author: By McNAMEE, District Judge.

text:
    UNITED STATES v. DI CARLO.
    United States District Court N. D. Ohio, E. D.
    No. 20299.
    Decided February 7, 1952.

      Don C. Miller, U. S. Atty., John J. Kane, Jr., First Asst. U. S. Atty., Cleveland, for the United States.
    Russell Mock, Youngstown, for defendant DiCarlo.
   OPINION

By McNAMEE, District Judge.

Defendant was charged in an indictment containing eight counts with violating Title 2, Section 192 U. S. C. A., in refusing to answer pertinent questions put to him as a witness before a subcommittee of a special committee of the United States Senate at Cleveland, Ohio on January 19, 1951.

Waiving his right to a trial by jury, defendant submitted the case on its merits to the court. Preceding the submission of the case, defendant moved to dismiss the indictment on the ground that because of the absence of a quorum there was no meeting of a duly authorized subcommittee of the special committee of the Senate. This contention is based upon the fact that Senator Estes Kefauver, Chairman of the Special Committee, was acting as a subcommittee of one in taking testimony of witnesses at the hearing in question.

Section 2 of Senate Resolution No. 202 specifies that a majority of the committee or a subcommittee shall constitute a quorum and authorizes the special committee to designate one or more of its members to act as the subcommittee for the purpose of taking testimony.

Pursuant to the authority thus conferred, the special committee on January 3, 1951 adopted a resolution authorizing the Chairman at his discretion “to appoint one or more subcommittees of one or more Senators, of whom one member shall be a quorum for the purpose of taking testimony and all other Committee acts, to hold hearings at such time and places as the Chairman might designate, in furtherance of the Committee’s investigations of organized crime, in the vicinities of the cities of Cleveland, Ohio, and Detroit Michigan.”

in the foregoing resolutions of the Senate and of the Special Committee there is ample authority for the action of the Chairman in designating himself to act and in acting as a subcommittee of one to take testimony at the hearing in Cleveland, Ohio on January 19, 1951.

Upon the trial defendant urged that the questions he refused to answer were not pertinent to the inquiry,, and in justification of such refusals he relied upon his constitutional immunity from self-incrimination.

Section 192 of Title 2 U. S. C. A. provides: “Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months:”

The hearing on January 19, 1951 was conducted openly in one of the court rooms in the Federal Building in Cleveland, Ohio. The court room was taxed to capacity by the presence of spectators, law-enforcement officials of various branches of the federal, state and local governments, newspaper reporters, photographers, radio broadcasters and television cameramen. The Chairman of the Committee was assisted by a staff of attorneys and investigators. Wide publicity was given to the proceedings and to the preliminary investigations made immediately prior thereto. As a result of these preliminary investigations there was a vast amount of information relative to the operations and identity of reputed violators of federal and state laws in the possession of the Committee at the time the hearing commenced.

Several law-enforcement officials preceded the defendant as a witness. One of these was Edward J. Allen, Chief of Police of Youngstown, Ohio, where the defendant resides. The testimony of Chief Allen was taken on January 18, 1951, the first day of the hearing. Allen testified that before his arrival in Youngstown in 1946 the defendant had a “long time criminal record in Buffalo, New York,” and that since defendant came to Youngstown he was a member of a triumvirate consisting of one Aiello, Caputo, and himself, which “demanded and received fifty per cent of the local take from the various ‘bookies’ that operated in Youngstown, Ohio.” The witness also stated that the defendant was engaged in the operation of slot machines in Mahoning County “which surrounds the city of Youngstown.” In his testimony Allen linked defendant with the so-called “Licavoli gang,” which he asserted had connections in various parts of the country, including Cleveland, Youngstown and vicinity, Warren, Ohio, and Buffalo, New York. The witness submitted to the Committee a chart which he had prepared at the suggestion of one of counsel for the Committee, which depicted these connections in graphic form and which listed the defendant as a member of the gangs that operated in and around Youngstown, Ohio and Buffalo, New York. Chief Allen expressed the opinion that the members of the gang operated “a government within a government,” and obtained control of “legal and illegal enterprises” by “forcibly excluding others.” The witness indicated his belief that district leadership of the gang was attained through “force” and “ruthlessness,”— “the whole fabric of which is based on murder.” It was apparent that since his induction as Chief of Police of Youngstown in' 1948 the witness had made and was making a determined effort to stamp out racketeering in the area within his jurisdiction.

The defendant appeared as a witness on the following day, January 19, 1951. Many questions were put to him. He was examined about his criminal record and his present and past activities and associates. He answered all but a few of the questions. His refusal to answer the questions contained in the indictment was upon the stated ground that the answers thereto would tend to incriminate him. The first five questions relate to defendant’s business in Youngstown, Ohio in 1945 or 1946 — his business in 1947 — whether he was in the slot machine business in 1947 “or thereabouts” — whether he was associated with others in the “bookie” business “in the last seven years,” — and whether he was “ever in the gambling business in Buffalo,” New York. The last three inquiries sought to learn the identity of persons in Youngstown with whom the defendant was acquainted when he went to that city, — and the nature of his business dealings with Aiello and Caputo.

The first issue to be determined is whether these questions were pertinent to the inquiry.

It is not open to question that the Congress or either House thereof, acting through committees, has the power to conduct investigations in aid of its legislative function and that a legislative inquiry may be as broad as the legislative purpose requires. Townsend v. United States, 68 App. D. C. 223, 95, F. 2d 352; United States v. Emspak, D. C. 95 F. Supp. 1012. Nor is there any doubt that Congress may compel disclosure of facts pertinent to the inquiry. McGrain v. Daugherty, 273 U. S. 135, 47 S. Ct. 319, 71 L. Ed. 580. Pertinency is an element of the offense defined by Section 192 of Title 2 U. S. C. A. And the burden rests upon the government to establish the pertinency of the questions propounded. The question of pertinency under Section 192 is one of law — and not dependent upon the probative value of evidence. Sinclair v. United States, 279 U. S. 263, 268, 49 S. Ct. 268, 273, 73 L. Ed. 692. The test of pertinency as applied by the Supreme Court in the Sinclair case was “whether the facts called for by the question were so related to the subjects covered by the Senate’s resolutions that such facts reasonably could be said to be ‘pertinent to the question under inquiry.’ ” Applying that test here the pertinency of the questions put to the defendant is to be determined by reference to the terms of Senate Resolution 202.

That resolution created a Special Committee of five members of the Senate — “to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or of the laws of any State: Provided, however, That nothing contained herein shall (1) authorize the recommendation of any change in the laws of the several States relative to gambling, f2) effect any change in the laws of any State relative to gambling, or (3) effect any possible interference with the rights of the several States to prohibit, legalize, or in any way regulate gambling within their borders.”

