author: By JOHNSON, J.

text:
    STATE, Plaintiff, v. DEER, Defendant.
    Common Pleas Court, Greene County.
    No. 8875.
    Decided June 20, 1955.
    George R. Smith, Prosecuting Attorney, Xenia, for plaintiff.
    James P. Cox, Xenia, for defendant.
   OPINION

By JOHNSON, J.

This matter came on to be heard upon a demurrer filed by the defendant to the indictment and was submitted to the Court.

The defendant was indicted under §2949.34 R. C. and the indictment reads as follows:

“The State of Ohio, Greene County, SS: Court of Common Pleas. Of the Term May in the year of our Lord, one thousand nine hundred and fifty-five. The jurors of the Grand Jury of said County, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Fred T. Deer, late of said County, at the County of Greene aforesaid, has been three times and over convicted and sentenced for misdemeanors involving moral turpitude under the laws of this State, all of said convictions were obtained in the Courts listed below, in the cases therein listed

and at the times indicated, to-wit:

“In the Xenia Municipal Court
“Contrary to §2949.34 R. and against the peace and dignity of the State of Ohio.”

Sec. 2949.34 R. C. provides as follows:

“Whoever, having been three times convicted and sentenced for misdemeanor involving moral turpitude, under the laws of this State or an ordinance of a municipal corporation, in this State or elsewhere, is convicted of an offense involving moral turpitude, under the law of the state or an ordinance of a municipal corporation, if the judge or magistrate is authorized to commit the offender to the workhouse or jail, is an ‘habitual offender’ and may be imprisoned in the workhouse or jail not less than one nor more than three years. In such cases the judge may order such person committed to such workhouse or jail until the costs of prosecution are paid or he is discharged. Such repeated misdemeanors, as provided in this Section and §2949.33 R. C., shall be charged in the information or complaint made against such offender, and if proven shall be stated in the commitment to the workhouse or jail.”

In order to invoke the punishment provided under this Section, it is necessary that the defendant have been convicted three or more times of misdemeanors or violations of city ordinances involving moral turpitude It is, therefore, necessary to determine whether the convictions enumerated in the indictment, or at least three of them, were convictions for crimes involving moral turpitude.

The statute does not define what is moral turpitude, but the Courts in this State and other states have passed upon his quesion. In the cases of In re: Burch, 73 Oh Ap 97, and In Re: Jacoby, 74 Oh Ap 147, the Courts define the term moral turpitude. In the former case at page 101, it says:

“Webster’s New International Dictionary (2 Ed.) defines ‘turpitude’ as ‘inherent baseness or vileness of principle, words, or actions: depravity.' ‘Moral’ used in such connection, is defined as ‘4. Pertaining to character conduct, intentions, social relations, etc.' And the legal term ‘moral turpitude’ is defined as ‘the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.’ These are precisely the definitions which have been used by the courts in defining ‘moral turpitude.’
“The definition given in 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 2247, is as follows:
“ ‘Moral Turpitude. An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’
“The moral turpitude that may be involved in the commission of a crime does not exist merely because there has been a crime committed — a mere violation of law — on the theory that it is immoral to violate any law. The use of the term ‘moral turpitude’ in our statute providing for disbarment (§1707 GO clearly contemplates something more than conviction of a crime; otherwise the use of the words would be the introduction of mere surplusage into the statute.
“If a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moral code of mankind.”

It is thus established in Ohio that the conviction of a crime does not ipso facto constitute moral turpitude. This conclusion seems well established in the United States generally. See Words and Phrases, Volume 27, page 553, et seq.

It would thus seem that the test in Ohio and generally is whether the “act denounced by the statute offends the generally accepted moral code of mankind.”

The State of Ohio is in the business of selling liquor. It has the State stores and, also, issues permits to others to sell it. Therefore, the drinking of intoxicating liquor is not in and of itself moral turpitude. If it is, then the State of Ohio is guilty of contributing to it.

The ñve convictions set forth in the indictment all seemingly involve intoxication, three of them involving driving an automobile while intoxicated.

In the question of intoxication itself, it has been held in Ohio in an early case that, “Ordinarily a state of intoxication is a physical disability, voluntarily incurred, but whether accidental or intentional it is not a crime in itself involving moral turpitude.” Landis v. Caylor, 5 ONP R, 216.

Although there have been no cases that the Court knows of in Ohio on the question as to whether drunken driving involves moral turpitude, the following cases have held that it does not:

1. Traders & Gen. Ins. Co. v. Russell, 99 SW 2d, 1079:

“Where principally controverted issue in proceeding under compensation act was whether employee, who was killed while driving employer’s truck, was intoxicated, admitting testimony of witnesses of long acquaintance that employee was not a drinking man held error, since offense of driving automobile while intoxicated does not involve moral turpitude, and testimony that employee was intoxicated did not put in issue his character for truth or honesty.”

2. Groves v. State 164 SE, 823, to the effect that driving an automobile on a public road while in an intoxicated condition does not involve moral turpitude.

There are many misdemeanors listed under the Revised Code of Ohio, which do involve moral turpitude, they being as follows:

Secs. 2905.27; 2905.30 ; 2905.31; 2905.34; 2905.33; 2905.36; 2905.38; 2905.39; 2905.40; 2905.42; 2905.08; 2905.09; 2905.14; 2903.08; 2901.18; 2901.15 R. C., and others.

Therefore, it would seem to the Court that the State of Ohio meant to include these offenses which involve moral turpitude about which there can be no question. If it had simply wanted to make a man an habitual offender by a violation of certain sections more than three times it would have left out the words moral turpitude.

Therefore, the Court thinks that the demurrer in this case is well taken, and the same is sustained, and the defendant is ordered released from custody and discharged.


source: Caselaw Access Project

author: By HURD, J:

license: Public Domain

text:
    CLEVELAND (City), Plaintiff-Appellee, v. ANTONIO, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23286.
    Decided March 9, 1955.

      Ralph S. Locher, Director of Law, Bernard J. Conway, Police Prosecutor, E. V. Cain, Asst. Police Prosecutor, Cleveland, for plaintiff-appellee.
    Frank K. Levin, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This is an appeal on questions of law from a judgment of the Municipal Court of the City of Cleveland, wherein the defendant, a truck driver in the employ of The Barracelli Trucking Company, was arrested and found guilty of violating Section 9.2529 of the Traffic Code of the City of Cleveland, which by its terms prohibits the use of Deise Avenue by trucks, commercial tractors, trailers and semi-trailers during the night season from 10 P. M. to 6 A. M.

The material facts are not in dispute. The principal place of business and garage of The Barracelli Trucking Company is located at the end of Deise Avenue at or near its intersection with Kuhlman Avenue, and East 136th Street. This area is zoned by the City of Cleveland as a factory district.

At the time of his arrest, the defendant was operating an auto-car Diesel which was an oil-powered truck equipped with a muffler, the weight of which was from 12,040 to 13,040 pounds. The truck was unloaded and was being operated by the defendant at about 11:10 P M., on or about the 15th day of May, 1954, at a speed of approximately ten miles per hour, when he was stopped by a police officer of the Cleveland Police Department who handed him a summons to appear in police court, charged with a violation of that section of the Traffic Code which reads as follows:

“Section 9.2529 of the Codified Ordinance of the City of Cleveland:
“No person shall operate or cause to be operated, a truck with a gross weight in excess of 4-ton commercial tractor, trailer or semi-trailer, over Deise Avenue N. E„ Kuhlman Avenue, East 133rd Street and East 136th Street, in the night season between the hours of 10 P. M. and 6 A. M.”

The pertinent part of the affidavit against the defendant reads

“* * * that on or about the 5th day of May, 1954, at said city and county, one John Antonio, being then and there in charge of and operating a certain vehicle, to-wit, a truck driven by gasoline power on Deise Avenue, a street in said city, did then and there as operator of a tractor over 4 ton net, to-wit, 13,000 pounds, operated said tractor on said street at 11:10 P. M. contrary to signs posted ‘Thru trucks prohibited 11 P. M. to 7 A. M. over 4 ton’ and further deponent says not; contrary to the form of an ordinance of said city in such cases made and provided * * * ”

Upon trial, the police officer, the only witness for the city, testified that there was no means of ingress or egress to or from the plant of the trucking company, other than Deise Avenue, Kuhlman Avenue, East 136th Street or East 133rd Street. This testimony was corrobated by the defendant. This testimony also is confirmed by the manifest provisions of the ordinance in question, which absolutely prohibits the use of the enumerated streets by commercial vehicles or tractors weighing in excess of four tons gross, between the stated hours, and the record is clear that these four streets are the only approaches by which the garage of The Barracelli Trucking Company can be reached. It was also testified by the officer that the garages of The White Motor Company and The Thompson Products Company are likewise subject to the same limitations, by reason of their location in this area.

The officer also testified that there were hundreds or thousands of streets in Cleveland similar to Diese Avenue and that the truck at the time of the arrest was not being “operated in any unusual manner and that it was not making any more unusual noise than other Diesels do.”

The defendant testified that the trucks of the company were engaged in an operation twenty-four hours a day at the time of his arrest, in the delivery of stone for the construction of the Ohio Turnpike, but that the trucks were operated to and from the garage empty, for purposes only of servicing with oil, gasoline, tires or for parking purposes.

