author: By WEBER, J.:

text:
    STATE, ex rel. LAZARON, Relator, v. HARRELL, City Mgr. et, Respondents.
    Common Pleas Court, Hamilton County.
    No. A-145180.
    Decided December 15, 1954.

      Sol Goodman, Harry Falk, Cincinnati, for relator.
    Henry M. Bruestle, City Solicitor, Wallace M. Power, Asst. City Solicitor, Cincinnati, for respondents.
   OPINION

By WEBER, J.:

The plaintiff, James Lazaron, filed his petition praying for a writ of mandamus against C. A. Harrell, City Manager of the City of Cincinnati, and the Civil Service Commission of the City of Cincinnati, commanding said respondents to take action to reinstate said James Lazaron to his position in the classified service of the City of Cincinnati, namely Assistant Engineer in the Sewage Disposal Section, Division of Engineering, from which position he, was discharged by notice dated September 7. 1954 and signed by said C. A. Harrell. Said notice enumerated statutory grounds of discharge, namely, ’’inefficiency, insubordination, neglect of duty and violation of the provisions of the Civil Service Law,” and further alleged in detail facts upon which said grounds of discharge were' based.

Petitioner based his claim for reinstatement upon two grounds:

(1) That each of said charges is ungrounded in fact and do not state a ground for dismissal in law, and further that the charges were based upon an accumulation of minor offenses, not shown on the rating reports which were required to be and were filed every six months.

The following principals are well settled:

“That if the charges are of the kind which the law recognizes, then the Court will not inquire into the question whether the charges were sustained by evidence, or not, unless fraud is alleged.” State, ex rel. Savage v. City of Cleveland, 20 C. C. (N. S.) 250.
“The decision of the Civil Service Commission in affirming an order of discharge by the appointing officer is final and the Court will not interfere by mandamus, if the action is within the scope of its authority and the order of removal is predicated upon one or more of the causes set forth in the statute.” State, ex rel. Baker v. Toledo State Hospital, 88 Oh Ap 348.
“The Common Pleas Court cannot reverse because the penalty is too severe as adjudged by the Commission.” Armbruster v. City of Middletown, 74 Oh Ap 321.
“The discharge may be based upon a single act.” State, ex rel. Hardesty v. Wells, Director of Public Service, 121 Oh St 139.

Rule XVII, Section 2, Rules of the Civil Service Commission of the City of Cincinnati provides:

“Any. employe may be dismissed upon suitable proof of any specific overt act or facts embraced within the general statutory reasons specified in the State Civil Service Law or he may be dismissed in consequence of an accumulation of considerations or acts of lesser consequence pointing to the desirability of his removal.”

It is clear from the above quotations that the contents of the required rating reports may be evaluated but are not the sole evidence upon which thé decision of the commission may be based. Several acts of insubordination were set forth in the notice of discharge and it may be that the decision of affirmance was based solely upon one or more of these acts, or upon these acts in connection with the contents of the reports, even though, as set forth in the stipulation, which was filed, said reports indicated no reprimands, suspensions or disciplinary action during the preceding four years nor contained any statements covering the incidents alleged in the charges. The evidence submitted at the hearing is properly not before the Court and the Court cannot inquire into the correctness of the conclusion reached or whether the punishment administered is too severe.

For the foregoing reasons the first ground of complaint does not entitle the plaintiff to a writ of mandamus ordering his reinstatement.

The second ground upon which the petitioner asks for reinstatement is that the three persons who held the hearing and rendered the decision of affirmance do not legally constitute the Civil Service Commission of the City of Cincinnati.

In accordance with the provisions of Article V of the Charter of the City of Cincinnati the three persons appointed to the Civil Service Commission of the City of Cincinnati are James Morrison, Chairman, John J. Hurst, Vice Chairman, and Charles Urban. John J. Hurst was not present and in no way participated in the hearing or the decision. James Morrison designated and appointed W. D. Heisel, who was then acting as a Civil Service Secretary, to act and he did participate in the hearing and in making the decision of the affirmance in place of said John J. Hurst.

The Court is of the opinion that said body had no right to hear the evidence and render a decision. Rule XVII Section 3 of the Rules of the Civil Service Commission of the City of Cincinnati provides:

“The Commission shall hear the appeal within thirty days from the date such appeal is filed with the Commission.”

Section 4 of said rule provides:

“The Commission shall hear the evidence upon the charge and specifications filed with it by the appointing authority. * * * and the Commission shall, after due consideration, render its judgment affirming, disaffirming, or modifying the action of the appointing authority.”

It is clear that the above rules require the hearing and decision to be by the Commission created according to Article V of the Charter of the City of Cincinnati. It may be, as implied in the case of Industrial Commission of Ohio v. Evans, Judge, 99 Oh St 56 that the two members, in the absence of Mr. Hurst, could have legally heard the evidence and rendered a unanimous decision. But since it is impossible to evaluate the influence which one member of the Board may have had upon the others in reaching their decision, it is impossible to eliminate the nonmember of the Commission and by so doing treat the decision of affirmance as the decision of the two duly appointed members of the Commission and therefore of the Civil Service Commission.

However the City Solicitor contends that, even though the hearing and decision of affirmance was not by the legally constituted Civil Service Commission of the City of Cincinnati, the hearing was held and the decision made by a duly appointed “trial board.” Sec. 143.27 R. C. provides, relative to the State Civil Service Commission:

“The Commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal, * * * and it may affirm, disaffirm or modify the judgment of the appointing authority and the Commission’s decision is final.”

Sec. 143.30 R. C. provides:

“Such Civil Service Commission (that is a City Commission) shall prescribe * * * and enforce rules not inconsistent with §§143.01 to 143.48 R. C., inclusive for * * * removals * * * The procedure applicable to * * * removals, as provided for in §§143.26 and 143.27 R. C., shall govern the civil service of cities.”

If it be assumed that under these provisions of the Revised Code, a City Civil Service Commission ordinarily had authority to appoint a trial board, the Court concludes that there was no duly constituted trial board in this case for two reasons:

(1) This body was a hybrid board, consisting of two members of the Commission and a nonmember who was an employee of the Commission. The rules provide that the Commission shall affirm, disaffirm or modify the action of the appointing authority and its decision is final, which means that if a trial board is used its finding must be reported to. the Commission and the Commission must make the decision. In this case those who constituted the so-called trial board also made the final decision of affirmance.

(2) The Civil Service Commission of Cincinnati has no authority to appoint a trial board. In the exercise of its authority to prescribe and enforce rules, not inconsistent with the provisions of the Code of Ohio, for removals, it deliberately omitted from its rules (See Rule XVII, Section 4, supra) the provisions for the appointment of a trial board. The plaintiff has not been afforded such a hearing as is provided by the Civil Service Rules of the City of Cincinnati.

The Court holds that since the action of the appointing authority, the City Manager, ordering the discharge of the plaintiff, can be affirmed, dis-affirmed or modified only by the duly constituted Civil Service Commission of Cincinnati, after a hearing by it, and no such hearing has been afforded to the plaintiff, the order of discharge made by the City Manager remains in full force and effect until the duly constituted City Civil Service Commission hears the evidence and renders its decision in compliance with the provisions of Section 4, Rule XVII of the Rules of the Civil Service Commission of the City of Cincinnati. Consequently this Court has no authority to issue a writ of mandamus commanding the appointing authority to reinstate the plaintiff and such a writ is hereby denied.

The Court further holds that a writ of mandamus should be and is-hereby allowed commanding the City Civil Service Commission to hear the evidence and render a decision in compliance with the duty specifically enjoined upon it by Section 4, Rule XVII of the Rules of the Civil Service Commission of the City of Cincinnati.

Please present an entry.


source: Caselaw Access Project

author: By BARTLETT, J.

license: Public Domain

text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 34975.
    Decided February 25, 1955

      Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for state.
    John J. Chester, Columbus, for defendant.
   OPINION

By BARTLETT, J.

1. THE DEMURRER OF THE ACCUSED TO THE FIRST COUNT OF THE INDICTMENT, IS OVERRULED.

2. THE FIRST COUNT OF THE INDICTMENT SUFFICIENTLY SETS FORTH ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF THE ACCUSED ACCEPTING A BRIBE, TO INFLUENCE HIM WITH RESPECT TO HIS OFFICIAL DUTIES AS PROSECUTING ATTORNEY OF HIS COUNTY.

3. THE FIRST COUNT OF THE INDICTMENT SUPPLEMENTED BY THE BILL OF PARTICULARS, AVERS WITH REASONABLE CERTAINTY ALL OF THE MATERIAL FACTS WHICH IT IS NECESSARY TO PROVE IN ORDER TO SUSTAIN A CONVICTION, AND DOES SO WITH SUCH REASONABLE CERTAINTY AS TO ADVISE THE ACCUSED WHAT HE MAY EXPECT TO MEET AT HIS TRIAL.

4. THE DEMURRER OF THE ACCUSED TO THE SECOND COUNT OF THE INDICTMENT, IS SUSTAINED.

5. THE ALLEGED CRIME OF OBSTRUCTING JUSTICE REFERRED TO IN THE SECOND COUNT OF THE INDICTMENT, IS BASED UPON THE ENTRY OF A NOLLE PROSEQUI TO ANOTHER INDICTMENT THEN PENDING IN THIS COURT. SINCE A NOLLE PROSEQUI CAN ONLY BE ENTERED BY THE PROSECUTING ATTORNEY AND BY NO OTHER OFFICER OR PERSON, THE OMISSION OF ANY AVERMENT OF THE ESSENTIAL ELEMENT OF THE OFFICIAL CAPACITY OF THE ACCUSED AS PROSECUTING ATTORNEY, IS FATAL TO THE VALIDITY OF SUCH SECOND COUNT; AND SUCH OMISSION CANNOT BE CURED BY ANY RECITALS IN THE BILL OF PARTICULARS.

