text:
    STATE, Plaintiff-Appellee, v. SCRUGGS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4408, 4409.
    Decided September 21, 1950.
    Richard W. Gordon, City Atty., Glenn E. Kemp, Police Prosecutor, Columbus, for plaintiff-appellee.
    Howard Gillard, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a criminal action in which the defendant is charged with.

(1) The illegal sale of intoxicating liquor, to wit, wine.
(2) Keeping a place where intoxicating liquor was sold, to wit, wine.

The two cases were tried'together. The question presented was whether the evidence was sufficient to warrant a conviction. It is the appellant’s contention that the State failed in- its proof to establish that the exhibit offered contained intoxicating liquor.

The record discloses that the bottle of wine alleged to have been purchased from the defendant was identified by the State’s witness and offered in evidence as “State’s Exhibit A.” The label on it reads: “California Port Wine, 20 per cent by volume.” Seven other similar bottles were found on the premises when a search was made. The record discloses further that the defendant took the stand in his own behalf and at page 17 of the record in response to question No. 128, he said, among other things,

“And when I opened the door he pulls out this bottle of wine” (meaning State’s Exhibit A), “and he says some man had bought the wine from me.”
“Q. 135. Do you always keep wine in your place? A. Oh, yes; I usually buy it by the carton.
“Q. 136. How long had you had that wine? A. Oh, about a week.
“Q. 137. Where did you get it? A. I bought it at a wine store down on Main Street; I drink it.”

Wine is defined in §6064-1 GC as,

“* * * all intoxicating liquor containing not less than seven per centum of alcohol by weight and not more than 21 per centum of alcohol by volume, * *

After giving careful consideration to the exhibits offered in evidence and to the admissions made by the defendant we are of the opinion that the evidence was sufficient to warrant a conviction in each case. The judgment will be affirmed.

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


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    COLUMBUS (City), Plaintiff-Appellee, v. DOUGLAS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4360.
    Decided February 23, 1950.
    Richard W. Gordon, City Atty., Glenn E. Kemp, Asst. City Atty., Columbus, for plaintiff-appellee.
    Irving M. Gertner, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The defendant was charged with and convicted of the violation of Section 1089-1 of the ordinances of the City of Columbus in that he unlawfully had in his possession memorandum slips of a number of shares in a scheme of chance.

It developed that the 'officers, upon entering the place of business of the defendant, found two books used for number writing. One of these books was found in the back room of the establishment under a table, the other underneath candy boxes in a candy case in the front of the smokeshop. An employee admitted that he owned the book found in the candy case and pleaded guilty to its possession. The defendant entered a plea of not guilty, went to trial and testified. He admitted that his place of business was used generally for the sale of numbers, that it was a place .where pick-up men selling numbers met to turn over their sales to a collector, that he had been arrested and convicted many times of gambling and at least twice of writing numbers, and it further appeared that he was the owner, operator and in active charge of the place of business where the number slips were found and that he had but one employee. The candy case was in the front room regularly used in the operation of the business.

From all the facts and circumstances appearing, the trial judge was well within his province in drawing the inference either that the defendant was the active agent in the possession of the book for the purpose of sales of number slips and that the employee was but a cover-up for the defendant, or that the defendant acquiesced' in and-consented to the possession of the book by the employee. In the latter situation, the defendant was clearly an aider and abettor and could properly be found guilty and punished as a principal offender.

It is urged that the fact that the employee had entered a plea of guilty to the possession of one of the numbers books should have operated to absolve the defendant. This, of course, does not follow. It is also claimed that the court erred in admitting certain testimony of the defendant in response to this question: “Do you know, isn’t that a turn-in station there for numbers?” The answer at that juncture was not incriminating. It was, “All I see there is pop and candy, and pop, pop and candy and shoe shine.” It was in the cross-examination mf the defendant that he admitted that his smokeshop was a pick-up place for fellows selling numbers. That testimony was clearly competent as showing the general character of his place of business as it reflected upon one of the material elements of the offense charged, namely, his possession of the numbers slips.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By PHILLIPS, PJ.

text:
    STATE, Plaintiff-Appellee, v. FARLEY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Lake County.
    No. 486.
    Decided September 21, 1950.
    Thomas H. Blakely, Pros. Atty., Oliver R. Marshall, Asst. Pros. Atty., Painesville, for plaintiff-appellee.
    Richard J. Moriarty, Cleveland, Earl C. Pettersson, Painesville, i'or defendant-appellant.
   OPINION

By PHILLIPS, PJ.

John L. Kocevar, an inspector of the Enforcement Division of the Ohio State Liquor Department, filed an affidavit in the Municipal Court of Painesville, Ohio, charging, in case numbered 11101 on the docket thereof, that defendant-appellant, designated defendant in this opinion, “on or about the 9th day of July, 1949, at the Mounds Club, Chardon Road, in the County of Lake aforesaid, in the Township of Willoughby, Ohio-, * * * did unlawfully keep a place where intoxicating liquors, to-wit: Rum and Cognac were then and there furnished by the said Thomas Farley in violation of §13195 GC, and against the peace and dignity of the State of Ohio.”

The jury found defendant guilty as charged in such affidavit, and the trial judge entered judgment of conviction and sentence thereon, and overruled defendant’s motion for a new trial.

By amended notice of appeal defendant appealed on questions of law from the judgment and order of the trial court “overruling defendant’s motion for a new trial and imposing sentence upon said defendant.”

By assigned grounds of error defendant contends that the trial judge erred to his prejudice in the admission of evidence over his objection; “in permitting the introduction of evidence objected to by the appellant; in not granting appellant’s motion for a directed verdict at the end of appellee’s testimony; in not sustaining the motion for a directed verdict for the reason that appellant' was twice placed in jeopardy for the same offense; and in hot directing a verdict for appellant at the close of all the testimony.” Further, by assignment of errors, defendant urges that he was prevented from having a fair and impartial trial by reason of “misconduct on the part of the attorney for the state”; that the court erred “in his instructions to the jury at the time said jury requested further instruction,” and “in his charge to the jury” made at the close of all the evidence; that he was prevented from having a fair and impartial trial by reason of -“irregularity in the proceedings of the jury”; that “the verdict is not sustained by sufficient evidence” and “is contrary to law” and the “evidence”; that errors of law occurred “at the trial prejudicial to this appellant”; and that there are “other errors apparent on the face of the record prejudicial to the appellant and by reason of which the appellant was prevented from having a fair trial.”

Counsel for defendant argued orally or by brief only three of these assignments of error. However, in this opinion, we will dispose of all grounds of error assigned by defendant’s counsel.

