text:
    STATE, Plaintiff-Appellee, v. ROBERTS, Defendant-Appellant
    Ohio Appeals, Second District, Champaign County.
    No. 132.
    Decided February 8, 1955.
    Richard P. Faulkner, Prosecuting Attorney, Urbana, for plaintiffappellee.
    J. Harvey Crow, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from sentence and judgment upon a verdict of a jury of guilt on a charge that the defendant sold certain property of The Citizen’s National Bank of Urbana, Ohio, and appropriated the proceeds with intent to defraud.

Twelve errors are assigned.

The State’s claim based on the indictment, was that the defendant on March 13, 1950, had given a note for $1400 payable to The Citizen’s National Bank of Urbana, Ohio. That by the terms of the note, the title and right of possession to certain items mentioned thereon were in the bank and that the chattel property was delivered to the defendant in Trust for the bank. The property was specifically described in the note consisting of certain farm machinery and three dairy heifers, one-half interest in three dairy cows, one-half interest in 33 ewes and the increase. The indictment charged that defendant unlawfully and fraudulently sold and disposed of the chattel property held in Trust which includes the machinery, and converted the proceeds of the sale to his own use with intent to defraud the bank. A bill of particulars disclosed that the proof would show that the chattels sold were the live stock only.

The defense was a general plea of not guilty with the specific contention that at the time the $1400 note was signed by the defendant, there was no designation of any personal property thereon. That it was understood between the president of the bank, and the defendant that there was to be written in to the note the same list of property that had theretofore been carried in another, and though bearing the same date, an earlier note for $1000, describing only farm machinery, and that the listing of the stock was unauthorized. Defendant’s testimony was supported by his wife to the effect that the note was in blank insofar as the listing of any property was concerned when her husband and she, a co-signer, signed it. It was also contended that there was no showing of any fraudulent intent in the sale of the property and the appropriation of the proceeds.

Without comment, we determine several of the errors assigned. One, the verdict is against the weight of the evidence. Seven, error in overruling defendant’s motion for directed verdict at the close of the State’s case. Eight, error in refusal to withdraw a juror when said juror showed a special affinity to the prosecuting witness. Nine, error because the Court showed a special bias in favor of the State and against the defendant. Ten, that the orders of the Court were in violation of the Constitution of Ohio and the Constitution of the United States and amendments thereto. Eleven, abuse of discretion by the Court by reason of which the defendant was prevented from having a fair trial. No one of these assignments .is well made.

The other assignments require extended comment.

The third error assigned is that the Court admitted evidence prejudicial to the defendant over his objection. The evidence to which the assignment is directed was offered by Walter Allison, Superintendent of Farm Management, Inc., who rented the farm to defendant as agent of the owners of the land. Mr. Allison was Superintendent of the farm for 1951, but says he took over the management the first of February, 1951. Defendant’s tenancy on the farm expired March 1, 1951, although he lived there some little time thereafter. Prior to Mr. Allison taking over the duties of Superintendent, Charles Neer so acted.

Mr. Allison testified that certain corn raised on the land in 1950 was owned 50-50 by the owners of the land and the defendant; that defendant sold corn of the value of $1682.27, during a period from December 30, 1950 to January 7, 1951 and did not make settlement for it. When this line of testimony was first sought to be developed the Court hesitated about admitting it because he wanted to make certain that the corn was included in the property described in the $1400 note. Thereafter, however, ■ upon a conference with counsel, the Court admitted the testimony with this statement in the presence of the jury:

“Similar transactions to show a plan or a scheme. You may proceed.”

Thereafter, Mr. Neer, who was Superintendent to the first of the year 1951 testified that he was informed by the defendant that corn (at the elevator where Mr. Allison said the corn had been sold) had been sold and that he then authorized the defendant to draw the proceeds and to settle for them later and that he would get this money from the crops. This conversation was in December 1950.

If the foregoing evidence could be said to be admissible under §2945.59 R. C., it would be to show the acts tending to establish fraudulent intent and not for the purpose for which the Court admitted it, viz, a similar transaction to show a scheme or plan. See State v. Hahn, 59 Oh Ap 178, Syl. 1 and page 183. Whiteman v. State, 119 Oh St 285, 293, 294.

Certain material facts were not in dispute in this case. It was admitted that the defendant had given the bank the note for $1400, but not on the date appearing thereon, but sometime later. It was admitted that the designated farm implements were properly written in to the note and that the title to them was not in dispute. It was admitted that the $1400 note had not been paid and that there was a balance due of about $800. It was testified and defendant admitted that he had sold the corn and used the proceeds for his own purpose. There were definite issues, however, on the question whether or not the livestock as named was properly written into the note or sold without authorization. If the livestock was written in the note, without authorization, of course, the defendant was not chargeable with any offense in selling this property. In any event, the intent of the defendant in selling the stock, if he sold it in contravention of the contract set out in the note, became a material element of the offense which it was incumbent upon the State to prove. The Court properly so charged the jury in the general charge but said nothing of the purpose for which the proof of other acts was admitted, except at the time it was admitted.

As early as Baxter v. State, 91 Oh St 167, it was held that the trial judge not only should limit testimony of other acts or offenses when admitted, to the proof of intent with which the act charged was committed, but should at the time the testimony was admitted, instruct the jury the purpose for which it was accepted. This latter requirement has since been abrogated in Scott v. State, 107 Oh St 475. However, the general effect and purpose of the admission of other acts tending to show intent is discussed in the Baxter case, at Page 171:

“While evidence of other offenses is competent for the purpose of showing intent when criminal intent is a specific element of the crime charged, yet this evidence is of a,- highly dangerous character and should be admitted with great caution. A jury is never authorized to consider this evidence whatever until after it has found, from the other evidence in'the case, that the defendant has committed the acts charged in the indictment. Evidence of other offenses may then be considered by the jury for the sole purpose of determining the intent of the accused at the time of the commission of the acts charged, and it is the duty of the trial court to so charge the jury at the time such evidence is admitted.”

It is necessary that the jury be instructed as to the limited purpose for which this evidence is admitted.