The wide scope of the inquiry is spelled out explicitly in the broad and comprehensive language of the resolution. Its clearly indicated purpose was to ascertain the facts in relation to the suspected or reputed use of. the facilities of interstate commerce, either in the furtherance of violations of state and federal laws, or in aid of the development of corrupting influences in violation of such laws. The resolution specifically directed an investigation of the identity of “persons, firms, or corporations” utilizing the facilities of interstate commerce in furtherance of the described illegal purposes. Manifestly, such a determination could most effectively be made by a discovery first of the identity of the violators of State and federal laws. That Congress has the power to investigate violations of federal laws with a view to further legislation pertaining thereto, cannot be questioned. To the extent that Congress has defined offenses against the United States it has done so pursuant to the powers expressly granted by the Constitution or in the exercise of those auxiliary powers necessary to make the express powers effective.

But, as Congress is without power to legislate upon subjects exclusively within the reserved powers of the States, it can not investigate those subjects, except as they may affect matters within the scope of the powers granted to the federal government. Congress has the power to regulate interstate commerce. Article I, Section 8, Constitution. In the exercise of such power Congress has the undoubted right to investigate all matters affecting commerce between and among the states. Necessarily this includes the power to investigate subjects within the exclusive jurisdiction of the states to ascertain whether matters of local concern impinge upon or affect interstate commerce. To construe Senate Resolution 202 less broadly than as conferring power to investigate violations of state law would be to thwart its salutary purpose and constitute an unwarranted attempt to abridge Congressional powers of inquiry. But it would seem that where Congress undertakes to investigate violations of the criminal laws of the states as an incident of its power to regulate interstate commerce, such power must be exercised with due regard for the constitutions of the several states and the rights of witnesses thereunder. It is fundamental in the federal system that the independence and sovereignty of the states cannot be invaded by the federal government.

Accordingly it is held that it was within the competence of the Special Committee to investigate violations of state law as well as violations of federal law and that the questions put to the defendant were pertinent to the inquiry.

There remains for determination the question whether the Committee, in the exercise of such powers, was required to respect the immunity of witnesses against self-incrimination of violations of state laws as well as the immunity of witnesses against disclosures that might subject them to prosecution by the federal government.

The fifth Amendment to the Constitution of the United States provides, in part, “No person * * * shall be compelled in any criminal case to be a witness against himself.” As to the rights of witnesses who invoke the Fifth Amendment as a protection against prosecutions by the federal government, no serious question of law is presented. In all such cases the constitutional provision must be given a liberal construction in favor of the right it was intended to secure. Counselman v. Hitchcock, 142 U. S. 547, 12 S. Ct. 195, 35 L. Ed. 1110; Arndstein v. McCarthy, 254 U. S. 71, 41 S. Ct. 26, 65 L. Ed. 138. That the privilege of immunity extends to witnesses appearing before Congressional committees is well settled. United States v. Emspak, supra. The power of inquiry of the respective Houses of Congress must be exercised with due regard for the rights of witnesses. Sinclair v. United States, supra.

In 1807, in the trial of Aaron Burr, United States v. Burr, (In re Willie,) 25 Fed. Cas. pp. 38, 40, No. 14,692, Chief Justice Marshall declared: “It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be; and if he say on oath that he cannot answer without accusing himself, he cannot be compelled to answer.

Since its pronouncement the foregoing statement has been accepted by the courts of the United States as embodying the rule that governs in determining whether the witness’s asserted right to remain silent is justified. As recently as April 25, 1951, in Hoffman v. United States, 341 U. S. 479, 71 S. Ct. 814, 818, 95 L. Ed. 1118, the Supreme Court restated the proposition that “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” The court immediately added the qualifying declaration first announced in Mason v. United States, 244 U. S. 362, 365, 37 S. Ct. 621, 61 L. Ed. 1198, that “this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” As a final word upon the applicable principle, the Supreme Court in the Hoffman case, said: “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ ” See Taft, J., in Ex parte Irvine, C. C. S. D. Ohio 1896, 74 F. 954, 960.

Whenever a witness refuses to answer pertinent questions, the validity of his justification is to be determined by the application of the foregoing principles.

The government contends that none of the questions propounded to the defendant related to matters tending to involve him in the commission of a federal offense. This is correct. But it is clear that, considering the setting in which the questions were asked, answers thereto or explanations of refusals to answer might involve the defendant in the commission of offenses against state laws.

The government maintains that the immunity of the Fifth Amendment does not extend to exoneration from compulsory self-incrimination of state offenses. The government’s position in this regard is unchallenged. It is supported by United States v. Murdock, 284 U. S. 141, 52 S. Ct. 63, 76 L. Ed. 210, which was followed in United States v. Greenberg, 3 Cir., 187 F. 2d 35; on rehearing, 3 Cir., 192 F. 2d 201. As a general statement of law this is correct. But in determining the rights of-a witness who is interrogated about violations of state law by a federal agency, there is presented the serious and important question whether the immunity of the Fifth Amendment ought not to be extended to afford the witness protection against disclosures that might subject him to prosecution under state law. That question was not decided in United States v. Murdock, supra, and, as will be shown, the Supreme Court observed that the Murdock case presented no question involving matters of “state concern.” If the immunity of the Fifth Amendment cannot be thus extended, then the question is — Does the federal government, investigating state crimes, possess the power to deny witnesses their rights to immunity against self-accusation under the Constitutions of the States?

In the Murdock case the defendant, in his federal income tax returns for 1927 and 1928, deducted $12,000 for each year, which he claimed he had paid to others. He was summoned to appear before an authorized revenue agent and disclose the recipients. Murdock appeared but refused to disclose the information on the ground that to do so would incriminate him of an offense against the state law. It appears from the brief of the government in that case that Murdock had been violating the gambling laws of Illinois and had been paying officials of the state for permission to do so. It also appears that under the then applicable provision of the Revenue Act it was an offense against the United States “to willfully fail to supply information for the purposes of computation, collection or assessment of any tax imposed by the Act.” Murdock was therefore required to disclose to the Revenue Agent the information requested. The inquiry there was in relation to a matter within the sole jurisdiction of the federal government. The fact that a disclosure of the information might subject the witness to a prosecution under the state law was not a valid excuse. The holding of the Supreme Court in the Murdock case on the point here discussed is epitomized in the third paragraph of the syllabus of that case, which reads: “To justify under the Fifth Amendment a refusal to give information in an investigation under a federal law in respect of a federal matter, the privilege from self-incrimination must be claimed at the time when the information is sought and refused and must be invoked as a protection against federal prosecution; danger and claim that disclosure may lead to prosecution by a State is not enough.”

However, Mr. Justice Butler, who wrote the opinion for a unanimous court, was careful to note that — “The plea does not rest upon any claim that the inquiries were being made to discover evidence of crime against state law. Nothing of state concern was involved. The investigation was under federal law in respect of federal matters.” U. S. v. Murdock, supra, 284 U. S. at page 149, 52 S. Ct. at page 64.