The first count of the indictment charges in substance that on or about a certain date, Frank H. Kearns, as prosecuting attorney, accepted money to influence him with respect to his official duties.

A bill of particulars supplementing the indictment was filed upon order of the Court, setting forth in substance that the money was accepted to influence said Kearns in connection with his official duties as prosecuting attorney, to seek leave of the Court to enter a nolle prosequi in the criminal cases then pending in this Court against Murray Golib and Louis Nash, by making false representations to the Court that he had insufficient evidence to prosecute the defendants Golib and Nash, which leave to enter said nolle prosequi was granted by the Court in reliance upon said representations of said Kearns as prosecuting attorney which representations said Kearns knew to be false.

“22. The essential elements in an indictment for bribery as respects solicitation or acceptance of a bribe are: (1) venue; (2) capacity of defendant, as a state or other officer; (3) either before or after his election or appointment; (4) corruptly solicits or accepts; (5) any valuable thing; (6) influence him with respect to his official duty or to influence his action, vote, opinion or judgment in a matter pending, or that might legally come before him; and (7) a statement of time of commission.” State v. Carney, 28 Abs 555; See also 7 O. Jur. 2d., Bribery, Sec. 18, p. 708.

The Court is of the opinion that the first count of the indictment sets forth sufficiently all of the essential elements of the crime of accepting a bribe by the accused to influence him with respect to his official duties as prosecuting attorney.

An indictment is sufficient if the requisite allegation can be reasonably inferred from other allegations contained therein. It is not necessary to charge that a definite sum of money was accepted. 7 O. Jur. 2d, Bribery, Sec. 18, p. 708; State v. Peer, (app.) 31 Abs 606, dismissed no debatable constitutional question, 135 Oh St 626; Watson v. State, 39 Oh St 123.

“Identity of the bribe-giver is not material in a prosecution for acceptance of a bribe.” 11 C. J. S. Bribery, p. 843 and p. 844; People v. O’Neill, 48 Hun. 36, affirmed 109 N. Y. 251.

The first count of the indictment supplemented by the bill of particulars, avers with reasonable certainty all of the material facts which it is necessary to prove in order to sustain a conviction, and does so with such reasonable certainty as to advise the accused what he may expect to meet at his trial. 7 O. Jur. 2d, supra, p. 708.

The demurrer of the defendant to the first count of the indictment is, therefore, overruled.

The second count of the indictment charges in substance that Frank H. Kearns on or about a certain date, did corruptly obstruct and impede the due administration of justice, by requesting and inducing the Court to nolle prosequi the indictment against Murray Golib and Louis Nash because of insufficient evidence, knowing the same to be untrue.

The Court has no authority to enter a nolle prosequi in any cause; it can only be entered by the prosecuting attorney with the approval of the Court, on good cause shown. This count merely refers to Frank H. Kearns and omits entirely any averment to his official capacity as prosecuting attorney. Surely this is an essential element in this count, if one is to rely on the nolle prosequi entered as obstructing justice.

It is said by counsel for the state, since the offenses named in the two counts are not of the same class, they must have been connected together in their commission, else they would not have been included in the same indictment.

It is true, that if not of the same class, the two offenses ought not to be included in the same indictment, unless they are connected together in their commission. In fact, if so included, the indictment should show on its face that the offenses named in the two counts thereof, are connected together in their commission. 42 C. J. S., Indictments, Sec. 180, p. 1141.

Counsel for the state assert that since the capacity of the accused as prosecuting attorney is set forth in the first count, it is not necessary to repeat it in the second count of the indictment. This simply is not the law concerning the essential averments in the different counts of an indictment.

“Where there are several counts in an indictment, each count apparently charges a complete offense. The counts are, not interdependent, but each must necessarily be complete in itself.” 21 O. Jur., Indictment, Sec. 96, p. 795; Browning v. State, 120 Oh St 62.

“Each count is, in legal contemplation, a separate indictment and must contain all the averments necessary to constitute the offense sought to be charged in such count, * * *.” 27 Am. Jur., Indictments, Sec. 129, p. 687.

The constitutional right of the accused to be advised of the nature and cause of the accusation he is expected to meet, is not dependent upon surmise nor subject to the frailities of pleading that may be found in an indictment.

The demurrer of the defendant to the second count of the indictment is, therefore, sustained.


text:
    STATE, Plaintiff, v. KEARNS et, Defendants.
    Common Pleas Court, Franklin County.
    No. 34978.
    Decided February 25, 1955.

      Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for state.
    John J. Chester, James C. Britt, Milton L. Farber, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. THE MOTIONS OF THE ACCUSED TO STRIKE THE BILL OF PARTICULARS FROM THE FILES, ARE OVERRULED.

2. THE MOTIONS OF THE ACCUSED THAT THE LAST PARAGRAPH OF THE BILL OF PARTICULARS BE STRICKEN OUT, ARE OVERRULED.

3. THE DEMURRER OF THE DEFENDANT KEARNS TO THE INDICTMENT IS OVERRULED.

4. THE INDICTMENT SETS FORTH SUFFICIENTLY ALL THE ESSENTIAL ELEMENTS OF THE CRIME OF THE ACCUSED SOLICITING A BRIBE, TO INFLUENCE THEM WITH RESPECT TO THEIR OFFICIAL DUTIES AS PROSECUTING ATTORNEY AND SECRET SERVICE OFFICER, RESPECTIVELY OF THEIR COUNTY.

5. THE INDICTMENT, SUPPLEMENTED BY THE BILL OF PARTICULARS, AVERS WITH REASONABLE CERTAINTY ALL OF THE MATERIAL FACTS WHICH IT IS NECESSARY TO PROVE IN ORDER TO SUSTAIN A CONVICTION, AND DOES SO WITH SUCH REASONABLE CERTAINTY AS TO ADVISE THE ACCUSED WHAT THEY MAY EXPECT TO MEET AT THEIR TRIAL.

The indictment in substance charges that on or about a certain date Frank H. Kearns and Fred W. Selby as prosecuting attorney of his county and his employee as secret service officer respectively, did solicit money from one Dr. D. N. Sandoe to influence them with respect to their official duties.

A bill of particulars supplementing the indictment was filed upon order of the Court, setting forth in substance that said bribe was solicited by the defendants on or about October 8, 1953, in the office of Dr. D. N. Sandoe in Columbus, Ohio; and that the defendants tried to encourage and induce Dr. Sandoe to engage freely in the performing of illegal abortions in this county when requested by prospective patients, without fear or danger of any interference or investigation by said Selby as Secret Service officer or any interference or prosecution by said Kearns as prosecuting attorney of said county.

“22. The essential elements in an indictment for bribery as respects solicitation or acceptance of a bribe are: (1) venue; (2) capacity of defendant, as a state or other officer; (3) either before or after his election or appointment; (4) corruptly solicits or accepts; (5) any valuable thing; (6) influence him with respect to his official duty or to influence his action, vote, opinion or judgment in a matter pending, or that might legally come before him; and (7) a statement of time of commission.” State v. Carney, 28 Abs 555; see also, 7 O. Jur. 2d. Bribery, Sec. 18, p. 708.

The Court is of the opinion that the indictment sets forth sufficiently all the essential elements of the crime of the accused soliciting a bribe, to influence them with respect to their official duties as prosecuting attorney and his secret service officer respectively

An indictment is sufficient if the requisite allegation can be reasonably inferred from other allegations contained therein. It is not necessary to charge that a definite sum of money was offered or solicited. 7 O. Jur. 2d. Bribery, Sec. 18, p. 708; State v. Peer (app.), 31 Abs 606, dismissed for want of debatable constitutional question, 135 Oh St 626; Watson v. State, 39 Oh St 123.

An indictment for bribery need not set forth any specific acts the officer is to do or permit to be done. State v. Lang, 5 N. P. (N. S.) 369, Evans, J., of Franklin County; 7 O. Jur., Bribery, Sec. 18, p. 709

The indictment supplemented by the bill of particulars, avers with reasonable certainty all of the material facts which it is necessary to prove in order to sustain a conviction, and does so with such reasonable certainty as to advise the accused what they may expect to meet at their trial. 7 O. Jur. 2d., supra, p. 708.

The truth or accuracy of the averments in the bill of particulars cannot be challenged by a motion.

An indictment is not “defective for surplusage or repugnant allegations, when there is sufficient matter alleged to indicate the crime and the person charged therewith.” State v. Lang, supra; §2941.08 R. C. By analogy the same rule would apply to the bill of particulars.

The motions of the accused to strike from the flies the bill of particulars, are overruled.

The motions of the accused to strike out the last paragraph of the bill of particulars, are overruled.

The demurrer to the indictment by the defendant Kearns is overruled.


text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 35006.
    Decided February 26, 1955.

      Robert E. Albright, Justin L. Sillman, Rush Warren, Columbus, for the state.
    John J. Chester, Columbus, for defendant.
   OPINION

By BARTLETT, J.

1. The motion to quash the indictment is SUSTAINED.

2. Sec. 12873 GC (now §2919.01 R. C.), in force at the time named therein and on which the indictment herein is based, particularly applies to treasurers — state, county, township, city — and other officers whose duties are similar, and not to prosecuting attorneys who are merely authorized by law to incur expenses in the performance of the duties of their office and in furtherance of justice, which are paid by the issuance of warrants on the county treasury by the auditor payable to the prosecuting attorney or such other person as he may name, and the county treasurer disburses said public money to the person named in said warrant.