The first syllabus of State v. Moore, 149 Oh St 226 defines the acts that may be shown on the question of intent:

“The like acts or other acts which may be shown against the defendant in a criminal case, within the contemplation of §13444-19 GC, are acts of a character so related to the offense for which the defendant is on trial that they have a logical connection therewith and may reasonably disclose a motive or purpose for the commission of such offense.”

Acts other than the one charged in the indictment which are admitted for the purpose of showing fraudulent intent in the commission of the act charged must bé proven by substantial evidence. We doubt if the testimony as adduced met that requirement for two reasons.

(1) The proof of the relationship between the owners of the land and the defendant was insufficient to support the conclusion that the defendant had not the right to sell the corn or to use the proceeds therefrom. The contract between the landowners and the defendant under which the corn was grown was not offered. As close as the testimony came to this subject was a statement of Allison that the landowners and the defendant owned the corn 50-50. Thus, this ownership may or may not have been as partners. The Prosecutor asserts that it was that of a partnership. If so, each of the partners was principal and agent for the other. Caplan v. Emery, 14 O. C. C. (N. S.) 186, McGrath v. Cowen, 57 Oh St 385. Either partner had the right to sell products of the partnership and in the absence of fraud, under §1777.01 R. C., such act would not be a criminal offense.

(2) The witness Allison, did not say and obviously could not state of his own knowledge that the sale of the corn made prior to February 1951 when he said he took over the management, was unauthorized. Neer, Superintendent, when at least part of the corn was sold, states that the proceeds from the sale were drawn by defendant upon his authorization.

There was no substantial proof of fraudulent conduct by the defendant in connection with the sale of the corn. Allison’s statement is insufficient to establish either that the defendant had not the right to sell the corn, was not authorized to collect the proceeds of the sale, or that the defendant intended to defraud his partner because the records of the owners of the farm disclose that he did not settle for the landlord’s share.

It is indeed difficult to determine from the record if the proceeds from the corn which Neer authorized defendant to draw included all that Allison meant to describe in his testimony but to permit the jury to decide this issue would have required mere speculation upon its part.

The fourth assignment of error is directed to the rejection of evidence proffered by the defendant.

Defendant, testifying in his own behalf, offered to show that in the Winter of 1950-1951, he had corn and soy beans in the fields which he had intended to harvest but could not gather because of the inclemency of the weather; that the value of these unharvested crops was corn, $2000, soy beans, $2000, all of which were left on the land when the new owner took over in the Spring of 1951. The Court refused to admit this testimony. This testimony was admissible as reflecting upon the intent of the defendant when he drew the proceeds from the sale of the corn, particularly, as explaining why he was unable, as he and Mr. Neer stated he was obligated to do, to settle with the Farm Company for the proceeds which belonged to his partner, the owners of the land.

Had defendant been able to realize on the value of the corn and beans in the field, he would have had the means to settle with his landlords as he had agreed to do. If he was prevented from payment of his obligation because of circumstances over which he had no control, it was convincing evidence that although he failed to settle for the corn it was without fraudulent intent.

The refusal to admit this evidence was not objected to by the defendant although proffer was made. This did not save the record and the action of the Court could not be the basis of reversal. We discuss it at length inasmuch as the case may be tried again.

It is claimed that the Court erred in refusing to admit certain testimony sought to be adduced on cross-examination of the prosecuting witness, at pages 41, 42, 68, 69 and 72 of the record. This testimony was intended for the purpose of subsequent impeachment of the witness. Of course, the defendant had the right, which was recognized by the trial judge, to lay the foundation for impeachment but to do so, the testimony sought to be impeached must have been specifically directed to the attention of the witness. This requirement was not observed in the questions, answers to which were refused.

In this connection we also support the action of the trial judge in the refusal to accept the full transcript of the record of the testimony of the prosecuting witness in a preliminary hearing on the charge against defendant.

The refusal of the Court to admit certain testimony of Ava DeVore is assigned as error. Although her answers were proffered, no objection was made or exception noted to the rulings of the Court.

The fifth and sixth assignments of error relate to the general charge of the Court and the refusal to give special charges before argument requested by defendant.

There is no mandatory obligation on the Court in a criminal case to give requested special charges before argument. However, when a trial judge’s attention is directed to a sound proposition of law, it must-be given either specifically or substantially either by special or general charge. 4 O. Jur. (2d) 362, Chidester v. State, 25 Oh St 433, Windle v. State, 102 Oh St 439. Chief Justice Marshall in Grossweiler v. State, 113 Oh St 48 had this to say:

“It has been settled by this Court in the case of Wertenberger v. State, 99 Oh St 353, that under §13675 GO, it is not mandatory upon the Court to give any instruction to the jury in a criminal case before argument. This declaration has never been overruled, and this Court is at this time in full accord with it. That case did not decide, nor has any other case decided by this Court declared, that a request made before argument may be ignored in the general charge. Neither has it ever been declared that it is necessary that the request be renewed after argument.”

Defendant requested that the following instruction be given before argument. It was refused and exception noted. Nor was the subject matter of the charge given in any special charge or in the general charge.

“Members of the Jury, I charge you that if you find that the defendant did sign a note to the Citizens National Bank and if you find that said note was signed in blank with instructions to the President of the Citizens National Bank to fill in said note, the same as the first note was filled in, and that the defendant never authorized the Citizens National Bank or their agents, or employees to insert the livestock as is found inserted in said note, then I charge you, as a matter of law, that the defendant is not guilty of the crime charged in the indictment and it is your duty to return a verdict of not guilty.”

This charge was correct. It embodied the principal defense that the defendant had interposed to the charge against him. It was prejudicially erroneous not to give it in some form.

There is another matter concerning the scope of permissible testimony from character witnesses. The defendant offered several witnesses to testify as to his general reputation for honesty. While they were on the stand the Prosecutor insisted that this evidence be restricted to what the witness had heard about the defendant. The trial judge supported the contention of the prosecution and in two instances told .the witnesses that their testimony must be so restricted. However, defendant did not make his record either by objection or exception. In fairness to counsel and the Court we direct attention to the fact that the examination was too restricted. Griffin v. State, 14 Oh St 55; State v. Dickerson, 77 Oh St 34, 2nd Syllabus.

We find the third and fifth and sixth assignments of error taken together established.

The judgment will be reversed and the cause remanded for a new trial.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


source: Caselaw Access Project

author: By HORNBECK, J.:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. ANDLAUER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2309.
    Decided May 23, 1955.

