text:
    Village of Cardington v. Adm’r of Fredericks.

      Action for a nuisance— When abates.

    An action against an incorporated village founded upon a petition alleging in substance that a street much used by the citizens and the public, was so unskillfully and negligently constructed and left by the defendant as to be in an unsafe and dangerous condition, and allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that it was highly dangerous, and that the plaintiff, while lawfully passing along the street, accidentally and without fault or negligence on her part, was precipitated down an embankment, whereby she was greatly bruised and injured, for which damages she asks judgment, is an action “for a nuisance” within the meaning of section 5144, Revised Statutes, and abates at the death of the party injured.
    (Decided May 21, 1889.)
    Error to the Circuit Court of Morrow County.
    Mary J. H. Fredericks commenced an action against the Incorporated Village of Cardington, in the Court of Common Pleas of Morrow County. After answer filed the plaintiff deceased, and, by leave of court, her administrator became party plaintiff, and filed petition. The sole issue in the case is, as to whether an action can be maintained on that petition, which is as follows:
    “ Mary J. H. Fredericks, Plaintiff,

      against

      “ The Incorporated Village of Cardington, Ohio, Defendant.

      “ Petition of James M. Sherman, Administrator.

      “ And now comes the said James M. Sherman and represents :
    “ First — That on or about the 18th day of July, A. D. 1884, the said Mary J. H. Fredericks died intestate.

      “Second — That on the. 4th day of August, A. D. 1884, he, the said James M. Sherman, was by the Probate Court within and for the county of Morrow, Ohio, duly and legally appointed administrator of the estate of Mary J. H. Fredericks, deceased; that he gave his bond as required by law as such administrator, and entered upon the discharge of said trust. and that he is now the duly and legally appointed and acting administrator of said estate.

      “ Third — That at the October term of this court, 1884, the death of the said Mary J. H. Fredericks was duly suggested. And by order of the court the administrator was made a party to ' said action, and leave given said administrator to file petition.

      “ Fourth — That pursuant to said order of court, and leave to plead, the said administrator says that the said defendant is a municipal corporation, duly organized under the laws of the State of Ohio.

      “ Fifth — That on or about the 28th day of April, A. D. 1883, a certain public street in said village, known as ‘ Main Street/ which was much traveled and used by the citizens of said village and the public generally, was so unskillfully and negligently constructed, and left by the defendant, as to be in an unsafe and dangerous condition, which street thus unskillfully and negligently constructed, .was, by said defendant, •allowed to become out of repair and obstructed by the rubbish and refuse of the village, so that the same became and was at the date last aforesaid highly dangerous. All of which the said defendant then and there had due and legal notice.

      “ Sixth — That on the said 28th day of April, A. D. 1883, the said Mary J. H. Fredericks was lawfully traveling on said street, and while lawfully passing along said street, accidentally, and without fault or negligence on her part, was precipitated down an embankment, a distance of about twenty feet, whereby she was greatly bruised and injured.

      “ Seventh — That the injury herein complained of, was wholly in consequence of the dangerous condition of said street, as herein set forth.

      “ Eighth — That by reason of the premises she was damaged in the sum of five thousand dollars.

      “ Ninth — That on the 10th day of November, A. D., 1883, she filed with the clerk of said defendant her claim for damages, as herein set forth, which said claim remained unadjusted for a period of sixty days and more prior to the commencement of this action.

      “ And yet the said defendant has not paid said sum of money, nor any part thereof, though often requested so to do.
    “ The said James M. Sherman, as administrator, as aforesaid, therefore prays judgment against the said defendant for the sum of five thousand dollars, with interest and cost of suit.”
    The court of common pleas sustained a demurrer to the petition, and dismissed the action.
    This judgment was reversed by the circuit court. To obtain a reversal of that judgment this proceeding in error is prosecuted.

      Powell, Owen, Bicketts & Black, with B. F. Bartlett, and •/. K. Dunn, for plaintiff in error.
    Sec. 2640, Rev. Stats., provides that the council of municipal corporations “ shall have the care, supervision and control of all public highways, streets, * * * * * within
    the corporation, and shall cause the same to be kept opeq and in repair and free from nuisance.”

    The plaintiff in the original action complained of a nuisance, in one of the streets of the village, and of a violation of a duty enjoined by the above section 2640, to keep the streets free from nuisance.

    That to obstruct, etc., a highway is a nuisance, is a proposition too obvious to require authorities to support it.
    “No one can have an action for .a nuisance or obstruction in a common highway, without assigning some particular damage to himself individually, independent of the general inconvenience to himself as one of the public,” etc. 1 Addison on Torts, sec. 279; Columbus v. Jacques, 30 Ga. 506; Gerrish v. Brown, 51 Me. 256 ; Morton v. Moore, 15 Gray (Mass.), 573 ; State v. Spainhour, 2 Div. & B. (N. C.) L. 547 ; State v. Atchison, 24 Vt. 448 ; Dimmett v. Eskridge, 6 Mumf. (Va.) 308.
    Sec. 5144 Rev. Stats, provides that the following actions shall abate by the death of either party : Actions for libel,
    slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office.
    What is an action “ for a nuisance ” ? It certainly can not be an action to abate a nuisance. An action for slander, for assault and battery, etc., is certainly an action for damages resulting from the slander, the assault and battery, etc. By analogy, an action “for a nuisance” is an action for damages resulting from a nuisance.
    The latter question ought to be set at rest by a brief reference to the history of this provision.
    The Civil Practice Act of 1831 (Swan-Stat. Ed. 1840), which was in force until the civil code was adopted, provided that “ actions for libel, * * * actions on the case for nuisance,” etc., should abate by the death of either party. Upon the adoption of the code, there being no longer such a thing as an action on the case, these words were simply dropped out; but the nature of the action of course remained the same. It was an action for damages resulting from a nuisance.

      Andrews & Sims, for defendant in error.
    This is not an action that abates by reason of the death of the plaintiff. The petition states that the street was unskillfully and negligently constructed, a-nd was unsafe and dangerous, and that without her fault, but by reason of the fault of the defendant, she was precipitated down an embankment twenty feet. See petition on page 17 of record. The obstruction complained of might or might not be a nuisance, and yet if the dangerous embankment had not been there, she would not have been injured by reason of the obstruction. Section 2640, Revised Statutes, is not meant for a trap to catch the unwary; and it is not the intent that the council of a corporation shall dig a pitfall in a public street, and bait it with a nuisance, and if by it, it succeeds in killing its victim, it escapes liability. Besides that, as was shown by the petition, it was the unsafe and unrepaired condition of the street that caused the injury.
   Spear, J.