3. Prosecuting attorneys as such are not officers charged with the collection, receipt, transfer, safe-keeping and disbursement of public money belonging to the county, as described in said §12873 GC.

The indictment in this case charges that Frank H. Kearns on or about the 6th day of March, 1953, was the duly elected Prosecuting Attorney of Franklin County, then and there charged, with the receipt, safe keeping and disbursement of public money belonging to said county, which public money came into his possession by virtue of public office under §3004 GC, which public money he did then and there embezzle and convert to his own use in the sum of $210.00.

The defendant has filed a motion to quash the indictment.

It is argued by counsel for the defendant that it is for the prosecuting attorney alone to judge the necessity of the expenditure of such funds in the performance of his official duties, and in the furtherance of justice; and if in the opinion of the prosecutor, any expenditure from those funds is for said purposes, it is almost impossible for anyone to say, as a matter of law. that the expenditures are illegal.

In fact it is further argued that since the prosecutor is not required to account to anyone for the use of said funds, no one has any authority to question the judgment of the prosecuting attorney in the use of said funds and that such funds may often be used in secret investigations about which it is proper that no one else have any information other than the prosecutor and his assistants. Certain opinions of different attorney generals are cited in support of these views.' It must be remembered that these opinions are to the effect that the prosecutor need not account to other officials in detail as to such expenditures, and other officials have no right to question the necessity thereof. Consequently, the bureau of inspection and supervision of public offices in the examination of the prosecutor’s office as required by law, do not scrutinize the legality of such expenditures or question the judgment of the prosecutor in the use of such funds, with the same exactness that the expenditures of other offices are supervised, due to the spirit and view of such opinions of the attorney general. The spirit of the law is that the prosecutor shall have the utmost freedom in the use of such funds for the purposes authorized by law.

This is a far cry from any theory that the law authorizes such funds to be used by the prosecutor to pay his personal expenses, “when he is off on a frolic of his own.” The examiner of public offices may not be permitted to question the judgment of the prosecutor in the spending of such funds, but this does not justify the use of such funds for his own needs and pleasure. The difficulty of proof offers no support for a motion to quash an indictment for the embezzlement of public funds. As pointed out by counsel for the state, if there is no duty to account for the expenditure of such funds by the prosecutor, then it is an ideal formality for the law (§3004 GC) authorizing such expenditures, to require as it does, “that nothing shall be paid under this section until the prosecuting attorney shall have given bond to the state in a sum not less than his official salary”; and further provides the prosecuting attorney shall annually file with the county auditor “an itemized statement, duly verified py him, as to the manner in which such fund has been expended during the current year,” and pay the unexpended balance in his hands, if any, forthwith into the county treasury. It may be that the examiner has no right to question the judgment of the prosecutor in his use of this fund, but the State of Ohio has the right to insist that such funds be used only for the legitimate purposes authorized by law.

The indictment in the instant case is founded upon §12873 GC in force at the time in question (now §2919.01 R. C.), on the theory that the defendant as prosecuting attorney of Franklin County is “charged with the collection, receipt, safekeeping, transfer, or disbursement of public money” and more particularly with the public money mentioned in tne indictment.

“1. Under the laws defining his duties a county auditor is not an officer charged with the possession and custody of money belonging to the state within the meaning of the 15th section of the act of April 15, 1858 (S. & C. 1606).” — (Being §12873 GC at the time mentioned in the indictment in the instant case.)

“2. An indictment charging the defendant, a county auditor, with converting to his own use money belonging to the State of Ohio, ‘which said money had then and there come into the possession and custody of the said defendant by virtue of his office,’ does not state facts sufficient to constitute an offense within the meaning of the 15th section above referred to.” State of Ohio v. Joseph H. Newton, 26 Oh St 265.

In the foregoing case Newton was indicted as county auditor, “being charged as such officer with the collection, receipt, safe-keeping, transfer, and disbursement of the public moneys, to-wit: $2000 belonging to the State of Ohio, did unlawfully, etc., convert to his own use, which said money had then and there come into the possession and custody of the said Joseph H. Newton by virtue of his office, and in his discharge of the duties thereof, whereby he is guilty of embezzlement, etc.”

The trial court sustained a demurrer to the indictment on the ground that the facts stated do not constitute an offense punishable by the laws of this state. The prosecuting attorney went to the Supreme Court on exceptions to obtain a decision determining the law to govern in similar cases.

The indictment was found under Section 15 of the Independent Treasury Act (S. & C. 1610), and was substantially in the words of that section. (Being §12873 GC, at the time mentioned in the indictment in the instant case.)

Gilmore, J., in delivering the opinion of the Supreme Court in the Newton case on p. 270 says:.

“The real question raised by the demurrer to the indictment is this: Is a county auditor an officer ‘charged with the collection, receipt, safekeeping, transfer, and disbursement of the public money, or any part thereof belonging to the state; within the meaning of the fifteenth section above quoted?”
“The machinery provided by law for the collection, receipt, safekeeping, and disbursement of the public money, is extensive and complicated; requiring in its operation the assistance of * * *, state and county auditors, state and county treasurers, and other officers, each of whom has designated duties to perform, of a nature distinct from those to be performed by any others; and while there must be consecutive cooperation among them in order to produce the required result, yet each officer is responsible only for the faithful performance of the duties imposed upon him by law; and for unfaithfulness is only liable to the penalties denounced against unfaithfulness in his particular office.
“In determining whether a county auditor, while acting in the line of his general duties, is an officer charged with duties enumerated in the fifteenth section, we have carefully examined the many statutory provisions to which our attention has been called by counsel for the state, and find that none of them, when fairly construed, either expressly or impliedly impose those duties upon county auditors; * * *.
“The correctness of this conclusion will be made manifest by a comparative view of the past and present policy of the state respecting the collection, receipt, safekeeping, and disbursement of the public revenues.”
“Under the laws as they stood prior to the year 1858, the oath of office and official bond of a state or county treasurer were deemed sufficient, without the aid of criminal legislation, to insure the safety and proper application of all money that might come into their hands by virtue of their respective offices.
“* * * Defalcations by these officers (state and county treasurers) became frequent, * * * the evils became insufferable, and for the purpose of remedying them, the legislature, in 1858, passed * * * ‘an act to establish the independent treasury of the state of Ohio.’
“* * * The provisions of these acts are much more stringent, in all respects, than those of previous acts, as applied to treasurers of state or county treasurers; and construing them together, as they must be, it is impossible to avoid the conclusion that the penalties provided by the fifteenth section of the independent treasury act are particularly pointed at treasurers — state, county, township, city — and other officers whose duties are similar, and not at auditors of state or county auditors.” (Emphasis ours.)
“1. A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.
“2. Sec. 6841 R. S. (§12873 GC at time in question), applies only to persons who are charged by law with the performance of the duties therein mentioned; and a deputy county treasurer is not within its provisions, nor subject to indictment thereunder.” State v. Meyers, 56 Oh St 340.

Williams, J., in delivering the opinion of the court in the foregoing case on p. 346, says:

“It will be noticed that by its terms, §6841 R. S., is restricted in its application, to persons who are ‘charged with the collection, receipt, safekeeping, transfer or disbursement of the public money, or bequest, or any part thereof, belonging to the state, or to a county, township, municipal corporation, board of education, cemetery association or company of the state’; and the limitation is carried through §7299 R. S., which declares that any failure or refusal to pay over, or to produce the public money, or any part thereof, by an officer or other person charged with the collection, etc., of such money, or to account to, or make settlement with, any proper and legal authority, of the official accounts of such officer or person, shall make a prima facie case of embezzlement; and, that section further declares, that on the trial of any such officer or person, for the embezzlement of the public money, under §6841 R. S., it shall be sufficient evidence, for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of state, or the auditor of the county, or the records of the commissioners of the county; and the refusal of any such officer or person to pay any draft or warrant drawn upon him by the proper officer, for any public money in his hands, or any refusal by any public officer to pay over to his successor any public money or securities promptly on the legal requirement of any officer of the state or county, shall be taken, on the trial of an indictment against him for embezzlement, as prima facie evidence of such embezzlement.
“From these provisions, it seems reasonably certain that the persons who are subject to prosecution under §6841 R. S., are those only, who are charged by law with the performance of the duties, or some of them, therein mentioned. There are officers and persons to whom all these provisions of the statute aptly apply. For instance, by our statutes, county treasurers are charged with the collection of the public moneys belonging to the county, and with the collection of all taxes on the general duplicates placed in their hands by the county auditor, and of all taxes and assessments on any special duplicate furnished by proper authority; and they are clothed with ample remedies for enforcing the collection of the same. They are also charged with the custody, and safe-keeping of all public moneys received by them; with their apportionment and transfer to the proper boards and public agencies; and with the payment and disbursement of all public funds which come to their hands, in specified modes prescribed by law; which funds can lawfully be paid out, only on the order or warrant of the county auditor. They are furthermore charged with the duty of keeping official accounts of their receipts and disbursements, and of making semiannual settlements with the county auditor, showing the amount received and paid out, with any balance remaining in the treasury; and with making a full annual settlement with the county commissioners of like purport; and they are required at the end of their official term, to pay over to their successors all moneys in their possession as treasurer, and deliver over all books, papers and other property so held by them. Duties of a similar nature are enjoined by law on the treasurer of state, and have been on treasurers of townships, of municipal corporations, boards of education, and cemetery associations, with respect to the public funds of which they have been given control. And the application of both sections §§6841 and 7299 R. S., to such officers and persons, is clear and indisputable. But we have found no provision of law by which a deputy or clerk of a county treasurer is charged with the performance of any of the duties above enumerated. The law goes no further than to authorize the treasurer, at his pleasure, to appoint one or more deputies, who hold their appointment only during the pleasure of the principal, who is answerable for the proceedings and misconduct of the deputy, and may, for his own protection, take a bond with sureties for the faithful performance of the services required of the deputy; but the latter takes no oath of office, nor gives bond to any public authority, and is in no sense a public officer, but a mere agent of the treasurer. Meachem on Public Officers, section 38. True, the statute confers authority on the deputy,- during his appointment, to perform the duties of his principal; but that falls short of charging the former with the performance of the duties of the latter. The difference is the substantial one between an authority given to do an act, and enjoining the performance of the act as a duty. That difference is plainly observable, under our legislation, in the relations of a treasurer and his deputy to each other, and to the public. The former is charged by law with the duty of collecting and disbursing the public moneys, and the doing of all acts necessary thereto, as required by law; but the latter is not so charged with the performance of those duties. The provisions made for the public security, are the oath which the officer is required to take, the obligation of the sureties on his official bond, and the penal laws against official malfeasance; while the officer must look to such assurance as he obtains from his deputy, for protection against losses from his misconduct. There may be every reason why a deputy who misappropriates the public moneys, should be punished to the same extent that the principal may be, for a like act; and if he cannot be under other sections of statute, adequate' legislation to that end should be provided. But the language of §6841 R. S., ‘whoever being charged with the collection, etc., of the public money,’ etc., is descriptive of the persons who may be guilty of the offenses it punishes, and is therefore descriptive of the offense; and, under that fundamental rule of strict construction applicable to all penal laws, a statute defining a crime cannot be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. Persons cannot be made subject to such statute by implication. Only those transactions are included in them which are within both their spirit and letter; and all doubts in the interpretation of such statutes are to be resolved in favor of the accused. Bishop on Statutory Crimes, section 194. As said by Chief Justice Marshall, in the case of the United States v. Wiltberger, 5 Wheat., 76-96: ‘To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in eases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.’
“It is not sought to maintain the indictment under any other section of the statute, and as the defendant is not one of the persons included in the provisions of §6841 R. S., the demurrers were properly sustained.”
“County treasurers are, in their respective counties, the disbursing officers of the public revenues.” 1 O. Jur. Counties, Sec. 195 as to Disbursement of Funds, p. 455; State v. Ellett, 47 Oh St 90.