Before trial, counsel for the defendant made a motion for discharge of the defendant, upon the ground that the affidavit under which the defendant was first served was made out in blank. Thereafter, the case was continued and on May 17, 1954, a new affidavit was filed against the defendant. The defendant then filed a demurrer which was overruled, asking to be discharged for two reasons, (1) that the affidavit was defective anr) (2) that the ordinance as applied to the defendant and his employer, is unconstitutional.

While there are nine assignments of error, the principal assignments have to do with the claimed defect in the affidavit and the claim that the ordinance as it relates to the defendant and his employer, is an unreasonable and arbitrary exercise of police power, contrary to Article 18, Sec. 3 of the Ohio Constitution.

As to the claim that the affidavit was defective, it is our view that the position of the City of Cleveland is well taken to the effect that while the affidavit would have been subject to a motion to quash, the demurrer did not reach the defect claimed because the gist of the offense charged was the operation of a commercial tractor weighing in excess of four tons gross weight between the restricted hours on Diese Avenue. The fact that it was powered by oil rather than by gasoline, as charged, did not detract from the gist of the offense, inasmuch as the affidavit states an offense, pursuant to Section 9.2529 of the Codified Ordinances of the City of Cleveland.

Sec. 2941.59 R. C. reads as follows:

“The accused waives all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment, or by pleading in bar or the general issue.” (Emphasis added.)

Therefore, we hold that the court was not in error in overruling the demurrer attacking the sufficiency of the affidavit and in proceeding to trial on the merits.

A much more important question is presented, however, by the claim of the defendant that the ordinance is an unreasonable and arbitrary exercise of police power, contrary to Article XVIII, Sec. 3 of the Ohio Constitution. It is argued that because the garage case located at the end of Diese Avenue, is in a factory zoned district the ordinance as it applies to the defendant and his employer unreasonably deprives them of the use of the property, without due process of law, and deprives them of the right to use the public streets and highways in a reasonable manner, with vehicles licensed by the State of Ohio.

Article XVIII, Section 3 of the Ohio Constitution reads:

“Municipalities shall have authority to exercise the 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.”

Cleveland is a Charter city, under the provisions of Article XVIII, Section 7 of the Ohio Constitution, having adopted a Charter permitting it to exercise the powers of local self-government. The Charter Section 1, General Powers, provides in part:

“* * * may define, prohibit, abate, suppress and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the city, and all nuisances and causes thereof; * * * may regulate and control the use, for whatever purposes, of the streets and other public places * * *.”

The city seeks to justify the complete isolation of the plant of the trucking company under the preamble of ordinance 2205.53 which reads as follows:

“Whereas, the noise and vibration generated by the heavy flow of trucks, commercial tractors, trailers and semi-trailers over Deise Avenue N. E., during the night season constitutes a continuing nuisance and undermines the health and general welfare of the residents of Deise Avenue, and
“Whereas, this ordinance constitutes an emergency measure providing for the public health and safety for the reason that the health and welfare of the residents of Deise Avenue is being undermined by this nuisance; now therefore.
“Be it ordained by the Council of the City of Cleveland * * *•”

(Then follows Section 9.2529 above quoted.)

At the outset, we must recognize that there is a general presumption in favor of the validity of municipal legislation. This rule is so firmly established that citation of authorities is unnecessary.

We must also recognize the rule that the burden of showing the unconstitutionality of an ordinance is upon the one challenging its validity and the proof that the ordinance is unconstitutional and an unreasonable and arbitrary exercise of police power must be clear and that the courts will not interfere unless it is clear that the ordinance has no real or substantial relation to the public health, safety, morals or welfare, or is unreasonable or arbitrary and infringes rights secured by the fundamental law of the State. See 10 O. Jur. 2d, Constitutional Law, §152 et seq, p. 255.

Article I, Section 19 of the Ohio Constitution provides in part:

“Private property shall ever be held inviolate but subservient to the public welfare * *

The question presented is whether or not the ordinance in question, as it applies to this defendant and his employer, is in conflict with general laws and is an unreasonable, arbitrary exercise of police power.

In analyzing the evidence presented and the ordinance in question, we find that the property of defendant’s employer, which in the conduct of his business he was required to use as a base of operations, is completely and effectually barred of all means of ingress and egress during the night season from 10 P. M. to 6 A. M. The effect of this prohibition is to prevent the use of the property for a necessary 24-hour operation.

There is no claim that the defendant was exceeding the speed limit or that he was driving in an unusual manner. It is also admitted that there was a muffler attached to the truck for the purpose of minimizing the sound of operation so that the gravamen of the offense merely was the operation of an empty truck weighing in excess of four tons gross.

We must also consider that the operation is not what is generally termed “through traffic” so that we are obliged to balance the claim of the city that the prohibition of use contained in the ordinance is in the interest of the public health and welfare, against the claim of defendant that the ordinance as it applies to him and his employer is a deprivation of his constitutional right to use the property in question in an area zoned for factory use, in a manner necessary to carry on the trucking business there located.

We find from the evidence as a fact that by blocking out Deise Avenue and the other three streets leading to the garage there is a complete isolation of the plant of the employer for any useful purpose, from all other streets in the city during the prohibited hours.

The defendant in the course of his employment for the trucking company must be allowed some reasonably convenient outlet or means oí ingress or egress, without being subject to arrest, so long as he operates his vehicle in all respects in a safe, proper and lawful manner.

We think that if the ordinance provided some other reasonable outlet for the defendant and his employer, by reason of which ingress and egress could readily and conveniently be had to the garage base, then there would not be an unreasonable and arbitrary exercise of police power as to this defendant or a violation of property rights in the use thereof.

However, in view of the fact that this legislation is prohibitory in character and that all means of ingress and egress are effectually prevented between the hours stated, we conclude that there is here an unreasonable and arbitrary exercise of police power and a violation of constitutional rights which cannot be sustained by this court.

Here we must observe that a fundamental principle in determining the validity of a municipal legislation depends upon its operation and effect and not upon the mere form it may assume.

“The substance of an act, rather than its form, is of significance. In other words, the validity of a legislative enactment is to be resolved by its practical operation and not by its declared purpose.”

10 O. Jur. 2d, Constitutional Law, §164 et seq, p. 268.

The declared purpose is praiseworthy, but the operation in its effect is to deny to the accused well founded and fundamental civil rights.

We have not been cited to any Ohio cases directly in point, by counsel for either of the parties to this litigation, nor have we been able to find any completely analogous. An Ohio case bearing upon the issue of municipal power under Section III, Article XVSII is Cincinnati v. Correll, 141 Oh St 535, which involves the question of limiting and fixing the hours of a business rather than fixing and limiting the hours and use of streets in connection with a business operation.

Paragraph 1 of the syllabus reads as follows’:

“1. Section 3, Article XVIII of the Ohio Constitution grants authority to municipalities to adopt and enforce within their limits such local police regulations as are not in conflict with general laws. A municipal ordinance passed under such authority, to be valid, must not be arbitrary, discriminatory, capricious or unreasonable, and must bear a real and substantial relation to the health, safety, morals or general welfare of the public.”

In this well reasoned opinion the court said, inter alia, at page 539:

“The courts of this country have been extremely zealous in preventing the constitutional rights of citizens being frittered away by regulations passed by virtue of the police power. If an enactment is referable to the police power, to be valid, the court must be able to say that it tends in some* substantial degree to the prevention of offenses, or the preservation oí the health, morals, safety or general welfare of the public. Therefore, if it is apparent that there is no plausible, reasonable and substantial connection between the provisions of the act and the supposed evils to be suppressed, there exists no authority for its enactment. Legislative bodies may not, under the guise of protecting the public interest, interfere with private bus7 iness by imposing arbitrary, discriminatory, capricious or unreasonable restrictions upon lawful business.”

Our attention has been called to cases outside of our jurisdiction which we consider more directly analogous and quite persuasive. In Pivnick v. City of Newark, 14 N. J. Super, 134; 81 Atl. Rep. 2d 409, decided in May, 1951, the court struck down an ordinance which denied to plaintiff the only convenient means of access to his property by excluding the commercial traffic from a street leading to plaintiff’s property located at the end of the street. The court there held that although any abuse of street by commercial vehicles could be controlled by prosecution under traffic act, an amendment to the ordinance by the city to prohibit use of the Newark portion of a street by trucks and thus prevent commercial vehicles from gaining access to the property by the only convenient means, would be set aside as unreasonable, abitrary and discriminatory.

In Terminal Storage Inc. v. Raritan Tp. 15 N. J. Super. 547, 83 Atl. Rp. 2d, 662, decided October, 1951, the court struck down a restrictive ordinance of the township of Raritan, which by its terms prohibited the operation of vehicles carrying or ordinarily used to carry merchandise, goods, tools, or supplies upon specified streets of the township which included part of a street upon which the plaintiff’s land faced, part of which land plaintiff had rented to a tenant who used it as a terminal for trucks and trailers used in their trucking business. The court there held that the ordinance as applied to plaintiff’s property was unreasonable, arbitrary and discriminatory.

True the defendant’s employer is not a party to this case, but the evidence clearly shows that the defendant and any other employees, officers or agents of the employer, who attempt to reach the garage base in the course of the business of the employer with trucks of the indicated weight, even though unloaded, during the hours of 10 P M. to 6 A. M„ are subject by its plain terms to the provisions of the ordinance. That defendant has the absolute right to raise the question of the validity of the law under which he is here prosecuted, is not subject to doubt. See 10 O. Jur. 2d, Constitutional Law, §141 page 220.

