author: Spear, J.

text:
    Lindsey v. The State of Ohio.

      Plea in abatement must be clearly stated—Plea stating defendant was required to take oath—But does not state how he was compelled to take oath, etc.—Is bad on general demurrer, when— Juror being examined states he has formed an opinion—From what he had read and talked about codefendants—Shown that his opinion rested mainly on suspicion—But not upon real facts —Held he might overcome his bias and render a fair verdict— Qualifications of a juror—Challenge for cause—Indictment for robbery and intentional killing—Sufficiently charges murder in second degree, when—Word malice not necessarily employed in indictment—Form of charge by court as to several degrees of murder, etc.—Question of error—Pleadings—Criminal law.

    1. A plea in abatement to'an indictment, while not required to be worded with the strictest technical and verbal accuracy, yet the matter pleaded therein must be clearly and distinctly stated, and must embrace facts as distinguished from conclusions. Hence a plea which states that the defendant was required, against his will, to take an oath and give testimony before the grand jury concerning a case then being investigated against the defendant and his codefendants, but which does hot state how he was thus compelled to take an oath, nor that he refused to take it, nor that -he claimed his privilege of refusing to testify, and which fails to show what he testified to, or that his testimony was material concerning any fact necessary to be proven by the state to justify the finding of an indictment, or that there was not testimony other than that of defendant before the jury sufficient to justify such indictment, is bad on general demurrer.’
    2. A juror being examined on his voir dire, stated that from what he had. talked and read about trials of codefendants -he had formed an opinion against the defendant which it would require testimony to remove, although he had nothing personally against him, and that the fact that the defendant had‘been indicted would have weight with him unless defendant proved himself not guilty, and as the case stands would require the defendant to prove his innocence; but it did not appear that he had talked with or read the testimony of any witness, or had talked with anyone claiming to have knowledge of the facts, and it was shown on further examination that his opinion rested principally on the suspicion that the defendant was one of the gang that committed the crime, but that he did not assume to know that to be a fact, and that if the court should instruct that he need not consider the fact that the defendant had been indicted he could lay aside that fact and not consider it in evidence against him, and finally that, notwithstanding any previous bias, opinion or prejudice, he could render a fair and impartial verdict according to the law, and the evidence, and the court,' so believing, overruled the defendant’s challenge for cause. Held: That the facts do not show an abuse of discretion in so overruling the challenge. McHugh v. The State, 42 Ohio St., 154, and Goins v. The State, 46 Ohio St., 457, approved and followed.
    3. An indictment, which charges, in proper form, an attempt to commit a robbery, and then avers that the defendant, with others, in such attempt, did unlawfully and purposely, by means of a revolver loaded with gunpowder and a leaden bullet, shoot the deceased, with intent to unlawfully and purposely kill and murder him, and did, by means of the shooting, strike, penetrate,, and wound him, with intent unlawfully and purposely to kill and murder him, thereby giving him a mortal wound from which he instantly died, and that by these means, they did unlawfully, purposely, and in an attempt to perpetrate a robbery, kill and murder the deceased, sufficiently charges murder in the second - degree, although the word malice is not employed in the indictment in describing the act.
    4. It is not error in such case for the court, in connection with proper instructions with respect to the several degrees of murder, and as to assault and battery, to charge, if the facts proven warrant it, as follows: “Has the state established by clear, convincing and satisfactory evidence beyond a reasonable doubt, •that the defendant is guilty as charged in the indictment or of some other degree of murder or manslaughter, or it may be assault and battery, or assault merely; otherwise your verdict : should be not guilty.”
    (No. 8230
    Decided November 17, 1903.)
    Error to the Circuit Court of Wyandot county.
    At the January term, 1901, of the common pleas of Wyandot, the plaintiff in error, Marsh Lindsey, with four others, was indicted for murder in attempting to perpetrate a robbery. The grand jury was a special one. It investigated but one case, and found only one indictment. In substance the indictment charged that the. defendants in and upon one William C. Johnson then and there being, unlawfully and forcibly did make an assault, with intent then and there, forcibly and by violence and by putting him in fear, to take from the person and against the Avill of him the said William C. Johnson, the money and personal property of great value, of him the said William 0. Johnson,, and then and there the said William 0. Johnson to-rob, and the money and personal property aforesaid, to steal, take -and carry aAvay; and that the said defendants (naming them) then and there did attempt, unlawfully, forcibly, and by violence, and by putting him ■ in fear, to take from the person and against the will of said William 0. Johnson, tbe money and personal property of great value of him the said William C. Johnson, Avith the intent thereby then and there the said William 0. Johnson to rob, and the moneys and personal property aforesaid, to take, steal and carry aAvay; and that the said defendants (naming them) a certain revolver then and there loaded and charged with gunpowder and one leaden bullet,, Avhich said' revoUer they the defendants (naming-them) in their right hands then and there had and held, then and there unlaAvfully and purposely, and whilst engaged in said attempt to perpetrate a robbery in and upon the said William C. Johnson as aforesaid, did discharge and shoot off against, and upon the said William 0. Johnson, with the intent the said William C. Johnson unlawfully and purposely to kill and murder; and that the said defendants (naming them) with the leaden bullet aforesaid, so as aforesaid by them the said defendants (naming them) by force of the gun. powder aforesaid then and there discharged and shot out of the revolver aforesaid, then and there unlawfully, purposely and whilst engaged in said attempt to perpetrate a robbery in and upon the said William C. .Johnson, as aforesaid, did him, the said William C. •Johnson, strike, penetrate, and wound, with intent him the said William C. Johnson unlawfully and purposely to kill and murder, thereby then and there giving to him the said William C. Johnson, in and upon the abdomen and into the body of him the said William C. Johnson, one mortal wound from which the •said William C. Johnson then and there instantly •died. And so the jury aforesaid, upon their oaths and affirmations aforesaid do say that the said defendants (naming them) him the said William C. Johnson, ■ in the manner and by the means aforesaid, unlawfully, purposely and in the attempt to perpetrate a robbery, did kill and murder, contrary to the statute, etc.
    To this indictment there-was filed a motion to quash, which was overruled. Then followed a plea in abatement, the material parts of which’ repeat substantially one ground stated in the motion to quash, and are as follows: “The new grand jury investigated the case against this defendant and his codefendants and none other and all being the same transaction, and that while said grand jury were investigating said case and during the time of the trial of this case was in progress before the grand jury which returned the indictment herein, and while said grand jury was investigating the charge against him, the charge with which he is now charged in the indictment herein filed, he was required by the state of Ohio, and by writ of subpoena duly issued by the clerk of this court, upon a precipe for that purpose filed by the prosecuting .attorney of said county, to appear before said grand jury, and was, against his will, required to and did take an oath as a witness, and was, against his will, required to and did appear before said grand jury and before them he was required, against his will, to givé testimony in this case concerning the charge against him. Defendant says he did not, neither was he permitted to have counsel to advise him concerning his rights herein. That he was by the prosecuting attorney and sheriff of said county required to dress himself against his will, as the person or persons who committed the crime for which he stands charged were dressed or appeared to be dressed, by those who saAV them at the time said crime was committed; and while so dressed this defendant was, against his will, required to walk, talk and exhibit himself in the presence of the prosecuting witness and other witnesses for the state to enable them to testify before the grand jury as to whether or not this defendant was the person who committed the crime with Avhich he now stands charged, and certain witnesses after having so seen this defendant so disguised as aforesaid appeared before said grand jury and gave testimony against him as to his identity in this case; all of which is as he believes in violation of the rights of this defendant, who is a citizen of the United States and of the state of Ohio.”
    A demurrer to this plea in abatement was sustained. A plea of not guilty was then entered and trial had. Divers exceptions were taken during the impaneling of the jury which are considered in the opinion. The jury returned a verdict of guilty of murder in the second degree and not guilty of murder in the first degree. Motion for new trial being overruled, sentence followed. On error to the circuit court the judgment and sentence of the common pleas wásaffirmed, and the prisoner brings error here.