The grounds urged for reversal of the judgment of the circuit court are :

1. The action was for a nuisance, and hence abated at the -death 'of the party injured.

2. The petition did not state facts sufficient to constitute a cause of action.

Was the action below one for a nuisance? The gravamen of the petition is that .the deceased was injured because of the dangerous and unsafe condition of the street along which she was traveling; that the street had been unskilfully and negligently constructed and left, was out of repair, and obstructed by rubbish and refuse. In other words, the charge is that the village constructed a dangerous road, and allowed it to become and remain out of repair, from which private damage ensued.

The term “nuisance” is of extended application. Many definitions are given, necessarily varied because the word applies to a large number of subjects. “ The term nuisance/ derived from the French word nuire,’ to do hurt or to annoy, is applied in the English law indiscriminately to infringements upon the enjoyment of proprietary and personal rights.” Addison on Torts, 361. “Nuisance, something noxious or offensive. Anything not authorized by law which maketh hurt, inconvenience or damage. It may be (a) private, as where one so uses his property as to damage another’s, or disturb his quiet enjoyment of it; (b) public, or common, where the whole community is annoyed or inconvenienced by the offensive acts, as where one obstructs a highway, or carries on a trade that fills the air with noxious and offensive fumes.” Cochran’s Law Lexicon, 192.

We presume it can hardly be doubted that the street, as described in the petition in this case, was, in law, a nuisance. “ Nuisances to highways, bridges and public rivers. These annoyances may be either positive, by actual obstruction, or negative, by want of reparation. In the latter case, only those persons are liable whose duty it is to keep the road, etc., in repair.” Harris’ Criminal Law, 118. “ Defective highways a nuisance. — For the communities, individuals or corporations, upon whom is imposed the burden of keeping a highway in repair, to permit the same to be out of repair so as to endanger the safety of persons or property passing over it, or so as seriously to interfere with convenient transit over the same, is a public nuisance at common law, subjecting the communities, persons or corporations, upon whom the duty of keeping it in repair is imposed, to indictment, and generally to damages at the suit of persons injured by reason of such defects or want, of repair.” Wood on Nuisances, section 307.

We conclude that the generally accepted rule is, that although the nuisance be a public one, yet it is private also, if an individual sustain a special injury thereby, and he may maintain an action and recover his special damage, whether it be direct or only consequential.

This petition then charged the maintenance of a nuisance. It charged that by reason of that nuisance the plaintiff’s intestate had been injtired. ‘It is insisted that the action below was for negligence. This proposition does not seem to advance the argument.. The maintenance of any nuisance implies negligence, or worse. The negligence averred produced a nuisance, and it was the nuisance which was the occasion of the injury. Any failure to keep a safe highway implies neglect, but it was necessary to allege a state of facts from which the negligence would be inferred. Averring such state of facts showed that a nuisance had been created, but it was not necessary that the word “ neglect ” or negligence,” should be used in the petition. The action was, therefore, “ for a nuisance,” i. e., for maintaining a nuisance from which private damage ensued.

The statute (sec. 2640, Rev. Stats.), gives to municipal corporations the care, supervision and control of all public highways, etc., and requires that the same shall be kept open, and in repair, and free from nuisance. In effect it is a requirement that the corporation shall prevent all nuisances therein, and when, by allowing a street to become so out of repair as. to be dangerous, the corporation itself maintains a nuisance, and a suit to recover for injuries thereby occasioned, is for damage arising from a nuisance, or for a nuisance.” The statute does not give a remedy; it but enjoins the duty. And when a duty to keep streets in repair is enjoined on municipal corporations, either by a statute in the form now in force, or by a provision which authorizes them to pass ordinances for regulating streets and keeping them in repair, and gives power to levy taxes for that purpose, and presumably, to obtain a fund for satisfying claims for damages, a right of action for damages caused by such neglect, arises by the common law.

Did the action abate by the death of the person injured? As a general rule, at common law, actions ex contractu survived, while actions ex delicto did not. To this there were exceptions. One was that, in actions ex delicto, so far as the act complained of resulted in damage to property, the action survived Another was, that though the action was founded on contract, as a suit for breach of promise of marriage, yet if the damage resulting was to the person, and not to the property, the action did not survive. The reason for the dis■tinction was stated by Lord Ellenborough, in Chamberlain v. Williamson, 2 M. & S. 408, thus: Executors and ad-

uni nistrators are the representatives of the temporal property, •that is, the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate.” In other words, the pain and suffering endured, or the impairment of the body, not being a property interest, did not pass to a personal representative. Nor were such causes assignable. The rule was that demands arising from injuries strictly personal, whether arising upon tort or contract, are not assignable.” McKee v. Judd, 12 N. Y. 622. “A chose in action which is transmissible to an executor or administrator, under our law, is .assignable in equity; but personal torts, which die with the person, are not assignable.” Grant v. Ludlow, 8 Ohio St. 37. •Survivability and assignability of things in action were thus treated as convertible terms. “ In general, it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable o'f ■passing by assignment.” Comegys v, Vasse, 1 Pet. 213.

In this view, at common law, no action for death occasioned by wrongful act could be maintained. No right was transmitted, because no person has such an interest in his own life as will constitute property in any legal sense,' and property .rights only were transmissible. Hence followed the.enact■ment of statutes in many of the states, including our own, giving a right of action for death occasioned by wrongful act, in the name of the personal representative, for the benefit of .the next of kin, or widow, or both. It will be noted that it nowhere appears that the death in this case was caused by the injuries complained of, nor does the petition of the administrator purport to be founded on the statute referred to.

So that when our statute provides that actions for damages for slander, libel, assault and battery, on the case for nuisance, etc., shall abate by the death of either party, it but gives legislative expression to a rule of the common law. A change made by the adoption of the code is important to notice. Previously the statute caused such action to abate by the death of •either party. The code, sec. 399, provided that such action .should abate by the death of the defendant. The present statute, sec. 5144, Rev. Stats., which took effect January 1, 1880, restored the original language, and provided that the actions, therein enumerated, including actions for a nuisance,” should abate on the death of either party. The injury to the party in this case occurred April 28, 1883.

The question is not without .difficulty, and much may be said on the other side, but, as conclusion, upon the grounds .stated, we think the action abated upon the death of plaintiff by force of sec. 5144.

By reason of the conclusion reached on the first proposition, the other becomes unimportant. However, we are of opinion that, but for the effect of sec. 5144, the petition would not have been bad on demurrer. It is not a model of definiteness, perhaps, but the remedy for such defect is by motion, and not by demurrer.

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


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Weil v. The State.