One other question is presented in considering the ordinance here challenged by the appellant. Included among the streets, the use of which is prohibited to trucks of a gross weight in excess of four tons, between certain hours, are “East 133rd Street and East 136th Street.” It is to be noticed that the text of the ordinance does not define the parts of these streets meant to come within its restrictions. Certainly the council could not have intended all streets in Cleveland designated and known as E. 133rd Street and East 136th Street should be included within the terms of the ordinance. Being indefinite and uncertain as to the streets to which the restrictions provided for shall apply, the ordinance is for such additional reason unenforceable.

For the reasons stated we therefore hold that the ordinance in question, insofar as it applies to this defendant in the course of his business, as an employee of the trucking company, is unreasonable, arbitrary and discriminatory, and a clear violation of constitutional rights, by reason of which the judgment of the Municipal Court of Cleveland is reversed and final judgment is rendered for the defendant and the defendant discharged. Judgment accordingly. Exc. Order see journal.

KOVACHY, PJ, SKEEL, J, concur.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. ROSS, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 713.
    Decided November 5, 1953.
    Howard G. Eley, Prosecuting Attorney, Greenville, for plaintiff-appellee.
    S. E. Mote, Greenville, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from the judgment and sentence in a criminal action in which the defendant was convicted of operating a motor vehicle on a public highway while in a state of intoxication and under the influence of alcohol, contrary to §6296-30 (c) GC.

There was a definite conflict in the evidence on the two principal issues of fact: Whether the defendant was intoxicated and was under the influence of alcohol as charged, and whether he operated a motor vehicle on the public highway. There was ample evidence presented by the State supporting the charge that defendant was intoxicated and was under the influence of alcohol at the time and place charged in the affidavit. The statements made by the defendant’s two companions at the time of his arrest, in his presence, to the effect that the defendant was driving the automobile, which statements were not denied by the defendant, together with testimony of the deputy sheriff that shortly after the arrest the defendant admitted that he was operating the automobile, and other evidence from which a reasonable inference could be drawn by the jury, were sufficient to support the charge that the defendant was operating the automobile on a public highway.

On cross examination the sheriff was asked whether there has not been some feeling between him and the defendant for several years. The sheriff replied: “I don’t think so. I have arrested him several times.” On motion to strike out the answer, the court cautioned the jury to ignore the statement. In our opinion prejudicial error is not shown.

The charge of the court was in every respect proper. The judgment is sustained by sufficient evidence, and is not contrary to law. We find no error assigned well made.

Judgment affirmed.

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


author: By HORNBECK, J.:

text:
    GLENN, Plaintiff-Appellee, v. NATIONAL SUPPLY COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 513.
    Decided December 9, 1954.

      T. Vincent Martin, R. N. Larrimer, Leander Zwick, Jr., Columbus, M. E. Spencer, Springfield, for plaintiff-appellee.
    Cole & Cole, Springfield, for defendant-appellant.
   OPINION

By HORNBECK, J.:

The appeal is on questions of law from a judgment of the Court of Common Pleas of Clark County against defendant-appellant and in favor of plaintiff-appellee holding that she is entitled to participate in the Workmen’s Compensation Fund, by reason of the death of her husband caused by an injury arising out of and occurring in the course of his employment with the defendant company.

The defendant is a self-insurer. The plaintiff’s decedent was in his life-time and prior to February 15, 1948 in the employ of defendant-company. About that time he left the employ of the company and it is the claim of the plaintiff that he received an injury on or about the last day of his employment caused by being struck by a heavy mold suspended from a crane in the factory of defendant company. It was the claim of the plaintiff that the death of her decedent proximately resulted from cancer of the right lobe of the lung, technically known as bronchogenic carcinoma, and that the course of this disease was accelerated by his injury when struck by the mold. The defendant denied that the plaintiff’s decedent received any injury, as asserted, and denied that he died as a result of the injury pleaded and denied that the progress of the cancer was accelerated by his injury.

The verdict was general and was not tested by interrogatories.

Appellant assigns eight grounds of error: One, in permitting Doctor Cooley to give an opinion whether his diagnosis was confirmed by certain conclusions in the death certificate. Two, in permitting the death certificate to be used for purposes other than those purposes for which it was offered. Three, and Four, in permitting Doctor Rusoff and Doctor Mark to answer hypothetical questions propounded to them and to explain their answers. Five, that the trial-judge erred in failing properly to charge as to the proper weight to be given to the opinion evidence of the physicians. Six, the trial-judge erred in his charge to the jury as to “acceleration.” Seven, the court erred in refusing to grant defendant’s motion for a directed verdict at the conclusion of the ease. And eight, that the verdict and judgment are not sustained by sufficient evidence and are contrary to law.

The first and second assignments may be considered together. It is urged that it was error to permit the admission of the death certificate showing the cause of death of plaintiff’s decedent and the duration of his illness. It is urged that the presence of cancer may be determined only by microscopic examination of its structure and that as such was not made, the statement of the physician in the death certificate as to the cause of death is nothing more than an opinion. Clearly, this is true, but it is an expert opinion based upon probability and one that is permitted to be given as a part of the death certificate. We cannot say that it is not within legislative power to authorize such opinions to be stated and to give them the status of prima facie evidence in support of the fact of death and of the duration of the illness.

The chapter on Vital Statistics including §3705.02 R. C., authorizes and directs the Director of Health to prescribe forms and blanks for obtaining registration of deaths and other vital statistics. Pursuant to this authority, the Director has prescribed forms and the Certificates of Death manifestly is one of them. In this form the Director calls for the information, as to the duration of the last illness of the one who has died as well as the cause of death. Sec. 3705.05 R. C., expressly provides that “such certified copy of such original certificate of * * * death, * * * shall be prima facie evidence in all courts and places of the facts therein stated.”

We would not hold that all statements that might appear in a Death Certificate were competent or evidential. However, the information based on proper professional knowledge which is called for by the Director in forms prescribed by him would be such “facts” as are contemplated in the foregoing quoted provision of §3705.05 R. C.

Our Supreme Court in Stough v. Industrial Commission, 142 Oh St 446, has held that the Death Certificate provided for in the Code is admissible as prima facie evidence of facts therein stated if such facts were based upon personal knowledge of parties stating them; and that “such statute did not create an exception to rule against heresay” and had no application to any facts stated in such certificate which was based upon hearsay. There is no showing that the statement of the doctor in the Death Certificate as to the cause of death was hearsay. Manifestly, it was not. Nor does it appear that knowledge of the duration of the illness was elecited by hearsay.

Appellant cites Carson v. Metropolitan Life Insurance Co., 156 Oh St 104, wherein it was held not only that certified copies of original Certificates of Death are prima faceie evidence of the facts therein stated, but that mere opinions or conclusions do not constitute facts and are not admissible in evidence. The facts upon which this last pronouncement was made arose because certain exhibits stated not only the information which was required to be given, but expressed the opinion that the gun shot which caused the death of appellant, Carson, was inflicted with suicidal intent. The court held that the mere expression of a coroner or a physician that a decedent committed suicide without some evidence to support it was a mere opinion and did not constitute a fact as contemplated by the provisions of the applicable statutes. Judge Putnam in the opinion in Rath v. Industrial Commission No. 794 Court of Appeals, Muskingum County, cited by appellee, discusses and differentiates the observation of a physician as to death being caused by suicide and statements of the cause of death which come within the range of the expert knowledge of a physician. We believe that Judge Putnam’s analysis is sound. We adopt but will not restate it.

The effect of the Death Certificate is only to make prima facie proof of the facts therein stated. The field is open for any other testimony which may tend to disprove any or all of the subject matter of the certificate. If such testimony is forthcoming, as it was here, it need only equal the prima facie case to overcome its probative effect. The weight of this countervailing evidence is, of course, for the jury.

The second assignment is directed to the permission by the court of an expert, Dr. Cooley, to testify that his diagnosis conformed to the statement of the cause of death as found in the Certificate. We find no error in the admission of such testimony. It was nothing more than a statement of an obvious fact and could not have been prejudicial.

The third and fourth assignments are directed to the admission by the court of answers to certain hypothetical questions which were put to Doctors Russof and Mark. It is urged that the questions were objectionable because they contained improper hypothesis not supported by proof. One of the assumptions in the question was that the cancer had existed for sixteen months. It is urged that this assumption is not warranted. We cannot so hold because it is stated in the Death Certificate and is prima facie proof of that fact.

It is also urged that there was variation as to the continuity of a mark or a welt on the left chest and that the assumption was made that the blow left a mark on the left chest whereas Doctor Russof found that it was on the right chest.

Upon the developments we do not believe that all of these variations occur such as did were not so material as to affect the answers especially as to the location of the blow, inasmuch as Doctor Mark testified that whether or not it was on the left or right side of the chest would not materially affect his diagnosis. Upon the whole record there is little if any doubt that the blow was to the left chest and this fact was so accepted in the hypothetical question. The similarity in the hypotheses in the questions put by counsel for both parties is marked.

It is insisted that the witnesses could not testify as to the effect of the blow which it is testified decedent suffered without knowing the force of the blow. Although Doctor Mark testified that the force was not controlling if it was sufficient to cause a disturbance in the area of the blow, there was some testimony tending to show that the blow was of considerable force. It was shown what instrument struck decedent, its construction, how operated, that it weighed from 600 to 800 pounds, the circumstances under which the accident occurred, its effect and the marks that it left on the chest and the ministration of plaintiff to ease the pain.

