author: By MATTHEWS, J.:

text:
    CINCINNATI (City), Plaintiff-Appellant, v. MEIER et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7506.
    Decided December 10, 1951.

      Henry M. Bruestle, Frank Shafer, James W. Farrell, Jr., Cincinnati, for plaintiff-appellant.
    Paxton & Seasongood, Thomas M. Stanton, Cincinnati, for defendants-appellees.
   OPINION

By MATTHEWS, J.:

This is an appeal from an order entered on July 27th, 1951, by the Municipal Court of Cincinnati, dismissing a proceeding in aid of execution and releasing the garnishee. The notice of appeal was filed on August 7th, 1951. Thereafter, on September 14th, 1951, on the motion of the plaintiff the Court made an order in which it was recited that the entry of July 27th, 1951, did not correctly set forth the decision of the court and that the actual finding and decision of the court was as follows:

“This matter came on to be heard on the Motion of the Central Trust Co., garnishee herein, to discharge the attachment and release the garnishee and on stipulation of Counsel filed herein and was argued by Counsel, upon consideration whereof the Court finds that the garnishee is not holding any property of the defendant, Charles Meier, which is subject to garnishment and that therefore the attachment should be discharged and the garnishee released.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Central Trust Co., the garnishee herein, is hereby released and the attachment discharged.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this entry be journalized Nunc Pro Tunc as of July 27, 1951, to replace the judgment entry of said date.”

It is readily observed that so far as the orders are concerned, the two entries are identical.

No appeal was taken from this order.

The only difference in verbiage of the entries is that in the later entry the court set forth the proceedings and findings upon which the order was made including a recital that the Motion to discharge came on to be heard “on stipulation of Counsel filed herein.” The court ordered this entry of September 14th journalized nunc pro tunc as of July 27th, 1951 “to replace the judgment entry of said date.”

So far as we are informed, the only purpose of the nunc pro tunc entry was to show that the cause came on to be heard on the stipulation of counsel filed in the cause. We are not advised as to the importance of this recital unless it was intended to use it and the stipulation as a substitute for a bill of exceptions, as provided in §11571 GC. The recital in this entry fails to satisfy the requirements of that section. The judgment entry does not show that the case was “tried on an agreed statement of facts” as required by that section, nor is there any agreed statement filed with the papers in the case as also required by that section.

We have been furnished with a “stipulation” and have been told that it is the stipulation referred to in the nunc pro tunc entry, but there is no filing mark on it and the transcript of the docket and journal entries fails to show the filing of any stipulation. We are not permitted to consider this stipulation as a part of the record in this case. However, our examination of the stipulation has caused us to conclude that if we were so permitted, our conclusion would be the same.

This stipulation recites that a certain trust agreement, a copy of which is set forth, was all the evidence introduced at the trial. It is dated August 16th, 1949, and recites that cash and bonds listed in “Schedule A” were delivered to the garnishee to hold in trust for the judgment debtor. No schedule was attached to the stipulation. We, therefore, do not know what, if any, property was delivered to the garnishee-trustee, upon which the trust agreement could operate, or what remained in the trust at the time the notice of garnishment was served upon it. In the absence of any evidence of the existence of a trust fund or of the trustee’s duties with relation to any existing fund, no order should or could be made directing the trustee as to the disposition of any such fund.

Assuming existence of the trust fund, it was argued by the appellant that notwithstanding the title of the judgment debtor thereto was equitable, it could be subjected to an order in this ancillary proceeding, authorizing and justifying, but not compelling the trustee-garnishee to pay, and that this order would require the trustee-garnishee to decide at its peril whether to comply, and, further that the judgment creditor has the right to use the proceeding in aid as a means of discovery of assets, even though assets discovered could not be subjected to the judgment in the proceeding.

On the other hand, the trustee-garnishee contended that if the trustee is amenable to any process to subject assets in its hands to a judgment against the cestui, it is only in a plenary action under the provisions of §11760 GC, or a creditor’s bill in accordance with the usage and practice in chancery. The record suggests these interesting questions, but furnishes no basis for an application of them. There is no suggestion that any limitation was imposed upon the inquiry into the property of the judgment debtor as was the case in Peoples Bank and Savings Co. v. Katz, et al., 146 Oh St, 297, and, as already shown, the evidence is insufficient to support any kind of an order.

No error appears in the record.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


source: Caselaw Access Project

author: By HORNBECK, PJ.

license: Public Domain

text:
    TYACK, Plaintiff-Appellant, v. TIPTON, Defendant-Appellee, and REESE et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4533.
    Decided September 25, 1951.

      George E. Tyack, Irving M. Gertner, Columbus, for plaintiff-appellant and defendants-appellants.
    Orville R. Carson, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Probate Court decreeing that Oscar U. Tipton, surviving spouse of plaintiff’s decedent, is entitled to the exemption as provided by §10509-54 GC. The judgment entry also found that,

“Oscar U. Tipton having been found guilty of murder in the second degree is precluded by §10503-17 GC from participating in the estate of the deceased as an heir.”

The appeal is noted by the administrator and the defendants, Mildred Pauline Reese and Otilda Susan DeAtley, children of deceased. Appellee, Oscar U. Tipton, urged in the trial court and argues here that he is entitled to his full right to take as relict of decedent under the statute of descent and distribution as well as under the exemption provisions of §10509-54 GC.

Inasmuch as the judgment entry consists of two separate and distinct findings, one of which is favorable and the other unfavorable to appellee, he may not urge in this court on the appeal, which is on questions of law, the claimed error of the trial court for the reason that he prosecuted no cross-appeal nor has he filed any assignment of errors under §12223-21a GC. This principle is not disturbed by the case cited by appellee. R. K. O. Distributing Corp. v. Film Center Realty Co., 53 Oh Ap 438.

The material facts appearing are that Hilda M. Tipton died on or about June 10, 1949, intestate, a resident of Franklin County, Ohio; that Oscar U. Tipton was the husband of Hilda M. Tipton in her lifetime; that he was indicted and arraigned upon a charge of first degree murder and that thereafter, on or about September 29, 1949, he entered a plea of guilty to the charge of second degree murder and was sentenced to the Ohio Penitentiary for life in which institution he was confined at the time of the trial. It further appears that in September, 1944, upon an affidavit filed by his wife, he was committed to the State Hospital as mentally ill by the Probate Court of Franklin County, Ohio, that he was never discharged as cured by the hospital’s doctors but that after a second trial visit extending over a period of about one year the State Hospital released him. It further appears that in the proceedings incident to his plea of guilty to murder he was represented by legal counsel. '

The one question presented by this appeal is whether or not the Probate Judge erred, in view of the conviction of Oscar U. Tipton of murder in the second degree in killing his wife, plaintiff’s decedent, in holding that he was entitled to the exemption provided by §10509-54 GC.

The section of the Code §10503-17 GC by which appellants claim the appellee is barred from receiving any benefit from any property, real or personal, of which plaintiff decedent died possessed reads:

“No person finally adjudged guilty, either as principal or accessory, of murder in the first or second degree, shall be entitled to inherit or take any part of the real or personal estate of the person killed, whether under the provisions of this act relating to intestate succession, or as devisee or legatee, or otherwise under the will of such person; nor shall such person inherit or take any real or personal estate of any other person as to which such homicide terminated an intermediate estate, or hastened the time of enjoyment. With respect to inheritance from or participation under the will of the person killed, the person so finally adjudged guilty of murder in the first or second degree shall be considered as though he had preceded in death the person killed.”

Appellants, among other things, urge that the last sentence of the section should be given application here and that for the purpose of determining whether or not appellee shall take under §10509-54 GC, he shall be considered as though he had preceded in death the person killed and that therefore he could not be considered as a surviving spouse of decedent. The weakness in this contention is that the last sentence of the section applies only to an inheritance from or participation under the will of the person killed. Here the person killed died intestate and her husband took no inheritance from and enjoyed no participation under a will.

The right of the appellee to the exempted property must be determined by the language of the quoted section and not by any rule of common law. Boyer v. Emerson, et al. (Ia.) 183 N. W. 327; 6th and 7th Syl. Deem v. Risinger, 53 Oh St 668; Deem v. Millikin, 6 O. C. C. 357. Its interpretation, of course, must be approached with the commonly accepted purpose that it was intended to preclude one who had murdered another from sharing in the property of which that other died possessed. But, if the language employed in the section is clear and unmistakable no rule of construction will permit of any other or different interpretation. Woodbury Co. v. Beery, 18 Oh St 456; Bruner v. Briggs, 39 Oh St 478. Had the section ended with this language “no person finally adjudged guilty, * * * of murder in the first or second degree shall be entitled to inherit or take any part of the real or personal property of the person killed,” the appellant’s contention in this Court would be sustained but the section continues defining what is meant by taking any part of the real or personal estate, “whether under the provisions of this act relating to intestate succession, or as devisee or legatee, or otherwise under the will of such person.” As we have heretofore indicated there could have been no taking here as devisee or legatee or otherwise under the will nor is there any taking “under the provisions of this act relating to intestate succession.”

That portion of the code relating to intestate succession is found in §10503-1 to 10503-30 inclusive, GC, of which §10503-17 GC is a part.

The section under which it was held that appellee was entitled to receive certain personal property, as exempt, §10509-54 GC, is in another part of the Code which does not define or relate to intestate succession and specifically provides that the property therein described “shall not be deemed assets or administered as such.”

It has been held that the exempt property set off to a surviving spouse under §10509-54 GC is to be deducted before a determination of the share of the estate to be taken by the widow under the statute of descent and distribution. Davidson v. The Miners & Mechanics Savings & Trust Co., Exr., 120 Oh St 418. That is to say, that the property passing by the section does not come to the surviving spouse by intestate succession, i. e., under the statute of descent and distribution, nor do the heirs, devisees or legatees share in any particular in the exempted property. McDonald v. McDonald, 5 O. O. 132.