      Mr. E. T. Dunn; Mr, W. H. Bare and Mr. John I F. Winn, for plaintiff in error, upon sufficiency of the plea in abatement, cited and commented upon the .following authorities:
    Fifth Amendment to Constitution of the United States; Ohio Bill of Rights, sec. 10; U. S. v. Edgerton, 80 Fed. Rep., 374, Mon. Dist. Court, April 21, 1897; People v. Singer, Oyer & Terminer, Kings County, 1886; 18 Abbott New Cases, 96; State v. Froiseth, 16 Minn., 296; Counselman v. Hitchcock, 142 U. S., 547; Wharton’s Crim. Pl. & Pr., sec. 363; sec. 7286, Rev. Stat.; People v. Clark, 33 Mich., 113; Iowa v. Groome, 10 Ia., 308; R. v. Wallace, 1 East Pl. Cr., 186; P. v. Austin, 1 C. & K., 621; State v. Hoioard, 15 Rich. (S. C.), 274; State v. Hackett, 3 Ill., 95; Smith v. Shackelford, 1 N. & McC., 36; Teague v. Wilks, 3 McCord, 463.
    Upon the exception to the overruling of their challenge to juror, counsel cited and commented on Palmer v. The State, 42 Ohio St., 596.

      Mr. Benjamm Meek, prosecuting attorney, for defendant in error, upon the plea in abatement, cited and. commented on the following authorities:

      Wagner v. The State, 42 Ohio St., 537; Bishop’s Crim. Pro., sec. 327; Wharton’s Crim. Pl. & Pr., sec. 427; sec. 7250, Rev. Stat.; Stahl v. State, 5 Circ. Dec., 29; 11 C. C. R., 40; Clark’s Crim. Pro., 132; Boone v. People, 148 Ill., 440; People v. Lauder, 82 Mich., 109; Underhill on Cr. Ev., sec. 27; United States v. Brown, 1 Sawy., 531; State v. Frizell, 111 N. C., 722; State v. Graham, 74 N. C., 646; Walker v.
      State, 7 Tex. App., 245; State v. Ah Chuey, 14 Nev., 79.
    As to overruling challenges, counsel cited and commented upon: sec. 7278, Rev. Stat.; Goins v. The State, 46 Ohio St., 457; Palmer v. The State, 42 Ohio St., 596; McCarthy v. The State, 3 Circ. Dec., 306; 5 C. C. R., 627; Blair v. The State, 3 Circ. Dec., 242; 5 C. C. R., 496; McHugh v. The State, 42 Ohio St., 154; Cooper v. The State, 16 Ohio St., 328; Frasier v. The State, 23 Ohio St., 551; Doll v. State, 45 Ohio St., 445.
    As to the sufficiency of the indictment and the charge of the court, counsel cited and commented on the following: sec. 7316, Rev. Stat.; Craig v. The State, 49 Ohio St., 415; The State v. Turner, Wright, 21; The State v. Town, Wright, 75; Davis v. The State, 25 Ohio St., 369; Silvus v. The State, 22 Ohio St., 90; Weaver v. The State, 24 Ohio St., 584; Robbins v. The State, 8 Ohio St., 131; Adams v. State, 29 Ohio St., 415.
   Spear, J.

First in natural order come the questions arising on the motion to quash and the plea in ..abatement. These may be treated together. A motion to quash may be made when there is a defect apparent upon the face of the record, and a plea in abatement may be made when there is a defect in the rec- ■ ord which is shown by facts extraneous thereto. It is not, however, now seriously urged that the indictment is defective in form, and it is practically conceded that the motion to quash was properly overruled. It was the judgment of the courts below that the plea in . abatement was insufficient on two grounds: one, that it was bad for indefiniteness in that it alleges conclusions rather than facts, and another that it fails to show that the defendant was in any wise prejudiced ’ by the facts alleged.

We are of opinion that the courts were right on. both grounds. It is not necessary to hold that facts, relied upon in a plea in abatement should be worded with the strictest technical and verbal accuracy, as. is held in many cases, yet it is the rule that- the facts must be pleaded, as held in Wagner v. The State, 41 Ohio St., 537, with exactness, and the plea is to be strictly construed. The reason is apparent. It is a. dilatory plea. The rule is given in Bishop’s Criminal Procedure, section 327, thus: “In these, such as pleas in abatement and the like, it is necessary to-employ extreme certainty. An excellent work on pleading (Gould’s PL, p. 84), states that this superlative certainty ‘requires the utmost fullness and .particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand nothing to be supplied by intendment or construction; and on the other no supposable special answer unobviated.’ It is a rule, not of construction only, but’ also of addition; that is, it requires the pleader, not • only to answer fully Avhat is necessary to be answered, but also to anticipate and exclude all such supposable matter as Avould, if alleged on the opposite side,. defeat his plea.”

The plea in this case avers that the defendant Avas. required to and did take an oath as a Avitness, and Avas required to and did appear before the grand jury, and was required against his will to give testimony in this case concerning the charge against him. But ■ the plea does not state that he refused to take an oath, nor in what manner, nor by what means, he was required against his will to take an oath; nor does it. allege that the defendant, Avhen before the grand jury,, claimed his privilege, or refused to answer any question, or in any manner objected to appearing as a witness and to testifying. There is no law that could, compel the witness to testify to matters which would, incriminate himself, or to punish him for refusing. If he did not object how could .there be compulsion?' For all of any statement of fact which appears he took the oath voluntarily and testified voluntarily. Where a privilege to refuse exists and the witness testifies, without objection, the natural inference is that he testifies voluntarily. Indeed the only feature which, according to the facts stated, is shown to have been involuntary, was the appearance in obedience to the subpoena. That would, in and of itself, be regarded as compulsory process.

The same may be said with regard to the complaint that he was required to dress, walk and talk and exhibit himself so dressed before persons who afterward testified before the grand jury. Facts are not stated Avhich show that this was compulsory. The averment, also, that he was not permitted to have counsel to advise him concerning MS rights is equally a conclusion. It does not appear that he desired to have counsel, or was in need of counsel, nor that he was at the time upon trial for any crime or offense.

But, aside from the foregoing, how stands the case?' The proposition of the plaintiff in error is that the indictment should have been held bad because a constitutional right of the defendant had been violated. That is, the grand jury- and the prosecuting officer should be rebuked for improper practice without regard to whether the defendant had been thereby prejudiced or not. We are not commending the practice of subpoenaing persons suspected of crime as witnesses before a grand jury which has been summoned to inquire respecting that crime; indeed we do not hesitate to characterize it as improper practice. But the question is, what effect that mere fact ought to have in a test of an indictment otherwise regular and valid ? It is of importance to note that this plea does not show that the defendant testified against himself, or that he testified to any fact material to the inquiry, or that the testimony he gave was of consequence in the deliberations of the jury, or that there was not other testimony before the jury upon which the indictment might have been properly found; on the contrary, for all that appears in this plea, there was abundant competent evidence, by competent witnesses before the jury, and the jury in fact found the indictment wholly upon such other competent testimony. Speaking more specifically, the plea does not show that some one material fact, and what material fact, Avas testified to by the defendant without which •an indictment could not have been found, which fact Avas not testified to or established by other Avitnesses. The statement simply is that he AAas required “to give testimony in this case concerning the charge against ¡him.”

A like test shows the insufficiency of the plea that he was required against his will to dress and exhibit himself before persons Avho afterwards testified before the grand jury against him as to his identity in this case. Suppose this to be just as stated, for all that appears, Avitnesses other than the ones referred to gave testimony to the grand jury as to identity abundantly supporting the charge.