It is not to be assumed that this statement was idly made. Apparently the Supreme Court deemed it important and appropriate to note that the investigation in the Murdock case was under federal law and in respect to a matter solely within the jurisdiction of the federal government.

Such is not the fact here. Matters of “state concern” were embraced within the broad compass of Senate Resolution 202 and “inquiries to discover evidence of crime against state law” were put to the defendant DiCarlo.

Thus the factors which the Supreme Court observed were absent in the Murdock case are present here. Involving as they do, subjects within the exclusive jurisdiction of the states, these factors raise an issue that was not in the Murdock case and as to which the rule therein announced does not apply.

In United States v. Greenberg, supra, the Court of Appeals for the Third Circuit, relying on United States v. Murdock, supra, held that a witness before a federal grand jury was not privileged under the Fifth Amendment to decline to answer questions involving violations of state law. The Green-berg case is distinguishable from the instant case in that there, the inquiries were propounded in the secrecy of a federal grand jury investigation where the danger from disclosure was slight. The situation was’ quite the contrary in the instant case where the witness was called upon in the presence of state law-enforcement officials to make disclosures involving violations of state laws. And it may be assumed that in the charged atmosphere of an open and widely publicized investigation, state officials would not have failed to act upon incriminating disclosures pointing to violations of state law.

United States v. Saline Bank, 1 Pet. 100, 7 L. Ed. 69, illustrates the principle that governs in cases where it is sought through civil proceedings in a federal court to compel disclosures that would subject parties to the action to prosecutions under state law. In that case an action was commenced in the United States District Court for Virginia for discovery and relief. The very brief opinion of Chief Justice Marshall summarizes the facts and states the reasons for the decision. It reads: “This is a bill in equity for a discovery and relief. The defendants set up a plea in bar, alleging that the discovery would subject them to penalties under the statute of Virginia. The court below decided in favor of the validity of the plea and dismissed the bill. It is apparent that in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. The decree of the court below, is, therefore, affirmed.”

Apparently Chief Justice Marshall had no difficulty in concluding that in an action in a federal court involving a state statute, the defendants were protected against disclosures subjecting them to penalties under the state law.

To the same effect, although apparently not necessary to a decision in the case, is the statement of Mr. Justice Holmes in Ballmann v. Fagin, 200 U. S. 186, 195, 26 S. Ct. 212, 213, 50 L. Ed. 433: “As we have said, he set forth that there were many proceedings on foot against him as party to a ‘bucket shop/ and so subject to the criminal law of the state in which the grand jury was sitting. According to United States v. Saline Bank, 1 Pet. 100, 7 L. Ed. 69, he was exonerated from disclosures which would have exposed him to the penalties of the state law.”

Thus, in cases decided before United States v. Murdock, supra, two of the most illustrious jurists ever to sit upon the Supreme Court, speaking for the court, recognized the privilege of the witness and of parties in a federal proceeding, to immunity against disclosures that would expose them to the danger of state prosecutions; and as the only Supreme Court decision relied upon by the government the court made special note of the absence of any matter of “state concern.”

In the Murdock case the court made no reference to United States v. Saline Bank, supra, or to Ballman v. Fagin, supra. Nor did the court repudiate the rule laid down by Chief Justice Marshall in the former or disapprove the dictum of Mr. Justice Holmes in the latter case.

In the light of its facts and the reasoning of the court, the binding effect of the Murdock case cannot be extended to cases where, in the exercise of the overlapping jurisdiction of the federal government, a Congressional committee enters upon investigations of state crimes. But in the search for the principle that ought to govern in such cases, United States v. Saline Bank, supra, may be accepted as a reliable guide.

It is fundamental that all branches of the federal government are by constitutional mandate required to respect the sovereignty and independence of the states. Decisions of the courts demonstrating undeviating adherence to this basic requirement are too numerous and well known to warrant citation. Reference need only be made to the policy of the federal courts in refusing to interfere with the prosecution of crime in the state courts; and of the repeated refusals of the Supreme Court of the United States to disturb convictions under the criminal laws of a state, except where there has been a denial of due process under the Fourteenth Amendment. In applications for writs of habeas corpus involving an interpretation of state statutes it is the policy of the federal courts to accept and apply the construction of those statutes as determined by state courts. Since Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 823, 82 L. Ed. 1188, it has been the law in civil cases where the United States assumes jurisdiction on the ground of diversity of citizenship that the federal courts are required to apply the state law as interpreted by the highest state court. In that celebrated case, Mr. Justice Brandéis declared that in following a contrary policy for many years under the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, the courts of the United States had invaded rights “which in our opinion are reserved by the Constitution to the several states.”

In all such cases within the above and similar categories the judicial branch of the federal government had full jurisdiction to adjudicate the matters in controversy, but was required to and did recognize the controlling effect of state law.

For reasons equally compelling, it would seem that the legislative branch of the federal government, exercising limited jurisdiction merely to investigate violations of state laws, ought to be required to respect and give effect to the constitutions of the several states.

It is true that the first ten Amendments to the United States Constitution operate solely as restraints upon federal powers. But there is a further restraint upon the power of the federal government. It is inherent in the delegation of limited powers under the federal Constitution and the reservation therein of all other powers to the States and to the people. Although Congress may be conceded the power to investigate state crimes in aid of its authority to determine the need of federal legislation under the Commerce clause, it cannot be deemed to possess the power to suspend constitutional rights granted by the states to persons amenable to state laws. Or, as otherwise stated, Congressional power to investigate violations of state laws does not include the power to nullify the state constitutional rights of a witness.

The Constitution of the States of Ohio and New York, in common with those of other States of the Union, contain provisions similar to the Fifth Amendment securing immunity to witnesses against self-incrimination. These constitutonal provisions, together with the Fifth Amendment, represent the purpose of the people of the United States to protect witnesses in criminal cases, in both federal and state jurisdictions, against compulsory self-accusation. The Constitution of each sovereignty operates only within its separate jurisdiction. But this principle does not exempt the federal government, when it assumes limited jurisdiction to investigate matters within the domain of the states, from respecting the state-granted constitutional rights of persons subject to state law. That the United States Senate recognized the absence of federal power to legislate on matters of purely local concern is implicit in the proviso in Senate Resolution 202 against recommendations affecting the gambling laws of the states.

That the Congress, in the exercise of its investigative powers in such matters, is also without authority to override state constitutional provisions, seems indisputable.