Judge McClelland, in entering the judgment in this case, relied upon his own opinion in Egelhoff, Guardian, v. Presler, Admx., 32 O. O. 252, with which opinion we are in accord. The judgment is sustained by the weight of authority. Annotation to Spangler v. Tyler, dec’d., 51 A. L. R. 1096, although the case to which the note is appended supports the claim of appellants here. See particularly page 1094.

As the statute, §10503-17 GC, does not by our interpretation and that of the Probate Court completely bar a convicted murderer from sharing any benefit from any property, real or personal, owned by the deceased person at his death, if we are correct, the remedy, if it is desired to make the section more drastic, is with the Legislature and not with the Courts.

We have heretofore indicated that upon the appeal as perfected, the appellee may not urge error in the trial court in denying him the right to take of the estate of decedent by virtue of the statute of descent and distribution. However, both parties in their brief have discussed the effect of the insanity of the appellee upon the judgment of conviction upon his plea of guilty of murder in the second degree.

Appellee urges that because of appellee’s former insanity, the judgment is void but, if not, that legal insanity which is necessary to maintain such a defense in a criminal case is different from medical insanity from which it may have been concluded that the defendant was suffering when adjudged to be guilty in the criminal proceeding.

In our judgment, the conviction of the defendant upon his plea of guilty may not be challenged in this proceeding for two reasons: First, it must be presumed that the judgment in the criminal cause is valid until the contrary appears. The defendant was represented by legal counsel and it must be assumed that if a defense of insanity could have been made it would have been urged. Second, the applicable section of §10503-17 GC makes no exception as to its application to a person finally adjudged guilty of murder in the first and second degree. Thus, the only insanity defense which would preclude the operation of the statute would be such a defense as is contemplated at law. Failing the assertion of such defense when opportunity was afforded to assert it, it is too late at this juncture to urge it.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By MCLAUGHLIN, J.

text:
    STATE, Plaintiff, v. LUTZ, Defendant.
    Common Pleas Court, Stark County.
    No. 93901.
    Decided June 11, 1953.

      Martin Hunker, Louis Martinez, Canton, for plaintiff-appellee.
    Richard McCuskey and Loren Souers, Jr., Canton, for defendant-appellant.
   OPINION

By MCLAUGHLIN, J.

STATEMENT OF FACTS

Defendant, Mervin R. Lutz, Canton Grade School Principal and Teacher, appeals an assault and battery conviction for paddling a pupil. He with good reasi t. believed the pupil, eleven year old Samuel Kafidies, had thrown a stone while on the way to school at a little girl schoolmate, and then fibbed about it. The stone knocked the little girl’s glasses off and might have seriously injured her eyes. The paddle used was of normal proportions. He was severely spanked from six to fifteen times. His buttocks was vividly discolored, black and blue, which cleared up in about five days with some tenderness remaining longer. He was an epileptic since infancy, and this Court accepts his mother’s story to the effect that he had three such fits after the paddling. The spanking was witnessed by Miss Evelyn Obermiller, his room teacher, on Thursday morning, October 23rd, 1952. The next day, Friday, the boy’s parents and older brother took him to the office of Superintendent of Schools, Harold E. Eibling, who saw the bruises, listened to their complaint, but took no action. They then took him to the County Juvenile Court and had a talk with the Boy’s Probation Officer there, Andrew Chlebeck, who took no action. They then went to Police Court and filed an affidavit. On the following Tuesday the boy returned to school and was then examined by the school doctor and the school nurse. By this time the discoloring was entirely gone

Almost two months later on December 17th, 1952, the case was tried to the Municipal Judge without a jury. The trial lasted about three days. On January 2nd, 1953, the Court-entered a finding of guilty as charged, from which finding appeal is made to this Court.

THE ISSUES

This appeal is strictly limited to questions of law. We have the task of examining the record to determine whether there be merit in, any of the assigned errors. We do not consider that we should search for errors other than those duly designated and\ assigned by counsel. The assigned errors are as follows:

“1. The Court erred in overruling defendant’s motion for a directed verdict made at the conclusion of the State’s case.
“2. The verdict is not supported by the evidence, is contrary to the manifest weight of the evidence and is contrary to law.
“3. The Court erred in excluding evidence offered by defendant and in admitting evidence offered by the State over defendant’s objections, to all of which defendant excepted.
“4. The Court erred in overruling defendant’s motion for a new trial.”

THE LAW STATED

This case does not present any new, unusual or novel questions of law. Like situations have confronted our courts since schools have existed. Every text book of law contains clear and understandable statements that have application here. Nearly every State has its leading cases on the subject of corporal punishment of a pupil by a teacher. Ohio is no exception.

When a teacher gives a pupil corporal punishment and is charged criminally therefor, certain fundamental propositions of law come to mind.

First, the teacher stands in loco parentis (i. e., in the place of a parent), and acts in a quasi judicial capacity and is not liable for an error in judgment in the matter of punishment.

Second, the teacher’s responsibility attaches home to home (i. e., while the pupil is on the way to and from school).

Third, there is a presumption of correctness of the teacher’s actions.

Fourth, there is a presumption that the teacher acts in good faith.

Fifth, mere, excessive or severe punishment on the part of the teacher does not constitute a crime unless it is of such a nature as to produce or threaten lasting or permanent injury, or unless the State has shown that it was administered with either express malice, (i. e„ spite, hatred or revenge), or implied malice, (i. e., a wrongful act wantonly done without just cause or excuse), and beyond a reasonable doubt.

Sixth, the defendant teacher is entitled to all the benefits and safeguards of the well-known presumption of innocence.

In our perusal of the authorities, we have examined some fifty or sixty cases, and the best expression of the law which we here deem applicable in this case is found in the rule stated by the Supreme Court of Alabama, 39 Southern 569, as follows:

“One standing in loco parentis, exercising the parents’ delegated authority, may administer reasonable chastisement to a child or pupil to the same extent as the parent himself; and to fasten upon him the guilt of criminality he must not only inflict on the child immoderate chastisement, but he must do so malo animo, with legal malice or wicked motive, or else he must inflict on him some permanent injury.”

This rule is practically adopted by the Supreme and Appellate Courts of leading States throughout the country, particularly, Massachusetts, New York, Illinois and Alabama.

Vanvactor v. State, 113 Ind. 276, 15 N. E., 341; State v. Mizner, 50 Iowa 145, 32 Am. Rep. 128; State v. Pendergrass, 12 N. C 365, 31 Am. Dec. 416; Patterson v. Nutter, 78 Me. 509, 7 Atl. 273; Anderson v. State, 3 Head (Tenn.) 455; 75 Am. Dec. 774; Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156; Commonwealth v. Randall, 4 Grey (Mass.) 36; Commonwealth v. Seed, 5 Clark (Penn.) 78; Dowler v. State, 14 Tex. Crim. App. 61, 4 Am. Crim. Rep. 49; People v. Mummert, 40 N. Y. S. (2d) 699.

In the Mummert case, last cited, at Page 702, the New York Court states its view of the proper rule, as follows:

“In determining what is a reasonable punishment the defendant must necessarily have regarded various considerations, and whether after such consideration he exercised reasonable judgment in determining what the punishment should be is often a difficult question. Among reasonable persons difference prevails as to the circumstances which will justify corporal punishment and the extent to which such punishment may properly be administered. Because of that difficulty and the advantage which a teacher or principal has by being present at the school and having before him the circumstances, a considerable allowance should be made to him by way of protecting him in the exercise of his discretion, particularly where it does not appear that he acted from malice or anger. Lander v. Seaver, 32 Vt. 114, 76 Am. Dec. 156; cited in People v. Petrie, 120 Misc. 221, 198 N. Y. S. 81. It may not be said upon this record that the People established beyond a reasonable doubt either that the defendant acted from anger or malice or that he was unreasonable in determining that corporeal punishment should be inflicted.” (Emphasis added.)

In our research, we find no better or clearer statement of what we deem to be the applicable law of Ohio than that found in O. Jur., Volume 36, Paragraph 349, at Page 357.

“349. CRIMINAL LIABILITY OF TEACHER.—
“Moderate and reasonable correction by a schoolmaster with a proper instrument is not a criminal offense. But if a teacher, in administering correction or punishment to pupils, uses his authority as a cover for malice, he is amenable to the criminal laws; and the same result follows if the teacher is actuated by revenge, spite, or evil passion. On the question of liability for excessive punishment administered under an error in judgment, however, the authorities are divided. One line of authorities holds that the punishment should be proportioned to the offense and that the teacher is criminally liable for excessive and immoderate punishment, regardless of his motives and all questions of malice. The other line of decisions holds that the teacher acts in a quasi judicial capacity and is not liable for an error of judgment in the matter of punishment, even though it is unnecessarily excessive, if it is not of such a nature as to cause or threaten lasting injury and is not actuated by malice. The Courts of Ohio adhere to the latter rule, or a modification thereof, to the effect that mere immoderate and excessive punishment does not constitute a crime unless it is of such a nature as to produce or threaten lasting or permanent injury and is accompanied by express or implied malice.”

Three Ohio cases have come under our careful scrutiny; namely, the Mohr case, (19 O. C. C., N. S., 43); Martin case, (11 O. N. P., N. S., 183); and the Liggett case, (84 Oh Ap 225).

In the Mohr case (1908, Summit County Circuit Court), a father was charged with unlawful punishment of his seven year old daughter. This case holds in effect that the parent is criminally liable for excessive or immoderate punishment, regardless of a parent’s motives and all questions of malice. It did not go to the Supreme Court.

