberty of the citizen are made criminal equally with those which the law has always condemned. Statutes prohibiting all contracts or agreements which prevent competition under all circumstances are infringements of the constitutional liberty of the citizen. All contracts which are in restraint of trade, or prevent competition, are not illegal. Lufkin Rule Co. v. Fringeli, supra.

In the case of Leslie v. Lorillard, 110 N. Y. 519 [18 N. E. Rep. 362; 1 L. R. A. 456], the court say:

“Competition is not always a public benefaction, for it may be carried on to such a degree as to be an evil. It is perfectly legitimate to combine. capital for all the mere purposes of trade for which capital may, apart from combination, be legitimately used in trade.”

If this right to combine exists, then the right to do ordinary business, such as fixing prices, changing prices, and to reasonably agree on production, etc., must of necessity follow; and all these things are only consonant with the constitutional liberty of the citizen.

This act of the legislature does not stop at reasonable limits; it is not content with making criminal general restraint of trade, but it makes criminal all restraint of trade. It not only affixes penalties to acts or contracts which unreasonably restrict competition, but it condemns as criminal any agreement or arrangement which prevents competition between two or more persons entering into it. It not only prevents competitors from oppressing the public, by unreasonable agreements as to production and prices; it also prevents persons associated in interest, joint owners and copartners, from making any agreement about their production and prices. It not only prevents persons from using their capital, skill, and acts for the purpose of increasing prices, but for reducing prices as well. This, destroys the reason of the enactment, and, consequently, the act is self-destructive.

The act in thus preventing and making it a penal offense for citizens of the United States to make valid contracts with respect to their business and property, and depriving them of the right of their property, as well as liberty, is a violation 'of the fourteenth amendment to the constitution of the United States.

That portion of the fourteenth amendment referred to is the latter part of Sec. 1 and is as follows:

“No state shall make or enforce any law which shall 'abridge the privileges or immunities of citizens of the’ United States; nor shall any state deprive any person of life, liberty, or property without due process of law, or deny to any person, within its jurisdiction, the equal protection of the law.”

The constitution declares:

“This constitution, and laws of the United States, which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

In the case of Dent v. West Virginia, 129 U. S. 124, the court, -in speaking of due process of law and equality of citizens, said:

“The purpose of the requirement is to exclude everything that is arbitrary, affecting the rights of citizens.”

In the case of Live Stock Dealers’ & Butchers’ Assn. v. Live Stock Landing & Slaughtering Co. 1 Abb. 388, 399 [15 Fed. Cas. 649], the court said :

“No proposition is more firmly settled than that it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful and industrious pursuits, not injurious to the community, as he may see fit, without unreasonable regulation or molestation. ■There is no more sacred right to citizenship, than the right to pursue any legal employment in a lawful manner. It is nothing more nor less than the sacred rights of labor.”

Does it not necessarily follow, that these constitutional privileges which protect the citizen in his life, liberty and property, secure to him the right to raise, produce and manufacture articles of general use; to buy and sell; to fix and limit the amount of any article which he will produce or manufacture; to increase or reduce the amount so produced or manufactured at his own will, within the limits of his ability; to fix and limit the price at which he will buy and sell; to bargain and agree with others upon prices, so far as it may be necessary in the business of buying and selling; in fact to do anything and enter into all contracts usual and necessary in the ordinary avocation of production, manufacture and trade? Neither the state nor the national legislature possesses any right to limit these natural privileges of contracting or conducting business. Any law which undertakes to abolish these rights, the exercise of which does not involve infringement upon the rights of others, or to limit the exercise thereof beyond what is necessary to provide for the public welfare and general security, cannot be included in the police power of the government. Liberty, in its broadest sense, as understood in, this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or-avocation.