      Mathias Heck, Prosecuting Attorney, Walter A. Porter, Asst. Prosecuting Atty., Fred M. Kerr, Dayton, for plaintiff-appellee.
    Benjamin Horn, Albert H. Scharrer, Hon. Mason Douglass, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal from a judgment and sentence of defendant-appellant on a conviction by a jury of guilt of a charge of abortion. The State took on the obligation of establishing by the requisite degree of proof that the defendant committed a criminal abortion on one Mary Perry and that by reason thereof, she died. The means by which it is claimed the abortion was produced was by the introduction into the cervix of Mary Perry of an abortifacient paste known as Interfearin. It appeared that the compound was a soap, and the effect, whether it could and did produce the abortion and the death of Mary Perry, were issues concerning which extended and prolonged expert testimony was adduced. The trial covered a period of some three weeks and was expertly tried in all of its aspects. Indeed, the ability displayed by respective counsel, particularly in the fields of medicine, chemistry and pathology, to which much of the evidence was directed, was of the very highest professional ability. There was ample support in the record, if the testimony adduced in behalf of the State be true, to support the verdict which the jury returned. The weight of the evidence is not urged in the assignments of error.

This case is unusual in at least two particulars. One, in the extreme care taken by the trial judge to prevent any discussion in the presence of the jury respecting the admissibility of testimony proposed to be offered by the State. We have knowledge of no case where the trial judge has been so alert to keep from the jury any possible collateral subject that could probably have influenced its verdict. This procedure certainly is to be commended, although seldom followed. Two, the Bill of Exceptions submitted in this case. It is a rule which should have no exception that the typewritten pages comprising the Bill of Exceptions should be the original sheets. Instead, in this Bill more than half of the 1574 pages are carbon copies, some of which are almost illegible. Notwithstanding this handicap we have, to the best of our ability, read every page of this voluminous record.

Twenty-two specific errors are assigned, most of which are not urged in the briefs of appellant. These assigned errors which counsel do not specially consider, we hold not to have been well made.

The other errors may be grouped. It is claimed that prejudice resulted to the appellant from questions and conduct of counsel for the State in regard to the testimony of Detective Ralph H. Hogan. Assignments of error Numbers 14, 15 and 16.

Assignment of error No. 17: Error by reason of conduct of counsel for the State in his argument to the jury.

Assignments of errors Nos. 18, 19 and 20: Failure of the court to properly instruct jurors as to their duty in the event they could not agree with the other jurors.

Assignment of error No. 12: Error in the general charge of the court as to “reasonable doubt.”

The first question presented, and the one most fully argued in the briefs, is that which relates to the testimony of Detective Hogan and the conduct of counsel for the State pertaining thereto.

Mrs. Andlauer, wife of defendant, testified in his behalf. On erossexamination she was interrogated whether or not she had had a conversation with Detective Hogan in the presence of others than the defendant in which she said, “I told him not to do it.” She denied any such conversation. This testimony was admitted without objection. In rebuttal, Detective Hogan was called to the stand, and counsel for the State put certain questions to the witness, which were answered:

“Q. I will ask you whether, in your presence, Ruth Green made a statement to Mrs. Andlauer about ‘This is about the Mary Perry case’?

A. She did.”

Objection was made to this answer and to any conversation, which objection was sustained. The court indicated to the witness that he had theretofore in chambers cautioned him not to answer any questions about the conversations in question. The prosecutor, continuing, put this question: “Now, then, I ask you whether Mrs. Andlauer said to you and the other persons there, T told him not to do it.’ Answer: That’s right.” The court then said to the witness: “Don’t answer it. Now you knew you shouldn’t have answered. The court told you in chambers before you came out here; the jury will be instructed in disregard that answer, or any other answer along that line.”

The prosecutor insisted upon propounding “last question on this point.” Two questions were then put and answers made out of the presence of the jury. The answers to the questions were that Mrs. Andlauer said “I begged him not to do it — and if he continued to do it I would leave him,” and that “He doesn’t need that kind of patients, or the money, but he was so stubborn he wouldn’s listen.”

It appears that the court, prior to the time when Detective Hogan took the stand, had instructed him that he should not answer questions relating to the claimed conversation with Mrs. Andlauer. If Detective Hogan understood this admonition, he breached it when he hurriedly answered respecting the conversation, but counsel for the State insists that he did not know of the instruction of the court to the witness when he put the questions to him in the hearing of the jury.

Appellant insists that the answers to the questions and the conduct of counsel in the circumstances appearing resulted in error prejudicial to the defendant. It is claimed that the answers originally given by Mrs. Andlauer on cross-examination were not admissible because hearsay and that the rebuttal testimony could not have been admissible either as substantive proof or by way of impeachment of Mrs. Andlauer. The trial judge acceded to the contention of appellant and fully instructed the jury of his rulings.

Whether or not the conduct of the witness was contemptuous of the court’s order to him was a matter strictly within the judgment of the trial judge. He did not see fit to take steps other than to criticize the witness and to caution the jury to disregard the testimony. We cannot say, because there is nothing whatever to establish it, that the prosecuting attorney is chargeable with any misconduct in conducting the examination of the witness. It may not be said that he knew of any prior instructions of the court to the witness. He had the right to make his record as against the possibility that the court would err in ruling against him, and if he desired to save the question the procedure was entirely proper. If the principle of law controlling the admissibility of the testimony given and proffered was entirely clear, and with that knowledge the prosecutor insisted upon propounding questions which he knew to be improper, we would have an entirely different question. No bad faith of the prosecutor appears.

In connection with the admissibility of the testimony of the detective as to the conversations with Mrs. Andlauer, several interesting questions arise, the answers to which are not simple nor well-defined. We are not satisfied, nor do we need be, that the proffered testimony was not admissible for the purposes of impeachment affecting the credibility of the witness, Mrs. Andlauer, by reason of her prior inconsistent statements, if made.

