author: Davis, J.

text:
    Lamprecht v. The State of Ohio.

      Customer owner of stock — From time of purchase from broker, when —Legal relation of customer and broker — That of p'ledgor and pledgee — Effect of sale of stock "short” — No inference of fraudulent conversion by broker, when — Failure assignment by broker before delivery of stock sold — Does not constitute embezzlement of payment check, when.

    1. Where a broker buys stock on the exchange upon the order of a customer, the latter is the owner of the stock from the time of the purchase, whether purchased in his name or not, and he has the right to the possession thereof on demand, subject to payment to the broker for advances, if any, and commissions, as to which the customer is the debtor of the broker; in other words, the legal relation of the customer and broker is that of pledgor and pledgee. Upon such demand, the broker need not deliver the identical stock purchased for the customer, but it is sufficient to deliver the same number of shares of the same kind and value, and a failure to do so on demand may amount to a conversion of the stock and under some circumstances to a fraudulent conversion.
    2. A sale of stock “short” by a broker on his own account does not per se imply a conversion or use by the broker of stock previously purchased for a customer, or held in trust for the latter, because a sale short means a sale of that which the vendor does not possess at the time but which he expects to acquire subsequently for delivery at a lower price.
    3. When a memorandum kept by a broker for the purpose of showing the transactions in a particular stock and the balance long or short on a given date, shows a sale short by the broker of a number of shares less than the balance long on that date and more than the number of shares bought for a customer, which have not been delivered to him, it is not a proper inference from such memorandum, when not supported by other evidence, that such shares of the customer were converted or sold; but from the nature of a sale short the presumption would be that such sale did not include a sale of the customer’s stock and therefore such memorandum does not in itself prove or imply a fraudulent conversion.
    4. When a customer orders his broker to buy for him certain stock, to be actually delivered to him and to be paid for at a future date, and the broker complies with the order and notice thereof, together with the amount advanced and commission, is given to the customer, and the cost thereof is charged to the account of the broker, leaving a large balance in the broker’s favor, the customer is the owner of the stock so purchased and is the debtor of the broker for the amount advanced and the commission; and when the customer subsequently pays such demand against him by a check on his banker which is accepted by the broker, deposited in a bank where the account of the broker was overdrawn, and the check was afterwards paid, and the broker promises to deliver the stock later, which was never done, and the broker failed and made an assignment for the benefit of creditors, such facts do not constitute an embezzlement of the check.
    5. In this case it was error for the court of common pleas to charge the jury, as it did, as follows: “It is immaterial in this case what Ellsworth’s redress or rights may be as against Laidlaw & Co., the correspondents of George O. Lamprecht in New York — it is a question here as to the guilt or innocence of this defendant— whether or not this evidence proves to your satisfaction beyond a reasonable doubt that he is guilty, that is the question.”
    (No. 12289
    Decided March 28, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The facts are sufficiently stated in the opinion.

      Messrs. Westenhaver, Boyd} Rudolph &' Brooks; Messrs. Blandin, Rice & Ginn and Mr. Harrison B. MiGraw, for plaintiff in error.
    It is clear that in law Ellsworth became a debtor to Lamprecht Bros. & Co. for the amount of this purchase, ánd when he made. his check to pay Lamprecht Bros. & Co. therefor, and delivered that check in payment of the bill and the .bill was receipted, that it was.in law simply the discharge of his legal debt to Lamprecht Bros. & Co. There was, then, no possibility of there being ,in law any obtaining of this check b.y false-.pretenses, any. embezzlement of this check, any larceny of the.check, or any embezzlement of the money due upon the check, as specified in four counts of the indictment. LeMarchant v. Moore, 150 N. Y., 209.
    If Ellsworth ordered Lamprecht to buy stock for him, and Lamprecht sent that order to their correspondent, Laidlaw & Co., and Laidlaw & Co. bought the stock and charged Lamprecht therefor,that thereupon the title to that stock would be in Lamprecht Bros. If Lamprecht Bros, then notified Ellsworth what had been done, that the title to the stock then passed to Ellsworth, subject only to a lien by Laidlaw if Lamprecht’s account was not good, ánd subject to a lien in favor of Lamprecht if Ellsworth’s account was not good with them. But in this case both Lamprecht’s account being good with Laidlaw, and Ellsworth’s bringing his money to pay for the stock and paying therefor, clearly under this authority the title to that stock was then in Ellsworth, and it is equally plain that he was a debtor to Lamprecht Bros, at the time he made and delivered his check to pay therefor, Lamprecht Bros, having already paid for the' stock by crediting the perfectly good account they had against Laidlaw & Co., with the amount of this purchase. The court in LeMarchant v. Moore, supra, discusses carefully this question as to where the title to this stock was, and holds distinctly that under the facts of the case at bar, the title to this stock passed to Ellsworth at the time he was notified by Lamprecht Bros. & Co. that the stock had been purchased for him. Schaefer v. Dickinson, 141 Ill. App., 234; 26 Am. & Eng. Ency. Law (2 ed.), 1057; Tuell v. Paine, 39 Misc., 712; In re Pierson, 19 App. Div. N. Y., 478; Markham v. Jaudon, 41 N. Y., 235; Galigher v. Jones, 129 U. S., 193.
    Neither can any unfavorable inference against Mr. Lamprecht be drawn from the fact that the sale of these one hundred and fifty shares on the 14th day of January was a short sale. Short sales are distinctly recognized by the courts- as being valid and legitimate transactions; they are not gambling or illegal transactions. Bigelow v. Benedict, 70 N. Y., 202; 25 Am. & Eng. Ency. Law (2 ed.), 1061; Boyle v. Henning, 121 Fed. Rep., 376; Barnes v. Smith, 159 Mass., 344; Clews v. Jamieson, 182 U. S., 461; Irwin v. Williar, 110 U. S., 499; Bibb v. Allen, 149 U. S., 481; Hess v. Rau, 95 N. Y., 359.
    The argumént was repeatedly made in the trial of this case, that Ellsworth paid his money and he did-not get his stock, which, being true, would, as we all know, be about sufficient argument for an ordinary jury; but it will not be forgotten that we are here dealing with the question of embezzlement, and the embezzlement of a check. Commonwealth v. Stearns, 2 Metc., 343.

      Mr. John A. Cline, prosecuting attorney, and Mr. W. D. Meals, assistant prosecuting attorney, for defendant in error.
    The plaintiff in error urges this court to take the view that the -relation of debtor and creditor existed or that the relation of pledgor and pledgee was established or that any condition of contract arose except that of principal and agent. Lamp-, recht himself testified that the stock was ordered, ■to be transferred and delivered to Ellsworth. The contract between Ellsworth and Lamprecht provided that Lamprecht should buy sixty share-s of the stock in question for Ellsworth, have it transferred in Ellsworth’s name and delivered to him, and until all of these things were done, the contract had not been fulfilled and was executory therefore on contract. This, then,. established the relation of principal and agent and when Lamprecht took Ellsworth’s check, knowing that Ells-worth’s stock had been sold, and then used his check in his own business instead of using that check for the purpose of reducing the stock to the possession of Ellsworth, the crime of embezzlement of the check was complete. People v. Leipsic, 62 Pac. Rep., 311; State v. Cunningham, 154 Mo., 161; Hutchinson v. Dee, 112 Fed. Rep., 315; Commonwealth v. Foster, 107 Mass., 221.
    • It is a matter of no moment in this controversy whether Lamprecht had a credit balance with Laidlaw & Co., or not, for Laidlaw & Co. sold the stock on his order before January 16th, which they had a right to do. To permit Lamprecht now to say that on the 16th of January Ellsworth was indebted to him, notwithstanding his perfidy,' and notwithstanding he had sold Ellsworth’s stock without his knowledge or consent, would be to permit him to take advantage of his own wrong and to escape the punishment of the law on the purest technicality imaginable. Conrad v. State, 75 Ohio St., 52; Calkins v. State, 18 Ohio St., 366; Scovern v. State, 6 Ohio St., 288; Berry v. State, 31 Ohio St., 219; McHugh v. State, 42 Ohio St., 154; State v. Thomas, 61 Ohio St., 444; State v. Barlow, 70 Ohio St., 378; Bridge Co. v. Jutte, 17 Cir. Dec., 544, 6 C. C., N. S., 189, 74 Ohio St., 442.
   Davis, J.

The plaintiff in error was indicted upon five counts, viz: the first count charged him-with larceny of a certain check for $2,932.50, the second count charged him with embezzlement of a certain certificate of stock for sixty shares of the stock of The Toledo, St. Louis & Western Railroad Company, the third count charged him with embezzlement of- the check described in the first count, the fourth count charged him with embezzlement of money, the proceeds of the check mentioned and described in the first and third counts, and the fifth count charges him with obtaining the check aforesaid by false pretenses. The jury found him guilty under the third count and not guilty as charged in the first, second, fourth and fifth counts.