The principles hereinbefore stated are supported by the following authorities : People v. Marx, 2 N. E. Rep. 29 [99 N. Y. 377] ; Bertholf v. O’Reilly, 74 N. Y. 509, 515; People v. Gillson, 17 N. E. Rep. 343 [109 N. Y. 389] ; Toledo W. & W. Ry. Co. v. Jacksonville (City), 69 Ill. 37; Tiedeman, Limitation Police Powers 233; Registering Co. v. Sampson, L. R. 19 Eq. 462; Diamond Match Co. v. Roeber, 13 N. E. Rep. 419 [106 N. Y. 473] ; United States Chemical Co. v. Chemical Co. 64 Fed. Rep. 946; Grice, In re, 79 Fed. Rep. 627.

The title of the act makes no distinction between oppressive and unreasonable combinations, and those contracts and agreements made between two or more individuals, which have always been recognized and sustained at common law. There is no limitation in its sweeping provisions, or' its consequences, in making criminal any violation of its terms. It embraces all contracts, such as sale of good will not to engage in the same business; contracts between partners not to engage in a rival business, etc.

The legislature cannot, under the pretense of exercising the police power, or under any other claim or pretense, enact laws, prohibiting harmless acts not concerning the health, safety, or welfare of society, and the courts may examine into and annul such illegal legislation. Toledo W. & W. Ry. Co. v. Jacksonville (City), supra; Tiedeman, Limitation of Police Power 244.

The inalienable right of enjoying liberty and acquiring property, guaranteed by Sec. 1 of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare.

Liberty to acquire property by contract can be restrained bv the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection and benefit. The judgment of the general assembly-in such cases is not conclusive. Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313].

And in State v. Buckeye Pipe Line Co. 61 Ohio St. 520 [56 N. E. Rep. 464], the court, in speaking with reference to the police power of the state, on page 548, say:

“In all considerate discussions of the subject, it is conceded that in the exercise of this power the legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense.”

In view of these principles, how should courts interpret statutes which make it an indictable offense for persons to combine to do acts injurious to trade or commerce?

We think that they should follow the common law and that line of authorities which holds with Unvarying tenor, that the essence of a crime is an injury, that is, the violation of some legal right, and which holds, especially as to the crime of conspiracy, that an agreement or combination, to be criminal, must contemplate the doing of some act that is unlawful, either as means or end; and, that the correct legal interpretation of the phrase, an act injurious to trade or commerce, is, that it is an act which violates some legal right in connection with trade or commerce.

The Supreme Court in the case of State v. Buckeye Pipe Line Co. supra, while having under consideration the act of the legislature here in question, limited its holding strictly to cases then before the court, and did not undertake to decide whether the criminal provisions of the act were or were not constitutional.

The court, by Shauck, C. J., on page 547, say:

“We are, therefore, to consider only those provisions of the act which are relevant to the cases before us. These cases are civil actions brought against independent corporations. The contract which we are asked to denounce is not incidental to the sale of property or any interest therein. It does not concern the good will of any business. It does not contemplate the formation of any corporation or other company for the carrying on of any business. In the subject of the contract the interests of the contracting parties are not adverse; they are not even diverse. The agreement, according to the allegations of the petition, has no purpose whatever except to prevent competition in the production, transportation and refining of petroleum, to the end that there may be received from the consumers of its products higher prices than would prevail under the condition of open competition.”

It is quite familiar doctrine that in determining the constitutional validity of statutes their different provisions are not 'necessarily subject to the same conclusion. Therefore, we are not concluded by this decision of our Supreme Court, so far as the question of the constitutionality of the criminal provisions of the act is concerned.

The question arises, whether the different criminal provisions of the act are separable, so that a part may be held unconstitutional without affecting the validity of the remaining criminal provisions of the act? We think not. The rule that part of an act may fail and the remainder stand has very strict limitations when applied to penal acts.

The criminal provisions of this statute are so interdependent that they cannot be separated except by judicial construction.

This cannot be done. United States v. Reese, 92 U. S. 214-221; Baldwin v. Franks, 120 U. S. 678.

To give effect to the rule permitting a separation of the different parts of a statute, that which is constitutional and that which is unconstitutional must be capable of separation so that each may be read by itself. Baldwin v. Franks, supra.