      Conditional sales of personal property — Constitutional law.

    1. The act passed May 4, 1 885 (82 O. L. 238), entitled “ an act to regulate conditional rates and sales of personal property, and to provide for filing instruments pertaining to the same with certain officers, and making a violation thereof a misdemeanor,” is not in conflict with either section sixteen or nineteen of article one, or section sixteen or twenty-eight of article two, of the constitution of this state.
    2. The second section of the act, which makes it unlawful for the vendor of persona] property sold as therein specified, to take possession of such property, without tendering or refunding to the purchaser, the sum paid by him, “ after deducting therefrom a reasonable compensation for the use of such property,” is not invalid on the ground-that the amount of such compensation is uncertain, and no method is provided by the act for determining the same.
    (Decided May 21, 1889.)
    Motion for leave to file petition in error to reverse the-judgment of the Circuit Court of Hamilton County.
    The facts sufficiently appear in the opinion.

      Baker & Goodhue, for the motion.

      Swartz, Littleford & Wright, contra.

   Williams, J.

At the April term, 1888, of the Court of' Common Pleas of Hamilton County, Sol. Weil was indicted for a violation of the act of May 4, 1885 (82 Ohio L. 238) entitled “An act to regulate conditional rates and sales of personal property, and to provide for filing instruments pertaining to the same with certain officers, and making a violation thereof a misdemeanor.” After a demurrer filed by him to the indictment had been overruled, he entered a plea of guilty; and sentence being then passed upon him as provided by the statute, he prosecuted error to the circuit court, where the judgment was affirmed. The motion for leave to file a petition in error in this court, is submitted, it is said in argument, “to test the constitutionality of the statute.”

It is first suggested, rather than coutended, that the act is without force, because that clause of Section 16 of Article II of the constitution, which provides that “no bill shall contain more than one subject which shall be clearly expressed in its title,” has been disregarded. If it were true, that in the enactment of this statute, the legislature failed to observe the constitutional provision referred to, the statute would not, on that account, be invalid. According to the repeated decisions of this court, that provision of the constitution relates only to bills in their progress through the general assembly, and is directory merely, being a rule prescribed for that body, to which the supervision of its observance is left. Pim v. Nicholson, 6 Ohio St. 176; State v. Covington, 29 Ohio St. 102; Oshe v. State, 37 Ohio St. 494. The suggestion of the invalidity of the statute on this ground, therefore, does not demand further consideration.

To the first section of the statute, no objection is made. That section in substance provides, that in all cases where personal property is sold to be paid for in installments, or let, hired or delivered subject to a condition that the title shall remain in the vendor, lessor, hirer, or deliverer, until payment of the sum or amount agreed on therefor, the condition shall be void as to subsequent purchasers, mortgagees in good faith, and creditors, unless it is in writing, and verified and filed as chattel mortgages are required to be. The second and third sections of the act are as follows :

“ Sec. 2. Whenever such property is so sold or leased, rented, hired or delivered, it shall be unlawful for the vendor, lessor, renter, hirer or deliverer, or his or their agent or servant, to take possession of said property without tendering or refunding to the purchaser, lessee, renter, or hirer thereof, or any party receiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed fifty per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed.

Sec. 3. Any person violating any of the provisions of section two of this act, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not more than one hundred dollars.”

These two sections, it is contended, violate, (1) that clause of section twenty-eight of article two of the constitution which denies to the general 'assembly power to pass laws impairing the obligation of contracts; (2) the section of the bill of rights declaring the inviolability of private property; and (3) those provisions of the constitution which vest the judicial power of the state in courts, and require that “ all courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law.”

1. Does the statute impair the obligation of contracts? It does not in terms purport to operate retrospectively, or apply to contracts entered into before its enactment, but only to those made after it took effect. The obligation of a contract, is the duty, which the law at the time of making it, imposes upon the parties. As was said by Mr. Justice Washington in Ogden v. Saunders, 12 Wheat. 213, “ the law of the contract forms its obligation.” Judge Cooley, in his work on Constitutional Limitations, p. 346, says: “The obligation of a contract depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by one party, and the right acquired by the other.” In an interesting discussion of this subject in Smith v. Parsons, 1 Ohio, 236, it is said by Burnett, J., in the opinion of the court, that, “ The legislature has a right, by law, to regulate contracts, to determine their effect, and point out the mode of their discharge. These laws are applied to all subsequent engagements, and fix the rights of the parties at the very instant the contract is closed, so that the contract, in its inception, receives an impress from the law, and the effect of the law being co-existent with the contract, can never be said to alter or impair it. It conti nues what it was at its commencement ; and it is more correct to say that the law has in part made the contract, than that it has changed it.” Persons contracting after the passage of the statute, could not know the law as one impairing the obligation of contracts in the sense of the constitution, but as an act regulating future contracts, and defining their effect. The learned judge further says: “Instead of determining the validity of the statute by reference to the alleged intention of the parties to the contract, we must fix the legal intent of the parties, as well as the nature and extent of the obligation of the contract, by reference to the statute.” And again : “ Contracts must be expounded according to the law in force at the time they were made; and the parties are as much bound by a provision contained in a law, as if that provision had been inserted in, and formed part of the contract.” The application of the law thus stated, to this case, leaves little ground for the contention that the statute in question is obnoxious to the constitutional objection under discussion. The act was passed May 4, 1885, and took effect on the 1st day of July, 1885, while the offense charged in the indictment, is that Weil, having on the 9th day of November, 1887, sold and delivered certain personal property to another, to be paid for in installments, on the 18th of February, 1888, unlawfully took possession of the property, without tendering or refunding any of the money paid him by the purchaser therefor. The contract of sale was made subsequent to the passage of the statute, and if as before seen, the statute entered into and became part of the contract when Weil sold and delivered the goods, in the manner specified in the act, he thereby agreed, as much so as if expressly stipulated in the contract, that he would not, and rightfully could not tak'e possession of them without complying with the provisions of the statute; and, having so agreed, neither compelling such compliance on his part, or holding him responsible for his failure in that behalf, in any way impairs the obligation of the contract. Eather, effect is thus given to it, and its obligation enforced, according to its terms.