It results that, so far as this inquiry is concerned, the case stands just as it would had Lindsey not testified before the grand jury. Why, then, should the indictment be held bad and the proceedings in the courts below go for naught? Our statute, section 7252, provides that upon an adjudication in favor of the accused on a plea in abatement, he may be com.mitted or held to bail for appearance at the next term. It would follow, simply, that another grand-jury would be summoned, impaneled, and the testimony other than that given by Lindsey be presented in all respects like the one on which the trial was had. So that, again the court would be precisely where it. was when the trial was entered upon. How could such circumlocution aid the cause of justice? How would the people gain, or the citizen be more secure in his rights, by all this needless delay and expense? We think it quite unnecessary to consider further.the much discussed question of the constitutional right and privilege of the citizen arising under section 10 of our Bill of Rights. No case is made on the facts calling for such discussion. Other allegations appear in the plea, but they are irrelevant because contradicting the record and need not be further noticed.

Exceptions were taken to the overruling of challenges made to several of the petit jurors on the ground of previous opinion and • prejudice. The instance of Louis Cross is a sample. He was questioned by counsel for defendant and answered:

Q. From all you have talked and read about these other trials state whether you have at any time formed any opinion in your mind as regards the guilt or innocence of the defendant? A. I think I did have an opinion.

Q. Is that opinion with you still? A. Yes, sir.

. Q. I want to inquire if it would require any testimony to remove the opinion you have now formed?

A. Well, yes, I think it would.

Q. And the opinion that you now have is against the defendant, is it not? A'. I have nothing .that would decide against that I know of; I have nothing against him at all.

Q. The question now is, Avhether the opinion you think you have is against the defendant? A. Yes, it would be against him.

Q. It Avould take sworn testimony to remove that opinion would it not? A. It would take some testimony, yes.

Q. So when you start into the investigation of this case you would not begin exactly fair and even between the state and defendant, would you? A. Well, I think I could start about even with this man in this case.

Q. Tell us hoAV you could start in even with an opinion against the defendant in the jury box? A. Well, my opinion is if he was in the gang that murdered Mr. Johnson, I would have some opinion of him.

Q. Yes, so would everybody. A. That is all I Avould have against him; that is all I could say against this man now, because I don’t know; I don’t knoAV what he may do or prove.

Q. But I understand you to say it would take, testimony to remove the opinion you now have? A. Well, of course it would.

Q. Your opinion is against the defendant; that he was possibly one of the gang? A. Yes, sir.

Q. That is what you think about it? A. Yes, sir.

Q. And it Avould take sworn testimony to remove that conclusion of yours? A. Yes, sir.

Q. Then when you start into this jury with the notion that this defendant is one of the gang, to that extent you would be prejudiced against him? A. That farT would.

Q. • You are aware that the grand jury has returned an indictment against this defendant for murder in the first degree? A. Yes, sir.

Q. I want to inquire of you if the fact that they have returned such indictment into this court and endorsed as a true bill, if that fact in your mind would bear any weight against the defendant? A. It would unless he proved himself not guilty.

Q. Yes, you would require of him to prove he was not guilty? A. Yes, sir.

Q. As you now stand with your present notion about the case you would require the defendant to prove his innocence, would you? A. Yes, sir.

Q. Now to that extent you are prejudiced against him, are you not? A. Of course I will be prejudiced against him until he proves himself clear.

By Dunn: We tender challenge for cause.

When questioned by the prosecuting attorney the juror answered:

Q. If the court should tell you that the fact that he is indicted for murder is no evidence that he is guilty of murder, would you lay aside any prejudice you might have by reason of the indictment? A. Yes, sir. i

Q. Have you any opinion now whether the defendant Marsh Lindsey is guilty of this offense? A. Yes, sir—

. Q. Well, if you have any explanation you may offer it. A.. My opinion is he was guilty if he was in the gang with these other fellows; if he don’t prove himself—

Q. But you don’t know now whether he was in the gang or not? A. No, sir.

Q. Then if you don’t know he was in the gang how can you have an opinion as to whether he is guilty or not? A. I don’t know whether he is guilty or not, I can’t tell anything about that.

Q. What do you mean by saying to the lawyer that you had an opinion as to his guilt or innocence? A. Did I say he was guilty?

Q. No, but he finally got you to say you had an opinion as to his guilt or innocence; if there is any mistake about that, correct it. A. I have no opinion that he is guilty.

Q. You have not? A. No, sir.

>Q. Have you an opinion now that'he was in the gang? A. Not any more than as they have indicted him.

Q. But if the judge here on the bench should tell you that you need not consider that fact against the defendant, could you lay aside the fact that he was indicted and not consider that as evidence against him? A. I think I could.

Q. Let me ask you; could you, notwithstanding any bias, opinion, or prejudice that you may have, render a fair and impartial verdict according to the law and the evidence? A. Yes, sir.

The sum and substance of this is that the juror, from what he had heard and read respecting the trials of codefendants, had formed what he called an opinion against the defendant which it would require some testimony to remove, but which was in no way against this person unless he was one of the gang which committed the crime, and which was based in part upon the fact that he had been indicted with the others. It does not appear that he had talked with any witness, or with any one claiming to be acquainted with the facts, or had read what purported to be the testimony of any witness. It does appear, on the other hand, Jby his statements, that the opinion was that the defendant is guilty if lie was in the gang with the other fellows, and that he has no opinion that he is guilty independent of that, and the further fact that he had been jointly indicted with them. As to this he also stated that if the court should instruct that he need not consider the fact that defendant was indicted he could lay aside that fact and not consider that as evidence against him. And, finally, being asked, he stated that, notwithstanding any bias, opinion or prejudice, he could render a fair and impartial verdict according to the law and evidence. The court, having the juror before him, was of^ opinion that he would render an impartial verdict and overruled the challenge. The juror was then challenged peremptorily by defendant.

We are not prepared to say that this ruling was an abuse of discretion on the part of the court. Our statute, section 7278, 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 sab isfied that such juror will render an impartial verdict on the eyidence, it may admit him as competent to serve in such case as a juror.” The facts present a case much less extreme than was present in Goins v. State, 46 Ohio St., 457, where it is held that: “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. 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.” The case at bar is essentially different in its facts from Palmer v. The State, 42 Ohio St., 596, cited and relied upon by counsel for plaintiff in error, and is not controlled by it. It is, however, on all fours as to the essential facts with McHugh v. The State, 42 Ohio St., 154, where the overruling of the challenge was sustained. A case presenting good grounds for challenge, and in striking contrast to the case lást cited, and to the case at bar, is that of Frazier v. The State, 23 Ohio St., 551, where the refusal to sustain the challenge is held to be error.

In passing it may be remarked that jurors are usually not mental philosophers, nor are they experts as to the law of criminal evidence. The shrewd lawyer, in examining them upon their voir dire, invariably puts the question as to the forming of an opinion, and the juror, having perhaps in reality but a casual impression respecting the case, is quite certain to dignify his state of mind by the adoption of the term used by the lawyer and call it an opinion. While alike in kind there is an essential difference between the two in degree. An opinion, such as is contemplated by our statute, is well defined as being “a conclusion or judgment held with confidence, but falling short of positive knowledge.” An impression, as applied to this subject-matter, is correctly defined as “a notion, remembrance, or belief, especially one that is somewhat indistinct or vague.” It is quite apparent, from all that this juror stated, that his state of mind respecting Lindsey’s connection with the crime of which he stood charged was of the latter class. We, all of us, in our everyday life, receive impressions respecting a thousand subjects and events which do not reach the dignity of opinions, and which change or fade away entirely upon being subjected to the effect of counter-information or further light. If such impressions should be held to conclusively disqualify a juror the obstacles to securing jurors would, in this age of newspapers, be well nigh insuperable. And that a juror should not, until advised, comprehend the office and legal effect of an indictment, or the rule of law respecting the presumption of innocence, is not a matter of wonder, and does not afford ground for challenge.