In United States v. Reese, Waite, C. J., uses this language, which is pertinent in the construction of the statute under consideration:

“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”

We, therefore, hold that the act under which the indictment was found is unconstitutional and void so far as it creates criminal offenses, prescribes proceedings thereunder, and provides penalties for its violation.

Aside from the constitutionality of this act, the demurrer raises the further question as to the sufficiency of the facts stated in the indictment to charge an offense against the laws of the state of Ohio.

When we consider the facts alleged, as well as those not alleged, in the indictment, it would be entirely consistent with the allegations of the indictment to assume that the association or combination complained of, of which plaintiff in error is alleged to be a member, may have had other purposes than that of preventing competition in the sale of coal, or to maintain a uniform and graduated figure for the sale of coal, or to directly preclude a free and unrestricted competition among its members, purchasers and consumers in the sale and transportation of coal. There is an entire absence of any allegation of conspiracy to do any of the acts complained of, and of the committing of any overt act in furtherance of any scheme whereby the association, or any member thereof, received or might receive higher prices than would have been received under conditions of an open competition.

An indictment which only charges that the plaintiff in error was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of said coal exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, without allegation of some overt act committed in furtherance of the alleged purposes of said association, whereby some legal right of some individual, or class of individuals, or the public, is violated, is not sufficient under the laws of this state.

The constitution of Ohio, Art. 1, Sec. 10, provides that:

“In any trial, in any court, the party accused shall be allowed * * * to demand the nature and cause of the accusation against him, and to hare a copy thereof, to meet the witnesses face to face.”

Trial in any other manner .would not only violate this provision? but would not be “due process of law.”

The purposes of an indictment and the certainty of statement required therein, are fully stated in Fouts v. State, 8 Ohio St. 98, 114, i-n which the court said:

“If any one or more of the substantial ingredients or distinguishing constituents of the crime may be omitted, the written accusation required would become a mere snare by which to mislead and entrap the accused on his trial,”

Section 5 of the act under consideration attempts to make an accusation sufficient which omits every specific statement which would tend to give the accused a knowledge of the nature and cause of the accusation against him. The section provides that it is sufficient to state that the accused is a member of, acted with or in pursuance of, or aided or assisted in carrying out the purposes of a trust or combination, without giving its name or description, or how, when and where it was created. Everything which' would identify the trust or combination may be omitted from the indictment with the consequence that the accused can have no knowledge of what he is to defend against.

If any agreement can be made which restrains trade or prevents competition without being a crime under the provisions of this act, the provisions of Sec. 5, which prescribes what the indictment may contain, are too uncertain because? of the generality of its terms. The indictment should allege the particular acts complained of, which distinguish the agreement or combination as criminal from those which are not criminal, and it is not within the power of the legislature to dispense with these essential requisites of an indictment.

We, therefore, hold that the facts stated in the indictment do not constitute an offense against the laws of the state of Ohio.

Did the plaintiff in error, by his plea of guilty, waive the right to object to the defects raised by his demurrer to the indictment? We think not.

A plea of guilty to an indictment which does not contain facts sufficient to constitute a crime, will not prevent a prosecution in error by the accused to have such judgment reversed. Hogue v. State, 13-23 O. C. C. 567, 569; Davis v. State, 19 Ohio St. 270; Carper v. State, 27 Ohio St. 572, 575.

Our conclusion is, that the demurrer to the indictment is well taken on both grounds, and should have been sustained, and the court of common pleas erred in overruling the same, and in overruling the motion m arrest of judgment. For these reasons the judgment is reversed with costs.

McCARTY and WINCH, JJ., concur.


text:
    CRIMINAL LAW — INDICTMENTS.
    [Richland (5th) Circuit Court,
    January Term, 1903.]
    Douglass, Voorhees and Donahue, JJ.