2. The next-objection made to the statute is, that it violates the right of private property, by undertaking to transfer it to another, without the owner’s consent. Before the enactment of the statute, it had been held that upon sale and delivery of chattels to be paid for in future installments, it was competent for the parties to contract that until full payment, the title to the property should remain in the vendor, and on failure to make such payment, the vendor might take possession of the goods, and all money paid thereon should be forfeited to him; and that under such sales, no title vested in the vendee, until he paid the entire contract price, and a bona fide purchaser from him acquired no title. Sanders v. Keber, 28 Ohio St. 630. Oppression and hardship might, and probably did grow out of such contracts. Under them, a purchaser might pay the purchase price for the goods, except an insignificant sum, and failing, for any cause to pay that, the vendor could reclaim the property, and retain the whole amount paid, thus depriving the purchaser of both the property and money. Consequences like these, no doubt, directed the attention of the legislature to the establishment of some equitable rule of adjustment between parties to such contracts. At all events, that body has deemed it proper, by the statute in question, to regulate contracts of this class, and prescribe their effect, by limiting the amount of forfeiture, a vendor may exact under them. This, as has already been shown, the legislature may do. The statute, when applied to contracts made after its adoption, does not divest the owner of his property without his consent; for, of course, if the purchaser shall pay the full purchase price of the property, it becomes' his by the agreement of the seller, and the latter has what he agreed to receive for it, its equivalent in money ; and, in case the purchaser fails to fully pay for it, the vendor’s right of property is preserved to him, with a reasonable compensation for its use by the vendee, and for any damage done to it. After the enactment of the statute prescribing the effect of the contracts specified in it, and fixing the rights of parties thereto, the defendant was at liberty, to enter into such a contract, or not; and having entered into it, the provisions of the statute pz-escribing his rights, duties and liabilities under it, became obligatozy upon him of his own choice; and if it should follow, that by reason of the limit fixed by the statute upon the amount of the purchase money he may retain and at the same time reclaizn his property, he is deprived of something he might otherwise have exacted, it is the result of his contract to that effect, into which he voluntarily entered.

3. Again, it is contended that the statute deprives the party of his remedy by due course of law. The position taken by counsel for the motion is, that in effect, the statute prohibits the seller from maintaining an action to recover possession of the property sold, without an ascertainment first had of the amount of compensation to be paid for the use of the property by the purchaser, and, in case the property is damaged, of the amount of damages to be paid, and that, if the parties disagree upon either question, there is no tribunal provided for its determination, and he can not, therefore, have recourse to his legal remedy, without incurring the penalty of the statute, and is thus denied remedy by due course of law. This position we think, is untenable. The offense punished by the statute, is committed by a vendor, only when he, or his agent, or servant, takes possession of the property, in violation of its provisions. The institution of a suit in replevin, to have determined by judicial decision, the party’s right to the possession of the property, is not taking possession of the property by the vendor in violation of the statute. While it is true, he may thus receive the possession of the property, he docs so, only on legal process, and not until he shall have given an undertaking as required by law, which takes the place of the property, and secures to the defendant the. full value of his interest in the property, which is the amount due him under the provisions of the statute. This amount, may be regarded either as his interest in the property, or the extent of his lien upon it, and may be ascertained and secured to him by the verdict and judgment in such action. By force of the statute, his right of possession in the property continues until the seller shall tender or refund to him the sum paid on it, after deducting a reasonable compensation for its use, and for the damage done to it; while, under the provision of the replevin statute (sec. 5826, Rev. Stats.), if the jury find that the defendant had the right of possession at the commencement of the suit, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render 'judgment for the defendant.

4. It is further contended that the act is unconstitutional,, because it is an attempt by penal enactment to assist in the collection of a debt; the debt itself being wholly the creation of the statute. This objection is somewhat indefinite, and it is-sufficient to say respecting it, that courts do not declare statutes unconstitutional because they may regard them unwise or mischievous. The necessity of their enactment, and the policy of their provisions, alike belong to the law making power. The legislature has deemed it proper, to make it a misdemeanor, for a vendor, in the cases specified in the statute, to take possession of property contrary to its provisions, and there appears to be-no obstacle in the constitution to such legislation, so long as-the act violates no provision of the bill of right-st Adopting in this case, fhe language of White, Judge, in Morgan v. Nolte, 37 Ohio St. 23, the only limitations to the creation of offenses-by the legislative power, are the guaranties contained in the bill of rights, neither of which is infringed by the statute in. question.”

5. Finally it is claimed, that the second section of the act,, which makes it unlawful for the vendor of personal property sold as therein specified, to take possession of such property, without tendering or refunding to the purchaser the sum paid by him, after deducting therefrom a reasonable compensation for the use of such property, is invalid, because the amount of such compensation is uncertain, and, where the parties do not agree, no method is provided by the act for determining the-same. We are of opinion that it is not. What is a reasonable compensation under the statute, is no more uncertain than the reasonable value of services, in an action on a quantum meruit; and, if the parties are unable to agree upon the amount, it, must be settled like other disputed questions of fact.

Motion overruled..


author: Bradbury, J.

text:
    Goins v. The State.

      Peremptory challenges of jurors by the defendant in a criminal case — Number allowed, — •Qualifications of jurors in criminal cases- — An aider and abettor of the crime of murder — Conviction of, although principal convicted of manslaughter only — Conspiracy—When declarations of co-conspirators admissible — ■Mob— When cries of admissible — Self-defense— When numbers may combine for.

    1. A defendant in a criminal trial is only entitled to two peremptory challenges unless he is on trial for a capital offense. And the fact that he had been indicted for murder in the first degree; that a jury of thirty-six had been summoned and were in attendance for his trial; that a nolle was then entered as to the charge of murder in the first degree; and that a jury to try him for murder in the second degree was being impanneled from the thirty-six jurors so in attendance, did not enlarge hL right in this respect.
    2. (a) A juror who states on his examination that he has formed an opinion on a matter affecting the guilt of the defendant, from having heard the circumstances of the crime related by one who claimed to know them, may nevertheless be competent to sit as a juror if he says on oath that he believes he can render an impartial verdict in the case, and the court is satisfied he can do so.

      (b) The fact that the court admitted him to sit as a juror is a sufficient finding that it was satisfied he could render an impartial verdict.
    3. One indicted as an aider and abettor of the crime of murder may be placed on tidal, convicted and sentenced for that offense, notwithstanding the principal offender had been tried previously, and convicted and sentenced for manslaughter only.
    4. (a) On the trial of one of several defendants jointly indicted for an offense, the declarations of a co-defendant, made in the absence of the defendant on trial, in furtherance of the common purpose, are admissible when a prima facie case of conspiracy has been made.
    (6) To authorize the admission of such evidence, an express averment in the indictment, of the fact of a conspiracy, is not necessary.
    (c) Nor need the conspiracy be one to commit the identical offense charged in the indictment, or even a similar one; it being enough that the offense charged in the indictment was one which might have been contemplated as a result of the conspiracy.
    5. On the trial of one charged with homicide, where the defense is that the killing was done in resisting an attack from a mob, the cries of the mob from the time it was formed, though made before the deceased joined it, are competent evidence to prove its spirit and purposes, and as reflecting upon its attitude at the time the alleged attack was made.
    6. Where a number of persons, in the exercise of their lawful rights, have reason to apprehend an immediate, violent and criminal assault upon them as a party from superior numbers, it is not unlawful for them to combine for their just defense.