In the Martin case (1910, Common Pleas Court of Muskingum County), a teacher was criminally charged with cruel punishment of a pupil, a boy of twelve years. It holds in effect that the teacher is not criminally liable for mere, excessive or immoderate punishment, but that malice, express or implied, and production or threatened production of lasting or permanent injuries must be shown; and, beyond a reasonable doubt. This case did go to the Supreme Court of Ohio and was affirmed, without opinion. (87 Oh St 459) — (1912).

In the Liggett case (1947), a stepmother was charged with assault with intent to kill when she cruelly punished a nine year old stepson. The case holds, “There was substantial evidence of these physical injuries, indicating punishment far in excess of that which the law authorizes one standing in loco parentis to inflict.”

In our study of the three cases, we distinguish the Martin case from the Mohr and Liggett cases.- The Martin case is a teacher-pupil case, whereas the Mohr case is a father-daughter case, and the Liggett case is a stepmother-stepson case.

We note that in the Mohr case, the Circuit Court of Summit County did recognize, “that the father is the judge of when he shall punish and for what” and the Court did further recognize the requirement of malice but stated that an instruction to the jury that they must find that, “defendant was prompted by malice and ill-will towards his minor daughter Edith Mohr in inflicting the punishment in question,” would have been improper since the severe punishment might have been inflicted “because of ill-will that he had towards the parent’s mother, sister or brother.”

Parenthetically, we say that it is not too unusual for a parent or step-parent to bear ill-will towards another member of the family, and not having an opportunity to vent their spleen upon him to “take their spite out on” some other innocent family member. Nevertheless, the ill-will or malice is still present in the mind and heart of the punisher. Such a situation does not exist in our school rooms, and a school teacher rarely punishes one pupil for the misdeeds of another. The quasi judicial capacity of the school teacher punisher is therefore more impersonal and more impartial than that of a parent or step-parent punisher.

We, therefore, make the definite distinction between the Martin case which was a teacher-pupil case on the one hand, and the Mohr and Liggett cases which were parent or stepparent punisher cases.

The Mohr and Liggett cases hold that the corporeal punishment, in a parent or step-parent punisher case, can be so severe, so excessive and so cruel as to be “shocking to every right thinking man.” (Mohr case, Page 45). It then becomes “punishment far in excess of what the law authorizes one standing in loco parentis to inflict,” (Liggett case, Page 226), and malice is implied and the defendant cannot under any circumstances be excused.

In our opinion, the rule announced in the Martin case is the law of Ohio. It is the only teacher-pupil case authentically reported. It adopts what we consider to be the majority view of other jurisdictions. It was the only one of the three cases above digested which was affirmed by the Supreme Court of Ohio. We note also that the factual situation surrounding the Muskingum County case is very analogous to that of the case at Bar. We quote the very pertinent language of the court in the Martin case at Page 187.

“So far as my knowledge goes, the courts of Ohio have adhered to the latter rule, or at any rate to a modified rule, viz., that the state must show that the punishment was immoderate and excessive and that express malice (i. e., spite, hatred or revenge) or implied malice (i. e., a wrongful act wantonly done without just cause or excuse) must appear; that mere excessive punishment on the part of the teacher does not constitute a crime unless it is of such a nature as to produce or threaten lasting or permanent injury; that malice, either express or implied, must be shown, and beyond a reasonable doubt.”

As to the presumption of innocence, the General Code expressly stipulates that the defendant in a criminal case is presumed to be innocent until he is proven guilty of the crime charged; and, beyond a reasonable doubt. This fundamental rule has been reiterated many times in the decisions of our courts. The trial court was bound to respect this presumption. Its effect is to require the Court to infer and take for granted that the defendant is not guilty. The presumption of innocence is not an idle one, but is a substantial right inuring to the benefit of the accused in every criminal case upon every material fact necessary to constitute guilt.

In an early Ohio case in 1833, (Wright, 392), the Court charged the jury as follows:

“You will hold the prisoner innocent of every particular of the charge against him, until his guilt be made manifest in the testimony, and if the acts proven be without assignable motives, in proportion as they depart from probability in the same proportion, the presumption of his innocence increases: because men are not readily presumed to do unusual, extraordinary, or cruel acts, without motives . .

THE LAW APPLIED TO THE FACTS

The trial court did not apply the rule of the Martin case. Very early in the record (Page 58), the trial court stated that he considered the rule in the Martin case to be “in conflict with the expressed provisions of the Constitution of the United States and the State of Ohio.” We have minutely examined these constitutions and cannot understand what the trial court had in mind when he made such a remark, nor does the brief of the City Solicitor’s Office supporting this conviction cite any authority or reason for such a statement.

Furthermore, the trial court in its written opinion and finding (Page 2) said, “The evidence does not disclose any express malice or ill-will on the part of the defendant.”

The trial court did attempt to apply the rule of the Mohr and Liggett cases. We find on Page 6 of his written opinion and finding these words, “This evidence as well as the remainder of the evidence in this case shocks the sensibilities of this Court as this Court believes it would shock the sensibilities of the average individual under these circumstances, regardless of whether or not he is a disciplinarian of the old school.” Proper application of the rule in the Mohr and Liggett cases prompts us to ask the question, — “Was thé punishment in the case at Bar so severe, so excessive and so cruel as to be shocking to every right thinking man?” If so, then it was “punishment far in excess of what the law authorizes one standing in loco parentis to inflict,” and malice will be implied.

This Court has examined the photographic exhibit of the boy’s buttocks, and has carefully perused the record as to all bits of evidence concerning the severity of this paddling, and after weighing the evidence we find nothing that shocks the sensibilities of this Court or points to any fact of excessive severity or cruelty. School day memories of the average individual, including this Court, will recall many experiences of corporeal punishment more severe than this one properly given and of great benefit to the pupil and the school.

This corporeal punishment came to the attention of a number of individuals without shocking their sensibilities.

First of all, the boy’s room teacher watched the paddling; it did not shock her.

Second, it is in evidence (Page 44) that this whole matter came to the attention of the Superintendent of Schools who “seen the bruises on Sam” without having his sensibilities shocked into action, although he had ample authority under the law to discipline or remove the teacher.

Third, the record discloses on the same page (44), “We seen Chlebeck, we had a talk with him about it.” The authorities of the County Juvenile Court, at least, unofficially, had this entire matter before them without the shocking of sensibilities there, although they too had ample authority under the law to do something about it. The sensibilities of the school doctor and the school nurse were not shocked.

Next, what does the record show as to any production or threatened production of lasting or permanent injuries. The boy was examined by his family physician on the day following the paddling, and the record discloses that the doctor found the vivid discoloring of the boy’s buttocks, black and blue, but nowhere does the record disclose that the injuries were such as to require any medical treatment. This boy had been an epileptic since infancy, and his mother did testify that after the paddling he had three such fits, but the record discloses no medical testimony indicating any causal connection between the paddling and the subsequent seizures, the only medical testimony thereon being the family doctor’s statement (Record, Page 53), on December 18th, “To my knowledge he has been free from seizures this past year.”

How then can it be said that there was any substantial evidence of either physical injuries or cruelty, indicating punishment in excess of that which the law authorizes one standing in loco parentis to inflict.

When the trial court called this punishment immoderate and excessive, the State’s evidence was certainly given the benefit of most favorable interpretation. The defendant, and not the State, is entitled to such benefit when the law as to the presumption of innocence is properly applied.

The verdict and finding of the trial court is contrary to the law of the Martin case.

The verdict and finding of the trial court is contrary to the manifest weight of the evidence as to severity, cruelty and injury and, therefore, contrary to the rule of the Mohr and Liggett cases. The verdict of the trial court is not supported by the evidence, whichever rule is applied.

We, therefore, attend the assignments of error in reverse order.

We find no merit in numbers 4 and 3.

We find that there is merit in number 2, and further find that the verdict is not supported by the evidence, is contrary to the manifest weight of the evidence and is contrary to law.

We find also that there is merit in assigned error number 1 and that the trial court should have directed a verdict for the defendant at the conclusion of the State’s case. Proper' application of the rule of the Martin case and the rule of the Mohr and Liggett cases required the trial court to examine the State’s evidence for a substantial showing of bad faith or malice or glaring injury.

This record discloses no evidence which would indicate that this teacher was actuated by any malice, express or implied, or of any serious physical injury or of any punishment in excess of that which the law authorizes one standing in loco parentis to inflict. Contrarily, there is ample evidence to indicate that this teacher acted in good faith with proper motives.

Since we are of the opinion that the trial court should have directed a verdict for the defendant at the conclusion of the State’s evidence, this Court will enter such an order at this time and acquit the defendant.

Defendant prepare entry.


author: By NICHOLS, J.

text:
    CASEY, Plaintiff-Appellant, v. OHIO STATE NURSES ASSOCIATION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4618.
    Decided November 5, 1951.

      Smith, Earhart & Robertson, Forrest F. Smith, of Counsel, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, G. W. Fais, of Counsel, Columbus, Fred A. Dewey, Cincinnati, for defendants-appellees, Ellen Briggs, Louise Flynn and Rena Gazaway.
    (NICHOLS, J, of the Seventh District, sitting by assignment.)
   OPINION

By NICHOLS, J.

Dorothy Ellen Casey brought her action in the Common Pleas Court of Franklin County, Ohio, against The Ohio State Nurses Association, a corporation, alleging in her petition that she is and for twenty years past has been a member in good standing of the defendant association, and seeking a declaratory judgment of the Court “of the validity of the processes whereby the Regulations and Bylaws of the defendant association were purportedly amended in the year 1919 and thereafter,” and (2) “that the Court find and determine the right of individual members to propose motions, resolutions and other matters of business in annual and special meetings of the defendant association and to vote on such motions, resolutions and proposals,” other than the election of officers.