The following are undisputed facts which led to this indictment and trial. The plaintiff in error was the junior partner of the firm of Lamprecht Bros. &■ Co., who were brokers in Cleveland, dealing in bonds and stocks and having a branch office in Youngstown. In this case, at least, they transacted business on the stock exchange in New York through Laidlaw & Co., a firm of brokers. On the 9th day of January, 1909, one Ralph H. Ellsworth left an order at the Youngstown office of Lamprecht Bros. & Co. to buy for him sixty shares of Toledo, St. Louis Western Railroad Company’s common stock, at a stipulated price, the certificate to be made out in name of Ellsworth and be delivered to him. Ellsworth paid no money on the stock, at that time, but stated, which he afterwards confirmed by letter, that he would be at the office of Lamprecht Bros. & Co. in Cleveland on Satürday, the 16th of January, and pay for the same. Ellsworth’s order to buy was telegraphed to Laidlaw & Co. in New York on same day it was given, January 9th, and it was executed in New York by Laidlaw & Co. on Monday, January 11th, and notice given to Lamprecht Bros. & Co. in Cleveland by telegraph. On the following day, January 12th, Lamprecht Bros. & Co. received a letter from Laidlaw & Co. stating that the stock had been purchased as ordered and that the amount of the purchase together with commission, in the aggregate $2,932.50, they, Laidlaw & Co., had charged to the account of Lamprecht Bros. & Co. On that date, the books of both Laidlaw & Co. and Lamprecht Bros. & Co. agreed in showing a credit balance in favor of Lamprecht Bros. & Co. of $23,491.04 after the said purchase and commission had been charged to the account of Lamprecht Bros. & Co. Following all this, on January 16th,. Ellsworth appeared at the office of Lamprecht Bros. & Co. and presented to the cashier the bill for purchase of the stock and commission, $2,932.50, together with his check therefor. This is the check which the plaintiff in error is charged with embezzling. The cashier stamped the bill “Paid” and having written upon it the words “Stock to follow,” gave it back to Ellsworth, retaining the check. The check was on the same day deposited with others, in the usual course of business, in the Union National Bank of Cleveland, by employes of Lamprecht Bros. & Co. and in the name of that firm. The check was afterwards paid at the bank on which it was drawn. The certificate for the sixty shares of stock so ordered by Ellsworth and so purchased for him by Lamprecht Bros. & Co., was never forwarded by Laidlaw & Co. and it was never in the State of Ohio, so far as appears. Lamprecht Bros. & Co. made an assignment for the benefit of their creditors, February 9, 1909.

Upon the trial of the case, after all the evidence offered and given by either party had been submitted to the jury, and before argument, the defendant, plaintiff in error here, asked the court to charge the jury in writing before argument, the following separate propositions, with others, viz: “There is no evidence in this case showing or tending to show the defendant guilty of the charge of embezzlement, as charged in the third count of the indictment, and I, therefore, direct you to return a verdict of not guilty as to said count.” The court refused to so instruct the jury before argument and afterwards, although again requested to do so, the court again refused to so instruct the jury in the general charge. Thereby the question is brought upon the record whether there is sufficient evidence to warrant a conviction for crime as charged.

It is manifest that at the time when Ellsworth tendered his check to the cashier of Lamprecht Bros. & Co., the order for the purchase of the stock, which he had given just one week before, had been fully carried out except as to the delivery of the stock; and in that particular it remains unexecuted to this day. What were the legal relations and rights of the parties at that time? Ellsworth had paid-nothing, not even a margin, on the purchase. Nevertheless he had such a property right in the stock, whether it had been bought in his name or not, that he could claim it as his own, subject to the lien of the brokers for advances and commissions; for, as it is said upon good authority in 26 Am. & Eng. Ency. of Law (2 ed.), 1057: “The client is the owner of the stock purchased on margin from the time of the purchase, and is entitled to its possession at any time upon demand and payment of the broker’s commissions and the balance due thereon.” Now if this is the law when the broker advances only ninety per cent, of the purchase price when he fills a customer’s order, no valid reason appears to us why it should not be the law when upon the -request of a customer the broker buys the stock for- the latter and advances all of the purchase money. “The ordinary margin paid on opening an account with a broker — that is, in ordering him to buy or sell securities — is ten per cent. The margin may be less than this, or frequently none is advanced, according to the confidence which the broker has in the ability of the client to respond to • ultimate loss. But, whether the broker advance all or only the principal portion o'f the sum invested in the securities, the relation of the parties is unchanged. The fact exists that the broker looks to the principal for- an indemnity upon the entire transaction. * * * Upon the whole, while it must be conceded that there are apparently some incongruous features in the relation, there seems to be neither difficulty nor hardship in, holding that a ■ stock-broker is a pledgee; for,- although it is true that he may advance all or the greater part of the money-embraced in the speculation, if he acts honestly, faithfully and prudently, the entire risk is upon the client, and may be enforced against him as a personal liability, irrespective of the value of the securities which are the subject of transaction. To introduce a different rule would give opportunities for sharp practices and frauds, which the law should not invite.” 1 Dos Passos on StockBrokers & Stock-Exchanges, (2 ed.), 182, 196.

“The broker acts in a threefold relation: first, in purchasing the stock he is an agent; then, in advancing money for the purchase, he becomes a creditor; and, finally, in holding the stock to secure the advances made, he becomes a pledgee of it. It does not matter that the actual possession of the stock was never in the customer. The form of a delivery of the stock to the customer, and a redelivery by him to the broker, would have constituted a strict, formal pledge. But this delivery and re-delivery would leave the parties in precisely the same situation they are in when, waiving this formality, the broker retains the certificates as security for the advance. The contract is in spirit and effect, if not technically and in form, a contract of pledge, and is ’ governed by the law of pledges.” Jones on Pledges (2 ed.), Sec. 496.

It is expressly decided by the New York Court of Appeals, in Content v. Banner, 184 N. Y., 121, that when a stockbroker buys securities for a customer, although he advances the whole amount necessary for the purchase, instead of requiring a margin, the relation of pledgee and pledgor exists between the parties. So that, when Ellsworth presented Lamprecht’s bill, or statement of account, to their cashier together with his check for a corresponding amount, he was not putting up a margin for a future deal, nor putting money into their hands upon a specific trust. Lamprecht Bros. & Co. had paid the whole amount of the purchase and the commission and held the right to the stock in the hands of Laidlaw & Co., subject to the payment of their lien for the amount advanced. From the moment that Ellsworth’s check was accepted and the bill receipted, the stock became, absolutely his very own, and subject to his right to possess and control whether it should be found in the possession of Lamprecht Bros. & Co. or Laidlaw & Co. He-had received a full and valuable consideration for the check and the same had become the lawful property of Lamprecht Bros. & Co. and was not, and could not be, the subject of embezzlement. This view of the legal relations of the parties to this transaction seems to us to be satisfactorily sustained by Richardson v. Shaw, 209 U. S., 365, and note thereon 14 Am. & Eng. Annotated Cases, 986; Markham v. Jaudon, 41 N. Y., 235; Le Marchant v. Moore, 150 N. Y., 209; and Shaefer v. Dickinson, 141 Ill. App., 234.

By a parity of reasoning from the same facts, the plaintiff in error could not have been properly convicted on any of the counts in this indictment, unless it should be on the second count which charges the embezzlement of the stock itself; and as to this two answers are sufficient for our present purpose. First, it does not appear that the stock purchased for Ellsworth was ever in the possession of Lamprecht Bros. & Co., or that it was ever •in this state. Second, assuming that it appears, or .can be made to appear, that the plaintiff in error unlawfully converted the stock to his Own use, that does not necessarily mean that he fraudulently so converted' it, within the meaning of the statute. State v. Cunningham, 154 Mo., 162. Further on we shall discuss the evidence upon this subject somewhat.

It seems, therefore, that there is, and can be, no •sufficient answer to the conclusions above, unless the contention is sound, on part of the state, that after the shares of stock were bought, and' paid for by Lamprecht Bros. & Co., the same shares were subsequently and prior to January 16th, when Ellsworth gave his check, sold by Lamprecht Bros. & Co. Of course, and we say “of course” because the law is well settled on that point, the identical Sixty shares of stock purchased for Ellsworth need not be kept on hand to be delivered to him. It is sufficient if sixty shares of stock of the same kind and value be delivered on demand, and a failure to so deliver on demand may amount to an unlawful, and under some circumstances to a fraudulent conversion of the stock. But it must not be overlooked that the plaintiff in error was found not guilty of embezzling the stock and it does not yet appear that the failure of Laidlaw & Co. or Lamprecht Bros. & Co. to deliver the stock on demand by Ellsworth, would constitute embezzlement of the check given by Ellsworth to pay, in legal effect, •what he owed for the stock. It may have been that the fault of non-delivery was not in Lamprecht Bros. & Co., but in Laidlaw.& Co.; or it may have been that Laidlaw & Co., if Ellsworth had pursued his remedies ag'ainst them, may have made delivery or responded in damages. And just here, it may be remarked, the court erred in refusing both before and after argument, to charge the jury as requested upon this subject, and in charging the jury as follows: “It is immaterial in this case what Ellsworth’s redress or rights may be as against Laidlaw & Co., the correspondents of George O. Lamprecht in New York — it is a question here as to the guilt or innocence of this defendant — whether or not this evidence proves to your satisfaction, beyond a reasonable doubt that he is guilty, that is the question.”