      7. Where one is on trial for homicide, and is defending on the ground that the killing was done in repelling the attack of a mob; he has a right to prove, and have the jury consider, the violent, malicious and criminal acts and declarations of the mob.
    8. In the absence of proof of a conspiracy, one, who is present when a homicide is committed by another upon a sudden quarrel or in the heat of passion, is not guilty of aiding and abetting the homicide, although he may become involved in an independent fight with others of the party of the deceased, unless he does some overt act with a view to produce that result, or purposely incites or encourages thepincipal to do the act.
    (Decided May 21, 1889.)
    Error to the Court of Common Pleas of Allen County.
    At the April term, A. D. 1888, of the Allen County Court of Common Pleas, William Goins, the plaintiff in error,-was jointly indicted with three others for aiding and abetting one Frederick Harrison in the deliberate and premeditated murder of Patrick Hughes, on the night of April 2, 1888. At a later period of the term the principal was tried for murder in the first degree, but convicted and sentenced to the penitentiary for manslaughter only.
    At the following October term of the same court the plaintiff in error was placed upon trial, convicted of murder in the second degree and sentenced to the penitentiary for life. During the trial he, by his counsel, excepted to certain rulings of the court that were embodied in a bill of exceptions which set forth all the evidence, the charge of the court, and all the other proceedings in the case, from which it appears that the killing occurred on “ Main/’ one of the principal streets in the city of Lima, Ohio, on the evening of the day of the spring election for the year 1888; that during the evening, that street and the saloons along it were thronged with men, waiting to learn the result of the election, among whom were the plaintiff in error and the four men who were indicted with him — all of whom were colored. One of the colored men, Frank Crowder, wras intoxicated, and was about to engage in a fight with a white man named Casey-, but was held back and taken away by Goins. After this, these colored men walked back and forth along Main and other streets, going in and out of the saloons; not always in a body, and at times one or more of them in company with one or more of some three or four other colored men who were about during the evening. No further quarrels were had, though some of the colored men used expressions indicating animosity towards the “ Irish boys,” as the white crowd was called. About 8 o’clock, P. M., as the colored men went north on Main street, they were followed by a crowd of men, which in the evidence is called the “ Irish boys.” This crowd, expressing dislike towards the colored men, kept increasing as it progressed. It soon began gathering stones, and, overtaking the colored men, the fight began, without any quarrel or interchange of wrnrds between the parties. Patrick Hughes joined the white crowd, but was not. shown to have done Rny .act of violence. There was no evidence of any ill will on the part of the colored men towards him personally, or towards .any other member of the white crowd except Casey, and no other evidence of ill will towards him except what may be inferred from the affray between the colored man Crowder and him in the early part of the evening. Nor was there any evidence of any purpose or conspiracy by the colored men to do any injury to any particular individual of the white crowd. Whatever feeling the colored men expressed throughout the ■evening, was towards the Irish generally, by whom they were outnumbered in the proportion of about twenty to one.
    Any further facts necessary to understand the questions decided will be found in the opinion of the court.

      James L. Price and J. W. Haljhill, for plaintiff in error.

      Isaac S. Motter, pros. atty. and T. D. Robb, for the state.
   Bradbury, J.

The plaintiff in error, William Goins, •was indicted for aiding and abetting murder in the first degree; the day set for his trial having arrived, there was in attendance a panel of thirty-six jurors, from which a jury to try him was to be selected as the statute in such case provides. ‘Thereupon the prosecuting attorney, by leave of court, entered a nolle prosequi to the charge of murder in the first degree. The court then proceeded to impanel from the thirty-six jurors in attendance on the case, a jury for his trial. To this no objection was offered; but after plaintiff in error had peremptorily challenged two jurors, and his challenge of Christian Stettler had been overruled, as will hereafter appear, he peremptorily challenged him; the court, however, holding the prisoner to be entitled to only two peremptory challenges, overruled this challenge, and Stettler sat as a juror in the case; to all of which the plaintiff in error excepted.

The right of peremptory challenge is to be determined by the provisions of sec. 7272, Rev. Stats., as amended in 1888, (84 Ohio L. 86), together with those of sec. 7277. Section 7272 as amended, reads: “ Every person indicted * * * (for a capital offense) * * * shall be entitled to challenge-sixteen of the jurors peremptorily.” 84 Ohio L. 86. And sec. 7277 provides, that except as otherwise provided * * * every defendant may peremptorily challenge two of the-panel.” It is only “ otherwise provided ” in capital offenses,, so that, except in capital cases, the defendant in a criminal case is only entitled to two peremptory challenges. After the nolle had been entered to the deliberation and premeditation charged in the indictment, the prisoner did not stand indicted for a capital offense; the charge against him was reduced to aiding and abetting murder in the second degree, and his right of challenge was governed by sec. 7277, 'Rev. Stats. That the jury had been drawn and summoned under sec. 7267, Rev. Stats., made no difference in this respect. He-may have been entitled to be tried by a jury drawn and summoned in the usual way if he had so demanded; hut whether he was or not, as he did not choose to exercise the right, his-neglect to do so did not enlarge his right to peremptory challenges, this right being determined by the offense charged against him, and not by the manner in which the jury had been brought in. In this ruling of the court we see no error.

Christian Stettler was called and examined touching his qualifications as a juror in the case. He stated that the father of the deceased had talked with him about the killing, and went into the particulars of the transaction as if he knew the facts; that he had also read of the case in a newspaper, and had formed an opinion respecting the guilt of the principal. Thereupon the defendant challenged him for cause. The court then, as the statute directs, inquired further of the juror, who stated that he believed he could render an impartial verdict in the case, and that he could do so even if the principal were on trial. The challenge was then overruled, and the prisoner excepted.

In respect of challenge for cause, sec. 7278, Eev. Stats, as amended (81 Ohio L. 54), provides: * * * '“if a juror has formed * * * an opinion, * * * the court shall thereupon proceed to examine such juror as to the grounds of such opinion; and if such juror shall say that he believes he can render an impartial verdict notwithstanding such opinion, and if the court is satisfied that such juror will render an impartial verdict on the evidence, it may admit him as competent to serve in such case as a juror.”