Sec. 2460 GC, at the time named in the indictment provided as follows:

“No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorized to be fixed by some other person or tribunal, in which case it shall be paid upon the warrant of the county auditor, upon the proper certificate of the person or tribunal allowing the claim. No public money shall be disbursed by the county commissioners, or any of them, but shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled thereto on what account, and upon whose allowance, if not fixed by law.”

It will be seen, therefore, that the disbursing officer, the county treasurer, is not authorized to incur expenses, but only to pay money out of the county treasury on the certificate of the auditor in the payment of expenses or obligations created by others.

Sec. 3004 GC in force at the time named in the indictment provides as follows::

“Additional allowance to prosecuting attorneys.—
“There shall be allowed annually to the prosecuting attorney in addition to his salary and to the allowance provided by §2914 GC, an amount equal to one-half the official salary, to provide for expenses which may be incurred by him in the performance of his official duties and in the furtherance of justice, not otherwise provided for. Upon the order of the prosecuting attorney the county auditor shall draw his warrant on the county treasurer payable to the prosecuting attorney or such other person as the order designates, for such amount as the order requires, not exceeding the amount provided for herein, and to be paid out of the general fund of the county.
“Bond for faithful performance of duty. — Provided that nothing shall be paid under this section until the prosecuting attorney shall have given bond to the state in a sum not less than his official salary to be fixed by the court of common pleas or probate court with sureties to be approved by either of said courts, conditioned that he will faithfully discharge all the duties enjoined upon him, by law. and pay over, according to law, all moneys by him, received in his official capacity. Such bond with the approval of such court of the amount thereof and sureties thereon and his oath of office inclosed therein shall be deposited with the county treasurer.
“Itemized statement verified. — The prosecuting attorney shall annually before the first Monday of January, file with the county auditor an itemized statement, duly verified by him, as to the manner in which fund has been expended during the current year, and shall if. any part of such fund remains in his hands unexpended, forthwith pay the same into the county treasury. Provided, that as to the year 1911, such fund shall be proportioned to the part of the year remaining after this act shall have become a law.”

It will be seen, therefore, that under this section, the county treasurer disburses the fund, by payment of the auditor’s warrant on the county treasurer payable to the prosecuting attorney or such other person as the order of the prosecutor requires, to provide for expenses incurred by him. In other words, the prosecutor does not disburse the fund within the terms of §12873 GC; but instead he incurs the expense, and the treasurer disburses to the prosecutor the money to meet such expenses by payment of the warrant of the auditor.

Under §3004 GC the prosecutor does not necessarily even have such public money in his possession. The term “There shall be allowed annually to the prosecuting attorney” means only such money shall be appropriated for his use, and not necessarily paid direct to him.

The prosecutor may issue his order designating the person entitled to payment of the expense incurred, or he may pay the expense incurred, and order the auditor to issue a warrant in his favor as a refund of the expense paid by him.

But in practice small amounts are advanced to him on his order such as he feels he may need, and then deposited in the bank subject to withdrawal by check by the prosecutor in the payment of expenses incurred by him. But under this §3004 GO, he could draw an order every time he incurred any expense, and the auditor would be required to issue his warrant to such persons designated by the prosecutor, as long as the sum total of such warrants did not exceed the amount allowed the prosecutor for such expenses. Thus he need never have any of such fund in his possession, and surely he could not be charged with its safe-keeping under §12873 GO. The prosecutor has authority to incur such expenses but he is not charged with a duty to spend such money.

The prosecuting attorney, therefore, as such is not an officer charged with the collection, receipt, safe-keeping and disbursement of public money belonging to the county; but is authorized by law to incur expenses in the performance of the duties of his office and in furtherance of justice, which expenses are paid by the issuance of a warrant by the auditor on the county treasury, pay to the prosecuting attorney or such other person he may name, and the county treasurer disburses said public money to the person named in the warrant.

The motion to quash the indictment, consequently, is sustained.


text:
    STATE, Plaintiff, v. KEARNS and SELBY, Defendants.
    Common Pleas Court, Franklin County.
    No. 34980.
    Decided February 28, 1955.

      Robert L. Albright, Justin L Sillman, R. Rush Warren, Columbus, for state.
    John J. Chester, James C. Britt, Milton L. Farber, Columbus, for defendants.
   OPINION

By BARTLETT, J.

THE DEMURRERS TO THE INDICTMENT ARE SUSTAINED.

The indictment charges the two defendants received money to compound and abandon a criminal prosecution against Myron T. Fitzgerald, that had been commenced.

The bill of particulars supplementing the indictment states that the money was received by Selby from Fitzgerald, the criminal prosecutions were for traffic violations, reckless operation of a motor vehicle and failure to maintain assured clear distance, and that Kearns aided and abetted the compounding and abandoning of said criminal prosecution, with the knowledge Selby received the money, by disposing of the case by entering a nolle prosequi as prosecuting attorney

On a motion to quash, if the language of the indictment and bill of particulars, are susceptible of more than one reasonable interpretation, the accused is entitled to the one most favorable to him. Schleisinger v. State, 11 Oh St 69. The same rule should apply to a demurrer.

The indictment and bill of particulars fail to disclose any relation of Kearns or Selby to the prosecution of said offenses, except the bill of particulars states Kearns aided and abetted the compounding and abandoning of the prosecution, as prosecuting attorney by entering thereto a nolle prosequi. The indictment fails to aver the official capacity of Kearns, an essential element, and consequently a fatal defect that cannot be cured by the bill of particulars. Neither the indictment nor the bill of particulars avers that Kearns had any knowledge such money was received by Selby for any illegal purpose.

Demurrers of the accused to the indictment, are sustained.


text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 34977.
    Decided February 28, 1955.

      Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for the state.
    John J. Chester, Columbus, for defendant.
   OPINION

By BARTLETT, J.

1. THE DEMURRER TO THE INDICTMENT IS SUSTAINED SINCE THE FACTS STATED THEREIN DO NOT CONSTITUTE AN OFFENSE PUNISHABLE BY LAW.

2. THIS PURPORTS TO BE AN INDICTMENT FOR CHAMPERTY; BUT OMITS.THE AVERMENT OF A MATERIAL ELEMENT OF SUCH AN OFFENSE, THAT THERE WAS A BARGAIN BETWEEN WAYNE C. MURRAY AND FRANK H. KEARNS, IN THE EVENT OF THE FAVORABLE TERMINATION OF THE CONTEMPLATED LITIGATION. SUCH INDICTMENT FURTHER OMITS ANOTHER MATERIAL ELEMENT OF SUCH OFFENSE. THAT KEARNS AS PROSECUTING ATTORNEY WAS AN ENTIRE STRANGER TO THE SUBJECT MATTER OF THE CONTROVERSY, OR THAT AS SUCH OFFICER HE HAD NO PRIOR ACTUAL INTEREST THEREIN.

3. THERE IS NO SHOWING ON THE FACE OF THE INDICTMENT THAT THE SUBJECT OF THE CONTROVERSY WAS NOT OF SUCH A NATURE THAT IT WAS THE DUTY OF THE PROSECUTING ATTORNEY TO PRESENT THE FACTS INVOLVED TO THE GRAND JURY. IN FACT THE INDICTMENT FAILS TO DISCLOSE THE SUBJECT MATTER IN DISPUTE.