An examination of the record is convincing that there was testimony tending to establish every hypothesis carried into the question propounded to the experts. It is immaterial though they may have included certain facts contrary to those testified by the doctor to whom the question was put.

The sixth assignment is that the court erred in its charge as to the effect of “acceleration” and what was essential to support a recovery upon that theory. That the Court did not say to the jury that it was incumbent upon plainiff to prove that the injury which her decedent suffered, if it found that he was so injured, must have proximately or directly accelerated the progress of the disease from which he was already suffering and his death.

We are mindful of the holding in Cleveland Ry. Co. v. Karbole, 125 Oh St 466 that the trial-judge erred in refusing to give the following special charge requested before argument:

“Not only must the injury arise out of and be connected with the employment, but that the death must appear to be the proximate result of the injury, or if there was acceleration of death, that acceleration must be the proximate result of the injury.”

The trial-judge did not charge the jury in the above language, nor was he requested to do so before argument or at the conclusion of the general charge. We would hesitate to say that, even though the charge was not technically correct, appellant could take advantage of the fact in view of developments. After the Court had charged the jury he inquired— Gentlemen: “Is there anything further you wish the jury instructed upon?” Conversation ensued. Mr. Cole: “You used the word in your charge several times, ‘accelerate.’ Now, you didn’t at any time say ‘substantially accelerate’ or ‘materially accelerate. ” Some discussion arose between counsel and the Court then proposed to charge further on the subject, and said, “Well, I think I know what you have in mind and I think you probably could have worded it in a way that I would, perhaps had to instruct them.” Finally, counsel withdrew his request. That the Court would have refused to charge, as requested, does not appear.

To avoid the commission of error in a trial when it occurs and to give the Court every opportunity to correct it at once is well recognized as an obligation of counsel. 3 O. Jur. 2d 40. Counsel noted a general exception to the charge. That this is insufficient to reach the error, if any, see First Syllabus, State v. Tudor, 154 Oh St 249.

We are not prepared to say that the Court did not properly charge on the subject of acceleration. In several places in the charge he treated the matter. Typical of the charge, he said to the jury.

“Under the pleadings and evidence in this case, there are only two issues or questions of fact for the jury to determine and they are: (1) * * * (2) whether or not such injury sustained by the deceased, Edward Glenn, if you find he did sustain such an injury, was or was not the proximate cause or direct contributing cause of his death, or caused an acceleration of his death.”

The Court properly charged what constituted the direct or proximate cause as distinguished from the indirect or remote cause.

It is our opinion that the trial judge spoke of a “direct contributing cause of death” as synonymous with, or “caused an acceleration of his death.” That is to say, that if there was an acceleration of death by reason of the injury, it must have been a direct contributing cause of death.. One of the two principle issues was whether or not the injury was a direct contributing cause of death by accelerating the progress of the disease which caused the death.

The probability of any misinterpretation of the charge is remote, in view of the fact that the evidence was clear out for and against the contention that the disease from which the plaintiff died was proximately accelerated by the injury which decedent suffered. The experts for the plaintiff testified, without qualification, that there was direct causal relation between the progress of the disease resulting in death and the blow which decedent suffered. Dr. Mark said that “where bronchogenic carcinoma is present and trauma occurs, rapid metastasis occurs, and in this case apparently a lump formation in the left breast area occurred and hastened death by considerable time.” The expert for the defendant took a contrary view and said that there was not, and could not be any connection between the disease which caused death and the injury which decedent suffered. Doctor Skavlem testified that the theory that trauma produces cancer and particularly the “contra coup” theory, that a blow on the left chest would aggravate or accelerate the cancer in the right bronchial area was unsound and could not be accepted. In view of the direct and irreconcilable conflict in the testimony inasmuch as the jury found that the injury occurred with the resultant effect as testified by plaintiff’s doctors, it would not have been mislead by the charge because the verdict responded to the one and only theory advanced by plaintiff.

The error which we have just discussed is the most substantial of any urged but upon testing it fully, we cannot hold that the Court erred in the instruction as given or, if he did, that it resulted in prejudice to the defendant requiring a reversal of the judgment.

The seventh and eighth assignments are that the court erred in not directing a verdict in behalf of the defendant and that the verdict and judgment are contraryy to and against the manifest weight of the evidence.

We are fully aware, as counsel and the trial-judge must have been, that this is an unusual case. The claim of plaintiff is novel and its proof rested, in the main, on circumstances and particularly upon expert testimony. The experts were of the highest professional standing. Proof of any essential to recovery must come from the best evidence available. Plaintiff started with a heavy handicap which her evidence had to overcome. Whether or not she did so presents an issue of fact which was the responsibility of the jury to resolve. The case was well tried and the jury properly instructed. There were two material controverted facts as to either or both of which the jury could have reached a different conelusion. A careful reading of this record in its entirety is convincing that we may not set the judgment and verdict aside, either as being contrary to law or against the manifest weight of the evidence without invading the province of the jury. We find no error assigned well made.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By BARTLETT, J.

text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 34975.
    Decided March 16, 1955
    Robert E. Albright, Justin L. Sillman, R. Rush Warren, Columbus, for State.
    John J. Chester, Gale R. King. Columbus Robert N. Gorman, Cincinnati, for defendant.
   OPINION

By BARTLETT, J.

1. UPON MOTION OF THE DEFENDANT, THE COURT ON RECONSIDERATION THEREOF, ADHERES TO ITS PREVIOUS DECISION OVERRULING THE DEMURRER TO THE FIRST COUNT OF THE INDICTMENT AS SUPPLEMENTED BY THE BILL OF PARTICULARS.

2. THE DEFENDANT IS DIRECTED TO ENTER HIS PLEA TO THE FIRST COUNT OF THE INDICTMENT FORTHWITH.

The complaint of counsel for the defendant on the previous ruling of the court, is the fact that the indictment supplemented by the bill of particulars, does not identify the person who gave the bribe alleged to have been accepted by the defendant.

The Court in its previous decision cited 11 C. J. S. Bribery, p. 843, and p. 844 which states:

“Identity of the bribe-giver is not material in a prosecution for acceptance of a bribe.”

The authority for the citation is the case of People v. O’Neill, 48 Hun. 36, affirmed 109 N. Y. 251.

Counsel for the defendant urge that the case cited does not support the statement of the text; and that such decision of the Supreme Court of New York neither touched upon nor held that the naming of the person offering the bribe was not essential.

Let us test the accuracy of counsel’s statement to that effect.

In the syllabus of the O’Neill case, supra, it is stated, “upon proof that a man has taken a bribe, it is not difficult to infer that he has agreed to be bribed.” 48 Hun. 36.

Van Brunt, PJ., delivered the opinion of the Supreme Court in the foregoing case, and on p. 43 he says:

“It is urged that there was no proof of a mutual agreement between these parties. But it is difficult to understand how such large sums of money could be paid, as was established by the evidence in this case, unless somebody had agreed to pay them. It is entirely immaterial, for the purpose of establishing the charge as against this defendant, that the identity of the person promising should be proved. It is sufficient, if the agreement to accept a bribe is proved with some person, no matter who.” (Emphasis ours.)

Later it was held in the case of People v. Furlong, 127 N. Y. Supp. 422 as follows:

3. “It is not necessary to convict under an indictment for bribery * * *, that the person who gave the bribe pursuant to the agreement be specified in the indictment, * * *.”

In an indictment for bribery which alleges that ten promissory notes of the value of $25.00 each were given as a bribe, it is not necessary to set out by whom the notes were made. Commonwealth v. Donovan, 170 Mass. 228.

“In an indictment * * * for the acceptance of a bribe by a'juror, it is unnecessary to allege that the bribe was taken or received from a party to the cause or proceeding.” Commonwealth v. Milliken, 174 Mass. 79.

Morton, J., delivered the opinion of the Supreme Court of Massachusetts in the foregoing case, and on p. 80 says:

“It is enough to allege of the defendant that he corruptly took the money of a person to the jurors unknown, to give his verdict in favor of one of the parties to the cause.” (Emphasis ours.)

In its previous opinion the Court cited the case of State v. Carney, 28 Abs 555, wherein the late Leach, J., of this court set out the essential elements in an indictment for bribery, as respects the acceptance of a bribe Counsel for the defendant .state they have no quarrel with the decision in the Carney case. Certainly that case does not specify the name of the alleged bribe-giver as an essential element in an indictment charging the acceptance of a bribe. Counsel for the defendant may have read all the bribery cases in Ohio as they state, but yet they are not able to cite any decision in Ohio or elsewhere that identity of the bribe-giver is an essential element in an indictment for accepting a bribe.

The ultimate fact to be averred in such an indictment is the acceptance of a bribe. The name or identity of the bribe-giver is purely an evidential fact and need not be averred.

The Court, therefore, on reconsideration thereof, adheres to its previous decision overruling the demurrer to the first count of the indictment as supplemented by the bill of particulars.


text:
    STATE, Plaintiff, v. KEARNS, Defendant.
    Common Pleas Court, Franklin County.
    No. 35,102.
    Decided April 5, 1955.
   OPINION

By BARTLETT, J.