About 11:15 P. M. on July 19, 1949, agents of the Enforcement Division of the Board of Liquor Control, armed with a search warrant, entered the grounds of the Mounds Club, a private club chartered as such in January 1932, of which defendant was manager. After being barred from entering such club building for about fifteen minutes, during which time they heard the sound of breaking glass, such officers were admitted. After an exhaustive search of the club, during which approximately 700 persons were present, such officers found shot glasses, old fashioned glasses, water glasses, olives, cherries, lemon juice, grenadine, stirrers, pourers, mixers, and paraphernalia used in the mixing of various drinks, whiskey bottle corks, broken whiskey glasses; and on the back cocktail bar adjacent to the kitchen a bottle of cognac, and a bottle of' rum approximately three quarters full; and sixteen bottles of wines iñ a locker in the basement of the club. The officers seized the foregoing, and then took defendant into custody.

Subsequently defendant was charged, tried, and found not guilty in' the trial court of unlawfully having in his possession for sale intoxicating liquors, namely rúm and cognac in violation of §6064-54 GC.

In order to understand the questions presented for our consideration and determination it is not necessary to refer to the evidence further than to say that the state contended, and introduced evidence to support its contention, that defendant had such intoxicating liquors in his possession for the purpose for which he was charged in the affidavit partially quoted supra and tried subsequently. Defendant contended, and introduced evidence to support his contention, that such liquors were in his possession for the sole purpose of use in the kitchen in the preparation of such delicacies as “Baked Alaska” and “Cherry Jubilee”; that the club had surrendered its license to sell intoxicating liquors and merely furnished non-intoxicating “set ups” for its members, who furnished and brought their own liquors to the club; and that the identical evidence was introduced upon the trial of the charge of which defendant was acquitted and the charge upon which he was convicted.

As stated in the factual statement of this opinion, defendant was acquitted of the charge lodged against him of having unlawfully in his possession for sale intoxicating liquors, namely rum and cognac, in violation of the provisions of §6064-54 GC, and found guilty later of the charge of unlawfully keeping a place where intoxicating liquors were furnished in violation of §13195 GC.

Defendant waived his right to rely on the claimed error that the trial judge erred to his prejudice in overruling his motion for a verdict to be directed in his favor because he had been placed in jeopardy twice for the same crime, when he accepted the ruling of the court and proceeded with his defense and introduced evidence in his own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

We believe that the case of Duvall v. State of Ohio, 111 Oh St 657, disposes of defendant’s contention that he was placed in jeopardy twice for the same offense, and accordingly entitled to have a verdict directed in his favor at the close of all the evidence.

“An acquittal of a defendant upon the charge of murder in the first degree, while attempting to perpetrate a robbery (under §12400 GC), is not a bar to a prosecution for the crime of robbery (under §12432 GC), even though committed upon the same person named in the former charge, and the robbery was a part of the same criminal act referred to in the indictment for murder.

“The doctrine of res adjudicata is not applicable where one is being tried for one of the substantive offenses embraced in a conspiracy to commit a robbery, and the former trial and acquittal was for another offense committed in pursuance of the same conspiracy, to-wit, murder in attempting to perpetrate a robbery, additional elements beizzg necessary to establish the latter charge; the two are, therefore, separate and distinct offenses. (Patterson v. State, 96 Oh St, 90, 117 N. E., 169, L. R. A. 1918A, 583, approved and followed.)

“A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, uziless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. A single act may be an offense against two statutes; and if either statizte requires proof of an additional fact, an acquittal of the offense requiring proof of the additional fact does not exempt the defendant from prosecution and punishznent iznder the statute which does not require proof of such additional fact.

«* * * ‘while it is the right of every person not to be put in jeopardy more than once for the same offense, the principle should be so applied as not to create an immunity for crimes which do not constitute the offenses for which the criminal has once been exposed to punishment.”’ Duvall v. State, 111 Oh St 657, 660.

See also Rappold v. State, 16 Oh Ap 229 at 234, in which the court said:—

“We desire to make our position plain, and again state that the prosecution in the municipal court of Cincinnati for unlawfully possessing . two drinks of whiskey cannot be used as a bar to the prosecution in the mayor’s court of Milford for unlawfully keeping a place, but the record is admissible as tending to show that he did not so keep a place.”

In the syllabi of that case the court said:—

“In a prosecution for unlawfully keeping a place where intoxicating liquors are sold, in violation of §13195 GC, the verified record of another court of competent jurisdiction, showing an acquittal of the defendant on a charge of selling liquor in violation of law, is competent evidence tending to show that defendant did not keep a place, as alleged in the affidavit, where the evidence of the selling of which the defendant was acquitted was of the same sale upon which was based the charge • of keeping a place, and the exclusion of such evidence is reversible error.
“In such case the record of the former trial is not admissible although the prosecutions in both suits were based upon the same identical act, unless both suits are between the same parties.”

We find no error prejudicial to defendant as urged in this assigned ground of error.

In his general charge the trial judge charged inter alia that:—

“The defendant in this case, however, denies that the rum and cognac found by the agents was illegally in his possession, but on the contrary has introduced testimony to show that the rum and cognac in issue was used by thé chef for cooking purposes and was not used or served as a beverage or drink.
“The court instructs you that possession by a chef or cook of rum or cognac for use in the preparation óf food and not for a beverage or drink is a lawful possession and no permit is required for that usage.
“If, in your deliberations, you find that the rum and cognac in issue in this case was in possession of the chef or cook for use as a food ingredient or preparation, and not to • be used in any. manner as a beverage or drink, then it will be your duty to return a verdict of not guilty to the charge.”