The court did not expressly find that it was “ satisfied ” that the juror could render an impartial verdict in the case, but the fact of admitting him as a juror must be* taken to include, by necessary implication, a finding by the court that it was satisfied of his impartiality. Upon no other ground could the court legally admit him as a juror.

The trial court had before it the juror and his statements. We have these statements embodied in a bill of exceptions, from which it appears not only that the juror had read an account of the case in a newspaper, but had received from the father of the deceased, a narrative of the circumstances of the homicide, and had at one time formed an opinion respecting the guilt of the principal. Under that state of fact, to admit him as a juror was an extreme application of the discretion permitted by the statute; yet, standing by itself, it is not such an abuse of that discretion as to warrant a reversal of the judgment on that ground alone; but in view of the difficulty nearly all men experience in getting rid of opinions based upon hearing a detail of the circumstances of a transaction by one who professes to know them, it might well become an importent factor in the case, were we reviewing the whole record to ascertain if a fair trial had been had and substantial justice done.

The principal in the homicide having been convicted and sentenced for manslaughter, the prisoner moved the court to order that he should not be put upon trial for a higher degree of oifense; and in support thereof, introduced the record of the trial, conviction and sentence of the principal. The motion was overruled, and the prisoner tried and convicted of murder in the second degree. Whether this qixestion could be raised in limine by a motion, we need not stop to enquire, for-the x’ecord discloses the x’esult of the tx'ial of the principal, and the íxxotion for a new trial brought tlxe question again before-the court.

The precise question whether in the case of a cx’ixxxe admitting of degrees of guilt, where the principal offender has been 'tried and convicted of one of the lower degrees, one indicted with hiux as axx aider and abettor can afterwards be tried and convicted of one of the higher degrees of the exime, has never been decided by this court; but cases decided by it can be-found, which, in their principle, determine the question.

The statute relating to aiders and abettor’s, provides that Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were tlxe principal offender.” Rev. Stats, sec. 6804.

Under this statute, or others like <it in this respect, aiding, abetting or procuring a crime to be committed has been held to constitute a substantive offense, and that the aidex-, abettor or px’ocurex’, might be tried befox’e the principal offender. 19' Ohio, 131; 18 Ohio St. 496; 37 Ohio St. 178. If, as has been held, this crime is a substantive one, for which the offender may be tried and convicted before the conviction of tlxe principal, it necessarily follows that he should be convicted of that degree of the crime which the evidence against him establishes; and if this may be done before, no reason is apparent why it should not be done after the trial of the .principal; and the circumstance that the principal offender’, thx*oxxgh failure of pi’oof or caprice of the jury, had been convicted of a lower-grade, or even acquitted, before the aider or abettor was put on trial, cannot affect the question of the guilt or innocence of the latter. The degree of the guilt of the aider and abettor,, as well as the question whether he is guilty at all, is to be determined solely by the evidence in the case, and the record of the trial of the principal is not competent evidence for either of those purposes. We therefore hold that it was not error to place the prisoner on trial for a higher grade of the offense than that of which his principal had been convicted.

The court on the trial admitted in evidence, over the objection of the plaintiff in error, certain declarations of one Samuel Thomas, who was jointly indicted with him, but not then on trial. The exception to the ruling of the 'court in admitting evidence of these declarations, as to all except two of them, may be disposed of on the ground that they were made-in the presence of, or so near to the plaintiff in error that he must be held to have heard them. The two others having been made under similar circumstances, only one-of them will be noticed, that testified to by Wallace Standish, which is as follows : “ If we get them we. will give them hell.” Its admissibility depended upon its having been made by a co-conspirator-in furtherance of the common purpose. Much latitude is necessarily left to the trial court in determining whether or'not there has been introduced sufficient prima faoie proof of a conspiracy, to admit evidence of the acts and declarations of one claimed to be a co-conspirator with the defendant on trial. In the case at bar there was some evidence of a common purpose among the colored men; whether it extended beyond a purpose to exercise the right to pass along the public streets of the city may admit of grave doubt; but the determination of that question is not necessary to determine the question of the admissibility of the evidence. There being some evidence of a common purpose, the declarations of a co-conspirator in furtherance of it was competent evidence, and the.court did not err in admitting it to go to the jury. Counsel contend, that to render the acts and declarations of a co-conspirator competent evidence, the indictment should have, in express terms, charged a conspiracy. This is true where the act of conspiring is itself the crime charged; but where some other act is the real offense, and the conspiracy is a common purpose leading to the commission of the main criminal act, a conspiracy need not be alleged in express terms, and if any allegation in respect thereof is at all necessary, the charge in the indictment that it was jointly done is sufficient for that purpose.

The plaintiff in error offered to prove certain cries or -exclamations of the white or Irish crowd, by which, as he claimed, he and his fellow colored men were subsequently attacked; they were excluded and he excepted.

It was the night after the April election, and a large crowd ■of people, mostly white, had assembled about and between the post office and the De La Flora saloon, two well known points in the city of Lima. Some colored men, not shown to have exceeded ten or twelve, were about in the crowd, some four or five of whom had been passing along the street in and out of the saloons and through the crowd, and by something in their bearing, or reported sayings, seem to have excited the .animosity of the white portion of the crowd. One of them was drunk, and perhaps one or more of the others showed some slight effects of liquor. A policeman had ordered them to go home. They started north on Main street, and had gone a short distance, estimated from twenty to thirty yards,' when a party, estimated to contain from twenty to thirty or more young white men, mostly Irish, started after them. At this point plaintiff in error offered to prove that some of this party cried out: There go the black sons of bitches; let’s follow and give them hell.” Daniel Steinour then testified that he met the colored men, four in number, about a square further north, near what he called “ Rush’s tin shop;” that behind them was the white party, increased to from fifty to seventy-five in number, some of whom were gathering stones; that the white party went on north at a pretty lively gait, and soon after.he saw the crowd moving back and forth among themselves, and heard the rattle of stones. The plaintiff in error proposed to prove by the witness that cries, similar to those he before offered to prove, came from the white party as they were gathering the stones. In both instances, above referred to, the evidence was rejected by the court, and exceptions taken. The state claims in argument that the first cries occurred too long before the homicide to be admissible, and the last after it was in fact committed, and that they on thole respective grounds, were properly rejected. The claim is not borne out by the bill of exceptions. No doubt there is some uncertainty respecting the exact order in which events occurred that night, which is greatly intensified as we approach closely the begining of the fight; but there is abundant evidence tending to show that these cries -were made before the killing, and near enough to it to explain the purpose and reflect upon the attitude of the white party at the moment of the attack.