But let us see what there is in. the contention by the prosecution that Lamprecht had sold the stock without Ellsworth’s knowledge or consent after it was bought and paid for by Lamprecht and before Ellsworth gave his check. This is the substance of the argument of the attorneys for the state. “Suppose, that without Ellsworth’s knowledge, and while the stock was in the hands of Laidlaw & Co., Lamprecht ordered Laidlaw & Co. to sell the same, which Laidlaw & Co. did; and then suppose that on the T6th day of January, after Ellsworth’s stock had been sold, without his consent, Lamprecht accepted his check, and appropriated it to his own use, what then was the legal relation existing between Lamprecht and Ellsworth? If Lamprecht on the 14th of January sold Ellsworth’s stock, he could not under the circumstances, thereafter maintain an action against Ellsworth for the purchase price, for he had not only violated his trust, but had sold the stock without lawful justification, and besides, had reimbursed himself; nor could Ellsworth have maintained an action against Laid-law & Co., for under the circumstances, they were justified in selling the stock on Lamprecht’s order, an agent having apparent authority. The title to the stock, upon being sold by Laidlaw & Co., became vested in the purchaser thereof, and Ells-worth lost the title thereto, notwithstanding he had had it at one time; so that on January 16th the title to the stock was not vested in Ellsworth, nor was Ellsworth indebted to Lamprecht for the purchase price thereof. We fail to perceive in these circumstances the relation of debtor and creditor. Notwithstanding he had sold Ellsworth’s stock and concealed that fact from him, and that Ellsworth was not indebted to him, Lamprecht accepted Ells-worth’s check and deposited it to his own account in the Union National Bank of Cleveland, on the 16th of January, 1909. On the day preceding its deposit, January 15th, Lamprecht was overdrawn in this bank in the sum of $5,177.51. On the next business day, January 18th, this overdraft had been reduced to $2,889.38. Lamprecht had used Ells-worth’s check 'in reducing it. This, we think, was the embezzlement of the check.”

Without discussing the soundness of this argument, let us see what the record shows about this hypothesis that Lamprecht had the stock sold on' January 14th without Ellsworth’s knowledge or consent. If that is not true, then the whole case of the state fails. The only evidence upon this subject is what appears in the record as “State’s Exhibit D.” This.is a card memorandum showing the transactions of Lamprecht Bros. & Co. in that particular; stock. Similar and separate memoranda were kept of transactions in other stocks. It was kept and made out by one of the witnesses for the state, and it showed from day to day the balances of that stock “long” or “short.” It does not purport to contain any account with Ellsworth or any other customer. All that it does of itself show is that the firm bought, January 11, 1909, 60 shares-of Toledo, St. Louis & Western, balance “long” 60 shares. January 13 bought 100 shares same, balance “long” 160 shares. January 14, sold 150 shares, balance “long” 10 shares. January 16th, sold 100 shares, balance “short” 90 shares. January 18, bought 100 shares, balance “long” 10 shares. February 9, sold 10 shares, balance O.

Now does this exhibit show beyond a reasonable doubt, and it must be with that degree of certainty to convict, that Lamprecht sold Ellsworth’s sixty shares of stock? Surely not. An examination of the record discloses the fact that, for some unexplained reason, Laidlaw & Co. had not, at any date named on that card, delivered to Lamprecht Bros. & Co. the sixty shares bought for Ellsworth, and that in fact it has never been delivered by Laidlaw & Co. Therefore it could not be presumed from this card, without other evidence to that effect, that the sixty shares of Ellsworth stock, which was not bought on margin but was purchased outright for actual delivery, was included in any subsequent sale.'

Moreover, it clearly appears from the testimony that the sale of one hundred and fifty shares of this stock, on January 14th, was what is technically-known as a “short” sale for account of Lamprecht Bros. & Co.' Now “a sale short means a sale of that which the seller has not, but which he expects to buy in at a lower price than that for which he sells.” 25 Am. & Eng. Ency. Law (2 ed.), 1061, citing Appleman v. Fisher, 34 Md., 549; Baldwin v. Flagg, 36 N. J. Eq., 57; White v. Smith, 54 N. Y., 522; Knowlton v. Fitch, 52 N. Y., 288; Hess v. Rau, 95 N. Y., 359; Maxton v. Gheen, 75 Pa. St., 168. “A sale of stock ‘short’ means a sale of stock which the seller does not at the time possess, but which, by the future date or time agreed upon for delivery to the customer under the terms of the contract, the seller must in some way acquire for the purpose of such delivery.” 26 Am. & Eng. Ency. Law (2 ed.), 1060.

So far, therefore, from proving or even justifying an inference, that Ellsworth’s stock was ordered sold by Lamprecht, as assumed by the prosecution, this memorandum card when considered along with the other testimony in the case, not only fails to show that the stock was sold by Lamprecht and appropriated to his own use, but it does conclusively show that the sale, on January 14th, was an independent and lawful transaction on account of Lamprecht Bros. & Co.; and, since this was a sale of stock “short” the presumption would be that the sale did not include Ellsworth’s stock, nor the stock of any other person held in trust by Lamprecht Bros. & Co., because a short sale means a sale of stock which the vendor has not in his possession or under his control, as shown above, a presumption the exact opposite of That indulged on the trial. Therefore the evidential value of the card was totally misconceived by . the courts below and by the jury.

Proceeding upon the assumption that Lamprecht had ordered to be sold the stock bought for Ells-worth, counsel for the state insist that Lamprecht knew that Ellsworth was not indebted to him, and was not paying a debt, yet he took his check and used it to meet his own obligations. We have not discovered in the record any evidence that Lamprecht had any actual or personal knowledge of this transaction before January 16th when the check was delivered. There is . a conflict in the evidence as to his knowledge on that date and several later dates. Ellsworth testifies that he asked Lamprecht on January 16th whether he required the check to be certified and he replied that it was not necessary, etc., and further that he talked with Lamprecht about the delivery of the stock at several times thereafter. Lamprecht testifies in the most positive manner that no conversation between him and Ellsworth occurred on-Jan- . uary- 16th, except perhaps to pass the time of day; . that he did not know then • that Ellsworth had bought or ordered any stock; that he never saw the check until it was produced on the trial; that he . never sold the stock which had been bought for Ells- . worth, nor directed any other person to sell it; that he never knew that it was sold and never had ah • intention of selling it. So far as Lamprecht’s tes- ■ timony relates to the alleged sale, of the Ellsworth stock* it is not contradicted by anything in the •record, save the inference which has been drawn from the memorandum card, Exhibit D, and which for the reasons already stated, appears to us to be altogether unwarranted.

It has been intimated in the brief for the state that such a view - of this case as we entertain is purely technical and tends to defeat justice. The soundness or the justice of our conclusions must be determined by calm and enlightened judgment; but we nevertheless adhere to the humane precept of the law, that a person who is accused of crime is presumed to be innocent until proven to be guilty. It must be conceded that there is cause for irritation here. Ellsworth-paid his money and has never got that which he bought, but that is not sufficient to convict of the crime of embezzlement. Probably in all time there, has. riot been an extensive bank failure without an accompaniment of wrong and hardship, disappointment and bitterness and a clamor for vengeance. The charge of embezzlement is easily and frequently made under such circumstances and although the charge is sometimes difficult of proof, it is still necessary that the scales of justice be held to an even balance, not forgetting the ancient and merciful rule of the common law that it is better that ninety and nine guilty ones should go unpunished than that one innocent person should suffer.

The conclusion at which we have arrived renders it unnecessary for us to consider any of the other assignments of error. Upon the whole record, we are of the opinion that there is not sufficient evidence to sustain a conviction upon the charge that George O. Lamprecht unlawfully and fraudulently embezzled and converted to his own use the check aforesaid and that the court of common pleas erred in refusing to so direct the jury. I am authorized to say that, in the opinion of the Chief Justice and of Judge Shauck and myself, the foregoing considerations would lead to a final judgment and a discharge of the prisoner. The other concurring Judges, however, are of the opinion that the. case should be remanded to the court of common pleas for further proceedings, and, therefore, the judgment of the circuit court and that of the court of common pleas are reversed and the cause remanded.

Reversed.

Spear, C. J., Shauck, Price and Johnson, JJ., concur. Donahue, J., not participating, having sat in the circuit court.


source: Caselaw Access Project

license: Public Domain

text:
    Raymond et al. v. Butts.

      A contract by owner of real estate — To convey realty to second party — On fulfillment of conditions — In case of death of second party — Latter's estate to receive pro rata interest — In amount of fulfillment relative to whole value of land — Contract confers enforceable interest in second party — Latter may devise said interest, when.