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

The indictment charges that about March 6, 1953, the defendant as Prosecuting Attorney, within this county, elected to said office of public trust, did unlawfully and fraudulently embezzle and convert to his own use money belonging to said county in the sum of $210.00, without the assent of said county, which money had come into his possession and care, by virtue and under color of his said office, and while he was discharging and pretending to discharge the duties of said office, contrary to §12876 GC.

At the request of counsel for the defendant, a bill of particulars was filed as a supplement to the indictment stating that on or about the aforesaid date said Frank H. Kearns, while acting in his official capacity as such Prosecuting Attorney aforesaid, did issue an order to the auditor of said county for public funds for expenses to be incurred by him in the performance of his official duties and in the furtherance of justice as provided by law, upon which order said auditor drew his warrant on the Treasurer of said county, payable to said Frank H. Kearns as Prosecuting Attorney, and by said means did come into the possession of said money belonging to said county, by virtue and under color of his said office; and did then deposit said warrant in the Ohio National Bank of Columbus, Ohio, under his name and the title of his office, in a special checking account under his control, for expenses to be incurred in the performance of his official duties and in the furtherance of justice as aforesaid; and that on or about March 6, 1953, while acting and pretending to act as said Prosecuting Attorney, did falsely and fraudulently draw a check against said fund deposited in said bank payable to himself and did receive personally the sum of $210.00 on said check, based on a voucher wherein he certified falsely and fraudulently that said check and money was a refund for expenses incurred in his official capacity, in attending a meeting of the National Association of Prosecuting Attorneys in New Orleans, Louisiana, from February 26, 1953, to March 1, 1953, when in fact he well knew that he had not attended said meeting and did not incur said expenses, and well knew said certificate aforesaid was false and fraudulent and was made solely to unlawfully and fraudulently deprive said county of said money, and did thereby unlawfully, intentionally and fraudulently receive said money solely for his own personal use, gain and profit, and did thereby unlawfully and fraudulently embezzle and convert to his own use said money in the manner aforesaid contrary to the statute in such cases made and provided.

A demurrer has been filed to the indictment, supplemented by the bill of particulars, on the ground that the facts so stated do not constitute an offense punishable by the laws of Ohio.

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

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

This is a far cry from any theory that the law authorizes such funds to be used by the Prosecutor to pay his own personal expenses, “when he is ofiC on a frolic of his own;”, or that he need not account strictly for the use of such funds, where there is any reason to believe that he not only has lied as to the actual use thereof, but that he has expended said funds for his own personal use and gain rather than for the official purposes.

It must be remembered that the indictment charges not only that he did unlawfully and fraudulently embezzle and convert to his own use said money belonging to this county; but supplemented by the bill of particulars, further charges that he falsely and fraudulently pretended and certified that he incurred such expenses of $210.00 in attending a meeting in his official capacity, when in truth and in fact, he well knew he did not so incur said expenses in any official capacity whatever, and did not attend any such meeting at all; and that he made said false and fraudulent certificate with the sole intention of depriving said county of said money, and he did so receive said money for his own personal use, gain and profit.

To say the least, the filing of a demurrer to such charges is arrogance personified, and an affront to the decency of the citizenship of this county.

It is even asserted that said funds in defendant’s possession ceased to be “public money” although entrusted to him for certain public purposes, as above designated.

Sec. 3004 GC, under which the defendant received said money of this county, does not disclose a purpose on the part of the General Assembly to make “booty” of such funds of the county. State v. Pohlmeyer, 59 Oh St 491, 496. (Emphasis ours.)

“It is elementary that the public money may be used only for public purposes, never for private gain.” 32 O. Jur. Public Officers Sec. 94, p. 954; Kohler v. Powell, 115 Oh St 418, 425.

The term ‘public money’ as used in §286 GC, relating to the recovery of public money illegally expended, includes all money received or collected under color of office, whether in accordance with or under authority of any law, ordinance or order, or otherwise;” 32 O. Jur. Public Funds, Sec. 1 p. 715; §286 GC.

Sec. 12876 GC, on which the indictment is based, provided:

“Whoever, being elected * * * to an office of public trust or profit, * * * embezzles or converts to his own use, anything of value that shall come into his possession by virtue of such office * * *, is guilty of embezzlement, * * *”

The gist of the crime of embezzlement is an intentional conversion by the embezzler to his own use of property entrusted to him. State v. Urbaytis, 156 Oh St 271.

Finally, it is even argued by counsel for the defendant, that the office of Prosecuting Attorney is not an office of public trust.

“A prosecuting attorney is a public officer, * * * ” 32 O. Jur., Prosecuting Attorneys, Sec. 2, p. 643; 11 O. Jur., Counties, Sec. 31, p. 268; §2909 et seq. GC; State ex Doerfler v. Price, 101 Oh St 50.
“Where by virtue of law, a person is clothed * * * with independent-power to control the property of the public and with public functions to be exercised in the supposed interest of the people, the service to be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office.” 11 O. Jur., Counties, Sec. 30, p. 267; State v. Brennan, 49 Oh St 33.
“6. One elected to public office holds duty to public not to betray his trust.” Fromm v. State, 36 Oh Ap 346, leave to file appeal refused by Supreme Court, April 23, 1930;
“A public officer is bound to perform the duties of his office, faithfully, to use reasonable skill and diligence, and to act primarily for the benefit of the public. He must perform his official duties with integrity, for he owes a duty to the public not to betray his trust.” 32 O. Jur., Public Officers, Sec. 90, p. 950;
“Public officials, it would seem, should consider themselves rather as trustees than philanthropists, in the appropriation and disbursement of public funds.” Peters, Dir. of Finance, v. State ex Joehn, 42 Oh Ap 307, 308; 32 O. Jur. Public Officers, Sec. 95. p. 955;
“It is true, that an officer elected * * * by the people * * *. He is but a trustee for the public;” Knoup v. Piqua Bank, 1 Oh St 603, 617;
“A public office is a trust held for the benefit of the public.” Mason v. State ex McCoy, 58 Oh St 30, 55;
“A public officer is a public servant, whether he be a policeman of a municipality or the president of the United States. His candidacy for the appointment or election, his commission, his oath, in connection with the law under which he serves, and the emoluments of his office constitutes the contract between him and the public which he serves.” Per curiam opinion, Cleveland v. Luttner, 92 Oh St 493, 494.
“We so often lose sight of the primary purpose of criminal statutes. They are enacted to protect the public by prohibiting crime and punishing criminals. If a man is agent enough to get possession of money for and in the name of his principal, he is also agent enough to be convicted of embezzlement as such agent.” Per curiam opinion, State v. Gross, 91 Oh St 161, 164;
“If he was officer enough to receive the money, he was officer enough to be punished for embezzling it.” State v. Carter, 67 Oh St 422;
“The statutory definition of the offense (embezzlement) regards the actual relation of the agent, servant or employe, and not the legality of the mode in which it was created nor the extent of the authority conferred and the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, applies in criminal prosecutions as in civil actions.” State v. Pohlmeyer, supra; Roberts v. State, 45 Oh Ap 65; petition in error dismissed, 126 Oh St 429.
“There are two classes of embezzlement statutes, the first class being composed of §12467 et seq. GC, and defining the embezzlement of private funds, and the other class composed of §12373 et seq. GC (including §12376 GC), and defining the embezzlement of public funds.”

The basic principles are the same, however. 15 O. Jur., Embezzlement, Sec. 4 p. 602.

“Where the secretary of a building association procures the issue of its checks in the names of fictitious applicants for loans, and endorses them in the names of the fictitious payees his collection of such checks would estop him from asserting their original invalidity, even if they were invalid, and would amount to embezzlement under §6843 GC.” Livingston et al. v. Fidelity & Deposit Co., 7 O. C. C. (N. S.), 66, affirmed 76 Oh St 253.
“The testimony tended to show that Breinig as superintendent of Maintenance and Repair of State Highways would submit to his superiors a list of names of supposed laborers with the amount due them, and that the checks would be issued payable to these several laborers for the amounts apparently due them, when as a matter of fact there were no such laborers and consequently no such sums due anyone; that these checks were cashed by Breinig. who kept the proceeds. It is quite possible that these facts would support a charge of obtaining money under false pretenses. But the fact that false pretenses were resorted to in order to get possession of the money would not relieve the accused from a charge of embezzlement. If Breinig endorsed checks payable to non-existent payees and received the money therefrom it was the state’s money and even though he used fraud to gain possession of the money it nevertheless came to his possession by virtue of his employment and but for the fact that he was an employee he could not have come into possession of • the money. It could have been the money of no one else, and regardless of what ruses he adopted to get possession of it. if he converted it to his own use he was thereby guilty of embezzlement.” (Emphasis-ours.)

The verdict of embezzlement and the judgment thereon was affirmed. Breinig v. State, 33 O. L. R. 649, affirmed 124 Oh St 39.

The Livingston case, supra, in which the secretary of the building association resorted to the cashing of its checks payable to ficticious payees, and the Breinig case, supra, in which he resorted to the padding of the state payroll and the cashing of such checks, to get possession of the funds of the association and the state, would appear to be decisive of the guilt of the defendant Kearns who admits by his demurrer that he resorted to the cashing of a check on the fund of the prosecuting attorney for a ficticious expense account for a trip that he never made.