It is also claimed by counsel for the state that the deceased, when these cries were made, had not yet joined the mob, and that there was no evidence of a conspiracy between him and the balance of the white party, or even between the members of the white party, to injure or wrong the colored men. It is probably true that when the first set of cries were made the deceased had not joined the crowd, but did so about the time the last set were uttered, for it seems entirely clear that he, with some ten or fifteen more men, rushed out of Manning’s saloon and joined it just before the conflict began. The claim that there was no evidence of a common purpose amon.g the white crowd to wrong the colored men is not supported by the bill of exceptions. The evidence that there was such a purpose can be gathered from almost every page of it. The colored men went into Manning’s- saloon where the deceased at the time was; they remained a moment, then went out and were at once followed by the deceased and ten or fifteen others (nearly all of whom were in the saloon), and he was one of those who, it is claimed, circled round and hemmed in the colored men a moment before the fight began. It may be he was merely an innocent spectator, but the circumstances justify the inference that he had grasped the purpose of the crowd, and joined in its execution. But whether he had or not, it can not affect this question of the admissibility of the cries of the mob. The colored men could not be required to single out and separate friend from foe. The claim of the plaintiff in error was that he and his fellows saw behind and around them a mass of men fifteen to twenty times their number, apparently hostile; and he had a right to show to the jury the desperate nature of the situation as it appeared to him and them, and in this view of the question it is -wholly immaterial whether or not the deceased had joined in the alleged purposes of the mob, or was there merely as an innocent spectator, for his presence,, as well as that of every other innocent spectator, swelled the numbers of the white party that was menacing the colored men.

The colored men from their stand point had a right to treat the white party as a unit; to show to the jury its origin, its purposes and its appearance; how can this be done but by proof of the acts and declarations of its members ? The cries of a mob have been admitted in evidence from an early period of our law, whenever it was material to show its purposes and temper; indeed they are in the nature of verbal acts, accompanying and explaining the movements of the mass, and have' little or no analogy to mei’e uncommunicated threats of an individual, with which counsel for the state insist they should be classed. In this case they were made so short a time before the attack which plaintiff in error claims was made on the colored party, by the mob, that they reflect in a most important manner upon the attitude of the white party at the moment the attack was made, and upon that ground were also admissible. The nature of the transaction required the fullest investigation of every circumstance thatlled to the creation of the white party, and by which its existence and progress can be traced to its culmination. We think the rejection of this evidence was error.

Counsel for plaintiff in error prepared and presented to the court certain special instructions, which he requested to be given to the jury ; the court declined to give any of them, and proceeded to charge the jury. To this refusal of the court to charge the special instructions requested, to certain specified parts of the charge, and to the charge as a whole the plaintiff in error excepted.

The first proposition of the first request reads that before the jury can consider the acts and declarations of co-conpsira-' tors, made out of the presence of the defendant on trial, it must appear, “ That there was formed by the parties a combination or conspiracy for the purpose of the committing of the crimé charged or some unlawful act of similar kind.” * * * This proposition states the law too favorably for the plaintiff in error. ' The authorities are conclusive that the conspiracy is sufficiently shown when it is made to appear that the common purpose was to commit an unlawful act quite dissimilar from the crime in fact committed, if the latter crime was one that might have been contemplated, reasonably, as likely to' result from the attempt to commit the act intended; and some respectable authorities go yet further, and hold the conspirators responsible for an accidental homicide of a co-conspirator when committed while he is engaged in advancing the common unlawful purpose. 4 American & English Encyclopedia of Law, 619, and authorities cited. But the first proposition is sufficient to justify the court in refusing this request.

The second proposition requested was not, in view of the evidence, of sufficient importance to make its rejection error.

The third and fourth propositions requested by the plaintiff in error, and refused by the court, arc as follows :

Third request — “ It is not sufficient to establish the guilt of defendant Goins of aiding and abetting Harrison in the commission of the homicide charged in the indictment, that he was present on the scene, with others where the alleged killing was done, for he may have been present not knowing that any crime was about to be committed; and if he was not there in furtherance of an understanding or common purpose to commit some unlawful act, and was in company with Harrison without knowledge that Harrison or any of his co-defendants contemplated the commission of an offense, he is not responsible for the acts of Harrison or his other co-defendants, if he, Goins did not participate in the commission of the offense charged.”

Fourth request — “ Again, if the only purpose made known to Goins prior to the killing of Hughes, and the only one contemplated or entered upon by him, was a defense of himself and his companions from an attack by a party of men superior in numbers and strength which had been threatened, and neither the defendant nor his comrades were to be aggressors, or attack the opposing party, then such common purpose of defense merely was not unlawful and criminal.”

The two preceding propositions are closely related to each other and will be considered together. Piad no evidence been given by the defense, but instead the case submitted to the jury on the evidence of the state alone, yet that evidence was fairly susceptible to a construction that made those two propositions applicable. When from that evidence we consider the great numerical superiority of the white crowd, the conduct of the colored men, and the circumstances of the attack, together with the absence of any testimony showing any ill will on the part of the colored men towards the deceased, or any other individual of the white crowd, unless towards Casey with whom Crowder had quarreled early in the evening, and that there was no evidence of a purpose to harm him, we at once see strong grounds for Goins to contend that the purpose of himself and his comrades, in the light of that evidence alone, was none other than that assumed in those propositions. Therefore those propositions were pertinent and should have been given to the jury. And the jury on that evidence alone, aided by pertinent instructions, might well have found a verdict in favor of plaintiff in error. When, however, we consider the evidence for the defense, the necessity is at once apparent, that these propositions, or similar ones, with even greater elaborations, should have been given to the jury to enable them to determine the issue intelligently by applying correct and pertinent legal propositions to the evidence' before them. This evidence sufficiently appears in another part of this opinion and will not be repeated here. The court erred in refusing to charge these two propositions, and, upon a careful examination of the whole charges, we find no substitute for them.

Fifth request — “ And further, if the defendant, Goins, and his co-defendants were in the exercise of their lawful rights in passing along the streets at the time of the conflict wherein Hughes was killed, and neither of the accused parties began the affray or attack, then the defendant and those accused with him had the right to repel the assault with such force as was necessary to do so, and had a right to defend themselves from danger to life or great bodily harm ; and if they were suddenly assailed or surrounded by superior numbers, armed with weapons dangerous to life, or calculated to do great bodily harm, the defendants had a right to stand on their defense, to repel force by force even to the taking of life, if they believed, and had reasonable grounds to believe, that it was necessary to do so to prevent either death or great bodily harm to themselves, and if necessary they may use such weapons as will accomplish the purpose.”