It is also insisted that the verdict of murder in the second degree cannot be sustained under this indictment, our statute (section 6810), providing that; “Whoever purposely and maliciously * * * kills another is guilty of murder in the second degree.” The specific claim is that the word malice in defining the act of killing, is not found in the indictment. This statement is true. It is true, also, that section 7217, Revised Statutes, provides that in an indictment for murder in the second degree it shall be sufficient to charge that the defendant did purposely and maliciously kill the deceased. This section does not, however, provide that the words stated are indispensable, and are the only words that may be sufficient in an indictment in defining that crime. The section makes it unnecessary “to set forth the manner in which, or the means by which, the death was caused,” but an inference does not follow that the indictment-may not set forth the manner or the means by which the death was caused, nor that, if such manner and means, as set forth, necessarily import malice and that the killing was therefore maliciously done, that is not the equivalent of a direct charge that the defendant did maliciously kill. It is held in Robbins v. The State, 8 Ohio St., 131, that “intentional killing by means of administering poison, includes and per se imports malice.” If the inference follows in a killing by administering poison why not in a killing while committing, or attempting to commit, a robbery, as both offenses are covered by the same section of the statute (section 6808), which reads: “Whoever purposely and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree and shall be punished by death, unless the jury trying the' accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.” Evidently the legislative purpose, in enacting this section, where the murder is charged as murder in an attempt to rob, was to cause an averment of that fact to become a substitute for the averment of deliberation and premeditation required to-be charged in terms in the usual indictment for murder in the first degree. The indictment does charge-in apt words the attempt to rob, and then that the defendant, with others, did unlawfully and purposely discharge their revolver, loaded with gunpowder and a leaden bullet, and by that means did shoot Johnson with the intent to unlawfully and purposely kill and murder him, and did by means of - the shooting, strike, penetrate and wound him with the intent to unlawfully' and purposely kill and murder him, thereby giving to him a mortal wound from which he instantly died; and that, by these means, they did unlawfully and .purposely kill and murder him. Now, when it is remembered that the rule in Ohio, is and from the earliest time, as shown by .the holdings in The State v. Turner, Wright, 20, and The State v. Town, same vol., 75, down to Davis v. The State, 25 Ohio St., 369, has been that “where the fact of killing is proven, malice is to be presumed,” and Weaver v. The State, 24 Ohio St., 584, that “the shooting with intent to kill being established, the law implies malice; and the malice thus implied can only be rebutted by showing-circumstances of justification or excuse,” it would seem that the absence of the word malice from the indictment ought not to render it insufficient as to a charge of murder in the second degree. What necessity, we ask, can there be of incorporating a specific word in an indictment when the full meaning and purpose of such word is conclusively to be inferred from the words which are therein used?

The claim is further made that the verdict cannot be sustained because it should have been either for murder in the first degree, or an acquittal, and that the trial court erred in its charge to the jury. This in face of the fact that, at the request of defendant’s counsel, the court charged the jury that: “The law and the evidence should be their, the jury’s, only guide in determining the guilt or innocence of the defendant. Has the state established by clear, convincing and satisfactory evidence beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, or of some other degree of murder, or of manslaughter, or it may be assault and battery, or assault merely; otherwise your verdict should be not guilty.” Forms of verdicts were given the jury-covering each class of offenses referred to, and, consistent with the instructions, the jury found murder in . the second degree. We see no error in this action of the court prejudicial to the defendant. The language of the instruction is not entirely happy, but the principle covered is not incorrect as applied to the case. It is in accord with the holdings of this court in Robbins v. The State, supra, Beaudien v. The State, 8 Ohio St., 634, and Adams v. The State, 29 Ohio St., 412, which latter was a robbery case. Óur statute, section 7316, provides: “Upon any indictment the jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense; when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, .and guilty of any inferior degree; and if the offense charged is murder, and the accused be convicted by confession in open court, the court shall examine the witnesses, and determine the degree of the crime, and pronounce sentence accordingly.” But- the case- of Dresback v. The State, 38 Ohio St., 365, is cited and relied upon as sustaining the claim of plaintiff in error on this point. That Avas a poisoning case. The syllabus is: “On the trial of an indictment for murder in the first degree, charging the accused with purposely killing another by administering poison, the evidence tending to show no other grade of offense, it is error to charge the jury to the effect that if they find the accused guilty their duty will be fulfilled by convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquittal might have been rendered had the jury been properly instructed.” Owing to the meagerness of the statement we are unable to ascertain exactly what the facts in this case were, and are not disposed to comment at length upon the decision more than to say that the report has puzzled many legal minds. But, from what appears, it does not seem to have application to the facts of the case at bar. The one before us is a case involving a charge of crime committed by violence, the murder being perpetrated by means of a revolver, a deadly weapon, fired at the victim for the purpose and with the intent of killing him, and that purpose instantly accomplished. We are clearly of opinion that, whatever may have been the proper rule of law applicable to the Dresback case, in this case it was not error for the court, in connection with a full and correct charge defining murder in its several degrees, and assault and battery, to instruct the jury to ascertain and return the degree of the crime in case they-found the defendant guilty as charged. The current of decision in this state justifies the conclusion that an indictment good as to murder in the first degree embraces, necessarily, the lower grades of homicide, and that when this is the case presented, the jury may, if the facts proven warrant it, acquit of the graver offense and convict of the lower. Stewart v. The State, 5 Ohio, 241; White v. The State, 13 Ohio St., 569; Heller v. The State, 23 Ohio St., 582; Howard v. The State, 25 Ohio St., 399; Marts v. The State, 26 Ohio St., 162.

Other grounds of error are alleged, but we do not regard them as being of sufficient gravity to warrant spaee in dealing with them. Other reasons and grounds are also urged by the state, requiring an affirmance of the judgment, but we do not find it necessary to discuss them.

Finding no prejudicial error in the record the judgment will be

Affirmed.

Davis, Shauck and Price, JJ., concur.

Burket, C. <J., and Crew, J., dissent.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    The State of Ohio ex rel. Attorney General v. Craig.

      Appointment to office a nullity—Because appointee ineligible—Legal' appointment may be made without ousting first appointee— Health officer not an employe—Section 189, Municipal Code.

    1. Where the appointment to an office is a nullity, for the reason. that the appointee is by statute ineligible to such office, a legal appointment to such office may be made, without first ousting - such first appointee by proceedings in quo warranto.

    2. A health officer is not an employe, as that word is used in section 189 of the new Municipal Code.
    3. A board of health having appointed a new health officer, thereby indicated its pleasure that it 110 longer desired the services of the previous health officer.
    (No. 8607
    Decided November 17, 1903.)
    In Quo Warranto.
    On the fourth day of May, 1903, the mayor of the • city of Mansfield appointed a board of health consisting of five qualified electors of said city, which appointment was duly confirmed by the council of said city, and they entered upon the discharge of their duties as such board, and thereafter, on the fifteenth day of May, said board of health duly appointed one • A. H. McCullough, health officer of said city, and he-accepted the appointment and duly qualified. On the - thirteenth day of June, 1903, after said acceptance - and qualification, said A. H. McCullough, demanded of J. Harvey Craig, respondent, the books and other property appertaining to said office, but said respondent refused to deliver the same, and refused to surrender said office, claiming to be such health officer of said city himself and entitled to the emoluments thereof, and to discharge the duties of the same. Thereupon the attorney general instituted proceedings in quo warranto in this court requiring said J. Harvey Craig to show by what warrant he holds said office.
    By his answer the respondent claims that he was appointed health officer of the city of Mansfield, by the board of health of said city on the twelfth day of January, 1894, that his tenure of office was during the pleasure of the board, and that he has not been removed by the board or any other authority, and therefore still continues in office. He further claims that he is entitled to hold said office under the provisions of section 189 of the Municipal Code, which provides that: “All employes now serving in the health department shall continue to hold their said positions and shall not be removed from office or reduced in rank or pay, except for cause, assigned and after a hearing has been afforded them before the board.”
    He further claims that the board of health of said city, in office before the fourth day of May, 1903, continue since that date to be the legal board, and that the mayor had no lawful right to appoint a new board of health on that day, and that such appointment was and is void. The old board and new board each claim to be the legal board, and each refuses to yield to the other. And so, also, each health officer claims to be the legal officer, and each refuses to yield to the other, so that the city is burdened with two boards of health, and two health officers, and the auditor of the county refuses to recognize either of said health officers.
    There is an agreed statement of facts, from which it appears that the members of the board of health in office up to the time the new municipal code took effect, May 4, 1903, were each elected by the council of said city while they were members of said council and were present and voting at the meeting at which they were so elected as members of the board of health. It further appears that on January 12, 1894, said J. Harvey Craig was appointed health officer by the council of said city to fill a vacancy caused by the resignation of Dr. Reid; that on May 12, 1897, he was elected by said board of health for one year; that on May 10, 1898, he was again elected for one year; and again on May 24, 1899, for one year; again on May 8, 1900; that on May 10, 1901, there was an effort by the board to elect a health officer, but there was no election, the vote being a tie; and that on June 13, 1902, he was again elected for one year.