Ruth Green, a nurse formerly in the employ of the defendant, had testified for the State that by prior appointment Mary Perry had come to defendant’s office, that she told defendant that she was pregnant and desired an abortion and that the witness, in the presence of defendant, tested Mary Perry upon an electronic diagnostic machine, which, by numbers registered on certain dials thereof, showed that Mary Perry was three months pregnant. That the numbers registered on the machine were set down on a card in the name of Mary Perry, which name was in defendant’s writing on the card found in the files of the defendant’s office. Neither this witness nor any other witness for the State attributed any knowledge of the arrangement between the defendant and Mary Perry to Mrs. Andlauer. She testified that she did not know Mary Perry, had no knowledge that she was under treatment. Her testimony, if accepted by the jury, cast doubt as to the dependability of the machine as to the diagnosis of pregnancy or duration thereof. If Mrs. Andlauer made the statements testified by the detective and proffered by the State, they had the effect of developing variance with her testimony at the trial and may have affected her credibility. The testimony, if admissible, was for the purpose of impeachment only, for which the ground had been properly laid by the questions propounded to Mrs. Andlauer on cross-examination, if the answers thereto were admissible. The admissibility of this testimony was not challenged until the questions were put to Detective Hogan.

In Kent v. State, 42 O. O. 426, 431, Judge Okey discusses the rule as to the admissibility of impeaching testimony:

“It is said in a multitude of cases, and may be regarded as well settled, that where a party cross-examining a witness, desires to call a witness to contradict him, the right to do so will, in general, be determined by the answer to the question, whether the matter offered in contradiction is in any way relevant to the issues, or such as tends to show prejudice or interest, with respect to the cause or the parties, on the part of the witness sought to be contradicted. If an affirmative answer can be given to the question, the contradiction will be permitted, and, ordinarily, otherwise not.” (Emphasis ours.)

The court cites and comments upon Attorney General v. Hitchcock, 1 Welsby, H. & C. 91, an early leading English case, in particulars like ours, in support of its conclusion. An examination of Wigmore on Evidence, Third Edition, pages 684 to 697, is helpful, but too extended for quotation here. At page 687, Section 1018, Wigmore says:

“It is ‘the repugnancy of his evidence’ that discredits him, obviously the Prior Self-Contradiction is not used assertively; i. e. we are not asked to believe his prior statement as testimony, and we do not have to choose between the two. We simply set the two against each other * * *. It is the repugnancy and inconsistency that demonstrates his error, and not the superior credibility of the prior statement.”

“In short, the prior statement is not primarily hearsay, ‘because it is not offered assertively; i. e. — not testimonially * * *.’ It follows therefore, that the use of Prior Self-Contradictions to discredit is not obnoxious to the Hearsay Rule.”

It is clear that the testimony of Mrs. Andlauer was admissible within the discretion of the trial judge, even though the State was bound by her answers and could not impeach them.

The case of State v. Weaver, 120 Oh St 97, upon which appellant relies, does not upon the facts developed support his contention that the testimony sought to be impeached was hearsay. In the cited case, the person who made the statements sought to be introduced was not upon the stand and the testimony was offered by a third party who heard the statements. Obviously, the evidence of the third party was hearsay.

If the testimony of Detective Hogan proffered by the State was admissible then, clearly, the defendant was not prejudiced by the rulings of the court, the conduct of counsel or the witness.

We discuss its admissibility at some length to demonstrate that the prosecutor had good reason to insist upon the reception of the evidence.

However, if it be conceded that the testimony of the witness Hogan was inadmissible, we cannot find under the controlling section of the Code, §2945.83 (E) R. C., that what occurred was prejudicial to the defendant. This statute is but legislation promulgating the rule laid down in the early case of McHugh v. State, 42 Oh St 154, first syllabus:

“In a proceeding to reverse a judgment in either a civil or criminal ease, the court regards the record as free from error until the contrary clearly appears; * * *.”

The numerous cases following McHugh v. State, supra, are set out in the opinion by Judge Wiseman of this Court in State v. Hickman, 77 Oh Ap 487, 488.

The following cases support the conclusion that the action of the trial judge in directing the jury to disregard the answer of Detective Hogan cured any error that may have resulted from his hasty reply: Mims v. State, 16 Oh St 232, where there was a conviction of murder in the first degree; Klein v. Thompson, 19 Oh St 569, 571, 572; Henkle v. McLure, 32 Oh St 202; Logan v. The Cleveland Railway Co., 107 Oh St 211, 215.

We are strengthened in our position by the fact that the trial judge, who was in close touch with the jury and its reaction, and better able than we to judge the effect of the question answered by the detective and the subsequent conduct of the prosecuting attorney, held, against the contention of appellant on his motion for new trial.

The next errors assigned relate to the failure of the court to charge the jury more at length respecting its obligation to reach a verdict, if possible, and the time that it would be required to consider the case before being released.

We set forth all the occurrences during the trial which are germane to this assignment of error.

At the conclusion of the general charge, and after the trial judge had inquired of counsel if he had neglected anything in his charge, he said:

“I will tell you again (to jury) it must be a unanimous verdict before your foreman signs it.

“Mrs. Kimmel (Juror): What if it isn’t?

“The Court: Then, you haven’t a verdict.

“Mrs. Kimmel: How long do we have to stay?

“The Court: The court will tell you.”

Soon thereafter the jury was sent to lunch, returned and resumed consideration of the case at 2:55 p. m. The court entered the jury room, and the following statements were made:

“The Court: Is there any probability — this is addressed to your foreman only — is there any probability of your agreeing within a short time, or any time this evening?

“Mr. Davis: (The Foreman): Well, the way it has been going, no.

“The Court: You have been out more than four hours now; we tried this case about three weeks; I would like for you to agree if you possibly can; you think you would like to have more time to deliberate, after I send you out to dinner with the bailiff, and then return again for further deliberations?

“Mr. Kerr: What was their answer when the court asked them about the probability of a verdict?

“The Court: Will you answer to Mr. Kerr again, is there any probability of your agreeing?

“Mr. Davis: No. No.

“The Court: You think after I send you out to dinner and you would be refreshed and come back, on any further consideration of the case you might be able to reach an agreement?

“Mr. Davis: Your Honor, it is not a definite statement — in two hours we might be able to reach an agreement.

“The Court: Do you wish to keep on as you have or you wish to go out to dinner, or not? How many want to go out?

“Mr. Kerr: I think they should be allowed to go out.