This proposition ought to have gone to the jury; it was applicable to the evidence given in behalf of plaintiff in error. That evidence tended to prove that the plaintiff in error and his comrades were passing along the street in a lawful manner; that they were pursued by a mob which outnumbered them more than twenty times; that the mob overtook, surrounded and attacked them with stones in a most .violent and savage manner, and that what they did was in their lawful defense against this violence. The evidence in the case called for a full and careful statement of the principles of the law of self-defense, yet only six or eight lines of a long and elaborate charge were directly devoted thereto, and they were followed by a statement considerably longer and much more explicit, limiting and qualifying the right. Subsequently, directions were given to the jury with a view to aid them in applying the law of self-defense, as it had before been laid down to them, to the evidence in the case; but we think these directions were not-as full and explicit as the evidence and the cireumstances of the case required. However, had they been sufficiently full and explicit in this respect, yet they were prefaced by a statement that substantially deprived plaintiff in error of their benefit. This statement required the jury to find that the plaintiff in error and his comrades were without fault aud in the peace of the state” before they would be clothed with the right of self-defense. Ordinarily this language might have been a harmless rounding up of a sentence, but when we see that evidence had been given from which the jury might have found that at least one of these colored men was drunk, one or more of the others slightly in liquor, that 'their conduct was regarded as insolent and offensive, that they had been ordered to go home by a peace officer, they may have well supposed that colored men so conducting themselves were not free from fault and not in the peace of the state, and therefore not clothed with the right of self-defense. The jury should have been made to understand that it was not the province of the white crowd to prescribe and regulate the conduct and demeanor of colored men, though one or more of them may have been drunk and insolent, or all displayed a spirit of offensive bravado; that notwithstanding such conduct, the colored men while in the exercise of their lawful right to pass and repass along the streets of the town, were still clothed by law with the right to defend themselves from the malicious and violent attack of a numerous mob. We have carefully read the evidence, and can only account for the verdict in this case upon the ground that the jury misconceived the law in this or some other respect.

In this connection, and in the light of the evidence, we' think the following portion of the instructions given to the jury was prejudicial to the plaintiff in error. That the Irish boys, white people, or whoever they may have been, who are claimed to have been connected in the conflict in which Patrick Hughes was killed, as the antagonists of the prisoner and those with him, or in any controversies prior to that time, are not now upon trial, nor are their acts, sayings, or doings, however wicked or criminal, under investigation in this case, with a view to determine the extent of the guilt of such, parties.” It is true the Irish boys ” were not upon trial in the sense that the jury could convict them, but they formed a party hostile to the colored men,' and the more violent, malicious and criminal their conduct was made to appear, the more complete was the justification of the colored men. It was, as appears by the bill of exceptions, the central purpose of counsel for plaintiff in error, to exhibit to the jury the conduct' of the white crowd in its, most offensive and criminal aspect. The great mass of his evidence had been directed to that sole end. The justification of the means used by the colored men to repel the attack, depended to a great extent upon its violent and savage character, and any admonition to the jury tending to divert their attention from this feature of the case, could not be' otherwise than highly prejudicial to the defense.

The 6th request was as follows: “ If you (the jury) find from the evidence, that Frederick Harrison, named as principal in the indictment, did take the life of Patrick Hughes, but did it in a sudden quarrel, or in the heat of passion, his offense would be but manslaughter ; and if you further find that the defendant William Goins, did no overt act, and took no active part in the killing, but was merely present when the quarrel arose, or fight began, you cannot in such case find him guilty as an aider and abettor of Harrison.” In view of the evidence this charge should have been given. No doubt there may be such a crime as aiding and abetting manslaughter. This court has so held, 10 Ohio St. 459, but each case must stand upon its own circumstances, and in the case at bar there was no evidence that the plaintiff in error said a word or did an act, at the time the fight began or was in progress, that could be construed as aiding or abetting Harrison in taking the life of the deceased ; so that if that act of Harrison was the result of a sudden quarrel, or done in the heat of passion, instead of being done pursuant to a prior conspiracy the plaintiff in error had no criminal connection with it, and was entitled to have the jury charged accordingly, and the refusal was error.

Misconduct of the jury is alleged, and the affidavits of the jurors offered to prove it; from which it appears that the jury at first stood six for assault and battery, and as a compromise the six agreed to' vote for manslaughter, and the vote then stood six for manslaughter and six for murder in the second degree; that it was then agreed to prepare twenty-four ballots, twelve for manslaughter and twelve for murder in the second degree, place all of them in a hat and each juror draw one ballot therefrom, and render a verdict either for Manslaughter or murder in the second degree, as the majority should appear; that the first drawing was a tie, but the second one resulted in eight ballots for murder in the second degree and four for manslaughter, and thereupon, according to the agreement, a verdict was rendered for murder in the second degree. There was no other evidence of this misconduct than the affidavits of the two jurors ; for, while an affidavit of the prisoner was offered in corroboration of them, it is apparent on its face that his statement was only hearsay, and for that reason properly rejected. There only remained in proof of the alleged misconduct the two affidavits of the two jurors; this was ample proof in the absence of evidence to contradict them, if the evidence was competent at all. The court held them not competent, which consequently left the allegation of misconduct without proof. The almost unbroken current of authority supports this holding (Kent v. State, 42 Ohio St. 426 ; Thompson and Merrium on Juries, 539), and thus it may appear to all the world, by the subsequent statements of the j urors, that the liberty of a citizen has been gambled away in a jury room, yet the court is powerless to interfere, because the policy of the law is, first, to seclude the jury, and second, not to allow their evidence to impeach their verdict.

As a general rule, no doubt, this doctrine is founded on the soundest principles of public policy, otherwise the rendition of a verdict, in nearly every jury trial,' would become merely the beginning of a new controversy over the mode of its rendition, endangering the stability of verdicts and the security of judgments rendered thereon ; and the time and attention, of courts would be wasted in investigating alleged misconduct of jurors, frequently of the most frivolous character. But a case like this at bar strains the principle to its utmost tension, and suggests a doubt whether there may not be found a carefully guarded exception to a rule, tbe universal application of which may present a spectacle so discreditable to our jury system.

It may be said there is a remedy afforded in the power of the court to grant new trials on the ground that the verdict is not supported by, or is contrary to, the manifest weight of the evidence. This is no doubt true to some- extent, but its inefficiency is apparent to all who are familiar with the rules of law and the practice of courts on the subject of new trials, and is especially exemplified by the case at bqr.

We do not care, however, to press the question further; its determination is not necessary to a decision of the case, but, being one of the questions presented by the record, we give it this passing notice.

Judgment reversed.