' Upon request made by the jury after retirement for further instructions the following colloquy was had between the trial judge, counsel and jury:—

“The Court: Have you selected a foreman?
“Foreman Evans: Yes, I have been selected as the foreman.
“The Court: Mr. Evans, I understand you have a question.
“Foreman Evans: Yes, the jury- would like to have some further instructions on the legality of the liquor on the bar.
“The Court: Do I understand your question correctly, you want to know if the liquor all by itself standing on the bar is legal or illegal?
. “Foreman Evans: That’s right.
“The Court: I believe that was covered by the charge.
“Perhaps I can explain it by saying this: That in itself, without other surrounding circumstances, the liquor is not illegal.
. “I will re-read to you one or two paragraphs from the charge which may clear up this question in your mind.
“One paragraph, I said this: ‘In the prosecution of this case, I say to you, as a matter of law, that it is not necessary for the State to show an actual sale or an offer to sell. The operative words of the State law being ‘to keep a place where intoxicating liquors are furnished in violation of law.’
“Also, I said this to you:
“ ‘If, in your deliberations, you find that the rum and cognac in issue in this case was in possession of the chef or cook for use as food ingredient or preparation and not to be used in any manner as a beverage or drink, then it will be your duty to return a verdict of not guilty to the charge.’
“In other words, you are to consider all of the testimony, and a part of that for your consideration was the place where the liquor was found by the agents.
“Does that clear up your question? In other words, you will have to review in your mind in the jury room all of the testimony that has come in here for practically three days, and then from that determine whether this offense of furnishing has been committed.
“Juror Elia: Didn’t Kocevar say that he found rum and cognac on the back bar?
“The Court: That is as I recall it.
“Mr. Pettersson: No—
“The Court: That is substantially correct,' yes.
“Juror Elia: We have to go by that. If liquor is on the bar, it is illegal to have liquor on a back' bar where no license is issued. Is that correct or incorrect?
“The Court: To refresh your memory again on these two paragraphs that I read to you: If you believe that it was placed there by the chef and that it was in his custody and control, it was a legal usage.
“If, on the other hand, it is as the State contends, that it was there to furnish people who wanted to buy liquor, then it is illegal.
“Foreman Evans: I think that clears it up, does it not?
“Juror Stange: There was some question as to whether furnishing — whether that meant that he furnished, or that he gave it. i
“The Court: ‘Furnished’ may be perhaps defined as to make available or to have it there if there was a demand for it. It isn’t necessary for the State to prove a sale.
“Mr. Blakely: Would you read that part of the charge?
“The Court: I will reread the first paragraph again:
‘“In the prosecution of this case, I say to you.as a matter of law, that it is not necessary for the State to show an actual sale or an offer to sell. The operative words of the State law being ‘to keep a place where intoxicating liquors are furnished in violation of law.’
“Mr. Petersson: We’d further like the Court’s charge in conjunction with the possession-for cooking.
“The Court: I will read that again.
“ ‘If, in your deliberations, you find that the rum and cognac in issue in this case was in the possession of the chef or cook for use as food ingredient or preparation and not to be used in any manner as a beverage or drink, then it will be your duty to return a verdict of not güilty to the charge.’
“In order to arrive at that conclusion, you must review and consider all of the testimony that has gone in this case all through this trial.
“Any other questions, or is that still somewhat vague in your mind?
“It is for you to determine whether that liquor was there legally or illegally. The only way you can arrive at that conclusion is to consider all of the testimony that has been introduced here by the various witnesses, and the exhibits.
“Mr. Blakely: I ask that the jury be sent back.
“The Court: You may return to the jury room unless you have any further questions.”

We lift defendant’s contention of error with respect to the foregoing colloquy from his brief prepared by his counsel :^-

“From the foregoing it is readily apparent that emphasis was placed by the trial Court upon the possession by the chef or cook of the rum and cognac for use as a food ingredient or preparation and we submit that this was an erroneous instruction and contend that it was contrary to law and that the jury should have been instructed solely that the possession of the rum and cognac and its use as a food ingredient was a lawful use. In other words, the issue to be presented to the jury should have been limited only to its consideration of whether or not the rum and cognac were in the club for use in the preparation of food or were in the club for .service or furnishing to its members or guests. Nowhere in the law do we find any requirement that the rum and cognac used in the preparation of food should be in the possession of any particular individ.ual be he a chef, waiter, or kitchen employee. It mattered not who had technical possession of the rum and cognac and it was erroneous for the Court to say to the jury that its possession was lawful only if it was found in the possession of the chef or cook.
“How important this instruction became is evidenced from the fact that upon the jury’s return for further instructions the Court again emphasized the fact of pqssession of the rum or cognac by the chef or cook when he again said , (Record Page 244) as follows:
“ ‘Also, I said this to you:
“ ‘If, in your deliberations, you find that the rum and cognac in issue in this case was in possession of the chef or cook for use as food ingredient or preparation . . .’
“Again the Court (Record Page 245) said as follows:
“ ‘In other words, you are to consider all of the testimony, and a part of that for your consideration was the place where the liquor was found by the agents.’
“From this the jury could readily infer that if the rum and cognac were found in a place other than the kitchen or in the pocket of the chef, that they might readily find and conclude that the rum and cognac were there for furnishing to the members and guests.
“Juror Elia inquired as set forth above as follows:
“ ‘Didn’t Kocevar say that he found rum and cognac on the back bar?’ ”
And the Court’s answer was:
“ ‘That is as I recall it.’
Again Juror Elia said as follows:
“ ‘We have to go by that. If liquor is on the bar, it is illegal to have liquor on a back bar where no license is issued. Is that correct or incorrect?”’
And the Court replied:
“‘To refresh your memory again on these two paragraphs that I read to you: If you believe that it was in his custody and control, it was a legal usage.
“ ‘If on the other hand, it is as the State contends, that it was there to furnish people who wanted to buy liquor, then it is illegal.’
“There is no question from the foregoing but that the jury were led to believe from the instructions given to them by the Court that possession by, the chef or cook, actual and physical, was absolutely necessary before they could find that the rum and cognac were to be used in the preparation or in the service of food.”

Studying the charge of the trial judge carefully in its entirety in the light of the admissions of defendant and the evidence, to which reference has been made, we do not believe that the trial judge erred to defendant’s prejudice in the respects charged therein by defendant. We find no undue emphasis of any part thereof, nor any emphasis save and except the repetition of a portion thereof made at the request of defendant’s counsel, of which even though such repetition did constitute error, which we do not hold, defendant can not complain since the claimed over-emphasis of which he complains was repeated at his request.

Considering all of the evidence, some of which has been quoted, we arrive at the conclusion that reasonable minds could reach different conclusions as to defendant’s guilt or innocence of the charge lodged against him; that a question was presented for the determination of the jury, which frees the trial judge of the charge of having erred to defendant’s prejudice in overruling his motion for a verdict to be directed in his favor made at the closé of all the evidence, which in our opinion supported the verdict of the jury and the judgment of conviction entered by the trial judge thereon.

While defendant has not argued all of his assigned grounds of error, we have, except as noted hereafter, considered all of them, and find no error in any of them upon which we pass prejudicial to defendant in the respects urged therein.