“The Court: I want to give them an opportunity, some of them have indicated a matter of a couple more hours.”

Counsel conferred with the court at the bench.

“The Court: How many in this jury think you can get together for further deliberation and arrive at a verdict, hold up your hands, that think with some further deliberations you might be able to reach a verdict?”

(Eight, or approximately that many, held up their hands.)

“The Court: I will send you out to dinner; you will go- with the bailiff; don’t discuss the case among yourselves or anyone else, and you will have further time for deliberations; if you arrive at a verdict before you go to dinner let me know. If you cannot get together in a reasonable length of time the court will have to discharge you, but I want to give you every opportunity to arrive at a verdict.” (Emphasis ours.)

Then, out of the presence of the jury, the following statements were made:

“Judge Douglass: This morning, before we left the courtroom one juror asked what if we can’t agree? It is my position that with an inquiry like that the court should instruct the jury in response to that inquiry, that if they can not agree the court will discharge the jury from further consideration of the case; I think that they should know that if they go out and come back; I don’t see how it hurts anybody.”

It will be noted that in the emphasized part of the foregoing statement by the judge to the jury, he had charged them in practically the same language- as in Judge Douglass’ request for a charge. Continuing:

“Mr. Kerr: We don’t think there is any question being made now.

“The Court: There was after you walked out.

“Mr. Kerr: I am sorry, but we do not feel the court is called upon at this time to make any statements to the jury.

“Judge Douglass: Will you let the record show there were two jurors tried to ask the court a question when we left the courtroom and it started this morning when he charged the jury and we think the court should answer if they cannot agree the court will discharge the jury from further consideration of the case.”

Thereafter the court returned to the jury room.

“The Court: (To the jury): You asked a question as the lawyers went out; I couldn’t answer it and didn’t answer it because I am not supposed to. Somebody asked me a question like this: ‘What if we can’t agree?’ Some lady asked it. If you can’t agree the court will have to discharge you from further consideration of the case, it will have to be tried before another jury at another time — if it is tried. Now, are there any questions? I am going to send you out to dinner then.” (Emphasis ours.)

“Mrs. Kimmel: (A juror): How much longer do we have to decide?

“The Court: I am going to give you a reasonable length of time. If you arrive; you knock on the door and we will get all counsel together; if you cannot arrive at a verdict and you knock on the door. I will give you what we think is a reasonable length to arrive at your verdict.” (Emphasis ours.)

The jury then went to dinner, and resumed deliberations at 8:50 p. m., and returned the verdict at 9:25 p. m. When they left for dinner, Mr. Scharrer said:

“Counsel for defendant objects and excepts to all the remarks of the court to the jury and especially where the court said ‘If you can’t agree the court will have to discharge you from further consideration of the case. It will have to be tried before another jury at another time.’ ”

We observe that in this objection and exception, and in defendant’s brief, counsel did not quote the statement of the trial judge as to the necessity of another trial in its entirety, namely, that significant part, which we have heretofore emphasized, “if it is tried.”

The juror, Mrs. Kimmel, voted with the other eleven members of the jury to convict the defendant and so answered when the jury was polled. Thereafter, she filed an affidavit, the gist of which was that upon her inquiries: “How much longer do we have to stay?” and, later:

“How much longer do we have to decide?” the answers of the court were such that, in connection with the charge that the verdict had to be unanimous, “she thought she had to agree with the majority of the jurors who were favoring conviction.” She also says that “at no time was her answers from the court informative of what her duties and responsibilities were, as a juror, in the event she disagreed with the other jurors.”

It is manifest from the full proceedings which we have set out that the trial judge took unusual precaution, not only to adequately inform the jury of its duties and what would be required for it to return a verdict, but that it would be discharged if it could not reach such a verdict within a reasonable time. The court acceded to practically every request of counsel to further charge the jury. Upon any proper view of the language of the trial judge, the affiant could not have misunderstood its meaning. She was under no compulsion to find a verdict against her will, or that if she did not do so, she would in any manner be restrained for an unreasonable length of time.

In this connection we have accepted and considered the affidavit of the juror which, in probability, may not be properly so considered for two reasons: First, it is not properly brought upon the record by being carried into a Bill of Exceptions. Grasselli Chemical Company v. Martinec, 5 Abs 575; Garner v. White, 23 Oh St 192; Gallier v. Gallier, 27 O. L. R. 346; Gerak v. State, 22 Oh Ap 357, 367, 368.

Second: Affidavits such as the one under consideration may not be accepted to impeach the verdict of the jury of which the affiant was a member. Farrer v. State, 2 Oh St 54; Holman v. Riddle, 8 Oh St 385; Kent v. State, 42 Oh St 426; 39 O. Jur. 1110.

The next assignment is that the court erred in defining the term “reasonable doubt” to the jury in the use of the following language:

“You will, then look to all the evidence; and if that satisfies you to a reasonable and moral certainty of the defendant’s guilt you must say so. If, on the other hand, you are not satisfied from the evidence to a reasonable and moral certainty of the defendant’s guilt, but find only that there are strong probabilities of guilt, it is your duty to acquit.”

The court had theretofore charged the jury as to reasonable doubt in the language of the statute as required to do. It is to be noted that counsel for the State and one counsel for the defense, in arguments to the jury, used the term satisfaction of the guilt of the defendant to a “moral certainty.” We realize that the use of the additional term “reasonable certainty” is somewhat different than ordinarily employed However, upon a fair consideration of the charge in its entirety, we find no prejudicial error was committed in the definition of reasonable doubt as given by the trial judge.

We are satisfied that the defendant had a fair trial. As we have said before, unusual care was taken by the trial judge to assure that defendant had every possible protection as against any error occurring to his prejudice during the extended period that his cause was being presented to the jury.

The judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.


author: By LEACH, J.

text:
    SUN OIL CO., Plaintiff, v. OHIO TURNPIKE COMMISSION, Defendant.
    Common Pleas Court, Franklin County.
    No. 191315.
    Decided December 22, 1954.
    Effler, Eastman. Stichter & Smith, Toledo, Vorys, Sater, Seymour & Pease, Columbus, for plaintiff.
    Frank C. Dunbar, Jr., Columbus, for defendant.
   OPINION

By LEACH, J.