      James Cosner v. State of Ohio.
    1. Indorsement of Check Subject of Forgery.
    An indorsement of a check is the subject of forgery under Sec. 7091 Rev. Stat.
    2. Failure of Proof.
    An indictment charging the unlawful uttering and publishing as true and genuine a false, forged and counterfeited check is not supported by proof of the forgery of an indorsement of the payee’s name thereon. The instrument having been issued by the drawer as his genuine act, forging an indorsement thereon of the payee’s name is a distinct and new contract, and the subject of forgery under the statute, Sec. 7091.
    3. Indictment Must Charge Particular Act Complained of.
    To convict a party of forging an indorsement on a check otherwise genuine, the indictment must charge the particular act complained of, namely, of forging an indorsement of the instrument, and where the indictment charges only an unlawful uttering and publishing of the instrument, there is a failure of proof, where only a false and forged indorsement is shown.
    Error to the court of common pleas of Richland county. ■
    W. F. Voegele, Jr., for plaintiff in error.
    The indictment should be specific in charging the crime committed, Lamberton v. State, 11 Ohio 282; Greenland v. State, 6 Dec. 313 (é N. P, 122) ; State v. Philorick, 31 Me. 401; United States v. Hess, 124 U, S. 483 [8'Sup. Ct. Rep. 571]; 10 Am. & Eng. Enc. Law (1 ed.) 566,
    To maintain an indictment charging the unlawful uttering and publishing of a false, forged and counterfeited check the proof must show:
    First. That the instrument is a check for the payment of money as stated. (The proof shows this fact.)
    Second. That the accused knew the same to be false, forged or counterfeited. (The proof fails to show this fact.)
    Third. The uttering and publishing at the .time and place, by the accused, to the person stated in the indictment, as true and genuine
    Fourth. That said check is really forged. Ellars v. State, 25 Ohio St. 385.
    A check having been in no way altered, an indictment for forging it must fall for the reason that the most essential element of the crime is not supported by the evidence. If the writing is really what it purports to be, then there is not a false making, and the crime of forgery has not been committed. For the same identical reason there could be no unlawful uttering. Hawley, Criminal Law 225.
    This defendant was squarely indicted for “uttering and publishing as true and genuine, a certain false, forged and counterfeited check; The check was proven to be good and without “alteration.” Thereupon counsel for state, having failed to prove the check a forgery, introduced witnesses to prove that the said defendant forged the indorsement on the back of said check, and was allowed so to do over the objection of this defendant. This was error.
    This evidence was not even admissible to show guilty knowledge in the case at bar- — all that is claimed for it by the plaintiff in error.
    First. Because the check was genuine, and if so, the defendant could have had no knowledge that it was a “forgery.”
    Second. Because this defendant was not charged with the crime of “uttering or publishing a forged indorsement.”
    It is fundamental, as a general proposition, that proof of one offense is not competent in order to prove that the party committed another distinct, unrelated offense. Such facts are regarded as collateral, 1 Green-leaf, Evidence Sec. 52; Knight v. State, 54 Ohio St. 365, 379 [43 N. E. Rep. 995],
    An indorsement on a check is not a part thereof. 8 Am. & Eng. Enc. Law (1 ed.) 211; Story, Promissory Notes (7 ed.) Sec. 487; 2 Daniel, Neg. Inst. 528; Webster’s Unabridged Dictionary; Century Dictionary.
    The check was a complete instrument in every respect without the indorsement. Poage v. State, 3 Ohio St. 230; Aymar v. Sheldon, 12 Wend. 439 [27 Am. Dec. 137].
    As between indorser and indorsee, every indorsement is a new bill. Ballingalls v. Gloster, 3 East 481; Heylin v. Adamson, 2 Burr. 674.
    The indorsement is a new and substantive contract. The indorsement is understood to be not simply the transfer of the paper, but a new and substantive contract. Slacum v. Pomeroy, 10 U. S. (6 Cranch) 221; Story, Conflict of Laws 261; Case v. Heffner, 10 Ohio 180.
    The indorsement of a note is not a part of it. It is made subsequent to the execution and delivery of the note, is separate and distinct from it, and the description is as complete without the indorsement as without the filing of the maker’s name, or the amount due; neither of which can be said to form any part of the note itself. Montgomery v. State, 10 Ohio 220; 19 Ark. 354.
    A case directly in point, in that it refers to the indorsement on a check, the court decisively says that the check was a complete instrument without the indorsement; there is no averment or proof that the indorsement was forged. The charge was for forging the check and uttering it as true. The indorsement did not form any part of the check, but was a distinct contract. Miller v. People, 52 N. Y. 304.
    The indorsement is no part of the note, but an act presumed to be done after the note is complete. Commonwealth v. Ward, 2 Mass. (1 Tyng) 393, 397; Commonwealth v. Bailey-, 1 Mass. 62; Commonwealth v. Stevens, 1 Mass. 203; Hess v. State, 5 Ohio 5, 9 [22 Am. Dec. 767] ; B.urdge v, State, 53 Ohio St. 512, 514, 515 [42 N. E. Rep. 594]; Martin v. Cole, 104 U. S. 30, 37.
    To further maintain the proposition that the indorsement on the back of any check or note is not a part of the check or note, I would put this question: Assuming money to be advanced on a check of this kind and under the same circumstances, who would be compelled to pay this check ? Can the bank paying said check deduct the amount therein specified from the depositor’s account? No. Cincinnati Nat. Bank v. Creasy, 10 Re. 121 (18 Bull. 410) ; Dodge v. Bank, 30 Ohio St. 1.
    A charge of unlawfully uttering and publishing a forged check will not be sustained by evidence that the indorsement only is forged and that the check is genuine.
    In such a case the indictment should be for uttering and publishing a forged acceptance, and not for the forging of the instrument itself. Rex v. Hornwell, Moody C. C. 405.
    There was not only a material variance between the allegations of the • indictment and the proof offered at the trial, but there was a total and absolute failure of proof.
    The evidence clearly shows the check to be genuine. Therefore there could not have been an unlawful uttering and publishing of a forged check.
    On an indictment under Sec. 6820 Rev. Stat. for maliciously cutting with intent to kill, the prisoner cannot be convicted of “maliciously cutting with intent to wound.” They are offenses of the same degree, and may be punished with equal severity. Cutting with specific intent of wounding not being charged in this indictment, there can be no' conviction under it of that offense. Barber v. State, 39 Ohio St. 660.
    In conclusion we maintain that the defendant was squarely charged for uttering and publishing as true and genuine a false, forged and counterfeited check, and not for “uttering and publishing a forged indorsement,” which is entirely a separate and distinct offense.
    Second. That there is not a single iota of evidence in the record to maintain this indictment.
    Third. “An altered instrument is one that was genuine before alteration, but a forged and counterfeited instrument is one that was never genuine.” Stoughton v. State, 2 Ohio St. 562, 566.
    W. H. Bowers, prosecuting attorney, for the state.