The investigation of organized crime by the Special Committee was unprecedented in its scope. Its objectives were to ascertain wherein, in what mann.er, and by whom, violations of federal and state laws were being aided in their accomplishment by operations in, or the use of, the facilities of interstate commerce. In its efforts to accomplish these purposes the Special Committee made many inquiries relating only to violations of state and federal laws and the identity of the offenders. Such questions included no reference to the use of interstate facilities or operations in interstate commerce. In so far as these questions related to violations of state laws, they involved matters exclusively within the jurisdiction of the states. The questions set forth in the indictment are in this category. No branch of the government of the State of Ohio could compel the defendant as a witness to incriminate himself of violations of state laws. Hebebrand v. State, 129 Oh St 574, 2 O. O. 562, 196 N. E. 412. To hold that a Congressional committee may do so would be to invest the committee with plenary powers of inquisition in matters of state concern, unfettered by the constitutional provisions that restrain the power of the state itself. Due respect for the sovereignty and independence of a state in all matters within its reserved powers forbids such a determination.

The foregoing considerations lead inescapably to the conclusion that the defendant is entitled to immunity against disclosures that might incriminate him of violations of state law as well as immunity against self-incrimination of a federal crime. If this conclusion cannot be said to rest upon the principle of state supremacy in the domain of reserved powers, as hereinabove discussed, it finds ample support in the principle that the Fifth Amendment operates as a restraint upon federal officers investigating state crimes.

It does violence to the American concept of constitutional governments in a system of dual sovereignties to suppose that there is an area of overlapping federal jurisdiction in which the federal government is released from constitutional restraints upon governmental power.

The rule that the Fifth Amendment affords protection only against prosecutions of federal offenses was declared in the Murdock case. The language of the opinion in that case impliedly negatives the suggestion that the rule should be thus limited in its application in cases where a federal investigation involves “inquiries to discover evidence of a state crime.” The Murdock case therefore presents no barrier to the extension of the immunity of the Fifth Amendment to witnesses in a Congressional investigation of state crime. United States v. Saline Bank, supra, supports the view that the immunity of the Fifth Amendment may be so extended. While no express reference is made to the Fifth Amendment in that case, the implication is unmistakable that the decision rests upon the authority of the immunity clause of that Amendment. The same is true of the statements of Mr. Justice Holmes in Ballman v. Fagin, supra. The Fifth Amendment operates as a restraint upon federal officers and federal agencies investigating federal matters. No good reason appears why this restraint should be removed in a federally-conducted investigation of state crime.

For the reasons assigned, I am of the opinion that the defendant as a witness was entitled to claim immunity against disclosures that might subject him to prosecutioh under either federal or state laws.

Affirmative answers by the defendant to the first three questions disclosing — that he was in the gambling business in 1946 and 1947 — would not have exposed him to the danger of prosecution under the gambling laws of Ohio. Sec. 13381 GC provides that prosecutions for misdemeanors must be commenced within three years after the offense was committed.

An affirmative answer to the question in count No. 4, however, might well have a different effect. “The last seven years” includes, of course, a period of time less than three years prior to the investigation.

The question in count No. 5 — “Was he ever in any gambling business in Buffalo?” (emph. sup.) — is indefinite as to time. Whether an affirmative answer thereto would have disclosed that the defendant was in the gambling business in New York within the two years covered by the New York statute of limitations is not clear. Section 142 — New York Criminal Code. It might be assumed that this question was related in time to a period prior to 1946. But it was not in terms so limited, and any doubt must be resolved in favor of the defendant. However, it is quite clear that defendant was no ordinary gambler. His record and reputation were such as to make him suspected of more serious violations of state law committed in connection with gambling. Together with others he was suspected of “muscling in” on gamblers and being a member of a ruthless gang of organized criminals reputedly engaged in acts of intimidation, violence, and even murder. In the Third Interim Report of the Special Committee issued under date of May 1, 1951, the defendant and others were described as “muscle men” for a gambling syndicate.

The implications of these questions extended beyond possible violations of the gambling laws. In these circumstances it cannot be said that the defendant was not justified in refusing to answer the foregoing questions.

The question in count No. 6, in which the defendant was asked whom he knew in Youngstown when he went to that city in 1946, was answered in large part by his responses to a long series of questions put to him in relation to the same subject-matter.

The questions in counts 7 and 8 relate to his alleged business dealings with Aiello and Caputo, who were also considered to be “muscle men.” Answer to those questions could well furnish links in the chain of evidence involving the defendant in serious violations of state laws. He was not contumacious in refusing to answer them.

It may be a matter of regret that constitutional rights are most frequently upheld for the benefit of those least deserving of their protection. But constitutional rights are not dispensations granted only to the virtuous and the good. They are fundamental rights possessed by all. They afford protection to the law violator as well as to the law-abiding citizen. If at times the premium paid to preserve constitutional guaranties seems high, it is to be remembered that the Bill of Rights is the individual’s insurance against arbitrary encroachments of government.

The defendant is adjudged not guilty on all counts of the indictment.


source: Caselaw Access Project

author: By BADER, J.

license: Public Domain

text:
    WELLS v. CITY OF NORWOOD et al.
    Common Pleas Court, Hamilton County.
    No. A-126133.
    Decided September 21, 1951.

      Julius R. Samuels, Cincinnati, for plaintiff.
    Joseph W. Shea, Jr., City Sol., Norwood, for defendants.
   OPINION

By BADER, J.

This case is before the Court on the motion of the defendant for a judgment on the pleadings.

The plaintiff in his petition sets forth the necessary preliminary allegations to institute a taxpayers’ suit.

The plaintiff further alleges that the Director of Public Service and Safety acting under authority of a certain ordinance, No. 27-1948, issued licenses for hundreds of “pinball machines” which are “operated by the insertion of a coin disc or other similar metal, which registers or may register a score after the insertion of such disc, coin or other metal, which machines are adapted for, can be and are being used as gambling devices for gambling purposes.”

The plaintiff further alleges that the City of Norwood has expended large sums of money for clerical help, etc. and will continue to make such expenditures unless the defendants are restrained “from further operation and enforcement of the ordinance aforesaid.” •

The plaintiff further says that the defendants are licensing gambling devices within the meaning of §§13056 and 13066 GC, and that the ordinance is contrary to the Constitution of the State of Ohio, and that the City of Norwood is acting beyond its powers as a municipality; and that the entire ordinance, and particularly that part thereof which has to do with the licensing of the machines, is' invalid, void and of no effect.

Plaintiff says that he has no adequate remedy at law.

The plaintiff then prays: “* * * that the defendants and each of them be restrained from issuing any further licenses in pursuance of said ordinance; from spending any public money, directly or indirectly, for the issuance of licenses, the keeping of books, records, clerical help, inspectors, in the enforcement of said ordinance; that said ordinance be declared to be void, illegal and of no force or effect; that all licenses heretofore granted and now outstanding under said ordinance be cancelled and be declared null and void and for all other relief to which plaintiff may be entitled in the premises, * * *”

The defendant, the City of Norwood, filed an answer wherein it admits the preliminary allegations in plaintiff’s petition, and that the Norwood City Council on June 8, 1948, enacted Ordinance No. 27-1948 which provided for the licensing and regulating of “pin ball machines” and sets forth the ordinance verbatim.