This cause is now before the court on plaintiff’s motion for a temporary injunction and on defendant’s oral motion to dissolve the temporary restraining order heretofore granted.

Plaintiff on December 2, 1954, filed its petition requesting equitable relief both by way of injunction and mandatory injunction. A temporary restraining order was granted the same day and the cause set for hearing on the motion for a temporary injunction on December 10, 1954. At such hearing extended arguments of counsel were had, certain stipulations made, some 16 exhibits introduced into evidence, and testimony taken. Briefs have also been filed by both parties. While many of the matters argued and briefed go somewhat extensively into the basic merits of the cause and while this action is not now being considered on the merits, nevertheless such arguments and briefs have been of great benefit to the court.

The plaintiff is a foreign corporation qualified to do business in Ohio, engaged in the business of refining, manufacturing, distributing and selling gasoline and other petroleum products. It is a taxpayer in the state of Ohio. The defendant is in the process of constructing across the northern part of Ohio a turnpike known as “Ohio Turnpike Project No. 1.”

In the exercise of the authority granted it by statute, defendant has established on such turnpike 8 pairs of service areas, each pair designated as a “service plaza.” A “service plaza” consists of two areas, one north of the travelled portion of the turnpike to serve west-bound traffic and one south of the travelled portion to serve east-bound traffic. Plans call for the establishment in each area of a restaurant, parking areas, playground areas and one gasoline station. In other words, under the plan adopted by the defendant, there will be 8 “service plazas” and 16 service areas, each service area with one gasoline station.

It appears that at least .as early as February, 1953, discussions were had between representatives of the defendant and a committee representing the petroleum industry which was acting as a spokesman for several oil companies, including plaintiff, in which the petroleum industry committee took the position that under the language of §1214 GC (now §5537.13 R. C.), it was mandatory that the defendant provide for at least two competing gas stations in each service area. A detailed plan for such “multiple trading area” was submitted to the defendant by this committee in November, 1953. Such plan was rejected by defendant and as heretofore stated, plans prepared providing for one gasoline station for each service area.

The evidence indicates that the turnpike will be open for general vehicular travel on October 1, 1955. The plans of the defendant call for the opening of the “service plazas” at that time. The building to house such gasoline stations will be erected by the defendant and title retained by it. It is expected that the contracts for the construction of such buildings will be let in the next few weeks. It might be stated parenthetically that plain tiff does not seek to enjoin the construction of such buildings.

In September, 1954, defendant issued notice to bidders, etc. calling for bids for the operation of gasoline service stations, the contracts to be denominated SS-1, SS-2, SS-3, SS-4, SS-5, SS-6, SS-7, and SS-8. Each bid in effect was on a pair of service stations since each “service plaza” consisted of two service areas divided by the travelled portions of the turnpike and the dividing space between such travelled portions. As provided in such notice, bids were received and opened on October 21, 1954. Plaintiff submitted a bid on each of the 8 plazas, its bid not being the high bid in any instance.

Subsequent to the receipt of bids, consideration thereof was given by a committee of the defendant, consisting of its secretary, Mr. A. J. Allen, its legal counsel, Mr. Prank Dunbar, Jr., its executive director, Mr. Robert S. Beightler, its chief engineer, Mr. T. J. Kauer, Highway Director and Ex-Officio member of the commission, Mr. S. O. Linzell, and Mr. T. J. Donnelly, consultant engineer and partner in the firm of J. E. Greiner Company. A report was filed by this committee on November 4, 1954. This committee found that the high bid for Contract SS-2 had been submitted by Shell Oil Company; the high bid for Contract SS-3 by Pure Oil Company; the high bid for Contract SS-4 by the Texas Company; that identical high bids were submitted for Contract SS-5 by the Texas Company and Shell Oil Company; that the high bid for Contract SS-6 was submitted by the Texas Company. It recommended that the bid of Shell Oil Company be accepted for Contract SS-5 in view of the fact that the requirements of bidding forbade a bidder from obtaining contracts on adjoining “service plazas.” It also recommended that the high bid of Shell Oil Company on Contract SS-1 be rejected and new bids solicited in view of the fact that it had recommended that Contract SS-2 be awarded to Shell Oil Company.

The high bid for Contracts SS-7 and SS-8 were submitted by Speedway Petroleum Corp. The committee reported that such bids were unlike all the others of the high bidders for the other contracts who, in each case, bid upon the furnishing of “regular” and “premium” grades or brands of gasoline. The Committee expressed the opinion “that the public will not be well served unless each of the service stations shall cffer to all motorists both the regular and premium grades of gasoline, such as are offered in the great majority of the better service stations all over the country.” The committee therefore recommended that no award be made on Contracts SS-7 and SS-8. It further recommended that new bids be taken for Contracts SS-1, SS-7 and SS-8 and “that the bidders should be required to tender their bids upon the basis of furnishing both regular and premium grades of gasoline at all stations.”

The Ohio Turnpike Commission on the same day of the committee’s report, that is, on November 4, 1954, adopted a resolution which, in effect, accepted the entire report of the committee and awarded Contracts SS-2, SS-3, SS-4, SS-5 and SS-6 to the bidders heretofore referred to.

Thereafter the defendant issued new notice to bidders, etc., calling for bids for the operation of gasoline service stations under Contracts SS-1, SS-7 and SS-8. The notice to bidders varied from the previous notice to bidders only by the addition of the sentence “Successful bidders will be required to sell both ‘regular’ and ‘premium” gasoline at each station covered by their contracts,” Bids were to be received and opened on December 3, 1954.

In its motion for temporary injunction and in the prayer of the petition for a temporary injunction, plaintiff moves the court for an order enjoining and restraining the defendant from:

(a) Executing, or delivering to any of the successful bidders, any of the contracts designated by defendant as Contracts SS-2, SS-3, SS-4, SS-5 and SS-6 providing for the operation of gas stations in service plazas numbered 2, 3, 4, 5 and 6; and performing any of said contracts;

(b) Accepting or considering any bids filed with defendant for any of the contracts designated by defendant as Contracts SS-1, SS-7 and SS-8 providing for the operation of gas stations in service plazas numbered 1, 7 and 8, and from awarding or entering into any contracts based upon any such bids;

(c) Including in any future notices to bidders, or in any future terms and conditions of bidding or in any contract for the operation of gas stations, any requirement that the successful bidder shall sell, or offer for sale, more than one grade of gasoline at gas stations covered by the contract or contracts of the successful bidder thereof.