    1. A contract executed and delivered by the owner 'of real estate and binding himself, his heirs and legal representatives, to convey the real estate to the second party upon his fulfillment of conditions named, and providing that if the party of the second part shall die before completion of said agreement, then and in that case his estate shall have such equitable interest in the lands as the amount of his fulfillment is to the whole value of the land but in no event less than $3,000, confers upon the party of the second part a substantial interest which is enforceable in equity and which is property which may be devised.
    2. Where the party who has such equitable interest dies before complete performance of such contract on his part, leaving a will in which he devises such interest, together with other real estate which he owns in fee simple, upon condition that his devisees shall complete his said contract, and the other party to the contract consents-to and ratifies the devise, and in the same instrument quit-claims and releases all of his right and interest to the devisees, the title invested in the latter is a title by way of devise and not of purchase, and will descend as ancestral property.
    (No. 11691
    Decided March 28, 1911.)
    Error to the Circuit Court of Portage county;
    This action was originally instituted by Sophronia Raymond, now deceased, claiming to' be the sole owner of in fee simple by survivorship and in actual possession thereof, under the last will and testament of her brother, Leonard L. Raymond,deceased, of a certain described tract of land, one hundred and thirty-eight acres, and also of a certain described' tract of land, thirty-three acres; and alleging that the defendant, Charles Butts, claims to be the owner in fee simple of the one undivided half of said lands; and praying that she may be adjudged to be the owner in fee simple of said lands freed ■ from all claims of an estate or interest therein of the defendant, and for all proper relief.
    On the death of Sophronia Raymond, the present plaintiffs as her only heirs and devisees were substituted as plaintiffs.
    The defendant denied that plaintiff has any title in the one hundred and thirty-eight acre tract under the will of Leonard L. Raymond, deceased, and alleges that he is seized in fee simple as son and heir at law of H. H. Butts, deceased, of one undivided half of said tract and is entitled to the immediate possession thereof; that said H. H. Butts inherited said lands from his wife, Sophia (Raymond) Butts, who died without issue and intestate; that he is entitled to one undivided half of the thirty-three acre tract, subject to a life estate of Sophronia Raymond, the plaintiff, as provided in the will of Leonárd L. Raymond, deceased; and he accordingly prays for partition of his said interest, and for all proper relief.
    Upon the hearing in the court of common pleas, a decree was entered, finding that defendant is the owner in fee simple of the one undivided half of the one hundred and thirty-eight acre tract, and that he has no interest in the thirty-three acre tract, and partition was ordered accordingly. Both. parties appealed, and in the circuit court substantially the same decree was entered.
    The plaintiffs claim error in the decrees as to the one hundred and thirty-eight acre tract, and the defendant claims error in the decrees as to the thirty-three acre tract.
    The following are the essential facts, as'they appear in an agreed statement which is embodied in the bill of exceptions allowed by the court. Silas Raymond, on the 18th day of May, 1872, was the owner of the one hundred and thirty-eight acre tract of land described in the petition, and on that date sold the same to his son, Leonard, as evidenced by a written instrument executed as a conveyance, that is, the same was signed, sealed, witnessed, acknowledged and delivered. This instrument contained the terms of an agreement by which Leonard was to pay to other children of Silas sums of ■ money aggregating twenty-eight hundred dollars and was to support his father and mother during their lives and the life of either. This instrument also contained a clause, as follows : "And it is by said parties further agreed, that in case said Leonard shall die before the completion of said agreement above, then and in that case his estate shall have such equitable interest in said premises as the amount of his fulfillment is to the whole value of the place, but in no event to be less than three thousand dollars, which is not to be carved out of the general property until after the death of my said father and mother.” The mother died first, and Leonard died December 27, 1880, leaving a will, which was duly probated, .by which he gave his interest in these lands and the thirty-three acre tract to his two sisters, Sophia and Sophronia, jointly during the life of both and .-then to the survivor and her heirs, as follows, to-wit: “First. I bequeath all'my right and interest in an agreement between Silas Raymond and myself (recorded August 31, 1872, Deed Volume 105, pages 457, 458, 459), also all my interest in land deeded to me by Mary Ann and Benjamin Waters (recorded February 18, 1878, Volume 120, page 318), all of the above to be conveyed.to them -Sophia and Sophronia Raymond their heirs and .assigns, on condition that they hold it together .jointly during their lives and in case of death of either the use of the above to revert to the survivor, her heirs or assigns (unless otherwise provided by the deceased).”
    A few .months after the death of Leonard, on January 8, 1881, Silas, the father, and these two daughters executed an instrument of writing, which recited the contract with Leonard and the will of Leonard devising his interest to his sisters, and these were ratified, and then the said Silas “on the above conditions and considerations granted and released unto said Sophia and Sophronia Raymond and their heirs and assigns all his right, title and interest in and to said real and personal property.” This instrument was also formally executed by signing and sealing in the presence of witnesses and was duly acknowledged and delivered.
    November 11, 1881, Silas died. In 1887, Sophia married one H. H. Butts, who had a son by a former marriage, and is the defendant in this action, and in 1906, Sophia died, leaving her sister, Sophronia* surviving. H. H. Butts died in 1907, and the defendant claims as his heir at law through his stepmother, Sophia (Raymond) Butts.

      Mr. I. T. Siddall and Mr. S. F. - Hanselman, for plaintiffs in error.
    The first question is did the first agreement or the second agreement divest Silas Raymond of the legal title? Both were mutual agreements. The first agreement is, “That Silas Raymond has sold’'’ to Leonard the one hundred and thirty-eight acre tract, describing it; the second is, “And I, said Silas Raymond, do hereby on the above conditions and considerations grant and release to,” etc., “all my right, title and interest” in same, with like description.
    We shall not extend this brief to any considerable extent upon this question. It is elementary that words of “bargain and sale” convey title where the written instrument is properly executed and delivered. There is no magic in the word “bargain” and we can not understand how it is possible for a “sale” of lands to be made without a transfer or passing of title. Lessee of Bentley’s Heirs v. Deforest, 2 Ohio, 222; Lessee of Hall v. Ashby, 9 Ohio, 96.
    The rule that in the construction of a will the intention of the testator as gathered from the will should prevail needs no consideration. These two sisters were maiden ladies advanced in years. The language of the will is clear and the contract indicates they lived together with the father, mother and brother in the old home: Were it not for the words in parenthesis there could be no question. Do these words enlarge the estate in Sophia? We think not.
    In Robbins v. Smith, 72 Ohio St., 1, a will giving to three daughters certain property, including real estate, the income of which was to be paid to them with power of disposing of equal share to each and in case of the death of one before the others intestate, such share should go to her children, and if there were no children then to the survivors was held to give but a life estate in the corpus, which passed on the death of one intestate without issue to the survivors. Anderson v. Messinger, 146 Fed. Rep., 929; Harding v. Marsh, 19 C. D., 676.
    In this case the right of disposition during the joint lives of the sisters was not given, but upon the death of either then all interest was to pass to the other, “her heirs or assigns.” The only possible inference in the words in parenthesis is a disposition by will, and in no wise enlarged the estate of Sophia. It is a clear proposition that where less than a fee is given, as for instance a life estate in the first instance and the right of disposition, such right is simply a power to be exercised or not, and does not in any way enlarge the estate. Home v. Lippardt, 70 Ohio St., 261; Johnson v. Johnson, 51 Ohio St., 446; Baxter v. Bowyer, 19 Ohio St., 490; Durfee v. MacNeil, 58 Ohio St., 238; Gogreve v. Day, 10 C. C., N. S., 69.
    We are aware that the statutory rule of descent. is governed by the legal rather than the equitable title when the two unite to form an estate in fee simple in one person. We have no thought of undertaking the fruitless task of undermining a rule so firmly established in this state. Patterson v. Lamson, 45 Ohio St., 90; Higgins v. Higgins, 57 Ohio St., 239.
    The whole contract shows clearly that all parties regarded that if the father held the legal title it was in a quasi trust not to cast the course of descent but for the benefit of third parties who were made beneficiaries and that while these contracts were not wills they were considered as disposing of and distributing his property to his .children and that to insure to each the gift he held in trust the title. Russell v. Bruer, 64 Ohio St., 1.