The indictment is for champerty under §2917.43 R. C., charging simply that on a certain date, Frank H. Kearns, being an attorney at law, did encourage and assist one Wayne C. Murray to make defenses to a contemplated civil action against said Wayne C. Murray by one Chester A. Withrow by the use of his office as Prosecuting Attorney in attempting to obtain an indictment by the Grand Jury, with the intent to injure said Chester A. Withrow.

The statute (§2917.43 R. C.) for champerty provides:

“No * * * attorney at law shall encourage, excite, or stir up a suit, quarrel, or controversy between two or more persons with intent to injure any of such persons.”

No bargain is averred between Wayne C. Murray and Frank H. Kearns in the event of the favorable termination of the litigation. This is an essential element in the crime of champerty. Key v. Vattier, 1 Ohio, 132.

No averment is made that Frank H. Kearns as Prosecuting Attorney was a stranger to the subject matter of the contemplated law suit, or that as such officer he had no prior actual interest in the subject matter of such suit. This is another element of the crime of champerty. If officially he had a prior actual interest, however slight, in the subject matter of such a law suit, the prosecution thereof will not be regarded as champertous. Ruse v. Kyle, 49 Oh St 475; Key v. Vattier, 1 Ohio 132.

There is no showing on the face of the indictment that the subject matter of the contemplated law suit, did not make it the duty of the prosecuting attorney to present the facts involved to the Grand Jury. In fact the indictment does not even disclose the subject matter in dispute if such law suit were filed.

Moreover, it is the policy of the law, in furtherance of justice, that the preliminary inquiry before a Grand Jury must be held in secrecy. Consequently no evidence will be received from the Grand Jurors,. the witnesses or any other person in the Grand Jury room, as to what evidence was presented to that forum by the Prosecuting Attorney or any other person. State v. Schroeder, et al., 16 N. P. (N. S.) 265; State v. Rhoades, 81 Oh St 397; State v. Woolard, et al., 12 N. P. (N. S.) 395; Turk v. State, 7 Ohio, Part II, p. 240.

The demurrer to the indictment is sustained since the facts stated therein do not constitute an offense punishable by the laws of Ohio.


text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 35101.
    Decided March 24, 1955.
    Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for the state.
    John J. Chester, Gale R. King, Columbus, Robert N. Gorman, Cincinnati, for defendant.
   OPINION

By BARTLETT, J.

THE DEMURRER TO THE INDICTMENT IS OVERRULED; AND THE DEFENDANT IS DIRECTED TO ENTER HIS PLEA THERETO FORTHWITH.

The indictment charges that on or about February 2, 1954, the defendant as the Prosecuting Attorney, with a corrupt and fraudulent intent and design to cause the release and discharge of the defendants Golib and Nash, from an indictment in this court charging them with a felony, and to avoid his duty to prosecute them, appeared before the Judge of the Criminal Division of this court and falsely and fraudulently represented that there was insufficient evidence against said men named in said indictment to warrant a trial against them, when he well knew his representations were false and untrue and were made for the corrupt purpose of influencing said judge in the discharge of his judicial duties and to secure his leave to enter a nolle prosequi to said indictment, and did by said corrupt means mislead and deceive said judge and influence and induce said judge to grant said leave to enter a nolle prosequi in said cause, and said defendant as prosecuting attorney did then and there enter said nolle prosequi in said cause with said leave aforesaid, releasing and discharging said Golib and Nash from said indictment, and did thereby knowingly and purposely, corruptly, fraudulently and unlawfully obstruct and impede the due administration of justice in this court in said cause against said persons named in said indictment contrary to §2917.07 R. C.

A demurrer was filed to the indictment on the ground that it does not state facts which constitute an offense punishable by the laws of Ohio.

It is first asserted that at best the indictment merely charges an error in the opinion and judgment of the defendant as prosecuting attorney.

The entry of the nolle prosequi by the prosecuting attorney with the approval of the Court, imports that it was so entered upon good cause shown in open court. Douglas v. Allen, 56 Oh St 156, 160. If the prosecuting attorney knew his representations to that effect were false and were so made solely for the corrupt purpose of termination of the prosecution and discharge of the persons named in said indictment, this would constitute not only wanton and wilful neglect of duty but gross misconduct in office. Killits as Prosecuting Attorney, etc., v. State, 19 C. C. 740. Such conduct would far exceed a mere error of judgment.

“A public officer is bound to perform the duties of his office faithfully, * * * and to act primarily for the benefit of the public. He must perform his official duties with integrity, for he owes a duty to the public not to betray his trust.” 32 O. Jur. Public officers, Section 90, p. 950; Fromm v. State, 36 Oh Ap 346, leave to file appeal refused by Supreme Court April 23, 1930.

The latter part of §2917.07 R. C., on which the indictment in question is founded is general in its terms, “No person, shall, * * * corruptly * * * obstruct or impede, or attempt to obstruct or impede, the due administration of justice therein.” It is, therefore, not essential to show even an officer of the court or any other person has been influenced, intimidated or impeded in the discharge of his duty It is sufficient merely to show that the due administrator of justice in the court was corruptly obstructed or impeded, or so attempted.

“If the attorney had attempted corruptly to suppress evidence, his conduct would have constituted an offense under the criminal law, of the state.” (Sec. 12866 GC, now §2917.07 R. C., on which the present indictment is based.) Medford v. State, 13 Oh Ap 106, per curiam opinion of Court of Appeals, Butler County.

“When a judge sits as a statutory tribunal of limited jurisdiction, exercising judicial functions, * * *, and when the proceeding is in no sense an action, he sits as a judge and not as a court. * * *.” 20 O. Jur. Judges, Sec. 3, p. 359.

“1. The Courts of Appeals are an integral part of the state government and are corporate entities, or organized bodies, existing only in contemplation of law.

“2. The judges of said courts, while an indispensable part thereof, are not the courts, but are public officers selected to administer the law in and preside over the courts.” Barner v. Barner, 19 Oh Ap 458, motion to certify record overruled by Supreme Court October 6, 1925.

Legal fictions are repudiated in all cases by the courts where they have been insisted upon to shield a fraud or any other illegal transactions. Andrews v. Morgan, 62 Oh St 236; 10 O. Jur. p. 55.

“1. One who addresses a communication to the judges of a court for the purpose of influencing their decision in a case pending therein by disparaging one of the parties or the relator in a suit brought by the state, corruptly endeavors to influence officers of a court in the discharge of their duties within the meaning of §6907 R. S.” 77 Oh St 461, State v. Johnson, Syl. 1.

The Johnson case, supra, is conclusive in the instant-case that the judge is an officer of the court, and one who corruptly influences him or endeavors to do so in the discharge of his duty in a pending case, is governed by §6907 R. S., now §2917.07 R. C.; and consequently is guilty of the crime of corruptly obstructing or impeding the due administration of justice in said court, or attempting to do so.

The demurrer to the indictment is, therefore, overruled; and the defendant is directed to enter his plea to the indictment forthwith.


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. SMITHER, Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1278.
    Decided September 22, 1952.

      Charles H. Anderson Pros. Atty., Fred R. Guarnieri, Paul Moritz, Asst. Pros. Attys., Warren, for plaintiff-appellee.
    Clarence H. Klinger, George W. Secrest, Warren, for defendant-appellant.
    (SKEEL, J, of the 8th District, sitting by designation in the 7th District in place of PHILLIPS, J.)
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment of guilty of murder in the second decree. The defendant was indicted by the Grand Jury of Trumbull County, Ohio, in the January, 1952 term, for murder in the first degree. It was the claim of the State that in the early morning hours of January 10, 1952, the defendant entered the home of Helen Smither, the former wife of the defendant, and there, of deliberate and premeditated malice, shot four bullets into her body from a 25-caliber automatic pistol, with intent and purpose to kill the said Helen Smither, and as a result of said gunshot wounds the deceased came to her death.

The defendant claims the following errors:

1. In excluding evidence offered by him that was pertinent to the issues.

2. In admission of evidence offered by the State over defendant’s objection.

3. In overruling defendant’s motion for a directed verdict at the conclusion of all the evidence.

4. That the verdict is not sustained by sufficient evidence.

5. The verdict is contrary to law.

The evidence discloses that the decedent and defendant were married in 1931 when she was fifteen years of age and 'he was twenty-two years of age. Six children, now living, were born of the marriage, the oldest at the time of the trial being seventeen years of age and the youngest six years old. The defendant and decedent in the years just prceding the events here under consideration, had considerable domestic trouble. The deceased had filed for divorce on three separate occasions, the last case being filed in September, 1951. This case was tried and a decree of divorce was entered in the Common Pleas Court of Trumbull County on December 19, 1951. The decree awarded custody of the children to the deceased, and ordered defendant to pay alimony to her at the rate of $150.00 per month. The deceased for a number of years prior to her death had worked to augment the family income. The time came in April, 1951, when they were both employed, he as manager and she as clerk or cashier of McAlister Dairy Stores. About this time both the decedent .and defendant began, for the first time, the use of tobacco and intoxicating liquor. They formed the habit of goifig to a night club operated by Chester Miller who was a brother of Helen Smither.

On the night of September 11, 1951, while at the night club they got into a bitter quarrel which continued until they got home when the defendant struck the deceased. This quarrel was the circumstance that precipitated the filing of the last divorce case. The defendant then went to his former home in Iowa for a few weeks. When he returned he tried to effect a reconciliation but the deceased refused all such attempts.