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

The judgment of the municipal court is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: Per CURIAM:

text:
    BEALL, Plaintiff-Appellant, v. BUREAU OF UNEMPLOYMENT COMPENSATION et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22081.
    Decided February 19, 1951.
    Morris Morgenstern, B. B. Direnfeld, Cleveland, for plaintiff-appellant.
    Wm. O’Neill, Atty. Geni., Rufus L. Thompson, Asst. Atty. Geni., Columbus, for defendant-appellees.
    (DOYLE, J, of the 9th District, sitting by designation in place of McNAMEE, J.)
   OPINION

Per CURIAM:

In this appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, careful examination has been made of the contents of the record and in consideration thereof this Court is of the opinion that the judgment of the trial court is neither manifestly against the weight of the evidence, nor contrary to law.

The evidence indicates that the claimant was willing to accept the employment offered only on her own terms in that she was willing to work only on an 8:30 A. M. to 4:30 P. M. shift, but refused to accept employment on a 3:00 P. M. to 11:00 P. M. shift for the claimed reason that in returning home from her work she would be compelled to walk after dark 'from the end of the bus line to her residence.

The evidence further indicates that for • a period of three months in the summer, three weeks at Christmas and two weeks at Easter she was not available for employment of any kind.

The factual situation first mentioned above, does not present good cause to refuse employment. She was not available for work within the provisions of §§1345-1 to 1346-5 GC.

Judgment affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, DOYLE, J, concur.


text:
    GREEN, Plaintiff-Appellant, v. DRUNGOLD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4331.
    Decided February 6, 1950.
    . James F. Little, Charles Saunders, Columbus, for plaintiff-appellant.
    Frank C. Shearer, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The appeal on questions of law is from a judgment in behalf of the defendant entered upon a verdict of a jury.

The action was for damages predicated upon three causes of action: (1) Assault with intent to rape; (2) Assault and battery; (3) False imprisonment.

The answer was a general denial of the averments of all three causes of action and a special defense of self defense.

The trial judge, at the conclusion of plaintiff’s case, on motion of defendant, withdrew the first cause of action from the consideration of the jury. Motion for new trial was filed and overruled.

The first assignment of error is directed to the admission over the objections of counsel for the plaintiff of answers to certain questions propounded to the witness, Anna Green, mother of plaintiff. The first question was, “Were you arrested or told to come in with your daughter at which time you were charged with resisting an officer or interfering with an officer v/hen she had an accident on 18th Street in October, 1946, when she lived at 448?” The second question, “Did your daughter go to Boston voluntarily, or did the family find it necessary to send her to Boston?” The first answer to the question was, “No, sir,” and after considerable colloquy between the court and respective counsel this question was put and answer made: Mr. Sidell, counsel for plaintiff, “Now, will you answer the questions and not argue, please?” The answer was, “Yes, sir.” As we interpret the record, the only answer respecting the arrest was, “No, sir.” Manifestly,, such an answer could not have been probative against the plaintiff upon any issue presented, and therefore is not the proper subject of an assignment of error.

The second assignment is that the court erred in removing the first cause of action from the consideration of the jury. This was a charge of assault with intent to rape. Upon this question, the only testimony which could be related to its proof, is the statement of the plaintiff of what occurred prior to and at the time she claims to have been assaulted. She said that she and the defendant had left the barroom, walked upstairs to the first floor and through the reception hall to the outer front door, that she had her hand- on the latch of the door intending to leave. The defendant coming up behind her, she said, “Well, I will see you,” and he says, “Come on and go upstairs,” and I said, “No, we have known each other for a long time, let it remain as it is, and I will have to go,” and I had just pressed down, turned around and said, “I will have to go,” when he struck me.

There is.no other testimony from which it may be inferred that the defendant had a purpose to rape the plaintiff. To have permitted the jury to consider this testimony and draw the conclusion that it tended to establish all the material elements of assault with intent to rape would have been conjecture. The court did not err in taking the first cause of action from the jury.

The third assignment is directed to certain language in the charge of the court:

“Members of the jury, statements that were made by counsel for the respective parties to this lawsuit, either during their opening statements, or during the progress of the trial, during which time the evidence was adduced, or during the argument, are not to be considered by you as evidence, unless the statements which they have made coincide with the evidence as you find it.”

This language was inadvertent and bears the interpretation that under certain conditions the statements of counsel could be considered as evidence. However, we are satisfied that upon the record, this statement of the trial judge could not have been prejudicial to the plaintiff; especially-is this true because we do not have the opening statements of counsel or the arguments.

It is further urged that the court erred in defining assault and battery as, “Now assault and battery is defined, members of the jury, as striking and hitting of one person of another.” This is not the correct technical definition of assault and battery, but in view of the development of the respective theories of, the parties which we héreinafter discuss, it could not have been prejudicial to the plaintiff. As a matter of fact, it is more favorable to her than the definition would have been had “assault and battery” been qualified as an unlawful striking or touching of another. Objection is also, made tc the charge of the court on page 280, wherein, among other things, it is said that the law permits “him (the defendant) to use such force as is necessary to resist the assault made upon him.” Ordinarily it is stated that the defendant may use such force as is reasonably necessary to resist the assault made upon him. However, in another sentence the court said to the jury that the defendant had the right to use such force as a reasonably prudent man would have used under the same circumstances. The charge of self defense, in its entirety, was a correct exposition of the law.

The fourth and last assignment of error is thali the verdict and judgment are contrary to the manifest weight of the evidence. Attention is directed to certain testimony of defendant wherein he gave different versions of what occurred when the plaintiff came to the door of his residence and was admitted. Manifestly, such discrepancies were proper to be considered by the jury as related to the credibility of defendant, but in and of themselves would not afford sufficient reason for reversing the judgment.

Upon this record, the issues between the parties are developed and fully covered by the evidence. Upon the testimony of the plaintiff the defendant assaulted her viciously without any just reason. Upon the testimony of the defendant, he did not assault her at all; she was the aggressor and he used no excessive force whatever but merely held one arm to restrain her.

' One of the most material points in controversy was the time, place and manner in which the plaintiff suffered the injury above her right eye, resulting in its swelling shut. If it appeared that she received this injury before the police officers, who were called by the defendant, arrived at his home, it would have greatly strengthened her claim that he assaulted her. That the injury was so received has no support from any witness other than the plaintiff. On the contrary, the defendant and four police officers testified that the plaintiff had no visible signs of the injury at the time when she was removed from defendant’s home. Obviously, the jury accepted' the version of defendant and his. witnesses of the occurrence and there could have been no question here of disproportionate use of force because if he did only that to which he testified there was no excessive force used by him and no assault upon the plaintiff. ‘ So that, any minor errors that may have occurred in the charge of the court or upon rulings as to the admission of evidence, upon the sharp difference of testimony on the whole record, could not have unfavorably affected the rights of the plaintiff in the verdict returned.