      Mr. R. S. Webb and Mr. R. J. Webb, for defendant in error.
    If the legal title of this property came to Sophia and Sophronia by purchase from their father, then on the death of Sophia, her interest in said lands descended and vested in her husband, absolutely, under the provisions of Section 4159, Revised Statutes, and on his death it descended to and vested in his son, this defendant; so it becomes important to determine whether it came by purchase or by deed of gift.
    It is well settled in Ohio that to be a deed of gift blood must be the only consideration, and if any other consideration is mentioned in the deed, it comes by purchase. Brown v. Whaley, 58 Ohio St., 654; Walker’s Am. Law (10 ed.), Secs. 154, 163.
    At the time of the making of this deed, the two daughters were the owners of the equitable interest which had come to them from the will of Leonard. By this deed from their father, they obtained the legal estate; and the whole estate, both legal and equitable, upon the delivery of the deed, vested and united in Sophia and Sophronia. Russell v. Bruer, 64 Ohio St., 1; Patterson v. Lamson, 45 Ohio St., 77; Stembel v. Martin, 50 Ohio St., 495; Higgins v. Higgins, 57 Ohio St., 239.
    The plaintiff, having accepted this deed, is bound by the recitals therein and said recitals operate as an estoppel and are binding upon both parties and privies in blood, in estate and in law. Groves v. Groves, 65 Ohio St., 442; Douglass v. Scott, 5 Ohio, 198; Lessee of Kinsman v. Loomis, 11 Ohio, 475.
    At the time of the making of this deed the interest of Silas was not a mere naked interest. He had sufficient title to have maintained ejectment, and did not hold it as trustee for the equitable estate, and there is no question of trustee and cestui que trust. Coggshall v. Bank, 63 Ohio St., 88.
    This clause: “And on the decease of said Silas Raymond, they the said Sophia and Sophronia Raymond, shall have and own jointly all of said entire personal and real estate, the accrued personal estate, to be theirs and their heirs forever,” . is an estoppel to plaintiff in all her contention in this case, so far as the one hundred and thirty-eight acres are concerned, Sophia and Sophronia having severally joined in the contract, not only making it a contract with their father, but a solemn and binding agreement between themselves that they should own this land jointly in fee simple, to be theirs and their heirs forever; a contract they had the right to make, and once made and entered into, can not now be disturbed, or changed.
    A legal estate never merges into an equitable one. Litle v. Ott, 3 Cranch (C. C.), 419; Bassett v. O’Brien, 149 Mo., 381; Penington v. Coats, 6 Whart. (Pa.), 282.
    As to the thirty-three acre tract. It is the universal rule of construction of wills that “when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.” Collins v. Collins, 40 Ohio St., 364; 30 Am. & Eng. Ency. Law (2 ed.), 687.
    The clause reading: “In case of the death of either the use of the above to revert to the survivor, her heirs and assigns (unless otherwise provided by the deceased),” is what might seem at first glance an ambiguous attempt to create an equitable • estate in perpetuity in the “heirs and assigns” of the survivor. This, being in conflict with the prior unequivocal gift in fee to Sophia and Sophronia, as well as contrary to the spirit of the law, is void and must be rejected, being in conflict with the general tenor of the clause. Davis v. Boggs, 20 Ohio St., 550; 30 Am. & Eng. Ency. Law (2 ed.), 688, 689.
    As to whether the thirty-three acre tract came by descent or purchase, our conclusion is that Sophia and Sophronia held fee simple estates in these thirty-three acres, which came to them by purchase. On the death of Sophia her interest descended by operation of law to her relict, H. H. Butts, in fee, at whose death it descended in fee to his .only child and heir, Charles Butts, the defendant herein.
    The will is simply the instrument, and, if a clause in a will conveys land for which a valuable consideration is exacted and is paid by the devisee, is it simply a devise within the meaning of the statute, is it not more in the nature of a sale? It certainly is not a devise where blood is the only consideration. It seems to us the plain intent of the statute is to class as ancestral property only lands passing by will or deed from an ancestor, where blood is the only consideration. 27 Am. & Eng. Ency. Law (2 ed.), 301; Kinney v. Glasgow, 53 Pa. St., 141; Walker v. Dunshee, 38 Pa. St., 430; Abbott’s Law Dictionary, “devise.”
   Davis, J.

From the time that Silas Raymond entered into the agreement with his son, Leonard, in respect to the one hundred and thirty-eight acre tract in controversy here, the latter had a substantial equity in the land, an equity which grew in value with the lapse of time. By the express terms of the agreement, in case of the son’s death before complete performance on his part it was provided that the equitable interest of his estate in the premises should be in proportion as the amount of fulfillment by him is to the whole value of the land, but in no event to be less than $3,000.00. This equitable interest, as between the parties to the agreement and their privies in estate and all parties having knowledge of the conditions of Leonard’s possession, was such that, so long as he continued to perform his contract, Silas could not convey the legal title free from the equity, and this interest of Leonard was clearly property which he could devise.

At the time of Leonard’s death, he had been in possession of the land and had faithfully performed the conditions on his part for a period of eight years and seven months. Meantime his mother had died, and, as the event proved, he needed only to have performed his agreement ten and one-half months longer, when he would have fully performed and would have been entitled to have his equity merged in the legal title. But this was not to be and he met the situation with his last will and testament. He had acquired the thirty-three acre tract by deed and this tract, together with all his interest in the one hundred and thirty-eight acre tract under the agreement with his father, he' devised and bequeathed to his two sisters, Sophia and Sophronia and their heirs and assigns, “on condition that they hold it together jointly during their lives and in case of death of either the use of the above to revert to the survivor, her heirs or assigns (unless otherwise provided by the deceased).” The clause in parenthesis merely gave to the devisee dying first a power of disposition by will, at least that is the only intelligible meaning which we have been able to give to it. Sophia died before Sophronia and without having exercised the power of appointment; so that under the will Sophronia and her heirs and assigns sueceeded by survivorship to the ownership of the thirty-three acre tract and the equities of Leonard, the testator, in the one hundred and thirty-eight acre tract. It was not in the power of Silas, the father, to thwart or prevent the succession under the will except by refusal to accept the fulfillment of Leonard’s contract by his devisees; but this he did .not do. On the contrary, both he and the devisees consented to and ratified the conditions of the will in the contract of January 8, 1881; and the sisters could not take both under and against the will. That is to say, they could not take the thirty-three acres by devise and claim the one hundred and thirty-eight acres by purchase. Therefore the quit-claim by Silas in the last mentioned contract was not a conveyance of the one-hundred and thirty-eight acres upon a new and distinct consideration and so a deed of purchase, but was in fact and was intended to be a conveyance in subordination to the will of Leonard and to carry out its true intent and purpose. Our conclusion is that the defendant in error never acquired any interest whatever in either tract of land; and in accord with these views the judgment of the circuit court is reversed as to the one hundred and thirty-eight acres, affirmed as to the thirty-three acres, the cross-petition dismissed, and judgment is given for the plaintiffs in error.

Reversed.

Shauck, Price, Johnson and Donahue, JJ., concur.


author: Spear, C. J.

text:
    The State v. Sappienza.

      Trial for robbery — Proven defendant was present during act of crime —Defendant interposes plea of duress — Burden of proof rests with defendant — Law of evidence.

    Where, in the trial of an indictment for robbery, it is proved beyond a reasonable doubt, that the defendant was present at the time and place of the crime and participated in the acts which constituted the robbery, and the defe'ndant, for his defense, interposes a plea of duress, the burden is not on the state to disprove such plea, but is on the defendant to maintain his plea by a preponderance of the evidence.
    (No. 12849
    Decided March 28, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    At the April term, 1910, of the court of common pleas of Cuyahoga, the defendant in error, Grasuldo Sappienza, with four others, was indicted for the crime of robbery. A plea of not guilty having been entered by the defendant he was put upon trial June 27, 1910, and convicted of robbery as charged in the indictment. Motion for new trial having been overruled, the defendant was sentenced to the penitentiary for fifteen years, and ordered to pay the costs. On error to the circuit court the judgment of the common pleas was reversed for error in the charge of the court to the jury, and the cause ordered remanded to the court of common pleas for a new trial. The State, availing itself of section 13764 of the General Code, authorizing such proceedings, brings error in this court seeking a reversal of the judgment of the circuit court and an affirmance of the judgment of the common pleas. Further facts essential to an understanding of the point decided will be found in the opinion.

      Mr. John A. 'Cline, prosecuting attorney, and Mr. Charles H. Olds, assistant prosecuting attorney, for plaintiff in error.
    In the case of State v. Austin, 71 Ohio St., 322, it is held that the burden of establishing insanity by a preponderance of the evidence rests upon the defendant though it was proven that prior to the commission of the crime of homicide, the defendant had been adjudged insane two different times.
    In support of our contention that duress is an affirmative defense and required such a preponderance of the evidence, we cite the following cases and authorities: 1 Wharton Crim. Law (10 ed.), sec. 94; 1 Bishop Crim. Law (8 ed.), sec. 352; People v. Repke, 103 Mich., 459.
    It is one of the elements of the defense, in cases of insanity, that the defendant has no control of his will, and that he cannot do otherwise than to yield to the superior force. Sayres v. Commonwealth, 88 Pa. St., 301.
    Of a like character is the defense of duress wherein the defendant avers that he has no control of his actions, and that he is absolutely under a superior power, whose will he must obey. 1 Wharton Crim. Law (10 ed.), secs. 94, 95.
    As to the burden of proof and the rules which shift the burden to the defendant, see Underhill on Evidence (2 ed.),- secs. 23, 24.
    Why an alibi differentiates from defense of insanity, duress and self-defense, see Underhill on Evidence (2 ed.), Sec. 148; Wharton on Crim. Evidence, secs. 322, 329; Gore v. State, 58 Ala., 391.
    The reasoning in Kelch v. State, 55 Ohio St., 146; Coyle v. Commonwealth, 100 Pa. St., 573; Weaver v. State, 24 Ohio St., 584; Silvus v. State, 22 Ohio St., 90, apply with equal force to the defense of duress. Commonwealth v. Blodgett, 12 Metc., 56; Sharp v. State, 17 Ga., 290; State v. Wilson, 39 Mo. App., 114; 1 Greenleaf on Evidence (17 ed.), 79; Ellis v. State, 30 Tex. Crim. App., 601; State v. Arnold, 35 N. Car. (13 Ired.), 184; State v. Foster, 23 N. H., 348; State v. McGlynn, 34 N. H., 422; State v. Simons, 17 N. H., 83; Farrall v. State, 32 Ala., 557; Commonwealth v. Zelt, 138 Pa. St., 615, 11 L. R. A., 602.