A third prayer for relief was made in the petition by way of injunction against the officers of the association from calling “a meeting of purported delegates to the adjourned annual meeting of the association,” but such relief was not granted because the officers abandoned the calling of that meeting.

To the petition of plaintiff the defendant association demurred on the ground of insufficient facts to constitute a cause of action. Such demurrer was overruled by the court because such demurrer admitted the allegation of the petition that it was the unbroken interpretation and practice from 1919 to 1950 to permit delegates and only delegates to vote for the election of officers and trustees and to nominate candidates for appointment as members of the State Nurses Board, and further admitted that during that period it was the uniform interpretation and practice to permit individual members to take part in all other matters coming before all annual and special meetings, the court saying that “long established practice and usage may affect an amendment of regulations and bylaws or even their enactment.”

Such demurrer being overruled and defendant association not desiring to plead further, a declaratory judgment was entered by the court on November 18, 1950. At the same term of the Court of Common Pleas two motions were filed on behalf of Ellen Briggs, Louise Flynn and Rena Gazaway, members of the defendant association, the first of which moved the court for an order vacating and setting aside its judgment of November 18, 1950, and the other moved the court to allow them to intervene as parties defendant to the action with leave to answer, memorandum being filed in support of such motions and affidavits and counteraffidavits were filed and considered by the court.

At the same term of court both motions were sustained, the judgment of November 18, 1950, being vacated and set aside and Ellen Briggs, Louise Flynn and Rena Gazaway were permitted to intervene as defendants and ordered to file their answer, such answer being filed within the time fixed by the court.

From such last mentioned orders the plaintiff, Dorothy Ellen Casey, has appealed to this Court of Appeals on questions of law, claiming an abuse of discretion by the trial court in making such orders. There has been no motion to dismiss the appeal, but the appellees deny the claim of abuse of discretion and assert no such abuse is shown.

There can be no doubt of the right of the trial court, in the absence of an abuse of discretion, to vacate its judgment during term and thereafter permit persons having an interest in the controversy to become parties defendant, not as mere friends of the court, but in their own behalf, with consent to file their answer.

In the settled state of the law of Ohio it seems superfluous to enter upon a discussion of this jurisdictional question and we are content to cite:

Moherman v. Nickels, 140 Oh St 450, 45 N. E. (2d) 405, 143 A. L. R. 1174, in which many cases are cited by Judge Hart in the opinion; 23 O. Jur. 1117, Sec. 959.

This court has followed the established procedure in the cases of:

State, ex rel. Marzluf v. Beightler, 40 Abs 325, and Modern Roofing & Siding Co. v. Boring, 55 Abs 488.

Counsel for appellant are well informed as to the power of the court to vacate its judgment during term, and clearly recognized that only in the event of “abuse of discretion” is such order a final appealable one. In appellant’s brief counsel have cited Chandler & Taylor Co. v. Southern Pacific, 104 Oh St 188, and have quoted from 2 O. Jur. (Part 1), Sec. 110, at page 223, and 2 O. Jur. (Part 2), Sec. 619, at pages 1109 and 1110, where is found the following statement of the law:

“The rule is firmly established in Ohio that the control of a reviewing court over the discretion of a lower court in vacating or modifying its judgments during term time is limited to cases where an abuse of discretion is clearly shown; in this connection it has been pointed out that no language, however strong, will take away the right of review where there is shown an abuse of discretion. If a court during term time is only limited by ‘abuse of discretion’ in granting a motion to vacate a judgment, it must follow that in refusing to grant such a motion, the court is only controlled by sound discretion. This discretionary power is continued where the motion is made at the same term but continued until the next term.

The quoted language is particularly applicable to this case because the motions made during term time were continued to and decided the next term, an entry being approved and filed with the court wherein it was agreed that the hearings on such motions and rulings thereon shall be of the same effect as if held and rulings made during term.

In the absence of a clear showing to the contrary it must be presumed that the trial court exercised its sound discretion in acting upon such motions. The only assignments of error upon this appeal are that the court abused its discretion in vacating its former judgment during term time and in permitting Ellen Briggs, Louise Flynn and Rena Gazaway to intervene and file answers.

As we gather from the briefs and argument of counsel for appellant, the asserted abuse of discretion arises upon the claim that the judgment rendered November 18, 1950, (which was later vacated) protected not only the rights of the plaintiff but of the intervening defendants as well, and therefore no rights of such intervenors had been adversely affected by the original judgment and no reason existed for the subsequent rulings of the court.

But an examination and comparison of the allegations of the petition with those of the answer filed by intervenors clearly dispels such claim. As stated above, the petitioner sought to have the court declare that individual members of the association had the right to propose motions, resolutions and other matters of business in annual and special meetings of the association and to vote thereon, save and except the election of officers, basing her contention upon a showing that previously for a long number of years such privileges had been accorded to individual members, whereas the intervenors claim in their answer that the bylaws of the association prescribe for the election of delegates from the various branches of the association, who alone are empowered to vote at the conventions of the association upon all matters coming before the conventions, including the election of officers, pointing out that the duties performed by members of the nursing profession require their continuous presence at their places of duty, thus preventing them from attending such conventions, the bylaws thus preserving their rights by the system of choosing, at their places of duty, representatives to vote for them at the conventions, and thus preventing a minority of the individual members who may have opportunity to attend from dominating the proceedings of the convention and nullifying the action of the delegates for whom they had the privilege of voting.

It is noted that the action brought by Dorothy Éllen Casey does not purport to be instituted by her in her own behalf and as representing all other members of the association, but even had her action been attempted to be so instituted in a representative capacity, other members of the association clearly had the right to dispute the claims made in her petition, and not having been made parties to the action the intervenors embraced the opportunity to protect for themselves the rights which they claim in their answer.

There has been shown no abuse of discretion upon the part of the trial court in sustaining such motions. There has been no final adjudication in the Common Pleas Court of the claims of the respective parties, hence it is not proper for this Court of Appeals at this stage to undertake a decision upon the merits of their claims.

We have searched the record for anything which might be construed as an abuse of discretion upon the part of the trial court in sustaining the motions made by E'llen Briggs, Louise Flynn and Rena Gazaway and have found nothing to that effect and it follows that the court did not err as a matter of law in so doing.

If it were incumbent upon appellees to show the sound discretion and good faith of the Common Pleas Court in granting such motions, it could be found in the decision rendered by that court wherein it is stated by Judge Harter in his opinion, as follows:

“We feel quite strongly that parties directly interested by litigation such as this declaratory judgment action should be entitled to a ‘day in court,’ either in this trial court or in the Court of Appeals. To have that right to a ‘day in court’ summarily cut off by allowing a ruling on a demurrer to become a final order and then not appealing from that order, strikes us as a bit harsh. We are, therefore, of the opinion that both motions now being considered should be sustained.
“In making this ruling, we want it distinctly understood that we are expressing no opinion as to the soundness of Judge Bryant’s decision on the legal questions then confronting him. On the contrary, we feel that whatever judge considers this case next on its merits and after the intervening defendants have filed their pleadings should be free to make whatever decision on the merits as he may deem proper. After such decision is rendered, an appeal may or may not be taken.”

The record discloses no unreasonable, arbitrary or unconscionable attitude on the part of the trial court.

The judgment of the Common Pleas Court is affirmed, all members of this Court concurring.

HORNBECK, PJ, MILLER, J, concur.


text:
    GOODMAN, Jr. et, Plaintiffs-Appellees, v. SULLIVAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4723.
    Decided March 14, 1952.
    Robert L. Mellman, Columbus, for plaintiffs-appellees.
    Edward A. Moriarity, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, PJ.

This is a law appeal from a judgment of the Municipal Court of the City of Columbus in favor of the plaintiffs against the defendant for the sum of $840.00 and costs. Defendant appeals.

Two errors are assigned:

1. The judgment is contrary to law.

2. The judgment is against the manifest weight of the evidence.

We may not consider the second assignment of error for the reason that we do not have a record of the evidence taken in the trial court. Although there is a purported bill of exceptions in the files it is not settled and allowed by the trial judge, nor is it authenticated in any other manner provided by law. Sec. 11571 GC.

We then give attention to the first error assigned.

Plaintiffs sued for two months rental claimed to be due them as lessors by the terms of a written lease between the parties. The lease was for a period of five years, the rental $150.00 per month, the demised premises, a storeroom located at 304 East Main Street, Columbus, Ohio. Defendant in his amended answer admitted the execution of the “alleged lease” but averred that it contained a provision, as found by the trial judge, that the rented premises were to be used by lessee for the sale of beer, wines, liquor and food and that because of the refusal of the Board of Liquor Control to approve a transfer of a liquor permit then held by defendant, to the leased premises, performance of the lease by the lessee was made impossible.

From the briefs we learn that the Board of Liquor Control had refused to permit the defendant to operate a place for the sale of beer, wine and liquor at the rented premises because of the proximity thereto of a public school building. It also appears that the lease carried no exception or condition that if the liquor permit was not granted to the defendant it should not be binding upon him. It is not contended, nor does it appear that the premises could not have been used as a restaurant for the sale of food.

The trial judge upon request of defendant made special findings of fact from which he drew his conclusion of law that:

“The terms of the lease must prevail. Defendant knew the Board of Liquor Control would have to approve the transfer of his license before he could sell liquor upon the demised premises. He failed to provide for that contingency in his lease. Plaintiff is entitled to judgment for his rent.”

This succinct conclusion of law is supported by the findings of fact which, in part, are, that defendant planning to move his liquor business from North High Street, in the City of Columbus to 304 East Main Street in said City, on August 11, 1950, executed a lease with plaintiff for a period of five years. That the rental was to be $150.00 per month and the defendant was to use the rented premises for the sale of beer, wines, liquor and food. That both parties knew when the lease was signed that the use of the property for the sale of liquor was subject to an order of the Board of Liquor Control allowing or disallowing the transfer of defendant’s liquor license to the demised premises.