Testimony as to the general reputation of plaintiff offered in her behalf and as to certain arrests permitted to be testified to by defendant’s witnesses was improperly admitted. However, no objection was made to the testimony of plaintiff and although in instances objection was made to the statements of defendant’s witnesses, others were permitted to testify to the same subject matter without objection.

It does not appear that the plaintiff was prejudiced in any of the particulars set out in her assignments of error.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By MILLER, PJ.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. GLENN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4463.
    Decided October 4, 1950.
    Richard W. Gordon, City Atty., Walter W. Grelle, Jr., Asst. City Atty., Columbus, for plaintiff-appellee.
    Isadore Margulis, Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.

The defendant-appellant, Earl Glenn, was convicted in the Municipal Court of Columbus, Ohio, on the charge of driving a motor vehicle while under the influence of intoxicating liquor. One of the errors urged by the appellants is that the arrest was illegal and for this reason the Court erred in overruling the defendant’s plea in abatement.

The. record discloses that the defendant was involved in an automobile accident; that a police officer arrived at the scene thereafter; that he questioned the appellant who admitted that he had been driving the car. The officer further testified that the appellant was intoxicated. He thereupon made the arrest but the affidavit was not filed until approximately four days later. The arrest wqs authorized by §13432-1 GC, the defendant being found by the officer in a state of intoxication and admitting that he was the driver of the automobile. The fact that he was found in a state of intoxication was sufficient to warrant the officer to make the arrest. Whether or not any charges were ever filed would not go to the arrest ab initio.

It is our conclusion that the arrest in this instance was not illegal.

The next question presented is whether or not the Gourt could acquire jurisdiction since the affidavit was not filed until four days after the arrest. Sec. 13432-3 GC requires that under such circumstances the complaint must be filed without unnecessary delay. Even though this section of the Code was violated, but concerning which we express no opinion, the defendant would not be entitled to a dismissal of the affidavit upon the filing of a plea in abatement. Such a plea may be effectively made when there is a defect in the record shown by facts extrinsic thereto. We find no extrinsic facts warranting such a conclusion. When an arrest is legally made and lawful affidavit filed, warrant issued and the accused is in the custody of the Court it has acquired jurisdiction to adjudicate the issues made. If any of the defendant’s legal rights were violated by reason of the delay he has other remedies he might pursue but not a dismissal of the charge.

The record discloses further that the defendant, without being warned that it might be used against him, gave a specimen of his urine to the police officer, which was analyzed and admitted in evidence. This the appellant urges violated his constitutional rights. This question was only recently passed upon by the Sixth District Court of Appeals sitting by designation in this county, in the opinion of the City of Columbus v. Van Meter, 56 Abs 400, wherein it was held that the submission of such evidence was not prejudicial error.. We concur in such holding.

We find none of the errors assigned are well taken, and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By CONN, J.:

text:
    FAWICK AIRFLEX CO., INC., Plaintiff-Appellee, v. UNITED ELECTRICAL, RADIO AND MACHINE WORKERS, No. 735 et al, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21463.
    Decided April 2, 1950.
    Marshman, Hollington & Steadman, Cleveland, for plaintiffappellee.
    Davis, Davis & Handelman, Cleveland, for defendants-appellants.

      (CARPENTER, PJ, FESS, J, CONN, J, of the 6th Appellate District sitting by designation in 8th District.)
   OPINION

By CONN, J.:

This is an appeal on questions of law from the judgment of the common pleas court finding certain defendants guilty of contempt of court for violating a restraining order previously issued by the trial court.

The record discloses that the defendant, United Electrical, Radio & Machine Workers of America Local No. 735, on March 7, 1949, ordered a work stoppage at plaintiff’s plant located on Clinton Road in the Village of Brooklyn. . Mass picketing immediately followed and physical interference with persons who sought access to this plant. Plaintiff filed its petition against defendants on March 8,1949, setting up that defendants have prevented free access to plaintiff’s plant by mass picketing, force, duress, threats and intimidation and praying for a restraining order against said defendants.

On March 12, 1949, following an extended hearing, the trial court issued an injunction against The United Electrical Workers Local No. 735 and “its officers, agents, members and employees and all.other persons associated with or acting in concert with said defendants, enjoining them.”

“1. From picketing other than peaceably and by use of no more than the following pickets:

а. Two (2) pickets may be maintained on Clinton Road at the main entrance to plaintiff’s plant; * * *

2. From encouraging or allowing the six (6) pickets permit-ed by the Court from massing, congregating or assembly at any one time, or place while on duty * * *.

3. From encouraging or allowing the massing of more than two (2) pickets at any one time or at any place in or about plaintiff’s plant or premises * * *.

4. From picketing other than peaceably and by the carrying of signs, the making of oral speeches within proper bounds and the distribution of literature; * * *

б. From interfering with, hindering, threatening or intimidating in any manner whatsoever plaintiff’s officers, agents, employees, representatives, others having business with plaintiff or the families or relatives of any of the foregoing;

7. From interfering with or hindering access to said plant and premises in a manner reasonably calculated to prevent ingress to and egress from said plant and premises;

8. From blocking or obstructing plaintiff’s driveway leading from Clinton Road to plaintiff’s plant and premises, in any manner whatsoever;

9. From protecting, aiding, abetting or assisting any one in the commission of said acts;

10. From interfering with or hindering ingress to or egress from said plant and premises of trucks, automobiles and other vehicles in any manner whatsoever.”

-On March 24, 1949, plaintiff filed its motion alleging the defendants have violated the restraining order issued March 12th, and praying that a citation may issue returnable forthwith directing defendants to appear and show cause why they should not be punished for contempt of court.

The motion set forth that the defendants and their agents greatly exceeded the number of pickets permitted by the court’s order of March 12th, that defendants congregated in the Clinton Street entrance to plaintiff’s plant, blocked the driveway, prevented freedom of access thereto and setting forth a number of acts of violence, such as hurling stones, rocks, bolts, etc., at automobiles of plaintiff’s employees, threatening and intimidating them, all in violation of the court’s order.

April 6, 1949, plaintiff filed its second motion to show cause, setting forth that defendants and their agents had not obeyed the order of March 12, 1949, and had violated same by congregating about plaintiff’s plant and in and about Clinton Road in numbers greatly exceeding the number permitted by the order of this court, driving automobiles into the private driveway to plaintiff’s plant, parking them there, committing acts of violence, fighting, hurling stones, threatening, intimidating and injuring plaintiff’s employees and praying, among other things, for a citation returnable forthwith directing defendants to appear and show cause why they should not be punished for contempt of court.