      Mr. B. D. Nicola, for defendant in error.
    The criminal intent is one of the essentials of the crime of robbery. The trial court recognized this fact in stating to the jury the elements of the crime, and in charging the jury that each one of the constituent elements of the crime of robbery must be proven by the state beyond a reasonable doubt. If the court was correct in stating that the “felonious intent” is an element of the crime, then, we contend, any evidence that would tend to prove or disprove the felonious intent must be 'given to the jury for its consideration, and if the evidence so given the jury, raises a reasonable doubt in their minds, of the guilt of the defendant; the state has not made its case to that degree of certainty required by the law.

      It is not true that this defense is similar to the defense of confession and avoidance. The crime is not confessed, and we are not setting up new and extraneous matter in avoidance, as must be the case in the old. common law confession and avoidance. We are denying the commission of any crime.
    The distinction sought to be made by the state between the old statute of robbery and the new is without reason. A glance at the old statute and the new will show this. Section 12432, General Code; section 6818, Revised Statutes.
    It is apparent that the words “intent to steal” were necessary in the old statute, because only a taking was referred to in the beginning of the section. In the revision the words “steals and takes” are used at the beginning of the section, and the word “intent” is not necessary, as “steals” means the “felonious taking and carrying away.” It follows, then, that the cases upon which the circuit court relied for reversing the trial court were pertinent to the decision of the point in controversy. Jones v. State, 51 Ohio St., 331; Walters v. State, 39 Ohio St., 215.
    Where the defense is not in confession and avoidance, but in traverse of some essential fact relied on by the prosecution, the burden of proof, as has already been noticed, is on the prosecution to satisfy the jury that its case is made out. Wharton Crim. Evidence, sec. 329.
    . Intent is an element of crime and the inference thereof, or of malice, is to be drawn from the whole case, varying in force as the case varies. Wharton Crim. Evidence, sec. 738; Filkins v. Peo

      ple, 69 N. Y., 101; State v. Painter, 67 Mo., 84; State v. Maynard, 19 Nev., 284.
    We' maintain that the defense of duress is exactly parallel to the defense of an alibi. , Each' traverses one particular element of the crime. In Ohio the supreme court has held that if the evidence raised a reasonable doubt in the minds of the jury as to the presence of the defendant at the place where the crime was alleged to have been committed, then the jury must acquit him. Walters v. State, 39 Ohio St., 215.
   Spear, C. J.

Salient facts appearing with respect to the robbery are that on June 15, 1910, the defendant with four other men went out a few 'miles from Cleveland and lay in wait for the paymaster of The Cleveland Trinidad Paving Company, who was expected to pass with the payroll and money for the men. That person was joined by the foreman and they started to travel to the place of work, when five men, all armed with large caliber revolvers, suddenly leaped from the bushes at a lonely spot and conducted the paymaster and foreman into a near woods, bound and blindfolded them and took from them eleven hundred and ninety-two dollars in money, and made way with it. One Consolo was captured. The defendant, on information obtained from Consolo, was arrested a day or two later. The evidence of the state at the trial showed that Sappienza and others associated with him had planned the robbery some days before its commission. The defendant set up as a defense at the trial that although present he did not want to commit the robbery; and testified that his life was threatened, and that the only reason he went with them was through fear of his life. Two others who had been apprehended testified in corroboration. The defendant’s counsel presented to the court several, requests to charge, all bearing upon the effect in law of the defense, as to the burden of proof regarding the plea of duress. The court declined to give them, but did charge the jury upon that branch of the case as follows: “The defendant in this case makes the defense that he withdrew in the first instance from the conspiracy or common design to perpetrate this robbery; but that he was coerced and acted under duress. On this subject I say to you that this is the defense made by the defendant and the burden- of proof is upon him. It is not necessary, gentlemen of the jury, so far as this defense is concerned, that it should be proven beyond a reasonable doubt; it is sufficient in law if it should be shown by the preponderance of proof. By preponderance I do not mean that more witnesses should testify on one side or the other; but if you believe from the whole testimony that the preponderance of proof is with the defendant, with reference to the question of defense I have spoken about, then you may say that he has maintained that issue. On that subject I say to you this, it is the law that if a man has determined to commit a crime, and is engaged in carrying out his purpose, he has a right at any time before the consummation of the offense, to withdraw. He may repent of his purpose and desist, and if he does and stops short of the final act that completes the crime, he is guilty of no crime. In this case, though the defendant set out or joined with others to commit the crime charged 'in the indictment, yet, if in good faith he withdrew from the purpose, and participated, to the extent that he did participate, because he was under duress and coercion because he was in fear of his life, then he would not be guilty and your verdict should be for the defendant.”

It is not deemed necessary to specially notice the requests to charge. The charge as given presents the real question in controversy, and, if correct, the special instructions asked would at least have been misleading. It seems to be conceded that the charge was a correct presentation of the law ■bearing on the case, other than on the question of duress, including a proper rule as to the element of reasonable doubt generally, leaving the real error insisted upon the instruction regarding the burden of proof as to duress. The question, therefore, is whether or not the plea of duress is an affirmative defense; which imposes upon the defendant the burden of establishing it by a preponderance of the evidence. It was the opinion of the trial court that it is such affirmative defense; but the circuit court held otherwise, and hence the judgment of reversal by that court, which was only ■on the ground of error in the charge in that respect.

This court is of opinion that the charge of the common pleas is supported by reason as well as authority, and embodies the proper rule of law with respect to duress. The provision of statute under which the indictment was found, (section 12432, General Code), is as follows: “Whoever, by force or violence; or by putting in fear, steals and takes from the person of another anything of value is guilty of robbery, and shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.” Upon making proof, therefore, beyond reasonable doubt, that the defendant, with others, by force or violence, or by putting in fear, had stolen and taken from the person of the individuals named in the indictment, against their will, something of value, the State had made ■ its case one justifying a verdict of guilty, unless the defendant on his part produced evidence which exculpated him. The State did not need to go into the question of intent on the part of the robbers because of the universal rule, as a presumption of fact, that the natural and probable consequences of every act deliberately done were intended by the person who did them. It is not denied that the defendant participated in the acts which constituted the robbery, nor is it seriously claimed, at least it can not be reasonably claimed, that he did not intend to aid in doing the very acts which constituted the robbery, the full force of the exculpatory claim being that his intent was controlled by an outside force, that is, duress. In the nature of things this was an affirmative defense, one which it was incumbent on the defendant to make out by a preponderance of the evidence. This was so because the principle that the burden of proof is on the State in criminal cases has refence to the establishment of the corpus delicti, and the defendant’s complicity; but when the defendant relies upon distinct substantive matter for exemption or immunity, the burden of proving such matter is on the defendant. Ellis v. The State, 30 Tex. Cr. App., 601. This rule is also involved in The State v. Arnold, 13 Ired., 184, that- when the defense on an indictment for murder is that the prisoner was under the age of presumed capacity, the onus of proof lies upon the prisoner. A like principle is involved in the ruling in Commonwealth v. Zelt, 138 Pa. St., 615, 11 L. R. A., 602, that one charged with illegally selling liquor was acting as agent for a foreign importer is a matter of defense to be established by competent evidence sufficient to throw a reasonable doubt on the case of the prosecution. There is applicable, also, the more general rule, as held in State v. McGlynn, 34 N. H., 422, that where the subject-matter of a negative averment in an indictment relates to the respondent personally, or lies peculiarly within his knowledge, the averment will be taken as true unless disproved by him.

The principle involved is not different in character from that determined in Kelch v. The State, 55 Ohio St., 146, and in The State v. Austin, 71 Ohio St., 317, relating to the defense of insanity, the holdings being based on the rule, now thoroughly established in this State, though doubted in some jurisdictions, that as the law presumes sanity to be the normal condition, and insanity an abnormal condition, the burden rests upon him who sets up the defense to support it by a preponderance of the evidence. The same principle is applied with respect to the defense of self-defense, in a trial for murder, in Silvus v. The State, 22 Ohio St., 90, and with even more pertinency, as we think, in Weaver v. The State, 24 Ohio St., 584, where the crime charged was malicious shooting with intent to kill. These cases embody the settled law of the state on the questions involved, and we perceive no reason to disturb them. '

We think these authorities dispose of the question. As remarked by White, J., in the Silvus case, referring to the adoption of the opposite rule, “what is recognized in the books as a defense would cease to be such in any just sense, because the burden would be cast on the State of disproving its existence in order to support the indictment.”

The case at bar is wholly different from that of an alibi. That defense relates to the claimed denial by defendant of any participation whatever in the acts which constituted the crime charged, while in our case the record forecloses against defendant the facts of his presence and participation in the acts which constituted the crime.

Attention is called to Jones v. The State, 51 Ohio St., 331, opinion by Bradbury, J., and it is strenuously insisted by counsel for defendant that it rules the case at bar against the State. At first blush it might seem that there is some ground for counsel’s claim, but we think a careful examination of the case dispels that impression. The accused was charged with murder, and it was essential to a conviction that the State prove, beyond a reasonable doubt, the intent to kill. The defendant requested a charge embodying the proposition that the burden of proof 'is not on the defendant that the gun was discharged by accident, but the State must establish, beyond a reasonable doubt, that the defendant deliberately discharged the gun with premeditation and motive before the jury could convict. The material element of the ruling is that where the State has shown that the death was the result of design, the notion of accident is necessarily excluded. That which is designedly accomplished cannot, in the very nature of things, be accidental. Therefore, when the plaintiff in error introduced evidence tending to prove that the gun was accidentally discharged, he was merely controverting the truth of the averment in the indictment that it was purposely discharged.