      Mr. Smith W. Bennett, special counsel of the attorney general’s office; Mr. C. E. McBride and Mr. William McE. Weldon, for plaintiff.
    Under the statute as it existed at the time of the appointment of the board of health which appointed the defendant, the power of appointment was vested in the council of each city and village. (Section 2113, Revised Statutes; 95 O. L., 422.) The powers of the boards of health were and are quasi judicial, as shown by the considerations of sections 2122, 2123, 2124, Revised Statutes, and other sections. People v. Thomas, 33 Barb. (N. Y.), 287; Kinyon v. Duchene, 21 Mich., 498; Common

      wealth v. Douglass, 1 Binn. (Pa.), 77; State v. Hoyl, 2 Or., 246; Throop on Public Officers, sec. 610; sec. 1717, Rey. Stat.
    - The board of health being in chapter 1, division 6, is not included within the exception. This section is construed in State ex rel. v. Kearns, 47 Ohio St., 566.
    We fully recognize the validity of the many opinions of this court protecting and upholding the acts of de facto boards and officers, and agree that the acts of such officers should be sustained. But in the admission that the board of health so illegally constituted may have been a de facto board, and that the-appointment of the defendant by such board resulted, in the creation of him as at least a de facto officer,, yet in a direct attack upon his title to the office and the attempted induction into office of one subsequently appointed thereto, his defense must be that he is a. de jure officer and not merely de facto.

    And here the defendant invokes the operation of that part of section 189 of the new Municipal Code: which is as follows: “All employes now serving in the health department shall continue to hold their said position and shall not be removed from office or reduced in rank or pay, except for cause assigned and after a hearing has been afforded them before the board.” The defendant seeks by the operation of this section of the code, while admitting his election by the board of health so illegally constituted, to lift himself above the authority by which he was appointed, and to perpetuate himself in office, although the illegality of his appointment to that office is beyond question. We deny that the appointee can thus be placed beyond inquiry as to the validity of his appointment, and contend that section 189 could not operate to perpetuate the term of his appointment if it was illegal in its inception. In other words, section 189 did not by force of its own vigor, change him from an officer de facto to an officer de jure. This section cannot be so construed to mean that those who are serving in the health department, and whose appointment might be by fraud, collusion or fby artifice, are by such section, permitted to continue bo hold their said positions, but it should be so construed to mean only those, who are there of right. The section merely operates on the length of the term, and not on the merits of the tenure. If the tenure by which the defendant holds was originally bad, it is not improved or strengthened by a law which provides merely for an extension of the term to an indefinite period.
    It is contended that the words “employes now serving in the health department” as used in section 189 ■of the Municipal Code, include health officers, and that by the operation thereof, the terms of all health ■officers are extended indefinitely or until removed for cause, etc. An examination of the duties of such health officer shows that it could never have been intended to include such officer as an “employe now serving in the health department.” If the latter part ■of section 189 of the Municipal Code has an application at all, it applies to both cities and villages, because it is not limited to either.
    It will be observed that by section 187 of the code, the council may appoint a health officer instead of a board of health, and such officer shall “have all the powers and perform all the duties granted to or imposed upon boards of health.” Such health officer cannot be an employe of a board of health, for in the instances cited, he is the board of health himself and vested with all its powers and duties.

      If the construction was adopted, as contended for, that the word “employes” was meant to include health officers, it would work an absurdity, and various sections of the code would be inharmonious and not consistent with each other. Allen v. Parish, 3 Ohio, 187; Patton v. Sheriff, 2 Ohio, 395; Railway v. Jump, 50 Ohio St., 651.
    The differences both at common law and under the statutes between an employe and an officer, have been frequently commented upon; likewise the distinction between an office and an employment. The dignity of one as compared with the other, leads one to conclude that a health officer is in fact, as in name, an officer and not an employe.
    “In considering the question whether a particular officer is a public officer, the extent of the territorial limits within which his functions are exercised, is immaterial. If the office is one in which the public have an interest, it is a public office, however narrow, may be such territorial limits.” Reg. v. St. Martens, 17 Q. B. (Ad. & El. N. S.), 149; People v. Bedell, 2 Hill (N. Y.), 196; Vaughn v. English, 8 Cal., 39; Shelby v. Alcorn, 36 Miss., 273; State v. Kennon, 7 Ohio St., 546; People v. Langdon, 40 Mich., 673; In re Whiting, 1 Edm. Sel. Cas. (N. Y.), 498; Smith v. Lynch, 29 Ohio St., 261.
    In the case of a. health officer, by virtue of the powers conferred upon him by the statute, he is an independent, executive officer, with large discretion as to the methods to be pursued by him regarding the public health, and especially in those cities and villages where there is no board of health, he is not subjeet to the control or direction of any one else. State v. Jennings, 57 Ohio St., 415; State v. Halliday, 61 Ohio St., 171.

      Messrs. Botoers & Black, for respondent. ■
    We submit that the statutes of .the state of Ohio, section 2115, control the term of office of the respondent, and that by virtue of his election in 1894 he is still the health officer of said Mansfield city without reference to the action taken by the board as above indicated. Respondent acquired absolutely no more rights, privileges or authority by the action. of the board on said dates than he had from and after his election January 12, 1894, and these actions by the board of health must be considered mere surplusage, and as having been done by the board through a misunderstanding of the laws governing the respondent.
    Whether “the board of health electing respondent health officer was legally constituted cannot be inquired into in a collateral proceeding.
    The board of health electing Dr. Craig was the only board of health in existence in said Mansfield city at the time and acted to the exclusion of all other boards. Therefore, it was a board of health de facto and the members constituting the same were dé fado members and their acts as binding as if they were de jure and constituted a de jure board. State v. Constable, 1 Ohio (pt. 1), 7; State ex rel. v. Aloling, 12 Ohio, 16; Ex parte Strang, 21 Ohio St., 610; Smith v. Lynch, 29 Ohio St., 261; State v. Smith, 44 Ohio St., 368; Kirker v. Cincinnati, 48 Ohio St., 507; State v. Brown, 60 Ohio St., 510; Cronin v. Stoddard, 97 N. Y., 271; Throop on Pub. Officers, secs. 628, 630 to 649; People v. Staton, 73 N. C., 546; Mechem on Pub. Officers, secs. 318 to 344. ;
    ■ There, was a board of health in existence in said Mansfield city at the time of the appointment of an entire new board by Mayor Brown; the legality of the appointment of its members has never been inquired into in a direct proceeding against them for that purpose, nor has the question as to whether the board was legally constituted been inquired into by a court of competent jurisdiction; and the board then in existence still continues to act as the board of health of said Mansfield city, there were therefore no vacancies ,to be filled which would destroy the identity of the old board at the time Mayor Brown made the appointment of the new board and that for this reason the new board never has had a color- of right to act as a board of health, for said Mansfield city.
    We submit under the authorities above cited that the new board of health appointed by Mayor Brown has not even the color of authority to act as such, and their pretended action is wholly void because of such want of authority. That if they had had the authority to represent said city as a board of health, they must have first disposed of respondent as health officer before they legally could have elected -a successor. New Municipal Code, sec. 189; sec. 2115 (repealed by new Municipal Code), Revised Statutes.
    The plain language of the statute will not be changed by a construction. There is no ambiguity in the language of section 2115, or section 189 of the new Municipal Code (1536-725); Blum v. Blum, 69 Ohio St., 47; Cincinnati v. Connor, 55 Ohio St., 82; Cincinnati v. Guckenberger, 60 Ohio St., 353; State v. Brown, 60 Ohio St., 499.
   Burket, C. J.