Thereupon said motions to show cause came on for hearing on the 7th and 8th days of April, 1949, and the trial court entered an order, effective as of April 8, 1949, on the evidence presented, finding and adjudging certain' defendants named' in plaintiff’s second motion to show cause, guilty of contempt of court, as follows:

The court found Marie Reed guilty of contempt on the following grounds:

1. She induced John Stawicki to leave his automobile in the private driveway of plaintiff’s plant, to create a blockade, on March 28, 1949;

2. She, by use of a loud speaker, directed a group of persons, composing a mob, on March 28, 1949, to rush and attack plaintiff’s employees as they entered plaintiff’s plant;

3. She led a parade of persons in a march on plaintiff’s plant on April 4, 1949;

4. She had general supervision and direction of groups of persons composing a mob, who massed and congregated in and about plaintiff’s plant and premises on March 28, 1949, and April 4, 1949;

5. She caused the erection and directed the maintenance of a lean-to across Clinton Road from plaintiff’s plant as a place of congregation for members of respondent Union, where nuts and bolts were kept which were used to attack employees who desired to work at plaintiff’s plant, and police officers and deputy sheriffs.

The court found Joseph Kres guilty of contempt on the following grounds:

1. He caused his automobile to block plaintiff’s private driveway on March 28, 1949;

2. He was in a group of persons, composing a mob, gathered in and about plaintiff’s plant and premises on March 28, 1949;

3. He was in the group of persons that rushed and attacked plaintiff’s employees as they entered plaintiff’s plant on March 28, 1949;

4. He caused the erection and directed the maintenance of a lean-to across Clinton Road from plaintiff’s plant as a place of congregation for members of respondent Union, where nuts and bolts were kept which were used to attack employees who desired to work at plaintiff’s plant, and public officers and deputy sheriffs.

The court found Fred Haug guilty of contempt on the following grounds:

1. He caused his automobile to block plaintiff’s private driveway on March 28,1949;

2. He was in a group of persons, composing a mob that rushed and attacked plaintiff’s employees as they entered plaintiff’s plant on March 28, 1949;

3. He was a leader of a parade of persons which marched on plaintiff’s plant on April 4, 1949.

The court found Paul Shepard guilty of contempt on the following grounds:

1. He threw an object at Deputy Sheriff McHugh on April 4, 1949;

2. He placed an automobile in the private driveway of plaintiff’s plant, blocking said driveway, on March 28, 1949;

3. He threw objects at automobiles in the vicinity of plaintiff’s plant.

4. He threw objects at other Deputy Sheriffs in the vicinity of plaintiff’s plant;

5. He was in the group of persons, composing a mob that rushed an'd attacked plaintiff’s employees as they entered plaintiff’s plant on March 28, 1949;

6. He participated in and directed a parade of persons that marched on plaintiff’s plant on April 4, 1949;

7. He was one of the persons responsible for maintaining the lean-to across Clinton Road from plaintiff’s plant, in which nuts and bolts, used against plaintiff’s employees, police and deputy sheriffs, were kept.

The court found Albert Kleps guilty of contempt on the following grounds:

1. He obstructed traffic on Clinton Road in the vicinity of plaintiff’s plant on April 4, 1949;

2. He directed the movements of groups of persons in and about plaintiff’s plant on March 28, 1949;

3. He was in the group of persons composing a mob, that rushed and attacked plaintiff’s employees as they entered plaintiff’s plant on March 28, 1949.

The court found John Steidl guilty of contempt on the following ground:

1. He was in a group of persons, composing a mob, that rushed and attacked plaintiff’s employees as they entered plaintiff’s plant on March 28, 1949.

The court found Morris Stamm guilty of contempt on the following grounds:

1. He pushed and broke away from an officer on April 4, 1949 on arrest;

2. Running away from said officer after his arrest so that the officer had to pursue him to make said arrest complete;

3. After said arrest was made, he kicked and fought with the arresting officers;

4. He was in the group of persons, composing a mob, that on March 28, 1949, rushed and attacked plaintiff’s employees when they entered plaintiff’s plant;

5. He was in a group of persons that marched on plaintiff’s plant on April 4, 1949;

6. He directed the movements of a group of persons congregated in and about the entrance to plaintiff’s plant on March 28, 1949;

7. He was a member of the group in charge of the lean-to maintained across Clinton Road from the entrance to plaintiff’s plant, in which lean-to nuts and bolts used against plaintiff’s employees, police officers and deputy sheriffs, were kept.

The court found Louis Diamond guilty of contempt on the following grounds:

1. He attempted to strike Deputy Sheriff Acks with a sign on April 4, 1949;

2. He was in the parade of persons that marched on plaintiff’s plant on'April 4, 1949;

3. He fought with police on April 4, 1949;

4. He was in a group of persons that massed and congregated in and about the entrance to plaintiff’s plant on March 28, 1949;

5. He was in a group of persons, composing a mob, that rushed and attacked plaintiff’s plant on March 28, 1949;

6. He frequented the lean-to maintained across Clinton Road from plaintiff’s plant, in which lean-to, nuts and bolts used against plaintiff’s employees, police officers and deputy sheriffs were kept.

The court found Ignatius Monachino guilty of contempt on one count. He caused his automobile to be placed in plaintiff’s private driveway, blocking said driveway, on March 28, 1949.

The court found Eileen Schie guilty of contempt for having caused her automobile to be placed on plaintiff’s private driveway, blocking said driveway, on March 28, 1949.

The court found Edward C. Epple guilty of contempt on the following charge:

1. He was in the group of persons, composing a mob, that on March 28, 1949, rushed and attacked plaintiff’s employees when they entered plaintiff’s plant.

The court found John J. Stawicki guilty of contempt on one count. He placed his automobile on plaintiff’s private driveway, blocking said driveway, and refusing to move it at the request of the deputy sheriff on March 28, 1949.

For said contempts and each count thereof the trial court punished said defendants and each of them by imposing a sentence of ten days in jail and a fine of $500.00 and costs against the defendants for each and every count upon which they and each of them were found guilty.

From these several findings and judgments each defendant perfected his appeal to this court, which was heard and submitted as an appeal on questions of law.