To sum up the case, it stands thus: The record shows that the robbery was committed as charged; Jiat the defendant participated in it, and is therefore guilty as charged and was properly convicted unless he produced evidence which exculpated him. That is, he is proven guilty of doing the act. The usual presumption follows. His plea is not that he did not participate in the robbery; did not intend to do the act, but that his intent was controlled by an outside force, viz: duress. This being an affirmative defense the burden of proving it was on the defendant, and the trial court did not err in refusing to put that burden on the State. This conclusion requires a reversal of the judgment of the circuit court and an affirmance of that of the common pleas.

Reversed.

Davis, Shaucic, Price, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    The Youngstown Park & Falls Street Railway Co. v. Kessler.

      Contract by street railway corporation — To perform medical services — Not only ultra vires but void — Such corporation not liable in damages for malpractice in surgery — May contract to furnish medical services- — Petition for recovery of damages — Against corporation for malpractice — Does not state cause of action, when.

    1. A contract to perform medical or surgical services by a corporation organized for the purpose of constructing, owning and operating a street railway, is not only ultra vires, but is in direct conflict with the laws of this state regulating the practice of medicine and surgery and is, therefore, void.
    2. Such a corporation cannot be directly liable for damages for malpractice of medicine or surgery.
    3. Such corporation may make a valid contract to furnish or pay for medical aid and attention to one injured upon its cars or tracks, and an action against it for damages for a breach of such contract may be maintained.
    4. A petition that avers the making of such contract, the employment by the company of a surgeon in pursuance of such contract and malpractice on the part of such surgeon resulting in damages to the plaintiff, but which does not aver that the person so employed was not regularly admitted to practice medicine and surgery in Ohio, or that he was incompetent and the company knew, or had means op knowing of his incompetency, or that it was otherwise guilty of negligence or carelessness in selecting him to perform such service, does not state a cause of action.
    (No. 11656
    Decided April 18, 1911.)
    Error to the Circuit Court of Mahoning county.
    On the first day of July, 1905, the defendant in error filed her petition in the common pleas court of Mahoning county, seeking to recover a judgment for damages against the plaintiff in error, The Youngstown Park & Falls Street Railway Company, to which petition this plaintiff in error filed a demurrer, which demurrer was sustained. The defendant in error then filed an amended petition, to which a demurrer also was filed, and later the defendant took leave to file a second amended petition, and on the 24th day of July, 1907, did file such second amended petition averring in substance that on the 22d day of July, 1899, she was a passenger on one of the cars of the defendant company; that in alighting therefrom she received certain injuries; that “the defendant'sent its surgeon to treat her for the injuries so received, and- insisted upon furnishing the treatment necessary in and, about the injuries so received, and that in assuming such treatment said defendant contracted and agreed with plaintiff to furnish such surgical and medical attention and advice as her injuries demanded, and to correctly diagnose and treat her injuries with diligence, care and ordinary skill and for such length of time as would be necessary to make a complete recovery, to all of which plaintiff assented and defendant entered on the performance of its contract with plaintiff.’’ She then avers that the diagnosis then made by the surgeon was incorrect; that the treatment given her was not the proper treatment for the nature of the injuries she had received; that the advice given her was not proper; that she has followed this advice faithfully, but instead of recovering from her injuries, she has become a confirmed cripple; that neither medicine nor surgical treatment has been given her within the year next preceding the bringing of this action, but that plaintiff has been at all times following the advice of the surgeon and attempting to use her limb as directed by him to do, and relying upon his advice that by using the same it would eventually become well and sound, all of which has now proven to be without avail, and she avers that this was only for the purpose of getting rid of, and avoiding the carrying out of the contract made with the company. She also avers with some particularity the nature of the injury actually received by her, and the character of the treatment given her, and the extent of the injuries and damage she has suffered by reason of such improper diagnosis and incorrect advice and treatment and asks danu ages in the sum of ten thousand dollars.
    To this second amended petition, the defendant filed a general demurrer, which demurrer was sustained, and plaintiff not desiring further to amend, her petition was dismissed with costs, and error prosecuted by her in the circuit court of Mahoning county. That court reversed the judgment of the common pleas court and remanded the cause with directions to the common pleas court to overrule the demurrer. This proceeding in error is now brought in this court to reverse the judgment of the circuit court.

      Messrs. Norris, Jackson & Rose and Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Mr. S. L. Clark, for defendant in error.
   Donahue, J.

It is contended on the part of counsel for plaintiff in error that by the provisions of Section 4983, Revised Statutes, the limitation of the time in which an action for malpractice may be brought is one year from the time of the commission of the wrong complained of, that this second amended petition shows upon its face that the diagnosis was made, and the treatment and advice given plaintiff, almost six years prior to the time of bringing this action, and that the action being barred by the statute, and the averments of the pleading clearly showing that fact, that the demurrer to the second amended petition - was properly sustained by the common pleas court.

It is sufficient to say with reference to this contention that a railroad company cannot be guilty of malpractice. It is not authorized to practice medicine or surgery, and, therefore, any contract it might make to do so would be not only ultra vires, but in direct conflict with the laws of this state regulating the practice of medicine and surgery. Therefore, the statute limiting the time in which actions for damages for malpractice may be brought has no application to this suit. No such action will lie against a railroad company, and if that is the cause of action stated in this second amended petition, then it would be vulnerable to a demurrer, not only because of the statute of limitation, but also because it does not aver facts sufficient to constitute a cause of action.

It probably does appear from a reading of this, second amended petition that the pleader intended to state a cause of action for damages for malpractice, but the intention of the pleader does not necessarily control. If there are sufficient facts pleaded to constitute any cause of action it is not important whether the pleader intended to state that particular cause of action or not. If this petition states a cause of action it must be one for a breach of contract to furnish such medical and surgical aid and attention to the plaintiff as she might require. This second amended petition does aver such a contract, but it does not clearly appear whether the pleader intended to aver an express contract, or a contract implied from the circumstances of the case and conduct of the parties. It does not aver any consideration for such a contract. So far as this pleading is concerned, the railroad company was a mere intermeddler. It sent its surgeon there without any request on her part for his services, or without any reason for its doing so, unless the fact that the plaintiff had been injured while alighting from the defendant’s car « be taken as a' sufficient reason for its having so done. There is no averment that the defendant was negligent in the management and operation of its cars or had negligently or carelessly or wrongfully caused the injury to the plaintiff. However, if it be conceded that sufficient facts are pleaded to show a valid contract between the plaintiff and the defendant by the terms of which the defendant undertook to furnish to the plaintiff the services of a physician and surgeon to treat her for the injuries she received while alighting . from its car, it also fully appears in this petition that it did furnish her a physician and surgeon for that purpose, and that he did examine her injuries, diagnose her case ánd give her treatment and -advice. Her claim is not that the railroad company failed to fúrnish- a physician and surgeon, as by the terms of its contract it had agreed and undertaken to do, but that it failed to furnish a surgeon sufficiently skilled and competent to treat her injuries.

It is not the law that one who contract's to furnish or pay for medical or surgical aid and attention to another is liable at all events for the mistakes or incompetency of the physician or surgeon he may employ for that purpose. There must be some neglect or carelessness or misconduct on his part in the performance of his obligations arising under such contract. If he act in good faith and with reasonable care in the selection of the physician or surgeon, and has no knowledge of the incompetency or lack of skill or want of ability on the part of the person employed but selects one of good standing in his profession, one authorized under the laws of this state to practice medicine and surgery, he has filled the full measure of his contract and cannot be held liable in damages for any want of skill or malpractice. on the part of the physician or surgeon employed.

There is no averment in this petition that the surgeon employed by- this defendant railroad company was not in good standing in his profession; that he was not authorized to practice surgery, or that he was grossly incompetent and that the defendant had knowledge of his incompetency, or in the exercise of due care could have obtained such knowledge; that the plaintiff did not know and had not equal means of knowing the competency and ability of the person employed or that the company was guilty of any neglect or any carelessness in selecting this particular surgeon to perform this service, therefore, if this second amended petition does aver sufficient facts to show a valid contract by the terms of which this company agreed and undertook to furnish medical and surgical aid to this plaintiff it wholly fails to show any breach of this contract on the part of the company or any such careless or negligent performance of its obligations arising under such contract as would make it liable to plaintiff for the damages which she may have sustained by reason of the incompetency, want of skill or malpractice on the part of the surgeon so employed.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Judgment reversed.

Spear, C.. J., Price and Johnson, JJ., concur.

Davis, J., not present at the argument and not voting.

Siíauck, J., concurs in the judgment and in the first and fourth propositions of the syllabus.


author: Johnson, J.

text:
    The Mills-Carleton Company v. Huberty et al.

      In harmonizing apparently conñicting clauses of contract — They must be construed so as to give effect — To intention of parties — Rule of interpretation.