In the factual situation developed by the admissions in the pleadings and the findings of fact the lessee could not elect to treat the lease as ineffective to require the payment of the rent therein provided.

The legal question presented is considered in an annotation to Imbeschied v. Lerner (Mass.) 22 A. L. R. 821, under the topic “Effect of Interference by Law with Liquor Business on Lease of Property for that Purpose.” The annotator in his introductory remarks says:

“The cases upon this question fall into two main classes, depending upon whether or not the lease is solely for the transaction of the liquor business. If it is not, the courts are practically unanimous in holding that the prevention of such business by law does not affect the tenant’s liability for rent. If the sole purpose of the lease is that the leased property shall be devoted exclusively to the liquor business, there is a conflict of authority as to whether or not the liability for rent is affected by prevention of the business by law.”

The note is well supported by cases cited from many states. It is evident that the lease here under consideration falls in the former of the two main classes discussed by the annotator and that the lessee may not be relieved from liability to pay rent.

Appellees cite the case of Montgomery v. Board of Education, 102 Oh St 189, which though not a blue bottle case is helpful, as Judge Matthias at page 193 of the opinion enunciates a principle which is applicable:

“The contingency which here occurred was one which might well have been foreseen and provided against in thé contract, but was not. The law will not insert by construction for the benefit of one of the parties an exception or condition which the party either by design or neglect have omitted from their own contract.”

The judgment of the Municipal Court is not contrary to law. Appellees request this Court to correct the amount of the judgment in their behalf to the sum of $960.00, instead of $840.00, as carried into the judgment entry of November 21, 1951, and cite §11363 GC as authority for the correction of an error in computation in the amount of the judgment. As we view this question it is more than the correction of an error in computation. Appellees chose to reduce the amount of the monthly rental claimed from $150.00 per month to $120.00 per month, as appears from the amended and supplemental petition. The half sheet of the trial judge notes the amount of the judgment as “$820.00 (7 mos. @ $120.00 per mo. See entry of 11-21-51.)” Appellees’ counsel in his brief states that,

“We inadvertently approved the Journal Entry of November 21, 1951, after which we requested the trial court to make the correction, but he refused to do so because he was of the opinion that the month commencing May 16, 1951, should not be included, which we submit is contrary to the amendment he approved at the opening of the trial.”

Whether or not the Court was correct in the amount for which the judgment was entered, it was a formal judgment, knowingly made, and if appellees were aggrieved by the entry, as made, they should have filed a cross-appeal and tested the correctness of the order in this Court.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By MILLER, J.

text:
    STATE, ex rel. LEICHNER, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4697.
    Decided February 25, 1952.
    Cecile J. Shapiro, Columbus, for petitioner.
    Hon. C. William O’Neill, Atty. Genl., J. M. Burtch, Jr., Asst. Atty. Genl., Columbus, for respondent.
   OPINION

By MILLER, J.

This is an action wherein the petitioner is seeking his release from the Ohio Penitentiary on a writ of habeas corpus for the following reasons:

1. That the facts set forth in the indictment are not true.

2. That the indictment does not charge an offense.

The truth of the averments in an indictment cannot be considered in a habeas corpus proceeding; hence no further attention will be given to this charge.

Next, considering the sufficiency of the indictment, the question presented is whether or not an offense is charged therein.

An examination of the record discloses that the indictment contains the following allegations:

“* * * that C. W. Leichner * * * did unlawfully and knowingly falsely pretend with intent to defraud * * * that he was then and there gainfully employed by the B. & O. Railroad Company of Columbus, Ohio and was then and there actively engaged in such employment and was receiving earnings therefrom by which said false pretenses the said C. W. Leichner then and there did obtain necessities * * * of the value of One Hundred Pour and 44/100 Dollars with intent thereby unlawfully to defraud, * * * well knowing the same to be false; that the said false pretenses were false in fact.”

The petitioner urges that the indictment is insufficient on its face to charge the crime of “false pretense” for two reasons:

1. The description of the property obtained, “necessities,” is too indefinite and uncertain.

2. The use of the adjectives “gainful” and “actively” to describe that the petitioner was engaged in such employment precludes the negative averment which is necessary to charge the offense and that such negative averment is not supplied by any wording in the indictment.

In the case of Redmond v. The State, 35 Oh St 81, the Court sustained a demurrer to the indictment because it did not contain words which negatived the substantial truth of the representations made, but merely denied the literal truth. But it does not appear to us that the facts in the Redmond case are at all parallel with those in the case at bar. The indictment here does not deny merely the literal truth of the representations made, but says they were all false in fact. This is not only a substantial denial of the representations made, but a positive one. Reduced to simple language the indictment charges that the petitioner falsely represented that he was employed by the B. & O. Railroad Company and that he was receiving compensation for his services. It is true the words “gainful” and “actively” are used but in our opinion they neither add to nor subtract from the meaning of the charge and therefore may be regarded as surplusage. State v. Arata, 69 Oh St 211. Surplusage consists of averments which may be stricken out and yet leave a sufficient description of the offense. 21 O. Jur., Section 38, p. 724.

We are in agreement with the petitioner that it is essential that the indictment must negative the truth of the representations which are claimed to be false, and this Court recently so held in the case of Campfield v. Ohio, being case No. 4496, and decided on October 5, 1950, but this legal principle has no application here for we think the indictment sufficiently negatives the representations alleged to have been made by the petitioner. The failure to particularize the word “necessities” would not invalidate the indictment but would make the same subject to a motion to make definite and certain. Sec. 13437-29 GC; State v. Wade, 54 Abs 544. This right is waived upon the entering of the plea of guilty.

The writ will be denied.

HORNBECK, PJ, WISEMAN, J, concur.


author: By CROMER, J.

text:
    STATE, Plaintiff, v. WILSON, Defendant.
    Municipal Court, Piqua.
    No. 5943.
    Decided October 24, 1950.
   OPINION

By CROMER, J.

On or about September 22, 1950, an affidavit was filed in this court whereby the defendant was charged with the violation of §13104 GC, that is he was charged with obtaining property by false pretense. The prosecuting witness, John E. Corbin, is the owner of a filling station in the City of Piqua, Ohio. The defendant went to the filling station and the attendant pumped into defendant’s gas tank gasoline of the value of Four ($4.00) Dollars. The defendant drove away without paying for the gasoline then or at any subsequent time. No credit was extended.

A warrant was issued for the arrest of the defendant, who lives and works in Grand Rapids, Michigan. Upon a visit to Troy, Ohio the defendant was taken into custody on or about the 29th day of September, 1950. While in custody, the Police Department of Piqua, phoned the Judge of this court that the bond for appearance be fixed by the Court. The bond was fixed at Fifty ($50.00) Dollars.

Mr. Leo Bausman, who is an attorney and also a professional bondsman, deposited with the Police Department, which is the custom when the court is not open, the sum of Fifty ($50.00) Dollars in currency. Receipt for the deposit was taken in the name of Mr. Bausman and the prisoner was released but was ordered to appear in court on the following Saturday, September 30, 1950, at 10:00 A. M. o’clock, at which time the case was set for hearing.

At this point, we state that Rule 4 of this Court, prohibits an attorney from being a surety on a criminal bond.

On September 27, 1950, the defendant wrote “Judge Cromer” from Grand Rapids, as follows:

“Dear Sir: Mr. Bausman, Lawyer and Bondsman from Troy, Ohio informed me that if I couldn’t make it to trial this Saturday to write you and let you know so you could set the trial ahead. We are working Saturday now, and I would like to have it set for Sat. Oct. 14th. Thank you, Sir.
Signed — Irvin C. Wilson.”

This case is a misdemeanor, and the defendant is a nonresident of the State. Extradition would not be available. The court was reluctant to grant the defendant’s request but did so, setting the case at 10:00 o’clock on Saturday, October 14, 1950.

The defendant did not appear at this time, altho it was he who had requested this particular date. However, Mr. Bausman did appear not as a bondsman, but as an attorney, as he later claimed. Mr. Bausman had what purported to be a telegram from the defendant stating that he, the defendant, had to work and was unable to appear. The court was of the opinion that the defendant was trifling with the court. The bondsman, Mr. Bausman, was told by the court that the bond was forfeited. An Entry of forfeiture was filed on October 14, 1950. The money on deposit with the Police Department was given to the Clerk of this Court.

On October 21, 1950, both Mr. Bausman, attorney-bondsman, and the defendant appeared in court. The defendant desired to discuss the case and was informed that we were not interested in the merits of the case at this time. Mr. Bausman said he was willing to pay the court costs of the case; that he would pay the prosecuting witness for his gasoline but that he would not enter a plea of guilty. Nothing was done except to acknowledge the presence of the defendant in court and the matter of forfeiture of the bond was continued for future study by the Judge who was then engaged in other matters. The forfeited money, not yet having been turned over to the County Treasurer, as required by §13435-18 GC was ordered held until final determination of the status of the money.

There was no surrender of the defendant to the court, nor was there any acceptance by the court of the body of the defendant. However, the attorney for the defendant claimed that the bondsman or surety had twenty days in which to produce the defendant, and being asked for authority, cited §13435-18 GC.

There is nothing before the court but the verbal complaint that the surety had twenty days in which to bring in the defendant, and having done this the Court should return the money. In the meantime, the defendant has departed from the State of Ohio.

The question is whether or not the bondsman is entitled to the return of his money deposited in lieu of a bond. Sec. 13535-8 GC.