The errors assigned, as set forth in the assignments and amended assignments of error, are as follows:

“1. The Court below erred to the prejudice of defendants appellants, and abused' its discretion in refusing to grant the continuance as requested by defendants appellants;

2. The motion to show cause was improper, insufficient, defective, and did not authorize contempt proceedings under the law;

3. The sentences of the court' below were severe, harsh, and excessive, and without authority under the law;

4. The court below erred in denying defendants’ motion for a bill of particulars or a proper written charge, as provided by law;

5. The lower court erred in denying the motions of the defendants, and each of them, for a discharge at the close of plaintiff’s evidence, and at the close of all the evidence;

6. The findings of the lower court and its sentences and orders are not sustained by sufficient evidence, are contrary to law, - and are not authorized by law;

7. That the court erred in admitting evidence offered by , the plaintiff and excluding evidence offered by the defendants;

8. That the proceedings of the lower court were irregular and unauthorized by law; and abuse of discretion by which defendants were denied a fair trial;

9. The proceedings of the lower court and its sentences and orders are unconstitutional and deprive the defendants of those rights guaranteed them by the Constitution of the State of Ohio and of the United States;

10. For other errors of law appearing on the face of the record prejudicial to the rights of the defendants.”

Amended assignments of errors

“1. The decision and judgment of the court below is not sustained by sufficient evidence, is contrary to law and the constitutions of the United States and of the State of Ohio:

(a) The court below erred in finding defendant Eileen Schie guilty of contempt of court;

(b) The court below erred in finding Ignatius Monachino guilty of contempt of court;

2. The judge was guilty of abuse of discretion preventing the defendants from having a fair trial.

3. The court below erred in finding defendants Steidl, Diamond and Shepard guilty of summary contempt of court, in addition to finding them guilty of contempt.

4. Other errors of law appearing on-the face of the record, prejudicial to the just rights of the defendants.”

We will consider first the defendants’ claim that the trial court was guilty of abuse of discretion, preventing defendants from having a fair trial. The issue thus raised by this assignment of error can be determined only in the light of surrounding facts and circumstances. Defendants urge the application of abstract principles of law apart from the record arid the duty imposed on them to severally obey the order of the court.

It must be conceded that the inherent freedoms of a citizen and his right to defend against their invasion are basic in our democratic society. This same privilege extends to one rightfully within the country, though not a naturalized citizen. This protection and security is guaranteed by written Constitutions and laws. As a people, we live under a juridical order and in sharp contrast with one where individual right is subject to the power of might and the exercise of unrestrained authority on the part of those in power. It has often been pointed out that the right of an individual thus protected by law extends no farther than the place where the right of another begins and that liberty is not unbridled license to do what one may desire to do and as he desires to do it.

The defendants contend with great earnest that the atmosphere of the trial was tinged with hatred; that the trial court in the conduct of the trial by “words, acts and deeds,” abused its discretion; and that the defendants did not have a fair trial and were denied due process in violation of both the Federal and State Constitutions. These contentions and others advanced tend to disregard objective considerations and improperly emphasize the abstract.

Any considered approach to the claims thus raised by defendants necessarily embraces a due regard for the issues raised on the motions to show cause, the alleged violations of the injunctive order of March 12th and the conduct of the defendants during the trial. The record discloses that the defendants and their agents, numbering scores of persons, wholly disregarded and violated the order of the trial court in various ways over a period of several days. Mass picketing, disorder, violence, intimidation, destruction of property and other acts of violence all testify to the lack of respect for law and constituted authority.' This disorder, violence and breach of the peace required the services of the police officers of the Village of Brooklyn, deputy sheriffs of Cuyahoga County and mounted police of the City of Cleveland.

When the trial opened, dilatory motions were interposed on behalf of certain defendants, objections to the pleadings were made on the ground that they were insufficient to charge the defendants with misconduct or the manner in which the order had been violated. These motions were properly overruled, and the trial proceeded. The issue raised was not confused. Simply stated, was the court’s order disobeyed by one or more of the defendants? Notwithstanding-the clarity of the charges made, the defendants by their counsel interposed repeated objections, many of which were groundless, insisted on examining and cross-examining witnesses on irrelevant matters, employing dilatory tactics and manifesting an indifference to the admonitions of the trial judge. This failure to conform to recognized standards of decorum imposed on the trial judge a heavy burden and which he assumed with courage and dispatch in 'the conduct of the trial. Thus, the defendants may not be heard to challenge the categorical rulings of the trial judge made in the performance of his duty in preserving peace and order and commanding respect for the dignity and authority of the court. It follows that this assignment of error is not well taken and should not be sustained.

Defendants also assign as error that the several findings and judgments are not sustained by sufficient evidence and are contrary to law. However, it appears frbm the evidence that the defendants were at or near the premises of plaintiff at the times charged, except perhaps in one instance, together with numerous other persons acting with them and that one or more participated in the several acts alleged to -be in violation of the order previously made by the court. Subject to the exceptions stated later herein, the evidence of disobedience to the court’s order is clear and convincing and in some certain instances is not even denied. It is clear that the court did not err in denying the motions of defendants for a discharge at the close of plaintiff’s evidence and at the close of all the evidence.

However, in some instances it appears that two or more counts in individual cases are not clearly established by the evidence as separate violations of the court’s order and should be united into single counts, to-wit: Marie Reed, counts 2 and 4, one violation; Paul Shepard, counts 1, 3 and 4, one violation; Morris Stamm, counts 1, 2 and 3, one violation; Louis Diamond, 1 and 3, one violation.

Coming now to errors assigned in relation to defendant Eileen Schie, it is our opinion that the finding and judgment against her is not sustained by clear and convincing evidence and should be reversed.

No. 3 of the amended assignments of error relates to the finding and judgment that defendants Diamond, Shepard and Steidl were guilty of summary contempt. The court imposed a fine and sentence against each defendant. The charges made against the defendants relate to misbehaviour in the court room during the trial. >

Under the inherent power of the court and the express provisions of the statute (§12136 GC) “misbehaviour in the presence- of or so near the court or judge as to obstruct the administration of justice” may be punished summarily. It is well settled on high authority that the exercise of this power by a court does not deny due process and that due process does not require written charges be first filed before the hearing, as contended by defendants. See Fisher v. Pace, 336 U. S. 155.(1949). See also: Univis Lens Co. v. United Electrical, Radio & Machine, etc. 89 N. E. 2nd, 658.

As to defendant Diamond, he was gound guilty of using obscene language in the presence of and directed to.the court during the trial. The trial judge observed defendant’s contemptuous conduct and heard his obscene appellations a great many times.

As to defendant, Shepard, he was found guilty of using the Lord’s name in vain at different times during the trial and in the presence of the trial judge.