The indictment is almost identical with the one in the case of State v. Otto No. 20,943 on the dockets of this court, wherein the defendant as city auditor was convicted of embezzlement of public funds under §12,876 GC, where the defendant resorted to use of fraudulent vouchers to obtain money from the city treasury for similar ficticious trips that he never made. Scarlett, J., in the Otto case, supra, gave the following special instruction on request of the jury for further instructions:

“The second question, which also bears on some of the elements of embezzlement, is as follows:
‘Does the state have to prove whether defendant has used the money for his own personal use as charged in the indictment?’
“My answer: The state is not required to prove where and how the defendant spent money of the city which came into his hands by virtue of his office. It is necessary, however, for the evidence to convince you beyond a reasonable doubt that the defendant did not in good faith, apply the money in payment of official expenses described in the vouchers upon which the warrants were based, believing in good faith, that he had authority so to do, and that he has exercised dominion and control over the money with the intention of permanently depriving the city of such money without its consent or without proper authority.
“It is not necessary, of course, for the city to trace the money and show how or when he spent it. In reaching your conclusion you will consider all the facts and circumstances surrounding and following the receipt of the money, including the length of time since defendant came into possession of the money. The defendant is not charged with the safekeeping of funds, and if the purpose for which the money was obtained failed, it was his duty to account in a reasonable time. Tf he failed to do so, you may draw such inferences of conversion to his use rise wrongfully as you believe justified.”

Judge Scarlett’s instruction was good law then and now, the only difference in the instant case being that Kearns admits by his demurrer that he certified his expenses for a prior trip never taken, while Otto certified for trips in advance which were never made. A jury would have the right to such an inference of conversion as it felt justified, because of an absolute false certificate as to such expenses having already been incurred.

This court in closing, cannot choose more fitting words than those of Judge Gorman of the Hamilton County Common Pleas Court when he said:

“Public office is a public trust and not a sinecure, and he who cannot so treat it and perform his duties, .should vacate the office and give way to an honest and capable man who is ready and willing to perform the duties imposed by law upon the official.” State ex rel. v. Hamann (1911), 10 N. P. (N. S.) 569,580.

The demurrer to the indictment, supplemented by the bill of particulars, is overruled; and the defendant is directed to enter his plea to said indictment forthwith.


author: By WISEMAN, PJ:

text:
    STATE Plaintiff-Appellee, v. FOSTON, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County,
    No. 492.
    Decided December 1, 1954.

      James H. DeWeese, Troy, for plaintiff-appellee.
    William R. Ellis, Springfield, for defendant-appellant.
   OPINION

By WISEMAN, PJ:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Miami County, Ohio, entered on the conviction of the defendant on a charge of receiving and'or concealing personal property, knowing said personal property to be stolen, contrary to §12450 GC.

Assignment of errors comprising sixteen separate headings has been filed by the appellant. A detailed statement of facts and lengthy discussion of the law applicable to each of the numerous questions raised will serve no useful purpose. We have carefully examined the entire record and have given due consideration to the various contentions of counsel for appellant. We pass upon each question raised with brief comment.

Defendant’s motion to quash was properly overruled: Before filing motion to quash, defendant had entered a plea' of. not guilty. Sec. 2941.59 R. c., provides:

“The accused waives all defects which may be excepted to by a motion to quash or a piea in abatement, by demurring to an indictment, or by pleading in bar or the general issue.”

The trial court did not lack jurisdiction as the indictment alleged the offense was committed in Miami County, State of Ohio. This was sufficient to clothe the court with jurisdiction.

The grand jury is not restricted to the charge made in the affidavit, on which a preliminary hearing was had which resulted in the defendant being bound over to the grand jury. It is urged that if the grand jury does not indict on the charge made in the affidavit the defendant should be discharged. The law of Ohio is otherwise. In State v. Klingenberger, 113 Oh St 418, where the identical question was raised, the court on page 426 said:

“In any case which comes before the grand jury in Ohio upon a charge preferred in police court, the grand jury is empowered to return an indictment according to the facts in evidence, even though- it differs from the original charge. It may, in fact, indict originally without charge being made in an inferior court.”

Motion of defendant to dismiss after the opening statement of the prosecuting attorney was properly overruled. The prosecutor stated that a number of motors were received and/or concealed by the defendant, knowing the same to have been stolen, and the prosecutor stated that these motors were disposed of by the defendant at different times. The defendant claims that each transaction constituted a separate offense and that according to the value of each motor, the evidence would show at best the commission of a misdemeanor. However, it does not appear that the prosecutor claimed or that the evidence showed that only one motor was received and/or concealed at any given time. The case was finally submitted to the jury with a reference to a specific date and a specific number of motors.

Motion of the defendant for a directed verdict at the close of the State’s case, which was renewed at the close of all of the evidence, was properly overruled. The venue was properly laid in the City of Piqua, Miami County, Ohio. Sufficient proof that the property was stolen was presented. Direct proof of actual knowledge on the part of the defendant is not essential. Scienter may be inferred from the facts proved. Vol. 34 O. Jur. page 1112 Sec. 6. See Holtz v. State, 30 Oh St 486, 489, which holds that concealment, when proven, tends to show guilty knowledge. See, also, Silverman v. U. S., 3 Abs 237 (full opinion reported in 2 F. [2d] 716); Burke v. State, 35 O. C. D. 713, 32 O. C. A. 157. (Motion to certify overruled by Supreme Court April 6, 1920.) The value of the three motors claimed to be in possession of the defendant on January 28, 1952, was clearly established to be in excess of $60.00

The indictment was amended during the trial restricting the State to a day certain on which the offense was alleged to have been committed. The amendment was beneficial to the defendant. We fail to find prejudicial error.

On direct examination counsel for the defendant interrogated the defendant at some length as to. prior offenses. The prosecutor cross-examined the defendant with respect to the offenses testified to under direct examination, and also as to other offenses which were not disclosed by the defendant on direct examination. We find no error committed in the admission of evidence.

The trial court properly overruled defendant’s motion for directed verdict at the close of all the evidence. In our opinion the verdict was sustained by sufficient evidence and is not contrary to law. We find no misconduct on the part of any of the witnesses or the prosecuting attorney; neither do we find any statement or instruction of the trial judge to be prejudicial. No exception was taken to the general charge. Motions for new trial and arrest of judgment were properly overruled.

We find no assignment of error well made. In our opinion the defendant had a fair trial and justice has been done.

Judgment affirmed.

MILLER and HORNBECK, JJ, concur.


text:
    PRICE BROTHERS COMPANY, a Corporation, Plaintiff-Appellee, v. P. B. HARRIS REALTY COMPANY et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2190.
    Decided April 28, 1953.
    Harshman, Young, Colvin and Alexander, Dayton, Maxwell H. Stamper and Joseph H. Colvin, of Counsel, for The Price Brothers Company.
    Froug & Froug, Dayton, Morris H. Simmons, Dayton, for defendant-appellant, P. B. Harris Realty Company.
   OPINION

By THE COURT:

This is a law and fact appeal from the judgment of the Common Pleas Court. The petition sets forth two causes of action in which the plaint,iff seeks (1) the balance due on an account to Miller and Farmer, co-defendants, in the sum of $1145.94, the same being the balance due for certain building materials. (2) Foreclosure of mechanic’s lien on the appellant’s property. A default judgment was entered on the first cause of action in the amount claimed against Miller and Farmer, defendants, and from which no appeal has been prosecuted.

The second cause came on for hearing after which the Court found the plaintiff’s lien was valid in the amount prayed for and decreed that the same be foreclosed.

By stipulation the ease is submitted on the record made in the trial court plus the additional testimony of James Miller before a master commissioner appointed by this Court.

The record reveals that in the early part of 1948 the defendants, James Miller and Arthur Farmer, a partnership, entered into a contract with The P. B. Harris Realty Company, defendant, to construct a certain building for the sum of $45,000.00; that the plaintiff, with the knowledge and consent of the defendant, furnished brick and cement block for the construction of said building upon the order of Miller and Farmer; that between March 31 and May 22 the brick work was performed and the material was furnished for which there is a balance of $1141.18 due; that on August 24 the plaintiff delivered 27 concrete blocks on the job, the same having been ordered by Miller, receipted for by Farmer, and priced at $4.76. The appellant is urging that the building was completed prior to August 24, when this last delivery was made and that this material was for extras, that the time for filing of lien for materials furnished prior to May 22 began to run on that date and not on August 24. We are in agreement with the finding of the trial court that the building was not completed on August 24.

We further find that the last material was used in the construction of the building and that the same was delivered by the plaintiff in good faith on its part; that there was no collusion between the plaintiff and Miller and Farmer to extend the lien filing date by ordering unnecessary material on the job. Therefore the lien filed on October 15 was filed within the time fixed by §8314 GC. This court held, in Coleman et v. Hertzman, 5 Abs 355, that where items are furnished by a subcontractor, in good faith and not merely to lay the foundation for a mechanic’s lien which would otherwise have been barred by lapse of time, the lien, having been verified and properly filed, the subcontractor has a prima facie case on the validity of its lien.

In Walter v. Brothers et 42 Oh St 15, the first syllabus provides:

“1. Test of right to lien where work done is relied on to extend time for filing is whether work was necessary part of contract performed in good faith and not merely to extend time.”

The defendant is also contending that the plaintiff is estopped from asserting its lien for the reason that the plaintiff failed to render a statement showing the balance due on the Miller and Farmer account upon the request being made for the same. There appears to be a conflict in the testimony on this question, and we find that the defendant did not establish that a demand was made by the proper degree of proof.