      Affirmed by the Supreme Court without report, May 12, 1903, 48 Bull. 487.

   VOORHEES, J.

Plaintiff in error was indicted, tried, and convicted under Sec. 7091 Rev. Stat., for uttering and publishing as true and genuine a certain false, forged and counterfeited check. The indictment, in a single count, charges the crime substantially as follows: “that he did unlawfully utter and publish as true and genuine a certain false, forged and counterfeited check of the purport and value following, to wit:

No. 34 Fredericktown, Ohio, Feb’y 26, 1902.
The First National Bank
Pay tó Chas Wolf or order $12.42 Twelve and 42-100 Dollars.
W. H. Boose.”

The indictment further alleged that, “Said check is indorsed as follows : ‘Chas. Wolf, C. L. Culver, M. E. Fisher,’ with intent thereby unlawfully to defraud; he, the said James Cosner, then and there at the time he so uttered and published said false, forged and counterfeited check, well knowing the same to be false, forged and counterfeited.”

To this indictment the plaintiff in error entered a plea of “Not guilty,” was tried and convicted and sentenced to the penitentiary for a term of seven years. Error is prosecuted to this court.

It is contended:

1. That the court below erred in overruling the defendant’s motion at the close of the state’s evidence, to direct the jury to return a verdict of not guilty.
2. That the verdict of the jury is not supported by the evidence.
3. That there is no evidence to support the charge laid in the indictment.
i. That there is no evidence to support the verdict and judgment, and they are contrary to law.