The defendant further admits the plaintiff is a taxpayer, and the Director of Public Service issued some licenses for the operation of certain mechanical devices known as pin ball machines; that all licenses were issued for pin ball machines used by the public for amusement purposes pursuant to the terms of the ordinance.

The plaintiff filed his reply denying each and every allegation in defendants’ answer not in plaintiff’s petition contained.

In the case of Hummel v. Columbus Baseball Club, 71 Oh Ap p. 321, the Court said on page 328, 49 N. E. 2d 773, at page 776: “A motion by defendant for a directed verdict, made at the close of the plaintiff’s evidence, raises a question as to the legal sufficiency of the evidence adduced to go to the jury, and should be overruled if the evidence is such that reasonable minds may differ as to the inference to be drawn therefrom. The same rule is applicable when a motion is interposed for a judgment upon the pleadings.”

The pertinent parts of Ordinance No. 27-1948 of the City of Norwood which the plaintiff seeks to have declared to be “void, illegal and of no force and of no effect” as well as unconstitutional, reads as follows:

Section I. Pin Ball and Similar Amusement Machines.

“No person, firm or corporation shall engage in the business of selling, leasing, renting, operating or exhibiting pin ball machines, without first obtaining a license to do so, and conforming to the regulations of this ordinance, nor shall any person, firm, or corporation who owns any pin ball machines permit said machines to be sold, distributed, leased, rented, operated or exhibited without first obtaining a license to do so and conforming to the regulations applying to owners engaged in such business.

“Section II. Definitions. For the purpose of this ordinance the terms defined in the following sub-sections shall have the meaning therein assigned.

“(a) ‘Pin Ball Machine’ shall include bagatelles, marble machines, and any similar amusement devices operated by the insertion of a coin, disc, or other insertion piece, and which register or may register a score after the insertion of such coin, disc, or other insertion piece; it shall not include coin operated vending machines, music machines, motion picture machines, or machines or devices used bona fide and solely for the vending of service, food or merchandise.

“Section VI. Mechanical Requirements.

“No license shall be issued for any pin ball machine which is so constructed as to make possible, either directly, or by the use of an adjustment the return of cash, tickets, discs or other tokens, or certificates of any kind to a player operating the same whether or not such tokens or certificates have a value of any kind, or authorize further playing or- other privileges. Only machines operated exclusively for amusement provided by the operation thereof shall be licensed.

“Section XIII. Revocation of Licenses.

“Should any owner, distributor, or exhibitor violate or fail to comply with any of the provisions of this Ordinance, it shall be the duty of the Director of Service-Safety to revoke his licenses.

“Section XIV. Seizure and Destruction of Pin Ball Machines.

“Nothing herein contained shall -be construed as limiting or impairing the authority to seize and. destroy ány pin ball machine which is used or operated as a gambling device contrary to the laws of the State of Ohio, or the Ordinances of the City of Norwood. Any such machine so used, or operated may, in the discretion of the Director of Public Service-Safety, or the Chief of Police of the City of Norwood, be seized and destroyed as in the case of gaming devices.”

Sec. 13056 GC reads as follows: “Permitting gaming upon

device for gain in house, etc. Whoever permits a game to be played for gain upon or by means of a device or machine in his house or in an outhouse, booth, arbor or erection of which he has the care or possession, shall be fined not less than fifty dollars nor more than two hundred dollars.”

Sec. 13066 GC reads as follows: “Exhibiting gaming device for gain. Whoever keeps or exhibits for gain or to win or gain money or other property, a gambling table, or faro or. keno bank, or a gambling device or machine, or keeps or exhibits a billiard table for the purpose of gambling or allows it to be so used, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behavior for one year.”

Article XVIII, Section 3 of the Constitution of the State of Ohio reads as follows: “(Powers.) Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

The plaintiff in this case asks that the ordinance in question be declared void, illegal, of no force and effect because it is contrary to the general laws and the Constitution of the State of Ohio.

The question before the Court is not whether or not gambling has taken place with “pin ball machines” which have been licensed but whether or not the ordinance which provides for the license is in violation of the general laws of the State of Ohio and is therefore void.

Section I of the ordinance in question provides for the license for operating and exhibiting “pin ball machines” without first obtaining a license to do so.

' Section II (a) defines a “pin ball machine” as an amusement device which registers or may register a score after the insertion of a coin, disc or other insertion piece.

Section VI provides that no license shall be issued for any “pin ball machine” which is so constructed as to make possible,either directly, or by the use of an adjustment the return of cash, tickets or other tokens or certificates of any kind to a player whether such tokens or certificates have a value of any kind or not, or authorize further playing or other privileges. “Only machines operated exclusively for amusement provided by the operation thereof shall be licensed.”

Section XIII provides for the revocation of the license if the exhibitor or distributor violates any of the provisions of this ordinance.

Section XIV provides for the seizure and destruction of pin ball machines as in the case of gaming devices if the machine is used as a gambling device contrary to laws of the State of Ohio.

There can be no question that a municipality has the right to pass ordinances to provide for the health, morals, peace and welfare of the community provided they are not unreasonable, do not interfere with private constitutional rights or are in violation of the State Laws. Froelich v. City of Cleveland, 99 Oh St 376, Syl. 3, 124 N. E. 212; Village of Struthers v. Sokol, 108 Oh St 263, Syl. 1 and 2, 140 N. E. 519; City of Youngstown v. Sandela, 108 Oh St 263, Syl. 1 and 2, 140 N. E. 519; City of Youngstown v. Evans, 121 Oh St 342, Syl. 1, 168 N. E. 844.

Gambling is entering into a game of chance where one plays for money or other property of value or he may or may not receive some additional benefits. The Court, in the case of Snyder v. City of Alliance, held that “amusement is a thing of value.” See 41 Oh Ap 48, 179 N. E. 426, 428.

“ ‘A gambling device’ is an instrument or machine which permits one to play so that he may win or lose money or other property of value.” See Gevaras v. City of Cleveland, 1 Ohio Supp. 144, 145.

The petition asks that the ordinance be declared null and void and that the defendants be restrained from issuing any further licenses and from spending public funds therefor, and from the enforcement of the ordinance. Before this can be done the ordinance must be in violation of the general laws or the Constitution of the State of Ohio.

The ordinance specifically provides that no license shall be issued for any pin ball device which returns discs, tokens or other certificates of any kind to the player or authorize further playing or other privileges and that only machines operated exclusively for amusement shall be licensed.

It would naturally follow then that any license issued for a machine which returns anything of value by way of tokens, discs or money would be contrary to the ordinance and the operation of such a machine would be contrary to the laws of the State of Ohio and subject to the penalties assessed thereby.

Can it be said that a machine constructed solely for amusement without provision made for the return of additional money, discs or anything of value is in itself a gambling device?