We have examined the conclusions of law and fact filed by the trial court, also its well considered opinion, and are in full agreement with the same. Our judgment will, therefore, be the same as that of the trial court.

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


text:
    KYLE, Estate of, In re.
    Ohio Appeals, Second District, Miami County.
    No. 494.
    Decided December 1, 1954.
    William A. Haines, Troy, Raymond E. Cookston, Cleveland, for appellant.
    Faust & Harrelson, Troy, for appellees.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss said appeal on the ground that the order appealed from is not a final order.

An application was filed in the Probate Court of Miami County against the appellant alleging that she. as life tenant of certain securities, had converted and used said securities as her own in violation of the terms of the will under which she held said property. Said application sought to have the assets restored to the estate and a trustee appointed to take charge of the assets of said estate. To this application appellant filed a general demurrer, which was overruled. The entry overruling the demurrer does not render final judgment, neither does it grant leave to appellant to plead.

Voi. 2 O. Jur. 2d, page 618, Sec. 47, the text is as follows:

“There is no final order which can be made the basis of an appeal on questions of law, where a cause has proceeded no further than the mere overruling or sustaining of a demurrer to a pleading of one side or the other, since such an order, without more, leaves the action still pending in the lower court. This rule has been applied to an order overruling a demurrer to a petition where the defendant answers or has leave to answer.” (Numerous cases cited.)

The most recent pronouncement of the Supreme Court is found in Collins v. Yellow Cab Co., 157 Oh St 311, where the Court, on page 314, said:

“It has long been the law of this state that the overruling or sustaining of a demurrer to a pleading, which is not followed by either judgment or the dismissal of the case, is not a ‘final order’ which may be appealed on questions of law. See Holbrook, Admr., v. Connelly, 6 Oh St, 199; Betz v. Industrial Commission, 139 Oh St, 624, 41 N. E. (2d), 701.”

See, also, three cases decided by this District Court of Appeals: Kelley v. Kelley, 74 Oh Ap 225; Fornoff v. Ehlert, 53 Abs 96; Davis v. Moor. 54 Abs 383. See, also, Bell v. Bell, 88 Oh Ap 427, wherein the case of Czech Catholic Union v. East End Bldg, and Loan Assn., 140 Oh St 465, was distinguished on the facts.

Motion to dismiss sustained.

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


author: By HURD, PJ. By KOVACHY, J:

text:
    GRAVIER et, Plaintiffs-Appellants, v. GLUTH, Extrx., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22964.
    Decided May 12, 1954.

      John J. Tetlow, William J. Tetlow, J. J. Sheehan, F. C. Duffy, Cleveland, for plaintiffs-appellants.
    Deibel, Elbrecht & Roberts, Cleveland, for defendants-appellees.
   OPINION

By HURD, PJ.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of this county, granting a motion to dismiss plaintiff’s amended petition to contest a will, on the ground of want of jurisdiction. The judgment of the trial court was based upon the allegations of the amended petition, the docket and journal entries, there being no bill of exceptions.

Edwin W. Bechler died August 18, 1950, leaving a will in which he named defendant Gluth as the executrix, and defendant Edith N. Boll the sole legatee and devisee. The will was admitted to probate on Sept. 8, 1950. On February 27, 1951, three persons, Leona Gravier, Anna Bechler and Charles P. Bechler filed a petition to contest the will. They named Catherine Gluth. Executrix of the will and Edith M. Boll, legatee of the will, as parties defendant and they also named Mary Fredette, Arthur Faenrich and Emil Faenrich as parties defendant.

The petition alleged that the three plaintiffs and the last named three defendants were the only heirs-at-law and next of kin of the testator. With the petition, plaintiffs filed a precipe directing summons to be issued and served on the executrix and on the legatee-devisee. The precipe was silent as to other three defendants. Summons was issued for and served on the executrix and legatee-devisee, but no summons was served on the other three defendants; neither did the other three defendants either then or at any time thereafter, waive service of summons or enter appearance in the case as defendants. There was no constructive service on the unknown heirs-at-law of the testator and any known heirs, not above mentioned, were not at any time made parties to the suit.

On January 15, 1953, 27 months after probate of the will, an entry was made on the docket, reading as follows:

“Leave granted plaintiffs to amend caption of petition.”

Pursuant to such leave, there was written in ink in the caption of the original petition, the following:

“Additional parties, plaintiff: Margaret Bechler, Berlin, Germany; Martha Bechler, Berlin, Germany; Lucy' Bechler. Berlin, Germany; Anna Bechler Cullman, Alabama; John Bechler Cullman, Alabama: Ernest Bechler, Berlin, Germany; Arthur Faenrich, 8216 Rosewood Avenue, Cleveland, Ohio; Emil Faenrich, 10215 Robinson Avenue, Cleveland, Ohio; Mary Fredette, 7719 Detroit Avenue, Cleveland, Ohio; Erika Bechler, Berlin, Germany; Eckart Bechler, Berlin, Germany; Eifa Bechler, Berlin. Germany.”

At the time of such leave and of such amendment of the caption by interlineation, the body of the petition was not amended, either by filing an amended petition, or by interlineation, or otherwise. Nothing then appeared in the petition disclosing whether “additional parties plaintiff” had any interest in the action.

Thereafter, defendant, Edith M. Boll, moved to require the petition to be made definite and certain to show the interest, if any, of the new parties plaintiff. In’ amending the caption the original three defendants, namely, Mary Fredette, Arthur Faenrich and Emil Faenrich, had been transferred from the defendant side of the case to the plaintiff side under the caption of “additional parties plaintiff,” thereby leaving as the only remaining defendants the Executrix .and the legatee-devisee

On March 31, 1953, the motion to make definite and certain was granted and on April 17, 1953, thirty months after the probate of the will, an amended petition was filed; the three original plaintiffs and the three original defendants, plus nine other persons, were then named as plaintiffs. Thereafter, the defendant executrix and the defendant legatee-devisee filed a motion to dismiss the action for want of jurisdiction. The trial court treated the motion to dismiss as a demurrer and sustained the same. On rehearing, the trial court refused to vacate the order of dismissal.

Under this state of the record, the sole question presented for our determination is, “Did the trial court err in dismissing the action for want of jurisdiction?”

Sec. 2741.09 R. C. (§12087 GC), so far as applicable, provides:

“Limitation of Action to Contest Will: An action to contest a will or codicil shall be brought within six months after it has been admitted to probate * *

Likewise §2107.23 R. C. (§10504-32 GC) provides:

“Contest of Will within Six Months. Exceptions. If witnin six months after a will has been admitted to probate, no person files an action to contest the validity of a will, the probate shall be forever binding, except * * *.” (Exceptions not material in this case.)

Sec. 2741.02 R. C. (§12080 GC) originally enacted in 1878 provides:

“Necessary Parties: All the devisees, legatees and heirs of the testator, and other interested persons, including the executor and administrator must be parties to an action under §2741.01 R. C.”

Appellants here contend that the principle enunciated in Bradford v. Andrews, 20 Oh St 208, is here applicable, the first syllabus of which reads as follows:

“1. Where a proceeding for the contest of a will is commenced within the statutory period of limitation, although only part of the persons interested in the contest are made parties thereto, the right of action is saved as to all who are ultimately made parties, notwithstanding some of them are not brought into the case until after the period of limitation has expired.”

However, in Peters v. Moore, 154 Oh St 177, Weygandt, C. J., speaking for an unanimous court, stated at page 182:

“A careful study discloses not only that at the time of the Bradford case decision in the year 1870, §12080 GC, had not been enacted, but that this section was not preceded by any similar statute. Hence, when the section was enacted in 1878, the provisions were new and of course were not under consideration in the Bradford case.”

This brings us to a consideration of a series of decisions by the supreme court, which, in our opinion, require the affirmance of the judgment of the common pleas court in this case.

In Case v. Smith, Admrx., 142 Oh St 95, the Supreme Court approved and followed the cases of McVeigh v. Fetterman, 95 Oh St 292, and McCord v. McCord, 104 Oh St 274, as indicated in Pars 1 and 4 of the syllabus, and for purposes of this discussion, we think it helpful to set forth the syllabus of Case v. Smith, as follows:

“1. No right exists to maintain an action to contest the validity of a will except as it is specifically provided by statute. (McVeigh v. Fetterman, 95 Oh St 292, approved and followed.)
“2. The provisions of the statute relative to an action to contest the validity of a will are mandatory: the enjoyment of the right is dependent upon compliance with the conditions and limitations therein contained.
“3. The sole beneficiary, under a will, who is neither an heir-at-law nor next of kin of the decedent, is not ‘united in interest’ with decedent’s heirs-at-law or next of kin. „
“4. An action to contest the validity of a will is not commenced as to the heirs-at-law of testator by service of summons upon such sole beneficiary within six months from the date of probate, where such sole beneficiary is neither an heir-at-law nor next of kin of decedent, (McCord v. McCord, 104 Oh St 274, approved and followed.)
“5. In such action, where none of the heirs-at-law, or next of kin, is served with summons, and no person ‘united in interest’ with them is served within six months from the date of probate there is a failure of compliance with §12080 GC, specifying who must be made parties, and the Court of Common Pleas is without jurisdiction to entertain such action.”