The errors assigned require the consideration of the case as presented in the record by the bill of exceptions, and the inquiry will embrace several propositions.

The material and essential allegations which were necessary for the state to prove, under this, indictment, wherein the defendant is charged with unlawfully uttering and publishing a false, forged and counterfeited check, briefly stated are:

First: That the instrument alleged to have been forged is a check for the payment of money.

Second: The uttering and publishing of the check, as true and genuine, at the time and place alleged, by the accused.

Third: That the check was in fact forged or counterfeited.

Fourth: That the accused knew the same to be false, forged or counterfeited.

If these facts were established on the trial by that degree of proof required in criminal cases, and no errors appear, the judgment of the court below should be affirmed.

The charge laid in the indictment is in the language of the statute, and is a charge of forgery, or signing and passing a check as genuine which was false and counterfeited.

The indictment is sufficient to charge a crime where the instrument was forged, that is, if the name of the drawer was forged, or unauthorized by him. But in this case the evidence shows, and it is conceded by the state, that this check was signed by the drawer, Booze, and was intended by him to be made and delivered as a genuine instrument‘for the payment .of .the amount named therein to the order of Charles .Wolfe, the payee. It was a completed instrument; so far as its issue was concerned, when mailed by Booze to Charles Wolfe at Mt. Vernon, Ohio. Just how the check got into the possession of the plaintiff in error, the record does not show. It is conceded, however, that it was not indorsed by Wolfe, the payee, and that the defendant was not the rightful owner thereof.

The proof shows that the forgery committed, if any was committed, was in signing the payee’s name on the back of the check.

When a party signs a note, check, or other instrument for the payment of money, and the payee named therein indorses it, he makes a new contract, and the law fixes its terms by implication.

The charge in this case, is that the instrument was uttered and published as true and genuine. It was signed by Booze, the drawer; he intended to issue or make it 'just as it appears, without the indorsement. The defendant got possession of it in some manner, and indorsed Wolfe’s name, the payee, on the back, and this indorsement of Wolfe’s name is a forgery. A forgery of what? Not a forgery of the check, or instrument as originally made, but of the new contract arising from the indorsement.

The authorities, without doubt, sustained this principle, that .forging an indorsement upon a note or check is covered by the statute, Sec. 7091 Rev. Stat., and is of the same character or grade of crime as the forging of the pretended maker’s name to the instrument when issued. Where the instrument is genuine, and only the payee’s name therein is forged, is it sufficient to convict, under the indictment charging the utttering and publishing the instrument as a forgery, to prove that the indorsement is a forgery? This is the vital question in this case.

In this case there was no proof to show that this check was falsely uttered; the indorsement was the only forgery committed.

If an indorsement of a check or note by forging the payee’s name thereon is the subject of forgery under Sec. 7091 Rev. Stat., how is it to be proved ? Is it proved by showing that the check was genuine, and was intended to be drawn by the maker, and was a completed instrument, and after so drawn, it gets into the possession of a party, other than the payee, and he forges the payee’s name and receives value therefor? We think not, and therefore hold there is a failure of proof to sustain the charge laid in the indictment.

Without taking too much time to cite authorities in support of our conclusion, a few principles of criminal pleading may be referred to with propriety, and among them is the rule, that all the elements necessary to constitute the crime must be averred; in other words, the case must be clearly brought within the statute.

An indictment should set forth facts constituting the offense, so that the accused may have notice of what he is to meet, and the court, applying the law to the facts, may see that a crime has been committed. Redmond v. State, 35 Ohio St. 81, 82.

While it is the safer course to charge the offense in an indictment in the language of the statute, yet, it is not to be inferred that an indictment which' simply pursues the language of the statute is sufficient, for in many cases something more is necessary. Hager v. State, 35 Ohio St. 268, 269.