It is conceded that Contracts SS-2, SS-3, SS-4, SS-5 and SS-6 have already been executed and delivered to successful bidders and plaintiff therefore as to paragraph (a) above is now only asking that the defendant be enjoined from “performing any of the contracts” referred to. A temporary restraining order to this effect was issued on December 2, 1954.

Plaintiff in effect is making two basic contentions, (1) that the action of defendant in providing for only one service station for each service area is in violation of the provisions of §5537.13 R. C., and, (2) that the defendant is guilty of an unlawful and arbitrary exercise of power in providing in the most recent notice to bidders that the successful bidders are required to sell both “regular” and “premium” gasoline in each station. These contentions will be considered in that order.

Sec. 5537.13 R. C., insofar as pertinent reads as follows:

“The commission is hereby authorized to fix, revise, charge, and collect tolls for the use of each turnpike project and any extension or sections thereof, and contract in the manner provided by this section with any person, partnership, association, or corporation desiring the use of any part thereof, including the right of way adjoining the paved portion, for placing thereon telephone, telegraph, electric light, or power lines, gas stations, garages, stores, hotels, and restaurants, or for any other purpose, and fix the terms, conditions, rents, and rates of charge for such use, provided that no toll, charge, or rental is made by the commission for placing in, on, along, over, or under such turnpike project, such telephone, telegraph, electric light, or power lines, equipment, or facilities as are necessary to serve establishments located on the turnpike project or to interconnect any public utility facilities, and provided that a sufficient number of gas stations may be authorized to be established in each service area to permit reasonable competition by private business in the public interest.

“Contracts for the operation of gas stations, garages, stores, hotels, restaurants, parking facilities, or other purposes shall be made in writing with the bidder whose bid, in consideration of the public interest, is determined by the commission to be the best bid received, after advertisement for two consecutive weeks in a newspaper of general circulation in Franklin county and in such other publications as the commission determines. Such notice shall state the general character of the operation proposed, the place where plans and specifications may be ex* amined, and the time and place of receiving bids. Bids shall contain the full name of each person or company interested in them, and shall be in such form as the commission requires. The commission may reject any and all bids. All contracts shall be preserved in the principal office of the commission. * *,*” (Emphasis added.)

Plaintiff contends that the word “may” in the text in which it is employed in the language “and, provided that a sufficient number of gas stations may be authorized to be established in each service area to permit reasonable competition by private business in the public interest” is mandatory, citing many cases where the word “may” has been judicially construed to mean “shall” or “must.” Plaintiff argues that unless the language is mandatory, it is meaningless since the statute by other language had already given the defendant the authority to contract for the placing of gas stations. Defendant asserts that the word “may” should be given its ordinary grammatical meaning; that in §5537.13 R. C., the word “shall” appears not less than a dozen times indicating that the General Assembly by the use of “may” did not mean “shall”; and that in other portions of the Turnpike Act there are similar cases of duplicating of language granting authority to the Turnpike Commission.

It is fundamental, of course, that the word “may” in its grammatical sense is not mandatory and that a mandatory construction is only followed where the sense of the entire statute under consideration impels such a conclusion. With such a test in mind, it would appear doubtful to this branch of the court as to whether the language under consideration could be considered as imposing a mandatory duty on the part of the defendant to place competing gas stations in each service area. It appears to us that the inclusion of such language does not necessarily indicate a duplication of a grant of authority nor the inclusion of meaningless language, even if such language be construed as being permissive in character. It might easily be construed as forbidding the defendant from legally granting to any one gas station the exclusive franchise to sell at a particular service area to the extent that the defendant would be precluded from electing to place another gas station therein, a matter which at least would not be free from doubt had such language not been included. It might also be construed as authority to expend monies for additional lands or additional buildings for the placement of competing gas stations, such authority in the absence of such language being open to question in that with a “captive” customer potential, it could be asserted that the income of the defendant would not be increased by such additional stations, that the increased expenditures for such competing stations would be a misapplication of funds, and that the commission in the exercise of its right of eminent domain would have no authority to acquire such additional land as might be needed for such competing gas stations.

It is not necessary, however, to pass on this question at this time. Assuming that the language of the statute is mandatory, assuming that the plaintiff has the legal capacity to maintain this action, assuming that this court should otherwise grant the temporary order requested even in the absence of the successful bidders as parties defendant to this action, and assuming that plaintiff has not been guilty of laches by its failure to file this action when it first determined that the defendant intended to place but one gas station on each service area, nevertheless, we do not see how plaintiff’s claim in this respect would be affected one way or the other by a temporary injunction forbidding the defendants from performing any of the contracts designated by defendant as Contracts SS-2, SS-3, SS-4, SS-5 and SS-6 providing for the operation of gas stations in service plazas numbered 2, 3, 4, 5 and 6.

Upon final hearing plaintiff seeks a mandatory order to compel the defendants to place at least a second gas station in each service area. If, upon final hearing the court finds that plaintiff is entitled to such an order, the fact that others are occupying and selling gasoline from an existing station and that the defendant is “performing any of the contracts” by permitting the sale of gasoline under Contracts SS-2, SS-3, SS-4, SS-5 and SS-6 cannot possibly affect any order of the court made at such time.

In this connection it must be remembered that plaintiff does not seek a temporary order to enjoin the construction of the buildings to house the gas stations presently planned. If additional buildings must be built and additional gasoline contracts made, such can be done at the time of the final order of this court without in any way interfering with the then existing buildings and existing contracts. It should- also be remembered that as to Contracts SS-2, SS-3, SS-4, SS-5 and SS-6, the question of alleged irregularity as to the bidding because of the requirement that “regular” and “premium” gasoline be sold is not presented. There is no showing as to such contracts that the bid of plaintiff or of any other seller of one grade of gasoline was rejected for such reason. Instead the evidence clearly demonstrates that in each case the defendant determined the high bidder had made “the best bid received.”