Of course such 'an instrument could be used for gambling in the same manner as any other article which is not intended for gambling purposes, which could include gum vending machines which contain different colored gum balls. There is nothing to prevent individuals from wagering on what colored gum ball would be delivered when a coin is inserted.

In the same manner a “pin ball machine” which is not constructed for gambling purposes could be used in this manner between individuals who would wager on the high score. There could, of course, be some understanding between the operator or owner of the machine to pay certain sums if a certain score is reached. These instances cited would be a violation and punishable under the gambling laws of our State if the facts could be proven.

In the case at bar, however, the Court is not called upon to determine whether gambling has existed or if there has been a violation of the law. It is called upon solely to determine if the ordinance is contrary to the general laws of the State or its Constitution.

The ordinances in question do not license “pin ball machines” which return anything of value. It licenses “pin ball machines” which are used for the purposes of amusement. Can it be said that any toy or machine which is constructed for amusement only, but which could be used by individuals for gambling purposes, is a gambling device per se?

It is the opinion of the Court that a “pin ball machine” which is not constructed in such a manner as to provide for the return of something of value is not a gambling device per se, and that the licensing of such machines is not contrary to the laws or the Constitution of the State of Ohio.

Accordingly, the Court is of the opinion that Ordinance No. 27-1948 of the City of Norwood is not contrary to the laws or the Constitution of the State of Ohio and is a good and valid ordinance; that the pleadings are such that evidence is not necessary to determine the issues, and that reasonable minds would not differ as to the conclusion to be drawn therefrom; that the motion for a judgment on the pleadings is well taken and should be .granted and judgment entered in favor of the defendants.


author: By THE COURT.

text:
    TYACK, Admr., Plaintiff-Appellant, v. TIPTON, Defendant-Appellee, and REESE et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4533.
    Decided January 16, 1951.
    George E. Tyack, Columbus, for plaintiff-appellant.
    Orville R. Carson, Columbus, for Oscar U. Tipton, defendantappellee.
    Irving M. Gertner, Columbus, for Mildred P. Reese and Otilda S. DeAtley, defendants-appellants.
   OPINION

By THE COURT.

This is a demurrer to the appeal filed by Oscar U. Tipton, Appellee, for the following reasons:

1. Misjoinder of party appellants.

2. Defendants-appellants, Mildred Pauline Reese and Otilda Susan DeAtley, are estopped from appealing.

3. Plaintiff-appellant, lacks an interest, and capacity to sue, appeal.

The record reveals that the action was instituted in the Probate Court seeking a construction of §10503-17 and §10509-54 GC.

The appeal is designated as one on law and fact, but since this is not a chancery case this Court has no jurisdiction to entertain such an appeal. The Court on its own motion will dismiss the law and fact appeal but will' order the same retained for determination on questions of law only as provided by §12223-22 GC. Since we know of no authority for filing a demurrer in such an appeal we shall treat the same as a motion for the purpose of determining whether the appeal has been properly perfected.

The record discloses that the motion for a new trial was overruled on October 30, 1950, and notice of appeal was filed on November 8, 1950, by George E. Tyack, Administrator, Mildred P. Reese and Otilda S. DeAtley. As the notice of appeal was timely filed all of these appellants are properly before the Court. All errors assigned will be passed upon after the case has been duly presented. The appellants will be granted leave to perfect the appeal on questions of law in accordance with Supplement to Rule VII of this Court.

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


author: By CRAME'R, J.

text:
    TERMUHLEN v. SCHAFFER.
    Common Pleas Court, Butler County.
    No. 67864.
    Decided April 21, 1952.

      Harry T. Wilks, Hamilton, for plaintiff.
    Lindhorst & Dreidame, Cincinnati, for defendant.
   OPINION

By CRAME'R, J.

This cause is before the court upon the demurrer of the defendant to plaintiff’s petition.

The ground of the demurrer is that the petition does not state facts constituting a cause of action.

The petition sets up two causes of action. In the first plaintiff seeks to recover for damages caused to his truck when struck by the tractor-trailer truck of the defendant; and in the second he seeks to recover damages for personal injury as a result of said collision.

The petition alleges that the plaintiff was operating his truck southwardly on U. S. Route 25 about two miles outside of West Chester, Butler County, Ohio. That the defendant’s tractor-trailer truck being driven by an employee of his was likewise traveling southwardly on U. S. 25, approximately two miles outside of West Chester, Ohio.

The petition then recites as follows:

“That plaintiff, as he approached George Michael’s lane, began to turn his vehicle west into the lane when he was struck by the defendant’s truck from the rear, causing damage to plaintiff’s vehicle in and about the entire rear portion of said vehicle. * * *”

The second cause of action incorporates the allegations of the first by reference and then appears the following:

“That as a proximate result of the negligence of defendant as aforesaid, plaintiff sustained contusions and bruises * *

The defendant asserts that the demurrer is well taken since there is a complete absence of any allegations of negligence on the part of the defendant. It is further claimed that no facts are set forth which would constitute negligent conduct on the part of the defendant.

This claim of the defendant is, of course, true.

It is essential that the petition allege facts, which, if proven, will constitute a cause of action. The facts constituting the negligence complained of must be set forth so that the ultimate fact of negligence appears from the pleading. See Vol. 29, O. Jur., pages 606-607.

The plaintiff apparently is not claiming that the petition is sufficient by reason of the doctrine of res ipsa loquitur. However, we will determine the sufficiency of this petition with that rule in mind.

In the case of Halterman v. Hansard, 4 Oh Ap 268, 22 Ohio Cir. Ct., N. S., 443, it was held that in an action calling for the application of the doctrine of res ipsa loquitur that it is sufficient for the plaintiff, to plead facts causing the injury and damage, without alleging that the injury was caused by the negligence of the defendant. See also Fineberg v. Lincoln-Phelps Apartment Co., 55 Oh Ap 402, 9 N. E. 2d 1011: Volume 29, O. Jur., Section 144, 617; Scovanner v. Toelke, 119 Oh St 256, 163 N. E. 493; Beeler v. Ponting, 116 Oh St 432, 166 N. E. 599.

The Scovanner and Beeler cases both hold that it is not necessary to plead res ipsa loquitur.

The doctrine of res ipsa loquitur is founded on the absence of specific proof of acts or omissions constituting negligence. See Rospert v. Old Fort Mills, 81 Oh Ap 241, 78 N. E. 2d 909, and the cases therein cited.

That being true, the absence from the petition of allegations of specific acts of negligence does not make that pleading demurrable.

Our next inquiry is whether the facts set forth in this petition are such as to call for the application of the res ipsa loquitur rule.

It has been asserted by the courts that the doctrine of res ipsa loquitur is one of evidence, and not of substantive law. That it is a common sense appraisal of the probative value of circumstantial evidence.