In 1929, Ohio passed a law “to revive and codify the Code of Criminal Procedure of Ohio.” Repealed by this law (113 O. L. 123 to 215) were 344 sections of the statutes of Ohio. The codification consisted of 38 chapters. The 14th chapter of the codification was upon the subject of “Bail” and the sections were numbered from §§13435 to 13435-25 GC. Sec. 13435-18 GC was formerly §13545 GC;

Prior to the codification, §13545 GC was a short section which read as follows:

“When a person under recognizance in a criminal prosecution fails to appear and answer, or to testify in court fails to perform the condition thereof, his default shall be recorded and such recognizance forfeited in open court.”

The codification added the rest of the present statute beginning with “and thereupon.”

Continuing the above quoted former section, we now read:

“and thereupon the court shall cause the clerk to give the surety or sureties twenty days’ notice, which notice shall be served upon them as in a case of summons in a civil action.”

Also the section makes provision for publication. Appearance is required “on or before a day certain to be named and produce the body of the defendant, or show cause why judgment shall not be entered against them for the amount of the recognizance.”

Sec. 13435-8 GC provides for “Deposit of Money, in lieu of bond.”

In the case of Municipal Court of Toledo v. State, 128 Oh St 103, Syl. 1, reads as follows:

“Criminal procedure in this state is regulated entirely by statute and the state has thus created its system of criminal law covering questions of crime and penalties, and has provided its definitions and procedure.”

In the case of Madjorous v. State, 113 Oh St 427, it is declared that “it will be presumed that the legislature has exhausted the legislative intent, and that it has not intended the practice to be extended further than the plain import of the statutes already enacted.” The well known maxim “expressio unius est exclusio alterius” applies. The Madjorous case was denied certiorari by the Supreme Court of the U. S. 270 U. S. 662, 46 S. Ct. 471.

The code of criminal procedure covers the whole field and there is no necessity of looking elsewhere.

We believe there is a distinction between §13435-8 GC— Deposit of money in lieu of bond and §13435-18 GC — Proceeding when party recognized fails to appear. The first statute says, “In all cases it shall be lawful for the party required to give recognizance to deposit cash, etc.” Here, the party himself makes the deposit even though someone other than the defendant actually makes the deposit, it must be considered the defendant’s deposit. In this instance there is no relationship of principal and surety — only the relationship of principal. The word “surety” is not mentioned in this section. The deposit is not subject to garnishment, etc. “so as to interfere with the right of state or municipality to collect the full penalty of the bond.”

The second section provides a method of getting the surety or sureties of a forfeited bond into court. After the recognizance is forfeited the surety or sureties shall be given twenty days notice, similar to a summons in a civil action. In short, it is a civil action usually begun by the prosecuting attorney. In this instance, the defendant signs a recognizance as principal. Those who are qualified according to §13435-2 GC sign as surety. If real estate of the surety is relied upon — instead of a money deposit — the real estate of the surety is pledged and the surety is required to describe his real estate, which becomes charged with a lien recorded in the office of the County Recorder. The surety may be required to depose as to the “sureties sufficiency to act as bail.” Besides, the surety is required to state where notice “provided for in this chapter may be served.” This is the notice mentioned in sub-section 18.

Under §13435-18 GC a hearing is had and judgment is rendered against the sureties, unless “good cause” is shown for the defendant’s non-appearance under the terms of the bond. This procedure is necessary under due process.

Sec. 13435-24 GC, provides a statutory “form of recognizance.” The principal and sureties “jointly and severally acknowledge themselves to owe the State of Ohio, the sum of - Dollars, to be levied upon their goods and chattels and tenements, if default be made in the condition following, to-wit:” (That condition is for appearance.)

The defendant would add a new condition not found in the statutory bond. In effect, the condition shall be void, if the defendant appears on the date mentioned, or if the defendant at his pleasure and conveniencce appears sometime within twenty days after the date set for his appearance. This is absurd. Are Courts to be turned over to the defendant? If this is true, where is there such a condition in the statute?

Under §13435-8 GC — a deposit of money — there is no such recognizance and there is no need for any. No notice is required. Sureties are entitled to their day in court in order to satisfy due process. The defendant and his deposit is already in court. Execution upon a judgment to convert the property of a surety into money is unnecessary. The deposit is ready to be seized for non-appearance at the day set for trial.

It may be said that a surety is a favorite of the law. A voluntary and uncompensated surety is looked upon with favor. There is no evidence here of any surety, it being a deposit only. But assuming there is something in the nature of a suretyship, there is no evidence of compensation or no compensation. Up to the present moment, however, no one ever heard of a professional bondsman working for nothing.

Sec. 13435-16 GC — Surrender of Defendant — provides that a surety — if there be one — may surrender the defendant and be discharged. The surety “shall not be discharged until the accused is presented and surrendered in open court.” A bail piece is spoken of in this section to assist the surety to have the accused produced in court. See Form 583, Baldwin Ohio Cr. Practice Manual (Third Ed.). Also see Forms 584, 585, 586, 587 and 587-1 in Baldwin (supra) for procedure under subsection 18 aforesaid.

Since §13435-16 GC provides the manner in which the accused may be surrendered — assuming that a depositor is a surety — let us consider whether the appearance of Mr. Bausman, attorney and bondsman, on October 14, 1950, as detailed above was a surrender which discharged the depositor-surety.

Worth v. The State of Ohio, 39 Oh Ap 237 (6/26/1931) from the Court of Appeals of Cuyahoga County, syl. reads as follows:

“Sureties on a criminal recognizance who desire to be relieved from liability by surrendering their principal in open court must produce him in such a manner as to be effective, so that he can be detained and so as to give the court an opportunity to place him in custody of the sheriff or other officer. The record is the proper evidence of surrender.”

This case approves of Du Lawrence v. State, 12 C. C. (n. s.) 367. This case was decided in 1909 by the circuit court of Cuyahoga County. The statute then under consideration was R. S. 7177 which is now §13435-16 GC. The syllabus is as follows:

“A surety on a bail bond who desires to surrender the defendant and deliver him in open court, is not discharged from further responsibility on his bond until the court accepts said delivery, and the only evidence of delivery is the record of the Court.”

In the present case there was neither a surrender to, or acceptance by the court of the defendant. There was just the excuse that the “defendant had to work.”

When a forfeiture is made in a state case, except State Highway Patrol cases, under §13435-19 GC, the clerk “shall return forthwith to the County Auditor of their respective counties, all forfeited recognizances in criminal cases.”

How can there be a “forthwith” return when the clerk has to await at least twenty days to make the return of the forfeiture? We conclude therefore, the money deposited in this case for the appearance of the defendant was forfeited properly.


text:
    COLUMBUS GREEN CABS, Inc., Plaintiff-Appellant, v. SEIP et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4709.
    Decided March 7, 1952.
    Schwartz & Gurevitz, Carl B. Mellman, Columbus, for plaintiff-appellant.
    Ballard, Dresbach & Crabbe, Lloyd E. Bilger, of Counsel, Columbus, for defendant-appellee, John Henry Seip.
    Knepper, White & Dempsey, William E. Knepper, of Counsel, Columbus, for defendant-appellee, Lauren F. Schnees.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court sustaining motions of each of the defendants for a directed verdict at the close of the plaintiff’s case. The action was one for damages arising out of an accident in which three automobiles were involved, one belonging to the plaintiff and one each to the defendants, John Henry Seip and Lauren F. Schnees. No service was had upon the defendant, James E. Graham, so he was not before the Court.

The record reveals that the plaintiff offered testimony which disclosed that the plaintiff was the owner of a taxicab which was parked on Brown Road, a paved highway approximately twenty feet in width; that it was parked with the right wheels about two and one-half to three feet off the highway, leaving the left wheels about the same distance on the improved portion thereof. At this point the road is practically level but south of the point where the accident occurred, about 500 to 600 feet therefrom there is a high spot in the roadway which makes a downgrade toward the scene of the accident for a part of the distance. The taxicab had been parked for a period of four or five minutes for the purpose of discharging a passenger when John Henry Seip approached from the rear in a panel truck. Seip testified that as he turned out to pass the parked cab he saw the truck of defendant Schnees approaching from the opposite direction, about 500 feet away. He then crossed the center of the road in order to pass the taxicab, and when about opposite he saw the Schnees truck about 150 feet away. He testified that the truck was approaching faster than he had thought, that he could not go to the right of the road back of the cab, so he stepped on the accelerator, passed the cab and was on his own right side of the road when the approaching Schnees truck struck his left rear end and then crashed into the parked cab causing the injuries complained of. After the accident Seip testified that the driver of the Schnees truck said, “I lost control by hugging the right side of the road.”

The record discloses that the Seip car was traveling about 25 miles per hour and there is nothing to indicate the speed of the approaching truck other than the testimony of Seip that the truck was about 500 feet away when he started to pass the cab.

The plaintiff then rested and each of the defendants moved for an instructed verdict, which the Court sustained.

The errors assigned may be epitomized as follows: The judgment is contrary to law and the evidence.

In passing upon such motions the Court was required to consider the testimony in its most favorable light towards the plaintiff. At the outset it will be noted that the act of the plaintiff in parking the taxicab upon the highway constituted negligence per se, being in violation of §6307-64 GC, which provides:

“(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event a clear and unobstructed portion of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred feet in each direction upon such highway.”

The appellant urges that even though it was negligent, that at the time of the accident the negligence was only passive and therefore under the last clear chance doctrine it became a question for the jury to determine, whether the doctrine should be applied, the issue having been properly raised by the pleadings.

The appellant also urges that the evidence is sufficient to make a prima facie case and the question of contributory negligence and proximate cause required that the same be submitted to the jury or the Court in the absence of'a jury.