The defendant Edward C. Epple was charged with testifying falsely and summarily adjudged guilty of contempt.

The finding and judgment of summary contempt as to each of said defendants on the record before us should be sustained.

Coming now to consider the charge of summary contempt against John Steid.1. This defendant was convicted on a charge of having given false testimony as to the hour he was present at the underpass on March 28, 1949. The evidence is conflicting. We, adopt the reasoning of Skeel, P. J., and the authorities cited in Fawick Airflex Co. v. United Electrical, etc. Workers, 92 N. E. 2nd, 437, 441-444, and conclude that the finding and judgment against Steidl on this count should be'reversed.

We have considered the remaining assignments of error and each of them and have reached the conclusion that they are not well taken and can not be sustained.

As above indicated, the judgments against Schie, and against Steidl, each charged with summary contempt, should be reversed; and certain judgments as before outlined against defendants Reed, Shepard, Stamm and Diamond are modified and as modified, are affirmed; and as to each of the remaining judgments against the several defendants, they are affirmed. Exc. Order See Journal.

' CARPENTER and FESS, JJ, concur.


author: Per CURIAM.

text:
    MASON, Admr., Plaintiff-Appellant, v. CITY OF CINCINNATI et, Defendant-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7444.
    Decided June 25, 1951.
    Lindhorst & Driedame, Cincinnati, for plaintiff-appellant. Carry, Durfey, Martin & Browne, Springfield, for Dr. William Garrett Riee.
   OPINION

Per CURIAM.

A motion has been made to dismiss this appeal on questions of law. In the Common Pleas Court of Hamilton County a motion to quash service of summons was'made and sustained.

The final entry from which such appeal was taken is as follows:

“This day this cause came on to be heard upon the motion of the defendant Dr. William Garrett Rice, to. quash service of summons, and being submitted to the Court by the briefs and arguments of counsel, the Court being fully advised in the premises, finds said motion well taken and should be sustained, and
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the said motion be and the same hereby is sustained and that the issuance and service of summons on the defendant, Dr. William Garrett Rice, and the return of service thereon be and the same hereby are set aside and vacated, Plaintiff is granted leave to amend within 30 days. To the ruling of the Court, the plaintiff duly excepts.”

This is not a final order from which appeal may be taken to this Court. Puthoff v. Owens-Illinois Glass Co., 18 Oh Ap, 282, 30 Abs, 653; State, ex rel. v. Industrial Commission, 132 Oh St, 13, and the appeal must be dismissed.

At the oral hearing, all counsel expressed a, desire to have the Court express its conclusion, as if a final order dismissing one defendant from the case had been entered, and the Court, although doubting the propriety of the procedure, acquiesced in the common wish of counsel.

However, upon examination of the petition and an entry of the trial court granting a motion to strike allegations from the petition, (the plaintiff having failed to amend such petition, although thirty days were permitted to amend) it becomes apparent that the petition states no cause of action against anyone. In most cases the allegations being wholly unintelligible owing to the deletion authorized by the Court.

This Court can not draft the kind of a petition the, plaintiff thinks he has or might file apd then proceed to pass upon vague suggestions of counsel as' to what might result if proper allegations were made.

Apparently, the plaintiff thinks he has some right of action under the provisions of §9889 GC. Whether he has or has not, it is now impossible to state. It may be stated, however, that in no way does it appear from what is before the Court that there could be any joint liability of the surgeon with the City under, the provisions of this or any other section of the Code.. Sec. 8889 GC, incidently is placed in the Chapter thereof dealing with “Private Corporations.” Nothing in this §9889 GC, indicates that a municipal corporation was intended to be included in the terms “persons, associations and companies.”

It is clear that the liability of a political subdivision of the State, exercising the police power invested therein, is limited to definite statutory authority.

The extent of the present action of this Court is limited to the dismissal of the appeal, and an entry may be presented accordingly.

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


author: By MILLER, PJ.:

text:
    STATE, Plaintiff-Appellee, v. GEPHART, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2088.
    Decided April 1, 1950.
    Hon. Herbert S. Duffy, Atty. Geni., Columbus, Pierce Wood, Special Asst. Atty. Geni., Dayton, for plaintiff-appellee. Strother B. Jackson, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is a law appeal from the judgment of the Court of Common Pleas sustaining an award made by the Industrial Commission of Ohio to one C. W. Houpt for personal injuries received in the course of his employment.

The errors assigned are that the judgment is contrary to law and against the weight of the evidence.

The only question presented is whether the defendant-appellant was the employer of three or more persons as defined by §1465-60 and §1465-61 GC. The record discloses that the appellant was engaged in the trucking and coal business; that on the day of the injury two workmen were Working for the defendant and had been steadily employed for a considerable length of time; that other workmen were occasionally employed in the regular course of the defendant’s business, the only controversy being as to the extent of such employment. On this question there is substantial evidence in the' record to the effect that several times each month, for at' least a year prior to the injury and continuing after the date of the injury, an additional workman was employed by the defendant in his business, this additional work being distributed among three or four persons. It consisted of unloading cars of coal, hauling the coál and assisting on the trucks. However, no such extra workmen had been so engaged for several weeks before the injury. Now, on these facts can the extra workmen be said as a matter of law to be regular and not casual employees as defined by §1465-61 GC?

In State, ex rel. v. Christen, 128 Oh St 56, at page 61 the Court said:

“Under the weight of authority as it now exists, the test as to what constitutes ‘casual’ employment is not the length of the employment, but the nature of the employment. * * * Under the general doctrine of these cases, the test is whether the employment was in the usual course of the employer’s business. If so, the employment is held to be not ‘casual.’ ”

In Morgan v. The Industrial Commission, 29 Abs 32, the Court held that where an employer hires two men regularly, and three more men if and when the employer has work for them to do the latter employment is not casual but regular within the meaning of the Workmen’s Compensation Act.

It follows from these cases that if one of the several extra young men had been injured while 'working for the appellant he would have been entitled to compensation as a regular employee. If they would have been regular employees for the purposes of their own right to workmen’s compensation they would also be regular employees for the purpose of Houpt’s right. This claimant’s right, cannot be said to be dependent upon which particular day he was injured. If this were true, he would have been entitled only to compensation on those days when one or moré of the extra men were working with him, but not on other'days. This Court passed upon a similar question in State, ex rel. Clemens v. Sword, 43 Abs 345. In this case two weeks had elapsed between the time three employees actually worked and the date of the injury on which only two employees were working.

We find that the judgment is neither contrary to law nor against the weight of the evidence, and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.