Where the instrumentality or thing which caused the injury complained of is shown to be under the management and control of a defendant, and the accident is such as in the ordinary course of events does not happen if proper management and control is exercised, it affords reasonable evidence, in the absence of explanation by such defendant, that the accident arose from want of care and permits the inference of negligence. See 29 O. Jur., 631; Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 57 L. Ed. 815; Weller v. Worstall, 129 Oh St 596, 196 N. E. 637; Fink v. Railroad, 144 Oh St 1, 56 N. E. 2d 456; Glowacki v. N. W. Ohio Ry. & Power Co., 116 Oh St 451, 157 N. E. 21, 53 A. L. R. 1486.

The petition discloses that the instrumentality which plaintiff claims caused him injury and damages, namely, the truck and tractor of the defendant, was under his exclusive management and control. Do the facts plead show that the accident occurred “under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed?” We do not believe so.

We base our belief upon the fact that the plaintiff alleges that the defendant’s truck and trailer struck his truck in the rear thereof as the plaintiff began to “turn his vehicle west into the lane.” In other words, plaintiff says that he was in the act of making a right turn when he was so struck by the defendant’s vehicle. In our opinion an inierence of negligence on the part of the defendant cannot be made under such circumstances.

It does not follow that this collision would not have occurred if ordinary care had been observed by the defendant. It is just as readily inferable that the vehicles collided as the result of plaintiff, in the act of making a right turn, putting his vehicle into the path of the defendant. The defendant, traveling southwardly on this road, rightfully belonged upon the side west of the center. It is likewise inferable from the factual situation shown in the petition, that plaintiff was negligent in making such turn. All of which, we Delieve, precludes the application of the doctrine of res ipsa loquitur since a necessary element is absent. That element being that in the ordinary course of events this collision would not have occurred had due care been observed by the defendant.

Furthermore, we should apply the principle that if two reasonable inferences are deducible from the same facts, one of which comports with defendant’s responsibility, and the other is contra thereto, neither should be indulged to permit recovery by use of the doctrine of res ipsa loquitur. See Farina v. First Nat. Bank, 72 Oh Ap 109, 51 N. E. 2d 36, 169 A. L. R. 1341.

We therefore find that the demurrer is well taken since plaintiff’s petition fails to set forth facts constituting a cause of action against this defendant.


author: By THOMPSON, J:

text:
    RITTER et, Plaintiffs-Appellants, v. BAKER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22316.
    Decided December 31, 1951.
    Kitchen & Messner, Geo. W. Leyshon, of counsel, Cleveland, for plaintiffs-appellants.
    Spieth, Spring & Bell, Richard D. Bovington, of counsel, Cleveland, for defendant-appellee.
   OPINION

By THOMPSON, J:

•This case is an appeal to this Court on questions of law from a decision of the Common Pleas Court of Cuyahoga County, tried without a jury.

A petition was filed in the Common Pleas Court by two grandchildren of one Mrs. Lohman, a widow, who was 73 years of age at the time of her death on Dec. 9. 1947. These two grandchildren were children of a predeceased child of Mrs. Lohman by her first marriage. Plaintiffs together with two surviving children of decedent, one by the first marriage, Nellie Kuchle, the other James Lohman, an adopted child of the second marriage, are heirs who would share any estate of which Mrs. Lohman died intestate. The sole defendant in the case is one Joseph Baker. The day before her death, which was Monday, Dec. 8th, Mrs. Lohman executed a deed conveying to Baker the dwelling located at 5753 Bavaria Avenue, Parma, where she had lived since 1944. The petition comprising four causes of action sought the aid of equity in cancelling the deed to the defendant.

The first cause of action charged that the deed was procured by defendant from Mrs. Lohman while she was in an unconscious condition and without mental capacity. The second cause of action alleged undue influence in obtaining the signature of the deceased to the deed in question. The third cause of action asserted failure of delivery. The fourth cause of action alleged that defendant, Baker, together with the two surviving children of Mrs. Lohman, namely, Nellie Kuchle and James Lohman, conspired to obtain the signature of Mrs. Lohman to the real property and to obtain a transfer of the home into the name of defendant, in order to defraud plaintiffs of their rightful interest in said property as heirs. The prayer of the petition was for cancellation of the deed and for an accounting.

The amended answer of the defendant denied the various allegations of the petition, and stated that during the month of October, 1944, he and the decedent widow, who was then advanced in age, entered into an agreement, the substance of which was that the defendant and the decedent would purchase the premises described in the petition, for the sum of $6900.00; that decedent would furnish $3000.00 and the defendant $3900.00, and that the defendant, in connection with the purchase, would furnish such additional sums as should prove necessary to- repair and improve the dwelling and also such sums as might be necessary to the decedent for her future support. Decedent was to have a life interest in the premises and after her death the premises were to belong to the defendant absolutely and in fee simple.

Defendant in his answer then alleged the acquisition of the property on the terms outlined and asserted that in fulfillment of his obligations under the agreement he had invested in the premises, by way of improvements, additional amounts approximating $8000.00 and had also furnished decedent during her lifetime such sums as were necessary for her support.

The charges in this case of fraud, undue influence and conspiracy are serious. The trial court, after hearing them, rendered judgment for defendant. Various assignments of error have been filed in this Court. We have examined each oí these assignments of error and find no error on the part of the trial court prejudicial to plaintiff in its rulings with reference to admission and exclusion of testimony. We shall address ourselves to the alleged assignment of error that the judgment of the trial court was against the manifest 'weight of the evidence.

There is no direct testimony to the character of Mrs. Lohman, but her actions speak eloquently. They express her unselfishness to her children, her independence and her sense of right. Having brought up two children, off-spring of her first marriage, she legally adopted her grandson, Robert Ritter, one of the plaintiffs herein and took care of him in her home from the time that he was six years of age. He continued to reside with her until his marriage in 1946. When her second marriage was not blessed by children, she and her second husband, Fred Lohman, legally adopted a child, James Lohman. She, therefore, had two children of her own and adopted two more, educating and making a home for them until their marriage. She never pushed any of her children out of the nest and she never asked anything of them. There is no testimony in the record that plaintiff, Ritter, or any other of her children, contributed to her support during her lifetime. As to whether she inherited anything from either husband is not clear and no assets of hers are disclosed, other than her interest in the dwelling house here in question.

Subsequent to the death of Mr. Lohman in 1942, Mrs. Lohman apparently managed for herself as her children left the home, one by one, to marry. She accomplished this by taking one or two boarders to help her maintain her overhead expenses. The witness, Mrs. Kretz and her husband came to board with Mrs. Lohman in May, 1947, and resided with her until her death. Joseph Baker, a young man had boarded at the Lohman house since 1937, that is, prior to Mr. Lohman’s death in 1942, and he continued on as a boarder at the original residence where the Lohmans were renting.