In Lamberton v. State, 11 Ohio 282, the court held: That an indictment which merely used the words of the statute in that particular instance is too uncertain, because of the generality of its terms. The court thought that the particular act complained of, and which was included in the general words of description in the statute, should be set forth; and, in illustration of their views, said:

“It (the indictment) is as .general as would be an indictment for forgery, which followed merely the words of the statute, without specifying any act constituting the crime, or an indictment for perjury, which only set forth that a party swore falsely, knowing to the contrary, without setting forth what matters he stated to be facts, and then falsifying them.”

An indorsement of a promissory note is the subject of forgery under the crimes act, Sec. 7091 Rev. Stat. Poage v. State, 3 Ohio St. 229.

Where there has been a genuine check or promissory note made, and that check or note after being regularly issued is changed by a forged indorsement, such forged indorsement is not charged in an indictment which simply alleges the unlawful uttering and publishing of the instrument as a forged instrument.

A party has the' right to know the nature of the charge which he is expected to meet. If he is charged with the forgery of the check .in its original inception, he is entitled to know that; if he is to be charged on the trial under such an indictment with having forged an indorsement thereon, he has a right to be so informed.

It is not sufficient where a check has been properly and intentionally published by the maker as genuine, to prove a mere forgery of an indorsement of such check under an indictment charging a party with forgery of such check.

Wé think that by analogy this case comeé within the rule or principle of law announced in the case of Barber v. State, 39 Ohio St. 660. In that case it was held that the offense of cutting with intent to kill, and that cutting with intent to wound are offenses of the same degree, under the provisions of Sec. 6820 Rev. Stat., making it an offense for any one to cut another person with intent to kill, wound or maim. The indictment charged a cutting with intent to kill; the verdict of the jury was, “guilty of cutting with intent to wound.” The court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to that of cutting with intent to kill. By a parity of reasoning it follows, that the unlawful forging and counterfeiting an indorsement on a genuine check, is not an offense inferior to that of unlawfully uttering and publishing as genuine a like instrument; and an indictment charging the uttering and publishing of such instrument would not be supported by evidence of a forged indorsement thereof. There would be in such case a material variance between the proof and the allegations.

The crime proved is a different crime from the one charged in the indictment. It is of the same degree within the same statute and subject to the same punishment. The defendant has a right to be informed that that is the charge brought against him — it is the purpose of criminal pleading that he may be thus informed — and where the rule is violated, such pleading would not be justified. There is no testimony in this case to sustain the indictment of uttering and publishing a forged check.

The court erred in overruling defendant’s motion to direct the jury to return a verdict of “not guilty” under this indictment, there being no evidence that the check was a forgery. On the contrary the evidence produced by the state showed the check was genuine, the only forgery being in the indorsement.

The court charged the jury that, “The defendant is charged with knowingly uttering a forged instrument, that is, when he uttered it, he knew it was forged. Remember, you are not trying him for the crime of forgery, and the fact that there has been testimony tending to show that he, himself, committed the forgery, you can only use for the purpose of ascertaining that he knew the instrument was forged when he passed it. If he came in possession of this check, payable as set forth by copy here, in his hands it was not an instrument for the receipt of money. It required to be completed by the indorsement of Wolfe, in his hands, and if, for the purpose of passing this check, and rendering it an instrument upon which he could draw the money wrongfully, he indorsed the name, and then afterwards passed it, he would be guilty of uttering a forged instrument. And it must be uttered for the purpose of defrauding. He must have had a purpose of defrauding some person when he uttered‘it.”

There being no evidence of the forging of the check in its inception, but only of the indorsement, and the indictment not charging the forgery of an indorsement, there was nothing to call for the instruction given by the court, and it was misleading and prejudicial to the defendant.

The verdict'of the jury is not sustained by the evidence, as under the indictment on which defendant was tried there was no evidence even tending to show the check had been forged. The indorsement of the payee’s name was the only forgery shown, and with this crime the defendant was not charged in the indictment. For these errors the-judgment is reversed with costs, and remanded for further proceedings.


author: MARVIN, J.

text:
    APPEAL — JUSTICE OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    September Term, A. D. 1895.]
    Mrs. Jane Mulrooney v. Charles Lederer & Son.
    Caldwell, Marvin and Hale, JJ.
    Appeal by One Party Does Not Vacate Judgment of Dismissal Against Another, When.
    Where an action before a justice of the peace is dismissed as to one of the defendants thereto and judgment had against the other, an appeal by the latter does not vacate the judgment of dismissal and bring the former defendant into the common pleas court, especially where the rights of each defendant are distinct and separate from those of the other and can be determined without his presence.
    Error to the court of common pleas.
    E. L. Hessenmueller, for plaintiff in error.
    Riley & McQuigg, for defendants in error.
   MARVIN, J.