We are of the opinion that the last clear chance rule has no application in the case at bar for the reason that the plaintiff’s negligence was present up to the time of the collision. The Courts of this sstate have held that for a plaintiff to successfully rely on that doctrine his negligence must have ceased.

In 29 O. Jur., paragraph 113 under the subject of Concurrent Negligence appears this language:

“The ‘last clear chance’ rule presupposes antecedent fault or negligence on the part of the plaintiff. The doctrine does not apply where the plaintiff has been negligent, and his negligence continues, and concurrently with the negligence of the defendant, directly contributes to produce the injury.”

The syllabus of the case of Brock v. Marlatt, Admx., 128 Oh St 435, reads as follows:

“The last clear chance rule has no application to any situation except where the injured party through his own negligence has placed himself in a position of peril. The doctrine presupposes the antecedent negligence of the plaintiff, and an instruction on such issue is not proper where the negligence of the defendant and contributory negligence of the plaintiff are concurrent. (Cleveland Ry. Co. v. Masterson, 126 Oh St, 42, and Pennsylvania Co. v. Hart, 101 Oh St, 196, approved and followed.)”

The Court used this language in the opinion (p. 439):

“The record discloses that the decedent’s act in crossing the highway and the approach of the defendant’s automobile were concurrent acts, and, if negligent, such negligence continued until they came into collision, which collision some of the evidence indicates occurred at least partly as a result of plaintiff’s decedent suddenly reversing his course into the path of the approaching automobile. Without fully reviewing the evidence in the record it is sufficient to say that in so far as the evidence indicated contributory negligence of the plaintiff’s decedent it was continuing and concurrent with the acts of the defendant charged to have been negligent. It had not ceased for a sufficient time prior to the accident to enable the defendant, after she knew of the peril of the decedent, to avoid the accident, and hence the rule of the last clear chance has no application and its injection into the case is prejudicially erroneous. Pennsylvania Co. v. Hart, 101 Oh St, 196, 128 N. E., 142.”

Other Ohio cases holding the same way are Drown v. Traction Co., 76 Oh St 234, and Hayman v. Penn. Rd. Co., 77 Oh Ap 135.

The next question presented is whether the evidence was sufficient to establish a prima facie case against each of these defendants. We are of the opinion that it was. In the case of Seip, defendant, the question presented was whether or not the defendant violated §6307-29 GC, and if so, was it the proximate cause of the injury? This section provides:

“No vehicle or trackless trolley shall be driven to the left of the center or center line of the roadway in overtaking and passing traffic proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.”

The record discloses that Seip admitted that he misjudged the speed of the oncoming truck and that he had to speed up to get around the taxicab after he realized this. He also admitted that the dump truck was getting pretty close by the time he was ready to pass the front end of the cab; that there was a possibility that the left rear corner of his car was still out near the center of the road and had not gotten entirely back on his right side when the truck collided with the vehicle. As to the defendant Schnees the record reveals that the truck was out of control, crossed the left of the center of the road and struck the plaintiff’s cab. Clearly this evidence raises an inference of negligence which should have been submitted to the jury under proper instructions.

The motions for a directed verdict should not have been sustained for the further reason that the mere negligence of the plaintiff would not preclude a recovery unless it was a proximate cause of the injury. This could not be determined, as a matter of law, for we are of the opinion that the evidence was such that reasonable minds might arrive at different conclusions on the question. When such facts exist, the question becomes one of fact for determination after submission of all of the evidence. Glasco v. Mendelman, 142 Oh St 649.

We are of the opinion that the Court erred in sustaining the motions for directed verdicts. The judgment is reversed and cause remanded for further proceedings.

HORNBECK, PJ, WISEMAN, J, concur.


author: By POLLOCK, J.

text:
    CHITTOCK, In re.
    Probate Court, Lake County.
    No. 412.
    Decided February 20, 1952.
    Oliver Bates, Madison, for guardian.
    Dan C. Miller, Cleveland, for trustee.
   OPINION

By POLLOCK, J.

This matter comes before this court on exceptions filed on December 11, 1951, to certain items of the supplemental inventory. The will of Richard D. Chittock established a testamentary trust for the benefit of his wife Effie Chittock during her life and disposing of the balance at her death to named beneficiaries. Soon after his death a guardian was appointed for her personally and to manage her separate estate. The trustee under the will has also been duly appointed. The executor in his supplementary inventory listed a saving account in the Painesville office of The Cleveland Trust Company in the sum of $3,760.69 in the name of “R. D. Chittock Effie Chittock (Mrs. R. D.) Either may draw.” There was no conjunction or punctuation between the names. Both parties signed the signature card of the bank under the words on the card “I hereby assent to the Regulations of The Cleveland Trust Company governing Savings Accounts.” The guardian for Mrs. Chittock excepts to the inclusion of this entire account in the inventory, but in the brief filed by her attorney, he concedes that one-half should be included in the inventory.

The trustee under decedent’s will also excepts because certain United States Savings Bonds, Series E and G having a total maturity value of $11,000.00 dated from November, 1941 to June, 1947, issued in the names of Richard D. Chittock or Mrs. Effie Chittock were not included in the inventory. Attorneys for the respective parties filed a stipulation at the hearing which recites in part that:

“Third: The money used for the purchase of the said Government Bonds was from joint earnings of the said Richard D. Chittock and his wife, Effie Chittock.”

The United States Treasury Department Regulations governing United States Savings Bonds, sixth revision dated February 13, 1945, Department circular No. 530, being the regulation now in effect, issued under the authority contained in R. S. 161, sec. 22, as added by sec. 6, 49 Stat. 21, sec. 8(d), 50 Stat. 482; 5 U. S. C. 22, 31 U. S. C., Sup. 757 C, 738 a, provides with respect to the payment or reissue after the death of one co-owner that:

“Section 315.45 (c). If either co-owner dies without the bond having been presented and surrendered for payment or authorized reissue, the surviving co-owner will be recognized as the sole and absolute owner of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor, * * *.”

Subpart N — Deceased Owners likewise bears upon the title to co-owner bonds and reads as follows:

“Section 315.47. Payment or reissue on death of owner. Upon the death of the owner of a savings bond who was not survived by a co-owner or designated beneficiary and who had not during his lifetime presented and surrendered the bond to a Federal Reserve Bank or to the Treasury Department for an authorized reissue, the bond will be considered as Delonging to his estate and will be paid or reissued accordingly, as hereinafter provided, except that reissue under the provisions of this Subpart will not be made to a creditor. * * *”

The provision contained in Department Circular No. 530, 3rd Revision of March 27, 1940, is as follows:

“315.11 Co-owners (a) Payment or reissue. * * * (2) After the Treasury Department has received notice of the death of one co-owner who had not requested payment and presented the bond for payment to a Federal Reserve Bank or the Treasury Department prior to his death, a bond so registered will be paid only to the surviving co-owner upon his request.

Quite a complete history of the Federal legislation and of Treasury regulations promulgated thereunder is found in the case of In re Estate of Di Santo, 142 Oh St, 223, 27 O. O. 179, at page 180 of Ohio Opinions. That Was a survivorship case while this is a co-owner case and therefore the regulations as to payment or reissue are different but the history of the legislation is pertinent.

The vital issue in the determination of the question of ownership of these bonds is whether or not the purchase of the bonds by a citizen constitutes a contract with the government.

The courts seem to be in disagreement. In the case of Foraker, Exr. v. Kocks, Admr., 41 Oh Ap, 210, there was a joint bank account and United States Liberty bonds owned as co-owners. The Court of Appeals for Perry County held on November 27, 1931 as follows:

“Syl. 1. Joint tenancy with incidental right of survivorship does not exist in Ohio.
“Syl. 2. Notwithstanding nonexistence of joint tenancy with right of survivorship, parties may contract for joint ownership with such right.
“Syl. 3. If joint tenancy is expressed without words of survivorship, it will be considered as tenancy in common.
“Syl. 4. Although joint tenancy is expressed, survivorship is not presumed.
“Syl. 5. Where certificate of deposit and Liberty Bond were made payable to husband and wife or either without mentioning survivorship, no right of survivorship existed under circumstances.
“Syl. 7. Where certificate of deposit and United States Liberty bond were payable to husband and wife, or either, presumption existed that property was impressed with contract of ownership, wherein husband and wife had equal rights, without any survivorship.
“Syl. 8. As regards rights of representative of wife predeceasing husband, evidence established that moneys by which certificate of deposit and Liberty bond were obtained were joint savings of husband and wife.
“Syl. 9. That United States Treasury recognized survivor as proper party to whom transfer of Liberty bond should be made held not to confer title in Liberty bond or create contract of survivorship therein.”

The above rule was adopted in the case of Gladieux v. Parney, No. 4558, Sixth Appellate District, Lucas County, referred to in the Ohio Law Reporter of December 24, 1951 at pg. 71 but not reported in full. The court secured a copy of the opinion from which he quotes the following:

“The right of survivorship has its foundation in the contractural relationships of the parties. Foraker, Exr. v. Kocks. Admr., 41 Oh Ap, 210, et seq., is expressive of the principles which correctly apply to the instant case. That case recognizes that joint tenancy with individual right of survivorship does not exist in Ohio; ‘that nevertheless parties may contract for joint ownership,’ and that even though joint tenancy exists, survivorship is not presumed. It therefore follows that before a deposit or other property can be accepted as possessing the survivorship aspects, such survivorship right must be the product of definite contract. The intention to create the survivorship right must be made manifest either by the method employed in designating the account, appropriate notation or declarations, comprehensive enough in character to make clear the intention of the parties.
“In The Cleveland Trust Co., et al. v. Scobie, Admr., 114 Oh St, 241, et seq., and all of the later cases, wherein the law as stated in the Scobie case has been followed, it is to be observed that the word “survivor” has been used or a contract or declaration has existed with respect to the deposit or other asset involved. Therein we find the difference between the instant case and such other authorities.
“The most liberal application of the doctrine of judicial notice is not of sufficient force to require a court to take notice of the vast number of Federal and State regulations, infinite in variety and subject to frequent amendment. Therefore, in the absence of proof as to the regulations, indicating the conditions of issuance, transfer and payment of the bonds of this particular series, the foregoing conclusions apply with equal force to the fifteen series E bonds. Upon proof that such regulations provide for the creation of a contract of survivorship between the owners of such bonds and that the owners acquired the bonds with knowledge of and intent to create as between themselves a survivorship agreement pursuant to such regulations, the right of survivor to the proceeds of the bonds would be sufficiently established. In the absence of such proof, the right of survivorship does not exist. This for the reason that a contract of survivorship is not, as a matter of law, presumed. (Foraker, Exr. v. Kock’s Admr., 41 Oh Ap, 210, et seq.)”