It is conceded that the members of the old board of health in office when the new municipal code took effect on May 4,1903, were each, when appointed by council, members of the council that appointed them, and were present and voting when such appointments were made.

Section 1717, Revised Statutes, then in force, and part of title twelve, contains the following:- “No member of council shall be eligible to any other office, or to a position on any board provided for in this title, or created by law, or ordinance of council, except as provided in the seventh division of this title.” Members of boards of health are provided for in said title twelve, and are not embraced Avithin the exception as to the seventh division of the same title. The members of council Avere therefore not eligible to the office of members of the board of health, and their appointment to that office by council was a nullity. State ex rel. v. Kearns, 47 Ohio St., 566. The fifth subdivision of the syllabus is as follows: “The appointment by a city council of a member thereof to an office Avhich the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office, is absolutely void.”

It is contended by the state in this case, that the appointment of these members of council to be members of the board of health being a nullity and absolutely void, the appointment by such board of health of Dr. .Craig as health officer, was also void; and on part of Dr. Craig, it is contended that such board of health became and was a de facto, board, and that its appointment of a health officer constituted him a de jure officer. It is not necessary to determine in this case, which, if either, of these contentions is right, as the case turns upon another principle. ,

The appointment of members of council to positions on the hoard of health being a nullity and void, no proceeding in quo warranto was necessary to oust them from such nullity, but the council under the old statute or the mayor under the new municipal code, might treat the office as vacant, and make a valid appointment to fill such vacancy, as was done by the mayor in this case. True the members of the old board might have been ousted by proceedings in quo warranto as intruding themselves into a public office without warrant of law, but while that might have been done, it was not necessary to do so before appointing a new board, because their appointment was a nullity, and they had no color of title to the office, and could not invoke a nullity to keep duly appointed officers out of .the office. When there is some color of title, resort must first be had to quo warranto, but where there is no such color, but a mere nullity, a legal appointment may be made to fill the office, and then if the party in the wrong still persists in holding onto the office, he may be ousted by proceedings for that purpose. It is therefore clear that the board of health appointed by the mayor May 4, 1903, and confirmed by council, is the only lawful board of health of the city of Mansfield, and was such lawful board of health on the fifteenth day of May, 1903, when it appointed A. H. McCullough health officer of said city.

By the official act of appointing Dr. McCullough health officer, the board of health expressed its pleasure that Dr. Craig should no longer serve as health officer, and he then ceased to be such officer. The pleasure of the board may be as effectually indicated by official acts as by words or resolutions. It was not necessary to expressly remove Dr. Craig to get rid of him, because the appointment of Dr. McCullough expressed the pleasure of the board, and in legal effect terminated and ended the term of service of Dr. Craig.

It' is further urged by counsel for Dr. Craig, that when the new municipal code took effect, May 4, 1903, he was an employe, serving in the health department, and that therefore he would continue to hold his position as provided in the latter part of section 189 of th'e new code. That is not tenable. The part of the section relied upon is as follows: “All employes now serving in the health' department shall continue to hold their said positions and shall not be removed from office or reduced in rank or pay, except for cause,' assigned and after a hearing has been afforded them before the board.”

Is the health officer an employe as that word is used in the statutes? We think not. He is known as a health officer throughout the statute, and in section 2115 is spoken of as an appointee, but nowhere as an employe. It is urged that the general assembly in the use of the word employe meant appointee, but as there may be both employes and appointees in the health department, and as the general assembly has legislated as to each it must be held that when it used the word employe, it meant what it said, and did not mean appointee or health officer.

And even if the word employe means and includes a health officer, then such employe as such health officer will, under section 2115, Revised Statutes, serve in said office only during the pleasure of the board of health, and in this case the board indicated its pleasure by the appointment of Dr. McCullough May 15, 1903, that Dr. Craig should no longer serve as such health officer. It being clear under section 2115 that a health officer can serve only during the pleasure of the board, his term of service cannot be extended by tbe doubtful word employe found in section 189 of the new code.

.It is therefore clear, from every point of view, that Dr. Craig ceased to be health officer when Dr. McCullough was appointed to that office and qualified, and that Dr. McCullough, by his appointment and qualification, became and is the legal health officer of the said city of Mansfield.

Judgment of ouster will be rendered against Dr. •Craig, and an order of induction awarded in favor •of Dr. McCullough.

Judgment of ouster and order of induction.

Speae, Davis, Shauck, Peice and Ceew, JJ., concur.


author: Crew, J.

text:
    The State of Ohio v. McMillen.

      Disagreement of jury—Discharge of jury without consent of defendant—Held under section 7313, Revised Statutes—Discharge of jury not error by court—Defendant not released—Criminal law-

    In a criminal case, the trial of which was begun at 9:00 o’clock in the morning and the case finally submitted to the jury at 4:20 o’clock, P. M., of the same day, the j ury after deliberating thereon-until 7:00 o’clock the same evening returned into‘open court and informed the court that they were unable to agree upon a verdict, whereupon the court without the consent of the defendant discharged said jury from the further consideration of said case, and entered upon the journal of the court the reason therefor, “that it satisfactorily appears to -the court that there is no probability of the jury agreeing upon a verdict in this case, and for this reason said jury is discharged from the further consideration of this caseand there being nothing in the record to impeach such finding and entry, or to show that the court acted arbitrarily or in abuse of sound legal discretion, except only the length of time the jury were kept together for deliberation. Held: That under section 7313,- Revised Statutes, such entry shows the existence of legal ground for the discharge of said jury, and for that reason there was no error in the action of the court, and such discharge did not operate as a discharge of defendant from further prosecution and it cannot therefore avail defendant for that purpose by way of plea in bar.
    (No. 7963
    Decided December 8, 1903.)
    Error to the Circuit Court of Jackson county.
    This is a proceeding in error on behalf of the state, brought under favor of section 7306a, Revised Statutes, to obtain the reversal of a judgment of The circuit court of Jackson county, Ohio.
    The facts, so far as material and pertinent to the questions presented and determined, are stated in the opinion.

      Mr. A. E. Jacobs, prosecuting attorney, and Mr. R. E. Jones, for plaintiff in error, cited and commented upon the following authorities:

      Hines v. State, 24 Ohio St., 134; 66 O. L., 312; Am. & Eng. Ency. Law (2 ed.), 1253; Dobbins v. State, 14 Ohio St., 493; Poage v. State, 3 Ohio St., 230; State v. McKee, 1 Bailey, 651; Mount v. State, 14 Ohio, 304; Mitchell v. State, 42 Ohio St., 385; Ladd v. State, 3 Circ. Dec., 137; 5 C. C. R., 276; 4 Blackstone, 360; Stewart v. State, 15 Ohio St., 155; Commonwealth v. Townsend, 5 Allen (Mass.), 216; Commonwealth v. Bowden, 9 Mass., 494; Commonwealth v. Purchase, 2 Pick., 521; 60 Barb., 547; People v. Olcoti, 2 Johns. Cas., 301; People v. Goodwin, 18 Johns., 200; People v. Barrett, 2 Caines, 308; 1 Bishop, secs. 1034, 1035; 1 Russell on Crimes, 52, note; People v. Reagle, 60 Barb. N. Y., 527; People v. Green, 13 Wend., 55; United States v. Perez, 9 Wheat., 579; United States v. Haskell, 4 Wash. C. C., 402; Swan & Critch. Stat., sec. 271, p. 1024; sec. 7313, Rev. Stat. of 1880; secs.. 6820, 6823, 7303, 7316, Rev. Stat.