The trial court, while commenting on the “logic and good sense” of Bradford v. Andrews, supra, expressed the view that Case v. Smith, supra, is now the controlling authority which should be followed in the instant case.

From the facts above noted, it will be observed that this six months limitation prescribed by §2741.09 R. C. (§12087 GC) terminated March 8, 1951.

It is here conceded that none of the heirs-at-law or next of kin were served with summons within the six months period, made a condition of limitation precedent for the right to sue, although three heirs-at-law were originally named as defendants. As in Case v. Smith, supra, only the sole beneficiary and the executrix were made parties and served with summons. In view of this factual situation, none of the heirs-at-law could be joined as defendants after the termination of the six months period because none were united in interest with the sole beneficiary and executrix as provided by §2305.17 R. C. (§11230 GC) which, insofar as applicable, provides as follows:

“An action shall be deemed commenced within the meaning of this chapter, as to each defendant at the date of summons, which is served upon him, or a co-defendant who is a joint contractor or otherwise united in interest with him.”

Faced with this dilemma, the original plaintiffs then sought to join the three heirs-at-law originally named as defendants but not served with summons, together with nine other heirs-at-law later discovered, as plaintiffs but long after termination of the six months period, on the theory that the said plaintiffs are united in interest with the original plaintiffs. This attempt is abortive, because there is no warrant .for such action either by statute or at common law.

Sec. 2305.17 R. C. (§11230 GO is unavailing to plaintiffs because by its express terms it is limited to defendants and co-defendants. There is no similar statutory provision favoring plaintiffs who may be united in interest. Had summons been issued upon the original heirs-at-law named as defendants, followed by service upon them, we would be confronted with an entirely different situation by reason whereof the nine heirs-at-law might be joined as co-defendants because united in interest as provided by §2305.17 R. C. (§11230 GO). However, as we do not have this question before us, it is not necessary to discuss or decide it. In any event, we are certain that the obvious jurisdictional defect in procedure cannot be cured by unseasonably transferring the .three parties originally named as defendants, to the plaintiff’s side of the petition and belatedly adding other heirs-at-law as plaintiffs.

We think this proposition has now been definitely and finally established by the Supreme Court, precluding this court from holding to the contrary, however much we might think it desirable to give all parties their day in court.

It is our conclusion that under the doctrine and authority of the cases of McVeigh v. Fetterman; McCord v. McCord, and Case v. Smith, supra, and the later cases of Peters v. Moore, 154 Oh St 177 and Bynner v. Jones. 154 Oh St 184, to the same general effect, that the Court of Common Pleas did not err in dismissing the action for want of jurisdiction and the judgment must, therefore, be affirmed.

JUDGMENT AFFIRMED. Exceptions allowed to all proper parties. ORDER SEE JOURNAL.

SKEEL, J, concurs.

KOVACHY, J, dissents. (See dissenting opinion.)

DISSENTING OPINION

By KOVACHY, J:

The facts are fully stated in the majority opinion.

The case of Case v. Smith, 142 Oh St 95, in my opinion, is not factually identified with the instant case. It is true in both cases, the heirs-at-law or next of kin commenced the action to contest the will against the sole beneficiary who was neither an heir-at-law or next of kin of the decedent, and the administratrix in one and the executrix in the other, as parties defendant and obtained service on these defendants within the time limitation required by law. However, in Case v. Smith, the heirs-at-law, or next of kin, entered the lawsuit as parties defendant, whereas in the instant case, they entered as parties plaintiff.

It seems apparent therefore, in the case of Case v. Smith, that since no heir-at-law or next of kin was made a party defendant within six months from the date of probate of the will that no party defendant united in interest with the new defendants, was in the case and no action with respect to them had been properly commenced as required under §12080 GC (§2741.02 It. C.) and the Court of Common Pleas was without jurisdiction to proceed with the action.

In the instant case, on the other hand, the new parties plaintiff were united in interest with the original plaintiffs and the action was commenced in compliance with §§12087 and 12080 GC (§§2741.09 and '2741.02 R. C.), since it was instituted within six months after the date of probate of the will, with all classes of persons enumerated in the latter section made parties to the action either as plaintiffs or defendants, including the executrix.

The rule with respect to adding new parties plaintiff in a situation such as we have here, is stated in 8 American Law Reports 2d, p. 28, parag. 10, as follows:

“Where the attempt is made to add a new party plaintiff after the statute of limitations has run, the general rule is that where the original plaintiff seeks to enforce an independent right the amendment does not relate back and the defense of the statute of limitations is available against the added plaintiff, but that where the addition of the new party plaintiff is made necessary because of a failure m the first instance to join persons having a joint interest, the amendment relates back to the commencement of the original suit * *

The Supreme Court of Ohio applied the principle herein contended for by plaintiffs in the case of Snider’s Extrx. v. Young, 72 Oh St 494, and states it in paragraph 1 of the syllabus:

“1. When some of the plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse the judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also- as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants.”

See Baughman v. Hower, 56 Oh Ap 162.

The new plaintiffs herein were all united in interest with the original plaintiffs and consequently there was no attempt on their part to enforce an independent right. Their rights were consonant with and identical to those asserted by the original plaintiffs in the petition filed by them in this case. It is fortunate for these original plaintiffs that they were able to obtain the consent of all the new parties to be made plaintiffs, because only by such procedure were they able in this case to bring them into the lawsuit, under authority of §12056 GC (§2737.07 R. O.), since under the circumstances they could not have been brought in as defendants after the lapse of six months from the date of probate.

Sec. 11256 GC (§2307.20 R. C.) reads:

“Parties who are united in interest must be joined as plaintiffs or defendants. If the consent of one who should be joined as plaintiff can not be obtained, or, he is insane, and the consent of his guardian is not obtainable, or he has no guardian and that fact is stated in the petition, he may be made a defendant.”

The Supreme Court has held that rules of pleading not inconsistent with special statutes, are applicable in will contest cases. Morton v. Fast, Exr., 159 Oh St 380, par. 1 of syllabus:

“The rules of pleading generally applicable in a civil action should be applied in a will contest except where they are inconsistent with special statutory provisions relating to such a contest.”

It seems to me, therefore, that the trial court erred in holding that it was without jurisdiction to hear this case under the circumstances and facts of it and that the judgment rendered by it should be reversed.


author: By THE COURT.

text:
    PHILLIPS, Plaintiff-Appellee, v. PHILLIPS, Defendant-Appellant.
    Ohio Appeals, Second District. Franklin County.
    No. 5205.
    Decided December 22, 1954.
    Horace S. Kerr, Columbus, for plaintiff-appellee.
    W, B. McLeskey and C. W. McLeskey, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

'Submitted on motion of the defendant-appellant seeking an order allowing temporary alimony and expense money during the pendency of this appeal.

The record reveals that on October 4, 1954, the appellee was granted a divorce from the appellant on grounds of gross neglect of duty and extreme cruelty. Alimony was denied to the appellant, but there was a division of property ordered by which she acquired complete title to certain real estate in Reed City, Michigan. There was also real estate located in Franklin County which was jointly owned and which was ordered sold and proceeds distributed equally after paying off certain indebtedness. The appellant has submitted an affidavit in which she sets forth that she received $10,356.75 in cash for her interest in the Franklin County property; that the equity in the Michigan property is valued at the sum of $2100.00. and that she was awarded the sum of $200.00 per month for the support of their two children. It therefore appears to us that the appellant has ample means with which to provide for herself pending this litigation, as well as funds with which to make an adequate prosecution of the same. An allowance of temporary alimony cannot be claimed as a matter of right, but rests largely in the discretion of the trial court. Sudro v. Sudro, 6 Abs 460; Norton v. Norton, 111 Oh St 262. At page 270 of the latter case the court says:

“It is so evident that a prima facie case in favor of temporary alimony is made where there is testimony establishing the wife’s need and the husband’s physical capacity to support her, and the order is so completely in control of the court and subject to change upon the submission of facts on the part of the husband, that courts sometimes go so far as to hold that alimony pendente lite may be granted without notice to the husband. Fowler v. Fowler, 61 Okl., 280, 161 Pac., 227. L. R. A., 1917C. 89.
Temporary alimony is granted the wife upon the theory that she is entitled to make her defense, and that she has no means to defend herself during the pendency of the suit. In the case herein ample evidence exists of the wife’s financial inability to conduct the defense.”

In 14 O. Jur., 462, the rule announced in the Norton case, supra, is epitomized as follows:

“Under this rule, the court should make an allowance to the wife for alimony pendente lite, under this statute, in an action by her, if it is satisfied that the action is being prosecuted in good faith, that the husband is able to pay such allowance, and that the wife has no means of her own to pay for her sustenance and expenses and in a proper case the court will make an allowance large enough to enable her to carry on her suit, and to subsist upon while it is pending.”

It also should be noted that the’ affidavit of the appellant does not allege a need for the allowance, but concludes “that it will be utterly impossible for her to pay rent and support herself and the two said children pending the determination of this cause, on the sum of $200.00 per month allowed by the trial court for the support of said children”.

We are therefore of the opinion that the rights of the appellant should depend upon the results of her appeal herein. To hold otherwise might cause irreparable injury to the appellee in case the appeal is found to be not well taken, for a husband owes no duty of support to his ex-wife after the divorce decree has been granted. The question of alimony pending appeal should not be measured by the same yardstick as when the cause is pending in the trial court.

The motion will be overruled.

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