The conclusion reached in the last paragraph of the above quotation'appears to be in direct conflict with the conclusion reached, not only by Judge Norris whom they reversed but by his predecessor and by Judge McClelland of Franklin County Probate Court.

In the case of In re Estate of Glen C. Taylor, 27 O. O. 434, decided by Probate Judge Chittenden of Lucas County, December 18, 1943, the second syllabus reads as follows:

“Where United States Savings Bonds are payable to one person OR to another person, such persons are co-owners, and upon the death of one, the bonds belong to the survivor or to his estate in case of his death.”

In the case of In re Estate of Inez L. Pennell decided by Judge C. P. McClelland, Probate Judge of Franklin County on February 28, 1944, being case No. 107326 in that court, which opinion was not published we have a case of co-ownership. His decision reads in part as follows:

“It is quite obvious that under the statute as hereinbefore quoted and the regulations made in pursuance thereof, such bonds as issued constitute a contract between the government and the contracting parties. In this case both of the owners were contracting parties with the government. According to the contract therefore, when Inez L. Pennell died the government recognized Mr. Pennell as the owner of the bonds. Mrs. Pennell contracted to that effect.

In the Disanto case reported in 142 Oh St, at page 223, 27 O. O. 179, the Supreme Court took the same position, that is, that in a case in which a bond was issued under the above named act payable to one person or a named beneficiary, the bond constituted a contract between the parties.

Judge Chittenden of the Probate Court of Lucas County in the estate of Glen C. Taylor, reported in 27 O. O., page 434, held that a bond issued to two co-owners is payable to the survivor upon the death of one of the co-owners. He simply decided that the bond was payable to the survivor but did not make any distinction between the right to payment and ownership. Inasmuch as he made no such distinction, I think it can be fair to be presumed that he meant that the survivor should be the owner of the bond or the proceeds thereof.

We therefore are compelled to come to the conclusion that William F. Pennell, the survivor of the two co-owners, is the owner of the bonds, and that the exceptions to the inventory should be sustained.”

The basic question was passed on by the Supreme Court of Ohio in the case of In re Estate of DiSanto, 142 Oh St, 223, 27 O. O. 179 on November 17, 1943. In this case the ownership of series D United States savings bonds, issued pursuant to the Second Liberty Bond Act, as amended and supplemented to Louis DiSanto, payable on death to his widow or a named child was in issue. While the ownership provision is different than the instant case, the final determination is dependent on whether or not the purchase of a United States Savings Bond constitutes such a contract as to create a property right or whether it merely provides a method of payment for the convenience of the Treasury Department. If the latter view prevails, the law of Ohio as set forth in the Foraker case prevails and the court would have to inquire into the source of the funds and the intention of the parties. If the former prevails, evidence is not even admissible on the source of funds or intention of the parties, they are bound by their written contract with the government.

The majority of the Supreme Court concurred in Judge Turner’s opinion which reads in part as follows:

“* * * In the instant case the United States of America entered into a contract with Louis DiSanto to repay the principal amount of the bond to him or in case of his death to the named beneficiary.
“It is the contention of appellant that the treasury regulations which are made a part of the bond contract are merely for the convenience of the treasury in order to facilitate payment and are not sufficient to pass title to the designated beneficiary upon the death of the registered owner. While we agree that one of the purposes of such provisions was to facilitate payment, we are definitely of the opinion that the terms of the contract between the government and the bondholder are sufficient to and do pass title to the named beneficiary upon the death of the registered holder. * * *
“That a bond is a contract needs no citation of authority. That the terms of the contract will be enforced so long as the same are not illegal is also elementary. The terms of the treasury circulars are specifically made a part of the contract as if they were fully set out in the bond form. * * *”

This court, contrary to his own personal opinion considers the law as declared in the Disanto case binding upon him and therefore holds accordingly. The exception of rhe trustee of decedent’s estate is therefore overruled.

As to the joint bank account, a joint tenancy exists. No provision was made that the funds should be paid to the survivor and therefore the law as stated in the Foraker case governs. The funds having originally been joint funds remain such and one-half of the deposit should be included in the inventory of the decedent.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. HAMILTON, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3489.
    Decided October 29, 1951.

      William A. Ambrose, Pros. Atty., Harold H. Hull, Asst. Pros. Atty., Youngstown, for plaintiff-appellee.
    N. D. Davis, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

Defendant having waived trial by jury a judge of the court of common pleas found defendant guilty of “making a false statement to obtain unemployment benefits” upon an indictment laid under §1345-60 (2a) GC, which provides inter alia:—

“No individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual: * * *
“(2a) advocates,'or is a member of a party which advocates, the overthrow of our government by force. Every person filing a claim for benefits in accordance with §1346-4 GC shall attach to such claim his written affidavit stating whether he advocates or does not advocate, and whether he is or is not a member of a party which advocates, the overthrow of our government by force. In the absence of such affidavit no claim shall be valid.”

Defendant appealed to this court on questions of law from the judgment of conviction of the trial judge entered upon his finding.

Defendant executed the following affidavit contained in a prescribed printed application for such benefits:—

“I do hereby solemnly swear (or affirm) that I do not advocate the overthrow of our government by force and that I am not a member of a party which advocates the overthrow of our government by force.”
Defendant contends that the trial judge erred to his prej.udice in overruling defendant’s demurrer to the indictment, which demurrer was bottomed on the ground that the section of the Code under which the indictment was laid “is unconstitutional and violative of the defendant’s rights in a number of fundamental ways”; erred in “overruling the defendant-appellant’s motion for discharge at the close of all the evidence.” Defendant further contends that the “finding of guilt by the lower court is not sustained by sufficient evidence” and “is contrary to law”; and that there are “other errors of law appearing on the face of the record, prejudicial to the defendant-appellant.”

Further defendant contends that even though the record is sufficient to show beyond a reasonable doubt that some years before the date he executed the affidavit in question he was a member of the Communist Party the record does riot disclose that the affidavit when made was false because the defendant may have abandoned the Communist Party and advocacy of its principles before the affidavit was made.

The state contends that “all the assignments of error and constitutional questions raised in the instant case, have been fully and ably answered in the case of Dworken v. Collopy, 56 Abs 513.”

That was a suit by Jack B. Dworken against Frank J. Collopy, administrator of the Bureau of Unemployment Compensation, to restrain the enforcement of provision in the Unemployment Compensation Act that an individual who advocates, or is a member of a party which advocates, overthrow of government by force shall not be eligible for compensation. The court of common pleas, Reynolds, J., held that the provision in question was valid, and dismissed the action. No appeal was taken therefrom.

We cannot discuss all of the “fundamental ways” in which defendant was allegedly deprived of his constitutional rights by being indicted under §1345-6D (2a) GC, except to state that he argues that that section of the General Code “emerges in all its nakedness as an unwarranted discrimination against unemployed workers, as in the nature of a bill of attainder,” and as such unconstitutional; that it violates the freedom of speech, press and assembly; that it is repugnant to the due process clauses of the Constitutions of the United States and of the State of Ohio “by adopting the obnoxious principle of guilt by association,” which is “directly involved in both the language and meaning of” such section; that it is “violative of the defendant’s right to equal protection under the laws (14th Amendment, United States Constitution, and Ohio Constitution, Article I, Section 2)” in that “the affidavit in this case distinguishes between persons who belong to a party (political party, presumably) which advocates forceful change in government and those who do not”; and that the legislature “has used its power arbitrarily and hysterically.”

While defendant contends that “the record in this case is completely bare of any proof that the defendant herein personally advocates the overthrow of our government by force,” yet there is convincing and undisputed evidence, photographic and otherwise, to the contrary.

In our opinion there is sufficient evidence of the required degree to support the finding and judgment of the court of common pleas, thus freeing the trial judge of the charge of commission of prejudicial and reversible error “in overruling defendant-appellant’s motion for discharge at the close of all the evidence,” and the claims that “the finding of guilt by the lower court is not sustained by sufficient evidence, is contrary to the weight of the evidence, and is contrary to law.”

With reference to defendant’s contention as to present membership in the Communist Party it is sufficient to say that the defendant did not take the stand to deny membership in that party, nor that at the time of the execution of the affidavit in question he had ceased to be a member of the Communist Party, or had ceased to advocate the overthrow of the government by force. In other words, defendant did not refute the evidence showing membership in such party, nor offer any evidence of abandonment of such party affiliation before execution of such affidavit.

Also see Jack B. Dworken, Plaintiff-Appellant, v. Cleveland Board of Education, et al, Defendants-Appellees, Cuyahoga County Appeals No. 21968, decided June 12, 1951, OA 63 Abs 10 (CP 57 Abs 449).

Appellant’s counsel has failed to call our attention to “other errors of law appearing on the face of the record, prejudicial to the defendant-appellant,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH & PHILLIPS, JJ, concur.