In 1944, Mrs. Lohman was obliged to vacate the residence in which she and her husband had lived and was forced to find another home. She looked in vain. Baker then interested himself in helping her to locate a house, and finally found one on Bavaria Avenue, the present homestead. The price was apparently more than Mrs. Lohman was able to pay. Since Baker also wanted a home, the two agreed that she would put up what money she could, i. e., $3000.00, and he agreed to put up the balance of $3900.00. Neither gave thought to the wisdom of having the title reflect their true interests and when the deed came, the record title was shown to be in Mrs. Lohman’s name alone. There is no evidence that this was of concern to Baker, but Mrs. Lohman commented to her daughter on the fact that she intended to correct matters. Mrs. Kuchle testified that her mother alluded to the mistake in title, not only when she received the deed, but on numerous other occasions and on December 7th, while ill in bed. her mother asked Mrs. Kuchle to see that the title was straightened out immediately by the family attorney, Mr. Farnsworth.

The record shows that the plaintiff, Ritter, and his wife, stopped at Mrs. Lohman’s home on Saturday afternoon, Dec. 6th, at which time the latter was downstairs lying on the davenport, obviously unwell. They stayed a couple of hours and sat with her, but did not carry on much conversation. They returned on Sunday evening and found her in bed upstairs. Again there was little, if any, conversation. The plaintiff, Ritter, was not at the house again until after her death. Witnesses as to Mrs. Lohman’s condition on Sunday were her daughter, her daughter-in-law, Mrs. Jeannette Lohman, Baker, and Mrs. Kretz. That afternoon the invalid expressed to the husband‘of Mrs. Kretz the belief that she had not long to live. Testimony concerning circumstances of the execution of the deed on Monday morning, December 8th, was by Mrs. Kuchle, Mrs. Kretz, Baker, and Attorney Farnsworth. The lawyer told of preparing the deed at his office as result of instructions of Mrs. Kuchle, accompanied by Baker. Mrs. Kuchle’s testimony concurred with the lawyer’s that while the others waited outside, she preceded them into Mrs. Lohman’s room. The daughter said that she tidied up Mrs. Lohman and brushed her hair and quoted her mother as saying, “I must look a mess.” The attorney, Mrs. Kuchle and Baker told of the execution of the deed. When Mr. Farnsworth explained the details and asked Mrs. Lohman if she understood, the latter replied, “Ah ha.” That she was too weak to execute her signature and that the lawyer guided her hand, is, of course, immaterial, if the testimony indicates that she comprehended and wanted the execution of the deed she ordered prepared. That there was testimony to that effect, sufficient to warrant the judgment of the trial court, seems to us clear.

It is apparent that Mrs. Lohman grew rapidly worse between Saturday when she was stricken, and Tuesday when she died, but the evidence not only of the execution of the deed but of the circumstances, immediately prior and subsequent thereto, show her not only conscious but determined to carry out the purpose shown in the testimony. The testimony of the daughter-in-law was to the effect that at two or two-thirty Sunday morning, Mrs. Lohman went to the adjoining bathroom unassisted and fell while there. Even on Monday, after execution of the deed, the testimony of the daughter-in-law was that Mrs. Lohman was able to leave her bed with assistance.

It is to be borne in mind that Mrs. Kuchle, like plaintiff, was an heir in case Mrs. Lohman died intestate, leaving assets, and the daughter-in-law would, through her husband, also profit under such circumstances. So far as they were concerned, the testimony, both of the daughter and the daughter-in-law as to Mrs. Lohman’s ability to execute the deed, was therefore against interest and their testimony was sufficient to warrant the trial court in deciding the case in favor of the défendant. Weighing the evidence as we have, we cannot find that the conclusion of the trial court was against the weight of the evidence.

This disposes of the first cause of action and as to the other causes of action, involving fraud, undue influence and conspiracy, we find no evidence whatsoever to substantiate these claims of plaintiffs.

With further reference to the execution of the deed by Mrs. Lohman, her desire to do so, and her impelling motive, are clearly explained by the evidence. From the time that she and Baker purchased the home in 1944, the latter, according to the uncontradicted testimony, scrupulously carried out all the terms of his agreement. His daily expense books, his can-celled checks, many of which were introduced in evidence, his letters to Mrs. Lohman, eight of which are in the bill of exceptions, show a most faithful and punctilious performance on his part. Laconic, as his letters and testimony show he was as solicitious for the welfare of Mrs. Lohman as the most devoted son of any mother. From the time of purchase of the house in 1944, he paid all taxes, all utility bills, all repairs and improvements. In his testimony he declared, “Every time I came home, if I found any bills on the dining room table, I paid them. I asked no questions.” (Record, page 202.) True, this was only in line with his agreement, but his fidelity is impressive.

Another part of his agreement was to support Mrs. Lohman in her latter years and in this, likewise, he was faithful to his agreement and beyond that called for by its strict interpretation. Mrs. Lohman loved plants; he built a conservatory for her. She was found of birds; he bought her bird cages. She wanted to have chickens; he purchased fifty and built a hen house and even subscribed to a poultry journal for her. She loved music and he bought her a player and records. On his travels, which required long absences, he kept her supplied with funds. On Sept. 7, 1945, he wrote to her: “In my hurry to leave, I left the bill for the linoleum on my writing desk, at least I think I did because I cannot find it anywhere with me. But here is two checks, one for $100.50, and the other for $42.14.” On Oct. 4th of the same year he wrote: “Take it easy and don’t work too hard. Here are two checks, one for $67.00 and the other for $49.39.” Bight days later he wrote: “Hope this note finds you well * * * Here is two more checks for you, one for $59.05 and the other for $53.88.” On July 6, 1946, he sent a letter enclosing a check for $64.82 and promised he would send another check within a week or so.

On Sept. 3, 1946 he wrote: “Here is that check as promised for last week, $66.83.” On Sept. 21st a letter stated:' “You will find the pictures and two sets of prints in with this letter and also a cheek for $67.10 * * *. Will send you another check next week.” On Dec. 16th of the same year he wrote to her: “Here is check as promised. It is for $64.00, and I am sorry I could not send one sooner.” On Oct. 2, 1947, he wrote, declaring: “Here are the four checks. They total $324.89. Should cover painting and leave some for you. Don’t bank any of it but keep it for expenses around the house.”

Baker earned $1.90 an hour as travelling service man. On that salary it is remarkable that he was able to save and turn over to Mrs. Lohman for herself and the home a total of $7873.09, as shown by the record, between 1942 and 1947. He testified that he did not keep account of every item spent and we do not doubt that the items totalled more, in view of the thoughtfulness and loyalty of this young man who so admirably met his agreements above and beyond the requirements of duty. There are many Joe Bakers in this world, but this one who has come within the recent range of our observation seems to us to merit a court award of the year.

We have recited the facts in some detail because there was no opinion by the trial court, and because of the claim of appellants that the judgment of the trial court was against the weight of the evidence, and we wish no mistake about the grounds of our decision.

As stated, we have examined the other assignments of error and find no prejudicial error on the part of the trial court.

The judgment is affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.