      Messrs. Hogan & McFarland, for defendant in error, cited and commented npon the following authorities :

      State v. Washington, 90 N. C., 664; State v. Washington, 89 N. C., 535; People v. Goodwin, 18 Johns., 187; Wright v. State, 7 Ind., 324; S. P., Ex parte Ruthven, 17 Mo., 541; People v. Jordan, 63 Cal., 219; South Carolina v. Richardson, 35 L. R. A., 238; Hines v. State, 24 Ohio St., 134; 1 Bishop’s New Crim. Proced., sec. 821; Mitchell v. State, 42 Ohio St., 383; Mount v. State, 14 Ohio, 305; State of Rhode Island v. Nelson, 33 L. R. A., 559; Dobbins v. State, 14 Ohio St., 493; sec. 10, Bill of Rights of Ohio; Mahala v. State, 10 Yerg. (Tenn.), 535; People v. Goodwin, 18 Johns., 187; United States v. Coolidge, 2 Gall. Rep., 364; United States v. Haskal et al., 4 Wash., 411; United States v. Perez, 9 Wheat., 579; Ladd v. State, 3 Circ. Dec., 137; 5 C. C. R., 276; State v. Alman, 64 N. C., 364; United States Const., art. 5, amendment; Rudder v. State, 29 Tex. App., 262; Code Crim. Proced., art. 701, 703; People v. Green, 13 Wend., 55; Lovett v. Georgia, 80 Ga., 256; 17 Am. & Eng. Ency. Law (2 ed.), 1257; Pennsylvania v. Fitzpatrick, 1 L. R. A., 451; Poage v. State, 3 Ohio St., 234; State v. Shuchardt, 18 Neb., 454; Hurley v. State, 6 Ohio, 402; Shaffer v. State, 27 Ind., 131; Williams’ Case, 2 Gratt (Va.), 567; Jones v. Commonwealth, 86 Va., 740; Conklin v. State, 25 Neb., 784; Whitten v. State, 61 Miss., 717; Gulick v. Van Tilburgh, 16 N. J. Law, 417; Barrett v. State, 35 Ala., 406; Allison, In re, 13 Colo., 525; State v. Walker, 26 Ind., 346; Parker v. State, 18 Ohio St., 89; sec. 7303, Rev. Stat.
   Crew, J.

At the May term, T901, of the court of •common pleas of Jackson county, Ohio, the defendant in error, Charles L. McMillen, was indicted and put upon trial for the crime of embezzlement It appears from the record that the trial of said cause was begun on June 11, 1901, at about the hour of 9:00 o’clock A. M., and that the cause was finally submitted to the jury, and they retired to deliberate upon their verdict, at about 4:20 o’clock P. M. of the same day. It further appears that the jury impaneled and sworn to try said cause, after having deliberated thereon from 4:20 o’clock until 7:00 o’clock the same evening, returned into open court and reported to the court their inability to agree upon a verdict, whereupon the court, without the consent of the defendant, discharged said jury from the further consideration of said case and continued said cause until the next term of said court. At the October term, in the same year, being the term to which said cause had been continued, said cause was again called and assigned for trial; but before the trial and before the impaneling of a jury therein, counsel for defendant filed and presented to the court, on behalf of defendant, the following plea in bar, to-wit:

¡State of Ohio, plaintiff, v. Charles L. McMillen, dedefendant. Indictment for embezzlement.

The said Charles L. McMillen in his own proper person comes into court here, and having heard the said indictment read, says that said State of Ohio ought not further to prosecute the said indictment against him, the said Charles L. McMillen, because he says that heretofore, to-wit, at the May term of the court of common pleas holden at Jackson in said Jackson county, in the state of Ohio, of the May term, 1901, the grand jurors of said county duly impaneled and sworn, presented their indictment against him for the offense charged in the indictment herein, that said defendant was duly arraigned in said court on said indictment and pleaded not guilty thereto. That thereupon a-jury was duly impaneled and sworn in said cause in said court and the evidence heard in said

case. That said jury retired for deliberation at 4:20 o’clock in the afternoon of June 11, A. D. 1901, and at 7:00 o’clock in the afternoon of the same day said jury, not having agreed upon a verdict, was discharged by.said court, without the consent of this defendant, to which action of said court this defendant at the time excepted, all of which will more fully appear from the records of this court. A true and duly certified copy of said indictment, a transcript of all the testimony in said case, and a true and duly certified copy of the journal entries of said court in said case are attached hereto and made part hereof. The defendant avers that by reason of the facts above stated he was placed in jeopardy for the same offense charged in the same indictment upon which now an attempt is made to try him again. The said Charles .L. McMillen therefore prays that by the court here he may be dismissed and discharged from the said premises, in the indictment specified.

Charles L. McMillen,

By Hogan & McFarland,

His Attorneys.

fjDuly verified.)

To this plea in bar a demurrer was interposed by the state, and this demurrer was sustained by the court. Thereupon a jury was impaneled in said cause and the defendant was again put upon trial on said indictment and was, by the verdict of the jury, found to be guilty in manner and form as he stood charged in and by said indictment. A motion for new trial was made and overruled and judgment was entered on said verdict. On petition in error to tbe circuit court that court reversed and set aside the judgment and verdict of the common pleas, overruled the demurrer to said plea in bar, and discharged the defendant from further prosecution, assigning for cause, “that the plea in bar of plaintiff in error interposed at the trial of this cause in the court of common pleas of Jackson county, Ohio, at the October term thereof for the year 1901 should have been sustained, and the demurrer interposed to said plea in bar should have been overruled.” To reverse this judgment and order of the circuit court this proceeding is prosecuted. Whether the judgment and action of the circuit court in reversing this judgment of conviction and discharging the defendant was erroneous, depends entirely upon the legal sufficiency of defendant’s plea in bar. So that the sole question here presented for our consideration is, were the facts alleged and pleaded by defendant in his plea in bar such, in law, as entitled him to be discharged from custody without again being put upon trial on said indictment?

In view of numerous holdings of this court, and the positive provisions of section 7313, Revised Statutes, it must now be taken and held as the settled law of.' this state that a jury impaneled and sworn in a criminal case may, without the consent of the defendant,, after the case has been finally submitted to them, and before verdict, rightfully be discharged by the court without prejudice to the prosecution, when it shall satisfactorily and sufficiently be made to appear to the court that such jury is, or probably will be, unable to agree upon a verdict. Section 7313, Revised Statutes, provides as follows: “The court may discharge a jury, without prejudice to the prosecution, for the sickness ■ of a juror, the corruption of a juror, or other accident •or calamity, or.because there is no probability of the jurors agreeing, and the reason for the discharge shall be entered on the journal.”