In the early morning of January 10, 1952, the deceased, who had been at the A. G. A. Club with one John Harter (an acquaintenee of many years and with whom she had become intimate about the time of filing the last divorce case) left for her home in separate automobiles. On their arrival, the home being at 1379 Hazelwood Avenue, they parked their automobiles in the drive and entered the living room, it being then between three and three-thirty o’clock in the morning, January 10, 1952. The evidence of Harter is to the effect that they stood in the living room for about fifteen minutes embracing each other and then they entered the bedroom which was on the first floor, disrobed and got into bed. In about five minutes, Harter testified, he became aware that there was an intruder in the room. He was standing in an archway between the living room and the bedroom which was to the right of the foot of the bed, the head of the bed being against the opposite wall. He described the person as a big man wearing a cap and a jacket. This witness testified that the intruder began shooting and shouting at the same time. He also testified that the words used were “something about his house, his home.” His testimony was also to the effect that four shots were fired and that the figure then vanished. The evidence of the county coroner is that four bullet wounds were found in the head and body of the deceased which caused her death.

The defendant’s son (William, age 17 years) testified that he was awakened some time after 3 A. M. by noise below, and that he heard his father’s voice say, “Right in my own home,” or “trying to take my house.” The witness Harter testified that after the shooting he dressed, asked the son to call the police and waited until they arrived a few minutes later. He later drove one of the police officers to the police station where he made a signed statement. The police during their investigation at the scene found four 25-caliber shells that had been fired from the automatic pistol to the right and front of the bed; some were on a night table at the head of the bed, others on the floor.

The defendant testified that he had come to Warren from Youngstown to see his wife around 8 or 9 o’clock P. M., the evening of Jan. 9, 1952. He went to the store where she was employed, saw she. was busy and so went to a tavern. When he returned to the store, the store was closed and she had left, so he returned to Youngstown. Not being able to sleep, he dressed in his work clothes, took a bus to Warren leaving at about 12:45 A. M. the morning of January 10th, arriving in Warren about a half hour later. He was wearing a cap and jacket of the type described by Harter. He testified that the purpose of the trip was to see his former wife. He walked to a point near the front of the house and seeing her automobile was not there, went to the bus station for a cup of coffee. He returned to the street, where his wife lived and noticing that she had not yet returned, he started to hitch-hike to Youngstown. Not being able to get a ride, he testified he decided to walk to Niles, Ohio, to get the first Warren-Niles-Youngstown bus.

The evidence of the officers is to the effect that they were notified by radio to go to 1379 Hazelwood Road at 4 A. M.; that they arrived there within two or three minutes and after viewing the premises and sending the deceased to a hospital in an ambulance, one police patrol started to search the community for a man of the description given by Harter. Other surrounding police departments were notified by radio and a crusier of the Niles police department arrested the defendant about two and one-half miles from the deceased’s residence, walking toward Niles, Ohio. The time of his arrest was 5 A. M. He did not have a pistol on his person at the time of his arrest. He made no inquiry as to the cause of his arrest. He was asked what he did with the gun, and his answer was, “What are you talking about?” The defendant from the hour of his arrest has steadfastly proclaimed his innocence.

The first claim or error has to do with the rejection of evidence offered by defendant as to' statements made by the deceased with regard to intimate relations with Harter and another, and what she was going to do if an illegitimate child was born. The purpose of the proffered testimony was to show that there were others, particularly Harter, who might be desirous of causing the death of Helen Smither.

Error was not committed in rejecting this evidence. The manner of its presentation was in violation of the hearsay rule. The witnesses who were called upon to testify were asked as to what they had heard the deceased say on the subject of her relations with Harter. Such evidence is clearly inadmissible.

The second claim of error is concerned with receiving into evidence over the objection of defendant the signed statement of John Harter given to the police on the morning of Jan. 10, 1952. Such written statement ordinarily would not be admissible. The witness was in court and testified directly to all the matters of which he had knowledge which included the information contained in the statement received into evidence. However, the record discloses that on cross-examination the defendant, clearly opened the door for the introduction into evidence of the statement and for that reason its introduction did not prejudice the defendant’s rights. Such claim of error is therefore overruled.

The third and fourth claims of error are concerned with the overruling of defendant’s motion for a directed verdict at the conclusion of all the evidence and the further claim that the verdict is not sustained by sufficient evidence. These claims must be overruled for the reason that there is substantial evidence in the record to support both the overruling of the motion and the verdict.

The final claim of error is that the verdict is contrary to law. The basis of this claim is that because the evidence of the State tends to show that the deceased, the former wife of the defendant, was shot while in bed with Harter, that if the defendant did kill her he must have done so while in hot blood created by an adequate provocation and the degree of the homicide should have been reduced to first degree voluntary manslaughter.

The trouble with such a claim is that it is not supported by evidence. The defendant makes no such claim. He denies being in the house at all. He testified that he had no knowledge of the relationship between his former wife and Harter. If he was the one who killed the deceased, he must have journeyed to Warren armed with a loaded automatic pistol. There is evidence to the effect that he had threatened to kill his wife should she divorce him or eject him from the house. Both of these circumstances came to pass. The jury, upon substantial evidence, has concluded that he did purposely kill Helen Smither. In all events, this question was submitted to the jury under proper instructions and the jury’s verdict is clearly supported by the evidence.

Some question might be raised as to whether as a matter of law the relationship between the deceased and the defendant (they having been divorced prior to Jan. 10, 1952), and the circumstance as shown by the state’s evidence, was such that the defendant could claim an adequate or reasonable provocation upon which a charge of murder could be reduced to manslaughter. But assuming such to be the fact, unless there is some evidence that he did act while laboring under a sudden passion, that his mind was in fact enraged because of an adequate provocation, the existence of such provocation could be of no help to him. There is not one word of evidence as to the state of the defendant’s mind at the time of the shooting and rage or passion cannot be presumed. Clark & Marshall on the Law of Crimes, Paragraph 256. This claim of error is therefore overruled.

For the feregoing reasons, the judgment of the Common Pleas Court is affirmed. Exceptions noted.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By HORNBECK, J.:

text:
    SPENCE, Admrx., Plaintiff-Appellee, v. COMMERCIAL MOTOR FREIGHT, INC. OF INDIANA, Defendant-Appellant.
    Ohio Appeals, Second District, Preble County.
    No. 130.
    Decided April 6, 1954.

      Walter H. Earley, Eaton, Horace W. Baggott, Dayton, for plaintiffappellee.
    Waldo E. Young, Eaton, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment for the plaintiff against the defendant in the sum of $42,000.00 entered on a verdict of a jury.

The. action was for damages for the wrongful death of plaintiff’s decedent because of the negligence alleged in plaintiff’s amended petition. Plaintiff’s decedent died by reason of a collision between a milk truck, which he was driving, and a truck driven by the agent of defendant, Commercial Motor Freight, Inc. of Indiana. Both trucks were moving westwardly on U. S. Route 35, and the collision occurred about three and one-half miles west of Eaton, at a point about 219 feet west of the intersection of U. S. Route 35 and Eaton and New Hope Road.

After the impact, the milk truck came to rest in a cornfield on the north side of U. S. Route 35, the driver having been thrown from the truck. The defendant’s truck moved a distance of about 165 feet after the collision, and came to rest on the berm on the north side of the road. Plaintiff’s decedent, prior to the collision, had made delivery of milk to the home of Mrs. Norma Matheny, who lived on the south side of U. S. Route 35. She was in her kitchen, from a window of which she had a limited view of Route 35 to the west. She observed plaintiff’s decedent moving from her home toward the north side of the road and when last she saw him his vehicle was astride the center thereof. She then looked away and in a very short period of time heard a noise which may have been a collision between the trucks. She was the principal witness and, indeed, as to certain material physical facts, the only disinterested witness. Other conclusions are largely circumstantial, to be drawn from photographs of the effects of the collision as appearing upon the trucks, the location of skid marks on the highway, the movement of the trucks before and immediately following the collision, and their position when they came to rest.

Plaintiff, in her petition and reply, set up four specifications of negligence. By the pleadings, the issues were drawn as to the negligence of the defendant in any one of the four particulars alleged, and the contributory negligence of plaintiff’s decedent.

The action was instituted against Commercial Freight Lines, Inc., Indianapolis, Indiana. Summons was served upon the Secretary of State of Ohio and by sending to the defendant named, by registered mail, return receipt requested, a copy of the summons and of the service upon the Secretary of State. The receipt attached was returned, signed “Com. Motor by O. K. Higgle.”

Thereafter, Commercial Motor Freight, Inc. of Indiana, moved to quash service of summons upon three grounds:

1. That the defendant named is an Ohio corporation.

2. That the service could have been made upon the defendant as provided by law in the State of Ohio and not upon the Secretary of State.

3. That any attempted service upon the named defendant herein under §6308-2 GC, is unlawful and void.

Succeeding this motion, plaintiff moved for leave to amend her petition, praecipe for summons, summons and return of summons, by correcting and changing the name of defendant in each instance to read “Commercial Motor Freight, Inc. of Indiana.”

The grounds of the motion were that the correct corporate name of the defendant sought to be sued is “Commercial Motor Freight, Inc. of Indiana,” and a misnomer of the defendant in the petition.

The Court sustained plaintiff’s motion and overruled the defendant’s motion to quash. This action is the first error assigned.