    In harmonizing apparently conflicting clauses of a contract they must be construed so as to give effect to the intention of the parties as gathered from the whole instrument, and where the object to be accomplished is declared in the instrument the clause which contributes most essentially to that object will control.
    (No. 12475
    Decided April 18, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The Mills-Carleton Company brought suit in the common pleas court of Cuyahoga county against George Huberty on an account for lumber and building material which it claimed to have sold and delivered to Huberty. A second cause of action is contained in the petition, in which plaintiff sets up a mechanic’s lien on certain real estate belonging to Huberty to secure the account referred to. The answer of defendant denies the averments of the petition, and then alleges that on August 9, 19Ó5, “He entered into a written agreement with plaintiff whereby he guaranteed the account of H. G. Schmitt, who was then under contract with this defendant for the erection of a certain building on the premises described in the petition, limiting his guarantee to the amount of $3,844, which was the original estimate for the lumber and which was all he agreed to pay.
    “Said defendant states that he has paid plaintiff the aforesaid sum of $3,844. That he never contracted with them- for lumber other than his agreement to guarantee the account of said Schmitt who purchased said lumber and to whom all of said lumber was delivered.”
    The cause was tried to a jury and at the conclusion of the plaintiff’s evidence the court on motion of defendant Huberty directed the jury to return a verdict in his favor. Judgment on this verdict was affirmed by the circuit court and this proceeding is brought to reverse the judgments of the courts below.
    Other pertinent facts are stated in the opinion.

      Messrs. Treadway & Marlatt, for plaintiff in error.
    We submit that there is no such ambiguity or uncertainty in the language used as to require the aid of extrinsic evidence to show the intention of the parties. If the meaning of a written statement is clear, effect must be given to that meaning even though the parties intended something else. 2 Parsons on Contracts (9 ed.), 656; Oil Co. v. Lane, 59 Ohio St., 307; Felter v. Weybright, 8 Ohio, 167; McCoy v. Bixbee, 6 Ohio, 310; Smith v. Hankins, 1 Cin., 449, 27 Ohio St., 371; Coal Co. v. Mining Co., 40 Ohio St., 559; Wolfe v. Scarborough, 2 Ohio St., 362; Railroad Co. v. Reid, 6 O. D., 273; Day v. Brown, 2 Ohio, 345.
    A special provision will override a general only where the two cannot stand together. Insurance Co. v. Roost, 55 Ohio St., 581. To construe these words as a limitation of liability completely nullifies the words “I will pay you for all lumber” in the second line of the agreement and in the last line of the agreement. The two cannot stand together under this construction. Again this contract should be construed with reference to its object and as an- entirety and accordingly the whole contract must be considered in endeavoring to get at the intention of the parties even though the object of the inquiry be the meaning of a doubtful isolated clause. Railway Co. v. Reid, 6 O. D., 273; University v. Cincinnati, 13 Dec., 741.
    Plaintiff in error should recover upon the ground of estoppel. Estoppel may be raised by silence a's well as by representations, and the following cases illustrate the principle, "that he who is silent when he should speak, must" be silent when he would speak,” although the facts, of course, differ. Bank v. Morgan, 117 U. S., 96; Cairncross v. Lorimer, 7 Jurist N. S., 149; Staton v. Bryant 55 Miss., 261; Sullivan v. M’Connell, 73 Fed. Rep., 130; Buckingham v. Smith, 10 Ohio, 288; Trout Club Co. v. Sporting Club, 8 O. C. D., 693, 56 Ohio St., 749.

      Messrs. Hidy, Klein & Harris, for defendants in error.
    It is clear that the lumber which Pluberty authorized plaintiff to charge to his account, and for which he promised to pay, was the lumber "for which said Schmitt has given you an order, date of August 8th, ult.,” and that this order was based on plaintiff’s “estimate of August 4th, No. 134, amounting to $3,844.00.” This lumber thus described and its price fixed, and no other lumber, is what, by the terms of the writing the plaintiff is authorized to charge to Huberty’s account, and for which Huberty agrees to pay. There is nothing obscure, equivocal or ambiguous about the language; it is plain, clear and intelligible; there is nothing for the court to construe or interpret.
   Johnson, J.

The lumber furnished by the plaintiff company was used in the construction of a factory in Cleveland.

Before any of the lumber was delivered there was the following correspondence between .the parties:

“Cleveland, Ohio, Aug. 9, 1905.
“The Mills-Gray-Carleton Co.,
“City.
“Dear Sirs:
“You can charge to my account and I will pay you for all lumber delivered to H. G. Schmitt for use in construction of a building on my lots, Bebden Street, lumber to be delivered and charged on basis your estimate of August 4th, No. 134, amounting to $3,844.00, for which said Schmitt has given you an order date of August 8th ult. I will pay you on or before the 10th of each month, taking advantage of the usual 2 per cent, discount for all lumber delivered and accepted the preceding month.
“(Signed) Geo. Huberty.
“Witness:
“A. J. Gregory, Agt.”

To this The Mills-Carleton Company, the The Mills-Gray-Carleton Co., replied as follows:

“Cleveland, Ohio, Aug. 10, 1905.
“Mr. Geo. Huberty,
“823‘ St. Clair St.,
“City.
“Dear Sir:
“Mr. Gregory has handed to us a letter from you authorizing us to charge to your account the lumber for your new building, as per our estimate of August 4th, $3,844.00, to be used by H. G. Schmitt in erecting a building on your property.
“We thank you for this letter as it puts the matter in a shape which is very satisfactory to us.
“Yours truly,
“(Signed) The Mills-Gray-Carleton Co.,
“By C. H. Carleton. President.”

The contention of the plaintiff is, that by the contract thus made, Huberty became liable to pay plaintiff for all of the lumber furnished by it which was used in construction of the building. While the defendant contends that his liability was conclusively limited to the sum of $3,844.00, and that for any other or additional material, plaintiff would have to look to the contractor, Schmitt.

The testimony offered by plaintiff showed that as the work progressed certain changes were ordered by Huberty in the construction of the building. These required additional lumber and the reworking of some of the lumber covered by the estimate referred to. Some of the lumber covered by the estimate was not needed and was not delivered. From time to time Huberty made payments to plaintiff, and when these payments amounted to $3,844.00 which wás after all of the material had been delivered, he refused to make any further payments.

The total value of the lumber furnished by plaintiff, which was used in the construction of the building, was $344.51 in excess of the amount which defendant paid.

Testimony was tendered by plaintiff tending to show that extras were ordered by Huberty himself and that statements were rendered by plaintiff to him as the work progressed for the material furnished, the bills for material which was in addition, to that originally estimated being marked “extra.” That Huberty made no objection to any of these charges until after the material was furnished.

The courts below sustained the contention of defendant that his liability was conclusively limited to the amount stated in his letter of August 9, 1905, and that the subsequent matters referred to did not change or add to that limit.

The letter of defendant of August 9th, opens with the explicit statement, “You can charge to my account and I will pay you for all lumber delivered to H. G. Schmitt for use in • construction of building on my lots,” etc.

The concluding sentence is the promise: “I will pay you on or before the 10th of each month, * * * for all lumber delivered and accepted the preceding month.”

This language is not uncertain or ambiguous, and leaves no room for discussion as to its meaning.

The contract must be construed with reference to its object and as one entire contract.

It will be observed that the material was to be charged to account of Huberty, himself, and the promise was to pay for all lumber delivered.

The object to be ■ accomplished as expressed in the contract was the construction of the building, in which the material was to be used. It is a matter of common knowledge that few, if any, buildings are carried to completion without changes which either .increase or.diminish the requirements of material.

But it is claimed that the clause, “lumber to be delivered and charged on basis your estimate of August 4th, amounting to $3,844.00,” is conclusive in its legal effect and cuts down the comprehensive terms in the rest of the letter.

The word “estimate” is defined in Webster’s Dictionary as follows: “A rough or approximate calculation, as an estimate of the cost of a building or the quantity of water in a pond.”

The use of the word “estimate” in this contract taken in its ordinary meaning and import, excludes the idea of an exact detailed schedule or list of material which schedule or list was by the agreement not to be increased or diminished as the building progressed. On the contrary, the use of the word “estimate,” in connection with the other language of the cpntract, and the object to be accomplished, clearly leads to the conclusion that the basis referred to in the contract, on which the amount of $3,844.00 was arrived at, was an approximate calculation or estimate of the lumber required and which might be altered in the carrying out of the work.

This construction harmonizes and gives effect to the entire instrument, a result enjoined by familiar rules. -

We are strengthened in this view by the conduct of the parties subsequent to the making of the contract. As already shown, defendant ordered additional lumber himself; statements were rendered to him for all material furnished as the work progressed, and the bills for extra material were marked “extra,” all without objection from him.

And even if the contract had explicitly limited Huberty’s liability for lumber furnished on Schmitt’s original order to the amount named, he would nevertheless be responsible for material which he personally purchased in addition thereto.

We think therefore that the common pleas court , erred in directing a verdict for defendant and the judgments of the courts below will be reversed.

Judgments reversed.

Spear, C. J., Davis, Spiauck, Price and Donahue, JJ., concur.