While counsel for defendant in error concede that this statute in express terms, confers upon the court the power and authority, and gives to the court the right to discharge a jury without prejudice to the prosecution, because there is no probability of the jurors agreeing, yet they contend that in this case, inasmuch as the record .shows that the first jury was discharged by the court, for failure to' agree, after having deliberated only two hours and forty minutes, that therefore no sufficient necessity was shown to warrant their discharge on that ground, that their •discharge by the court whs, in consequence, a clear • abuse of legal discretion, and was in law the equivalent of an acquittal. As supporting their contention in this behalf, and as they, claim conclusively determining the same in their favor, counsel for defendant in error cite and rely upon the second clause of the ..•syllabus in Mitchell v. State, 42 Ohio St., 383, which is as follows: “While a jury in a criminal case may, in certain circumstances, be discharged, and the accused lawfully subjected to another trial, this can only be done where he has consented to the discharge, or been guilty of such fraud in iespect to the conduct of the^rial as that he was in no real peril, or where there is urgent necessity for the discharge, such as the death or serious illness of-the. presiding judge or a juror, the serious illness of the prisoner, the ending ■of term before verdict, or the inability of the jury to agree, after spending such length of time in deliberation as, in the opinion of the judge, sustained by the facts disclosed in the record, renders it unreasonable and improbable that there can be an agreement.”

■ The facts of this case were these: Mitchell was indicted under section 6820, Revised Statutes, for shooting with intent to kill. On the trial it was developed that Eigensee, the person against whom the offense-was alleged to have been committed, had not been hit by the bullet fired by Mitchell. Thereupon, after the evidence was all in and the cause had been argued before the jury by the prosecuting attorney, and while the counsel of Mitchell was addressing' the jury in his. behalf, the judge presiding at the trial sum sponte, and against the objection of Mitchell and his counsel, inade and caused to be entered on the journal the following-order : “It appearing to the court that a mistake has been made in charging the proper offense in the indictment, the court doth discharge the jury without, prejudice to the prosecution; to all which the defendant Mitchell then and there excepted.” Mitchell having at a subsequent term been indicted because of the same transaction, for shooting at Eigensee with intent to kill, pleaded in bar the former indictment and the proceedings thereon. To this plea a demurrer was filed, which was sustained by the court, Mitchell then entered a plea of “not guilty,” was put upon trial and convicted. He prosecuted error to this court where the judgment of the court of common pleas sustaining the demurrer was reversed; the plea in bar was held to be sufficient and Mitchell was discharged. It will be observed from the foregoing statement of facts that in this Mitchell case, neither the construction of section 7313, Revised Statutes, nor the question of when or under what circumstances a jury may be discharged by the trial court because of their failure to agree, was before the court,, or in any way or manner involved in the case. In that case the jury did not deliberate at all, the case was never submitted to them. The question of time or length of time; the probability or improbability of agreement were not questions in any manner involved in, nor was their consideration necessary to, the proper determination of the case then before the court. Hence we think that this case was so essentially different in its facts and the questions presented, that it cannot be held to be an authority governing the case at bar. But even if it were, the fact remains that in the case at bar the record does show that the jury were kept together and required to deliberate until such time as, in the opinion of the court, an obstacle which the statute recognizes as sufficient to justify their discharge did in fact exist, namely, until such time as the court was satisfied, and so found and adjudged, that further deliberation on their part would not probably result in their agreeing upon a verdict.

In Dobbins v. The State, 14 Ohio St., 493 (a case decided before the enactment of section 7313), Ranney, J., in discussing the question of when a jury in a criminal case may rightfully be discharged before verdict, uses this language: “But while a case of urgent necessity must exist, and must be found to be such by the court, before a jury, once sworn in a criminal case, can be discharged without having rendered a verdict, we do not concur in the position, that all the facts and circumstances upon which this finding is predicated, must appear in the record. Nor do we intend to imply that this necessity must be found upon evidence, in the ordinary sensé of that term. What transpires in, or before, a court, may be legitimately-noticed and acted upon without further inquiry. * * * So all communications between the court. and the jury are strictly official, and aré to be treated and regarded as made under the oath which hinds them to an honest, faithful, and truthful discharge of their duties. For wise reasons, no investigation is ordinarily permitted of what transpires in the consultations of the jury; and when they unanimously return their inability to agree, it is conclusive of the fact that they have not agreed, and may rightfully have its just weight in determining the question whether they are likely to do so. But as this must be mere matter of opinion, in which they are very often found mistaken, it ought never to be permitted to take the place of the actual fact, that they have deliberated so long, as, under all the circumstances attending it, to convince the court that no agreement can be expected. When the court is so • convinced, and the facts are such as to justify the conviction, the order discharging the jury may be made.” It is, we think, undoubtedly true that the power conferred upon the court to discharge a jury in a criminal case before verdict, for inability to agree, is not a power that rests merely upon the arbitrary or uncontrollable discretion of the trial judge. But being a power the exercise of which may most vitally affect the legal rights of a defendant, it should be employed only in the exercise of a sound legal discretion, for obvious cause, and after the fullest consideration of the facts and circumstances upon which its exercise is predicated in the particular case. But the court having been invested with the power to discharge must itself be the judge of the necessity and propriety of its exercise in each particular case; and it must in each particular case, under all the attending circumstances, and upon the facts presented, be left to determine for itself in the exercise of a sound legal discretion whether the jury has deliberated for such length, of time as to make it probable that further deliberation oh their part will not result in their agreeing upon a verdict. As said by Savage, J., in The People v. Green, 13 Wendell, 56: “Either the court must determine when it is requisite to discharge, or the rule must be inflexible, that after the jury are once sworn and charged no other jury can in any event be sworn and charged in the same cause. The moment cases of necessity are admitted to form exceptions, that moment a door is opened to the discretion of the court to judge of that necessity, and to determine what combination of circumstances wall create one.”

To the plea in bar in this case filed by the defendant in error, Charles L. McMillen, in the court of common pleas, there was attached and by adoption made part thereof, the following journal entry of said court, to-wit:

“Now comes the prosecuting attorney on behalf of the State of Ohio, and the defendant being brought into court in- custody of the sheriff; also came the following named jurors (naming them) who were duly impaneled and SAVorn according to law, and the said jury having heard the testimony adduced by the parties, the argument of counsel and the charge of the .court, retired to their room in charge of the sheriff for deliberation, and afterward said jury returned into court and informed the court that they are unable to agree upon a verdict,, and upon due consideration, the court states that it satisfactorily appears that there is no probability of the jury agreeing upon a verdict in this case, and for this reason, said jury are discharged from the further consideration of this case. And the court further find that the said jury in the above cause retired for deliberation at 4:20 o’clock on the afternoon of June 11, 1901. At 7:00 o’clock P. M., of the same day, said jury was discharged without the consent of this defendant in discharging said jury. To which action of the court the defendant at the time excepted, and his exceptions aré here noted of record, and said cause is continued.”

It therefore affirmatively appeared on the face of said plea in bar, from the facts therein alleged, that the question of whether the jury would probably be able to agree upon a verdict, engaged the attention of the court, was duly considered, and upon such consideration the court found, adjudged, and so recorded, “that it satisfactorily appears to the court that there is no probability of the jury agreeing upon a verdict in this case, and for this reason said jury is discharged from the further consideration of this case.” There is nothing in the record in this .case to impeach this finding, or tending to show an abuse of discretion on the part of the court in making the same, except the naked fact that the jury were only kept together and required to deliberate for two hours and forty minutes, and when we consider that the trial of this case was begun at 9:00 A. M., that the jury was selected and impaneled, the evidence all introduced, the case-argued, the jury charged, and the cause finally submitted before á :30 in the afternoon of the same day, with probably an intermission of at least one hour at noon, this fact alone does not, we think, so far, or sufficiently, contradict and disprove this finding as to overthrow it.

It follows, therefore, that in reversing the judgment of the court of common.pleas and in overruling the demurrer to defendant’s plea in bar, and in discharging the defendant, Charles L. McMillen, the circuit court erred. The judgment of the circuit court is therefore reversed and the judgment of the court of common pleas is affirmed and this cause is remanded to the court of common pleas of Jackson county, Ohio, for further proceedings according to law.

Reversed.

Burket, O. J., Spear, Davis, Shauck and Price, JJ., concur.