The trial judge, passing on the motions, filed a written opinion in which he found that the amendments sought to be made were authorized by §6308-2 GC; that the law contemplated two methods of service, and that the plaintiff had the right to avail herself of either. He found that the corporate body, Commercial Motor Freight, Inc. of Indiana, had been apprised of the action filed and would lose no rights by being subjected to the jurisdiction of the court. With this conclusion we are in accord. We doubt if it is necessary to go beyond the letter of the statute to determine the question. Sec. 2309.58 R. C. (§11363 GC), insofar as applicable, provides;

“Before * * * judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading; process, * * * by correcting a mistake in the name of a party or a mistake in any other respect, * * *, when the amendment does not substantially change the claim or defense, * *

There can be no doubt as to the right to amend by changing the name of the defendant in the petition. The only question of substance is whether or not the court was authorized to overrule the motion to quash in view of the form of the service. There is similarity between the names “Commercial Freight Lines, Inc.” and “Commercial Motor Freight, Inc.” The former is an Ohio corporation, the latter is an Indiana Corporation. Carried as a part of the title in the petition was “an Indiana corporation” and the petition averred that the defendant was an Indiana corporation. It is manifest that the entity sought to be reached in the petition, praecipe and by the service, was the Indiana corporation. It was actually apprised of the action by the registered letter which it accepted. The intent of the plaintiff as to the corporation sought to be subjected to the jurisdiction of the court is clear, from all the facts developed. The entity sought to be reached was notified in regular. manner, subject only to the disparity in name. The intent of the service of process was accomplished.

It is held in Gas Company v. Ironton, 107 Oh St 173, that the discretion vested in the court by §11363 GC, should be exercised in the furtherance of and not for the purpose of defeating justice and that under authority of §10214 GC, the provisions of §11363 GC, are to be liberally construed; Douglas, Admx. v. Daniels Bros. Coal Company, 135 Oh St 641. In State ex rel. Heck v. Sucher, 77 Oh Ap 257, the court held that in furtherance of justice the court may order a defective summons amended, without requiring amended summons. to be served, if it be shown that the party served will not be prejudiced thereby. The court in its opinion called attention to the fact that §11363 GC, had special application to process and that it authorized correction of a mistake in any other respect. The court, at page 259, said;

“It (§11363 GC) further authorizes an amendment of a mistake in any respect. Broader and more efficient language could hardly have been used to vest this power. The' only limit seems to be to cases where an amendment would not be in furtherance of justice.”

Burton v. Buckeye Insurance Company, 26 Oh St 467, is cited, where the summons was permitted to be amended although it contained the name of the insurance company but the defendant was actually served. Many cases are cited and commented upon by the plaintiff, but it would be a work of supererogation to cite and comment upon them. Suffice it to say that they support, as a matter of law, the action of the trial judge here.

Defendant cites and relies upon Uihlein v. Gladieux, 74 Oh St 232. There are several distinguishing differences between this case and the instant cause. The action under review in the cited case required consideration of a suit originally instituted in a justice of the peace court wherein the jurisdiction must clearly appear upon the record. The enabling provisions of §2309.58 K. C. (§11363 GC), have no application, which section defines procedure in the common pleas court. The case was adjudicated upon error proceedings. There was no attempt in the original • action to name the individual in the title, against whom judgment was rendered. There was no observance of the statutory requirements as to what the summons shall contain when the name of a party is unknown. There is no showing that the party against whom the judgment was entered was served personally. And, finally, the judgment was entered against the defendant with the finding that the name of that defendant was unknown. The court held that the facts upon which the judgment of the justice of the peace court were predicated must be shown affirmatively and that they did not appear.

Hendershot v. Ferkel, 144 Oh St 112. The court in this case supported the contention of appellee that service on the defendant had been accomplished under §6308-2 GC (§2703.20 R. C.). The statement of Judge Matthias on page 120 of the opinion is to the effect that service of process by registered mail, as provided in §6308-2 GC, defining the essentials of service of process upon non-residents, should be strictly followed in order to invest the court with jurisdiction. Judge Hart in the dissenting opinion stresses the determinative question which was before the court, namely the essential steps to be taken by the officer to whom the writ is directed. This case is not authority upon the question under consideration here.

The final case cited is Ksenich v. Lorain Street Railway Company, 10 Abs 357, 359. There the action was instituted against the Lorain Street Railway Company. It should have named the Lorain Street Railroad Company. The service of summons was upon a train dispatcher, who the Sheriff understood was an agent of the Railway Company but who, according to the evidence, was in fact a train dispatcher of the Railroad Company. The answer was filed in the name of the Railway Company, counsel appeared solely for that company, and the cause went to trial and judgment upon the situation thus developed. Judge Washburn found that the record failed to disclose “who the officers of the companies are or what relation, if any, one company has to the other.” It was held that there was before the court a defendant company over which the court had jurisdiction, namely, the Railway Company which was named in the petition, as defendant, upon whom service was had; that it did not move to quash the service; that the plaintiff, after a jury had been sworn, did not avail himself of the right to withdraw a juror and properly present the right party before the court, but insisted that he had a right then to substitute, for a party properly sued and in court, a party not sued and not in court. A statement of the operative facts is sufficient to mark the differentiation between the law pronounced in the cited case and that controlling in this case.

The first assignment of error is not well made.

The second, third, fourth and fifth assignments of error are directed to the insufficiency of the evidence to carry the case to the jury. Without comment, we hold that no one of these assignments is well made.

The sixth assignment is that the verdict should be set aside because of irregularity in the proceedings on the part of plaintiff-appellee preventing the defendant-appellant from having a fair trial. This assignment is not supported by the record.

The seventh assignment is that the verdict of the jury and judgment rendered thereon is excessive, and given under the influence of passion or prejudice.- The verdict is large, but in view of all the circumstances appearing, the depreciated value of the dollar, the comparative youth of plaintiff’s decedent, his expectancy of life, his earning capacity, his varied abilities, his steadiness, services to his wfe and son, the damages may not be said, as a matter of law, to be excessive.

The conduct of the case does not suggest any occurrence which would arouse the passion or produce prejudice on the part of the jury. The cause was exceptionally well tried and unusually free from any manifestation of feeling on the part of counsel.

The eighth assignment of error is predicated on the refusal of the court to set aside the verdict and judgment on the ground of newly-discovered evidence.

Supporting appellant’s motion for a new trial, on the basis of newly-discovered evidence, affidavits of the driver and passengers in an automobile which was moving from Eaton to Richmond, Indiana, were offered to the effect that as the car left the western limits of the village it passed defendant’s truck. Later, the car was stopped to pick up one of the passengers. This stop was made about three-tenths to four-tenths of a mile east of the intersection of Eaton and New Hope Road with U. S. Route 35; that the car was parked partially on and partially off the right or north side thereof; that while the car was thus standing, defendant’s truck passed; that when they first saw the truck it was on its right side of the road, and when it passed them the driver sounded his horn, turned to the left at a speed of about forty-five miles an hour, passed them and moved over to his right side of the highway; that as he approached and passed them he was operating the truck in the proper manner. Counsel for defendant also made an affidavit tending to show that he had exercised diligence to find witnesses from whom any probative evidence could be secured; that he did not learn of the driver of the aforementioned automobile and the passengers until some time after the trial of this cause. Contra these affidavits, plaintiff offered three affidavits, the purport of which was that the witnesses from whom the purported newly-discovered evidence would come were known to affiants before trial, and that their presence was likewise well known to many persons in Eaton.

The evidence, if accepted, would have been slightly probative of the fact -that defendant’s driver was not asleep at the time of the collision with the milk truck. However, we doubt if the defendant may make this contention because counsel did not interrogate its driver on this issue, notwithstanding an extended cross-examination of the driver of defendant’s truck tending to show that he was exhausted, that he had had little sleep the night before the trip on which plaintiff’s decedent was killed, that he had been on duty long hours and driven a .great distance, all of which it could be argued tended to show that he may have been asleep when the collision occurred. Independent of this aspect of the proffered evidence, the motion could have been determined on the question whether or not the defendant had used due diligence to secure the evidence. On this question the trial judge was authorized to exercise wide discretion and unless it clearly appears that it has been abused, a reviewing court should not interfere. Taylor v. Ross, 150 Oh St 448. We can not hold that the trial court abused its discretion.

The ninth assignment of error relates particularly to errors occurring during the trial, the admission of evidence offered by plaintiff, the rejection of evidence offered by the defendant, and errors in the charge of the court. We find no error in any of the particulars assigned, and will discuss only that one which relates to the admission of expert testimony on the measure of damages.

A Mr. Wilbur G. Kennedy, agent of the Northwestern Mutual Life Insurance Company, testified on the subject of annuities. As a basis for his computation, he was given the annual earnings of decedent, his age and expectancy of life. Decedent’s earnings at the time of his death were shown to be in excess of $3,000.00 a year. Mr. Kennedy was permitted to testify as to the cost of a straight annuity which would produce a monthly income of $250.00, or a total of $3,000.00 per year. The lowest cost of such annuity was $84,826.45; highest $86,963.75. He also fixed the cost of a straight annuity, producing $200.00 per month, which ranged from $67,861.20 to $68,771.00 He gave like computation for an income of $350.00 per month. He also gave costs of annuities on smaller units, even down to' a single premium which would be required to produce $10.00 a month.

Appellant insists that the court erred in admitting this testimony, and cites in support of its position of Bartlebaugh v. The Pennsylvania Railroad Company, 150 Oh St 387. In the cited case the cost of the annuity, which was there held to be erroneously admitted, related to a refund annuity as distinguished from a straight annuity, the subject of the testimony here.

The witness carefully explained the difference between a refund annuity and a straight annuity. He stated that certain profit of the company was added to the cost. Counsel did not interrogate him to determine the amount of this profit.

The general charge of the court was a strong and correct presentation of the law The issues were carefully defined and the respective claims of the parties properly, delineated. The charge as 'to the measure of damages was full and correct. It followed largely the law announced in Sherer v. Smith, 155 Oh St 567. The trial judge explained to the jury the purpose for which the testimony as to the annuities was received. In our judgment it afforded the jury some assistance in determining the ultimate question for its decision as to the measure of damages.