To the extent that the plaintiff requests a temporary injunction to prohibit the defendant from performing Contracts SS-2, SS-3, SS-4, SS-5 and SS-6, the same is denied and the temporary restraining order heretofore granted prohibiting the performing of any of such contracts is dissolved.

We turn now to a consideration of the notice to bidders as to Contracts SS-1, SS-7 and SS-8. As heretofore noted, such notice provided that successful bidders will be required to sell both “regular” and “premium” gasoline at each station covered by their contracts.

Plaintiff asserts, and the evidence in this respect at the hearing was uncontradicted, that it refines and manufactures but one brand of gasoline, Sunoco; that this is a “premium” gasoline in quality but at the present time and throughout the operations of the plaintiff, it has sold for “regular” gas prices. It contends that the action of the defendant which, in effect, precluded it from bidding on Contracts SS-1, SS-7 and SS-8 will deprive it “of its property rights without due process of law, constitutes an unauthorized assumption of power and an arbitrary, unreasonable, discriminatory, capricious and unlawful exercise thereof, and imposes an unwarranted, unreasonable and unlawful burden on interstate commerce, all to the great injury and detriment of the public, and upon plaintiff.”

Evidence was introduced as to the volume of plaintiff’s business, particularly in Ohio and of the fact that it has either by direct operation or by lease arrangement some 980 gas stations in Ohio and sells 9.6% of the Ohio gasoline market. As heretofore noted, a committee of the defendant on November 4, 1954, recommended that bidders be required to sell both “regular” and “premium” gasoline, expressing the opinion in a report of that date “that the public will not be served unless each of the service stations shall offer to sell motorists both the regular and premium grades of gasoline, such as are offered at the great majority of the better service stations all over the country.”

Defendant contends: (1) That plaintiff does , not have the legal capacity to bring such legal action as (a) a taxpayer or (b) a corporation engaged in the business of refining, manufacturing, distributing or selling petroleum products; (2) that the facts alleged do not show any. abuse of discretion on the part of the defendant in the sense that abuse of discretion has been construed by the decisions of the Ohio courts; and (3) that in any event a consideration of the potential damage and potential benefit to the plaintiff, to the defendant and to the public in case a temporary order either be granted or denied, would indicate the advisability, if not the necessity, of denying such a temporary order.

In view of the recent decision of the Ohio Supreme Court in the case of State ex. Masterson v. Ohio State Racing Commission, 162 Oh St 366, 55 O. O. 215, it would seem that plaintiff would lack capacity to sue as a taxpayer, since no tax funds are involved in the construction and operation of the turnpike. The fact that the turnpike will be maintained by the Department of Highways when the turnpike bonds are fully paid off does not affect the legal capacity of the plaintiff to maintain an action at this time. Plaintiff may or may not be a taxpayer when the turnpike is turned over to the Highway Department and in any exent there is no showing that any delay in paying off the bonds and turning the turnpike over to the Highway Department, which delay might result from denying a high bid of the plaintiff on Contracts SS-1, SS-7 and SS-8 {assuming that plaintiff were to bid and were to be the high bidder) would cause any additional expenditure of tax monies at that time.

In view of the general availability of a taxpayer’s action as to most public agencies, we do not find any Ohio decisions which squarely decide the question of the capacity of a party such as the plaintiff, to sue in the capacity of one potentially injured in its business affairs by alleging unlawful acts of a public body organized as is the Turnpike Commission and in using no tax monies. In view of our conclusion as to other aspects of the problem now presented, it is not necessary to pass on this question at this time, however.

Neither is it necessary at this time to pass on the question as to whether the petition alleges facts which show an abuse of discretion or an unlawful and arbitrary exercise of power to the extent that a judicial, as contrasted with an administrative question, is presented. See State ex. Schaffer v. Ohio Turnpike Commission, 159 Oh St 581, 50 O. O. 465.

We believe that plaintiff’s request that defendant be temporarily enjoined from letting Contracts SS-1, SS-7 and SS-8 and from including a requirement that more than one grade of gasoline be sold at the station of the successful bidder should be denied solely upon a consideration of the relative potential benefits and damages to the parties and to the public.

What benefit can come to the plaintiff in the operation of its business if we enjoin the letting of Contracts SS-1, SS-7 and SS-8? Not until final hearing and even after that, not unless and until plaintiff becomes the successful bidder could it possibly sell gasoline at any of the locations in question. On the other hand the potential damage to the defendant and of even more importance to the public is something which can hardly be measured in money.

But, plaintiff asserts that defendant’s own evidence showed that gas stations could be put into operation at service plazas 1, 7 and 8 in something less than 3 months from the time that any temporary order might be dissolved; that the turnpike is due to open October 1, 1955; that a temporary order which would terminate by July 1, 1955, would cause defendant no damage; and that this matter might be advanced for hearing and disposed of on the merits long before that time.

If the potential rights of the defendant to ultimate relief would otherwise be foreclosed by an awarding of Contracts SS-1, SS-2 and SS-3 at this time, we would be inclined to pursue the course suggested by the plaintiff. If plaintiff, however, is able to establish the illegality of defendant’s action, as it asserts, any contracts awarded would be predicated on such illegal action of the defendant and the right of the other party to such contract could rise no higher than the authority of the defendant to enter into such a contract, unless such party had so changed its position in reliance on such contract as to make it inequitable to terminate its right thereunder. Proper actions to enjoin may be directed not only against the making of illegal contracts but also against the performance of illegal contracts. See 33 O. Jur. p. 814, et seq., 43 Am. Jur. p. 967, et seq.

Here it must be remembered that the contracts in question do not involve the construction of buildings by the successful bidder. The bid in effect is merely on a concession to sell gasoline at stations erected and owned by defendant. If plaintiff is successful at the final hearing in establishing the illegality of defendant’s action in requiring bids on “regular” and “premium”' gasoline, this court may at such time order the defendant to readvertise and award bids without such illegal requirement. Upon new bids being taken and valid new contracts entered into, the rights of those then selling gasoline by virtue of the “illegal” contracts would terminate. At the same time, however, it would not be necessary to suspend or terminate the necessary sale of gasoline to the public. The new seller could quickly move into the defendant’s filling stations and begin operation.

The motion for temporary injunction will be denied and the temporary restraining order heretofore issued on December 2, 1954, will be dissolved.

Entry may be prepared accordingly.