This is a case in which suit was brought by Lederer & Son before a justice of the peace of Cleveland township in this county against Jane Mulrooney and George A. Groot. Summons was issued for George A. Groot, at one time attorney of the other party defendant, and the case continued to a later date. The parties .finally appeared before the justice, on November 18, 1893. The case was then dismissed as to Jane Mul-rooney and proceeded to trial against Groot and judgment was rendered against him. Groot appealed his case, gave bond, and brought the case into the court of common pleas. A petition was then filed by Lederer & Son in that court against both Mulrooney and Groot. Thereupon Mrs. Mulrooney filed a motion to have the case dismissed as to her, on the ground that she was not properly in court, because the case had been dismissed as to her before the justice. The motion was overruled, and Mrs. Mulrooney filed an answer denying everything contained in the petition. When the case came to trial, she -objected to any evidence being introduced as against her; but the court overruled hen objection. The case was tried without a jury. Evidence was taken and the result was that in the court of common pleas judgment was had against Mrs. Mul-rooney and in favor of Groot. Mrs. Mulrooney made a motion for a new trial, which was overruled. Exception was taken, and she filed her petition in error in this court to reverse the judgment of the court of common.pleas.

The question really presented is, whether she was a proper party in the court of common pleas.

As has already been said, the case was dismissed as against her by the justice of the peace; the record does not show upon'what ground it was dismissed, but that would seem to be immaterial. It was dismissed as against her. She had no reason to complain of the’ action of the justice, and nothing to appeal from. She was entirety satisfied. Whether Lederer & Son were satisfied or not, they did not appeal the case. They acquiesced in that judgment. But Groot, against whom judgment was entered, being dissatisfied with the judgment, appealed and gave bond. Did that bring Mrs. Mulrooney into the court of common pleas so that she was bound to answer there ? It would seem a strange thing that she, being entirely content with the action of the justice, and the plaintiffs being so well content with that- action that they did not care ’to appeal, should be brought into the court of common pleas because the other defendant was dissatisfied and appealed.

The suit was upon a bill of particulars for goods and merchandise furnished originally to the defendant, Mulrooney; the bill was made to read that it was furnished to the defendants. We are not without what seems to be applicable as authority in this case in the state of Ohio. In Glass v. Greathouse, 20 Ohio 503, the syllabus reads as follows:

“In a case- in chancery where there are two defendants^ and the bill is dismissed as to one and a decree against the other, an appeal by the latter does not vacate the decree as to the former; more especially where there is not that ijiecessary connection between the defendants but that the rights of one can be determined without affecting the rights of the other.’’

So far as appears here, there is no such connection between these two defendants, that the rights of one cannot be determined without the presence of the other. Indeed, both courts that tried the case found their rights to be distinct and separate, although one court found against one defendant, and the other court against the other. In the opinion in Glass v. Greathouse, supra, on page 512, this language is used:

“But in the case now before us, there was a decree against but one of the two defendants, and he appealed. From what? Unquestionably from the decree against himself, not from the decree in favor of his codefendant. There is no necessary connection between these defendants, so that the right of one cannot be determined without deciding upon the rights of the other. We are of opinion that Thomas Greathouse is not before this court.”

It seems to us that that reason and that principle apply in this case. Groot appeals from what? Not from the judgment in favor of Mrs-., Mulrooney, but simply from the judgment against himself. And that being the only thing that was appealed from, what should have been tried in the court of common -pleas was whether Groot was indebted to Lederer & Son.

Entertaining these views we reverse the action of the court of common pleas, and remand the case for further proceedings.