The theories of the parties of this case are clearly defined. The plaintiff’s claim was based upon the contention that the driver of defendant’s truck had a clear view of plaintiff’s decedent on the right side of the road for a distance which assured him ample time and opportunity to avoid striking the milk truck; In this contention she was supported by the testimony of Norma Jean Matheny and by the skid marks on the road from which it could be inferred that the collision occurred when plaintiff’s decedent was over on to his right side of the road and moving forward in that lane.

The contention of the defendant was that without warning the plaintiff’s decedent moved suddenly into the path of defendant’s truck and thereby he was denied the opportunity to stop his truck in time to avoid striking the milk truck. In this position the defendant was supported by the direct testimony of Jess Swafford, the driver of the truck, and from certain physical facts which tended to support its contention. It is also urged, and there was some evidence tending to prove, that Norma Jean Matheny could not have seen the movement of the milk truck as she testified.

The jury evidently accepted the testimony of the plaintiff and her witnesses.

We find no error assigned established, or if established in any degree that it was prejudicial to the rights of the defendant in the trial of this case.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By HORNBECK, J:

text:
    STATE, Plaintiff, v. KRAMER, Defendant.
    Ohio Appeals, Second District, Clark County.
    Decided September 18, 1953.
    Theodore Malcolm Kramer, in his own right.
   OPINION

By HORNBECK, J:

The matter before the Court is brought to our attention by Registered Letter from defendant addressed to one of the Judges of the Court. The Clerk of Courts will be instructed to file the letter from defendant in this Court, give it a Case Number and note it as an Application for Leave to Appeal Sentence and Judgment in Case No. 10819, Common Pleas Court, Clark County, Ohio.

We consider the letter as an application of defendant for leave to appeal a judgment of conviction and sentence on three counts of an indictment charging burglary of an inhabited dwelling house.

The application is filed by authority of §13459-4 GC.

“Appeal under §2953.04 R. C., may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from sentence and judgment, such appeal may be filed only by leave of the Court or two of the Judges thereof.”

Defendant was sentenced on December 18, 1951 and the time within which an appeal could have been prosecuted as a matter of right has elapsed.

The application must be denied for failure to observe the procedural requirement of §13459-5 that

“Before the filing of a notice of appeal or a motion for leave where leave must first be obtained, a copy thereof must be served upon the Prosecuting Attorney.”

Without regard to the procedural requirements of §13459-5 GC, if the motion for leave to appeal could be considered upon the merits, as set forth in the letter of defendant, it would have to be denied.

The grounds of the application are that defendant, an indigent, was represented by counsel appointed for his defense, that he was unable financially to procure counsel to perfect his appeal and did not have the ability to prepare his own appeal, that

“It is my belief, and I believe the record will affirm that the verdict and judgment are not sustained by the evidence; that there were prejudicial and reversible errors committed by the trial court * * *.”

It is manifest that to support an order for leave to appeal something more must appear than a desire to appeal and an opinion that there is reversible error in the record.

This Court has the widest discretion as to the propriety of granting a leave to appeal. Judge Ross, in his opinion in State v. Edwards, 157 Oh St 181, said

“The Court of Appeals is left free to grant the appeal or to refuse it. It may be seriously doubted whether under such authority the conclusion of the Court of Appeals can ever be questioned.”

It is the policy of this Court upon such applications for leave to appeal to exercise discretion in the light of the facts appearing in each application. State v. McGahan, 86 Oh Ap 283.

As a general rule, before a defendant can secure the right of leave to appeal from judgment and sentence there must appear some substantial reason for failure to prosecute the appeal as a matter of right and either, probable error of law in the trial of his case, or, facts, which, if true, overcome the presumption of the regularity and validity of the proceedings under which he was sentenced. That is to say, that upon the motion for leave to appeal there is a showing of. probability of a miscarriage of justice. State v. McGahan, supra.

A defendant in a criminal case is assured an appeal, as a matter of right, if prosecuted within the time prescribed by the Code, viz: within thirty days from sentence and judgment. There is also an extender of time within which a new trial may be granted if upon the grounds of newly discovered evidence. Sec. 2945.80 R. C. (§13449-2 GC). The further provision as to the granting of a leave to appeal is not in furtherance of any constitutional right of defendant but is a privilege granted by Legislative action. State v. Edwards, supra.

It is only proper that a defendant make a showing of a clear right to leave to appeal before such right be granted. No such showing is made m this case.

The motion for leave to appeal will be denied.

WISEMAN, PJ, MILLER, J, concur.


author: By SKEEL, PJ.

text:
    GREENWOOD, Plaintiff-Appellee, v. SHIPKA, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3519.
    Decided December 31, 1952.

      Henderson & Covington, Youngstown, for plaintiff-appellee.
    Edw. J. Williams, Elwyn Jenkins, Youngstown, for defendant-appellant.
    (SKEEL, PJ, HURD, J, KOVACHY, J, of the 8th District sitting by designation in the 7th Appellate District.)
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for the plaintiff on the verdict of the jury. The action is one for assault and battery.

The parties were both employees of The Youngstown Steel & Tube Company where some few days before September 8, 1950, some unfriendly words had passed between the parties. On September 8, 1950, between 4:30 and 5:30 P. M. the plaintiff was in a bar room and restaurant with a lady, for the purpose of having dinner together. At the time of the incident that forms the basis of this action, plaintiff and his girl, friend, with other acquaintances, were seated at the bar. While there, the defendant came in with two others and took a place at the bar some distance away. One of the defendant’s friends approached the plaintiff and invited him outside to fight, which invitation the plaintiff refused. Thereafter, the defendant, claiming plaintiff was muttering something and making faces at him, which claims of aggravating conduct are denied by the plaintiff, walked around the bar to where plaintiff was seated, struck him with his fist, whereby he, the plaintiff, was knocked from the stool and fell under the counter. The defendant tried to continue his assault upon plaintiff but was prevented from so doing by the proprietor. The plaintiff’s watch crystal and band were broken as result of the encounter but otherwise he was not noticeably injured. Plaintiff alleges and so testified that the defendant said, as he was held back from further aggression, “If I can’t get you here, I will get you somewhere else,” Whereby plaintiff has since lived in fear of further unlawful aggression on the part of the defendant.

In considering the defendant’s claim of error it must be remembered that the defendant admitted unlawfully striking the plaintiff in a public place so that the only justiciable question was that of the amount of damages to plaintiff.

The defendant’s first claim of error is that the court should have declared a mistrial for misconduct of plaintiff in presenting evidence. Upon direct examination, plaintiff was asked to testify as to his fear of the defendant because of defendant’s remark to the effect “he would get him somewhere else.” He testified he was frightened and was permitted to tell of taking down license numbers of automobiles of which he was thereafter suspicious and of his telling his mother that if anything happened to him to look in his shoe where it was inferred he would put such automobile license numbers. The court struck out what he said to his mother and the jury was instructed to disregard it, and defendant’s motion for mistrial was overruled.

Plaintiff’s condition of mind, his fear and humiliation, all stemmed from defendant’s admitted unlawful act and he, the defendant, should not be able to claim immunity from claims of injury and mental suffering which are a direct and probable result of his admitted unlawful and wrongful conduct The court withdrew the only part of this testimony which was in any way improper and the instruction to the jury to disregard such evidence was sufficient to eliminate any prejudicial error.

The second claim of error is to the effect that the judgment is excessive and was rendered under the influence of passion and prejudice. The plaintiff, asked for both compensatory and punitive damages, and the court correctly charged the jury on that subject. The evidence discloses very little, if any, physical injury or other damages with the exception of a broken watch crystal and watch band. However, evidence of malice and insult, humiliation and mental suffering, indignity, disgrace and mortification was clearly presented to the jury. We are of the opinion that the judgment of $2750.00 is excessive. We do not find, however, that such excessive amount was the result of passion or prejudice. The amount of the verdict was just one-half of the amount prayed for. We therefore order a remittitur of $1750.00 and, if accepted within ten days of this docket entry, the judgment will be modified to $1000.00, — otherwise an order reversing the judgment as excessive and the cause remanded for further proceedings, will be entered.

The fourth claim of error deals with the charge of the court on the subject of proximate cause and damages. A reading of the charge however discloses that both of these subjects were correctly treated by the court and such claim is therefore overruled.

We likewise find no merit in defendant’s claim of error of misconduct of counsel or in limiting cross-examination. The defendant, not the plaintiff, brought into the case the unfriendliness of the parties toward each other by reason of certain name calling which took place at their place of employment some ten days before September 8, 1950. The defendant therefore cannot complain if proper reference to such evidence is made in argument. The court also has, in the exercise of sound discretion, control of the extent to which a witness may be cross-examined, and we find no abuse of that power with reference to the cross-examination of the plaintiff.

Coming now to the claim that the bill of exceptions as certified by the court, especially as to the court’s charge to the jury, is, in fact, not a correct exemplification of the charge given to the jury. The settling of the bill of exceptions is exclusively within the province of the trial court and this court is without authority to determine what, if any, changes should be made to make it speak the truth. When a trial court certifies that the bill of exceptions correctly presents what took place upon the trial, this court is bound by such certification and we accept the trial court’s determination on that subject.

For the foregoing reasons, if the plaintiff accepts the remittitur ordered, the judgment as modified to $1000.00 will be affirmed, otherwise the judgment will be reversed as excessive and the cause will be remanded for further proceedings according to law. Exceptions noted. Order see journal.

HURD, J, KOVACHY, J, concur.