text:
    State of Ohio v. Knight and Gibson.

      Jurisdiction — Prosecution of county officer — Must be in county wJiere act was committed.

      A prosecution against a county officer for soliciting a bribe outside of Ms county, must be in the county where the bribe was solicited, and not in the county where he holds office.
    (Decided March 17, 1896.)
    Exceptions to ruling of Courtof Common Pleas of Wood county.
    The two defendants were commissioners of Wood county, and the official duty of erecting a new court house in said county having’ devolved upon the commissioners of the county, it was charged that while in Summit county these two commissioners solicited a bribe from a certain architect, and they were indicted therefor in Wood county under section 6900, Revised Statutes, which provides in substance that any officer who solicits or accepts any valuable or beneficial thing’ to influence him with respect to his official duty, or to influence his action, vote, opinion, or judgment in any matter pending, or that might legally come before him, shall be imprisoned, etc. The section further provides as follows : “A person convicted under this section is disqualified from holding any public office or appointment under this state; and, if not a state officer, shall be removed from office or employment by order of the court. ”
    The indictment was found by the grand jury of Wood county, and the second count thereof charges that these two county commissioners solicited a bribe in Summit county in violation of this statute, to influence their official action thereafter to be had in Wood county.
    The court of common pleas of Wood county held, that as the bribe was solicited in Summit county the indictment should have been found in that county, and the defendants could not be indicted and tried in Wood county. The prosecuting attorney excepted to the ruling of the court, and on leave of this court filed his bill of exceptions here, seeking a correction of the alleged error of the court of common pleas.

      A. B. Murphy, prosecuting attorney.

      Baldwin c& Harrington, of counsel for the state-
    12. S. Parker, appointed to argue against the exceptions.
   By the Court:

By section 10 of the bill of rights, it is provided that no person shall be held to answer for a capital'or otherwise infamous crime, unless on presentment or indictment of a grand jury, and that the party accused shall be allowed a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.

Section 7263, Revised Statutes, provides that ‘•All criminal cases shall be tried in the county where the offense was committed, ’ ’ unless in case of a change of venue.

It is urged, on the part of the state, that as the offical acts of the commissioners must usually be performed in Wood county, whatever action may be had elsewhere by them, relates' to and has its legal effect in the place of such official action, that a conviction in a county other than Wood could not result in a removal from office, that the injury resulting from the bribery of the commissioners would be to the people of Wood county, and that they should be tried among the people whom they have injured.

While there is some plausibility in these claims, there is not enough weight in them to overcome the plain provisions of the statute and constitution above referred to. The indictment is not for any wrong done or proposed to be done in Wood county. The act complained of is the solicitation of a bribe. It is the solicitation that, under the statute, constitutes the crime. The object of the statute is to guard against the corruption of the mind of the officer by receiving a bribe, soliciting a bribe, or being offered a bribe by another. Such corruption of the mind might, and most likely would, lead to official misconduct, and hence the first step is made criminal without looking" or waiting for results. This first step was taken in Summit county, and such step began and completed the crime there, without any relation to what might occur thereafter in Wood county.

In criminal cases the judgment of the court acts upon the person and can always be made as broad as the statute under which the conviction is had allows, and no good reason appears why, upon a conviction in Summit county and sentence to the penitentiary, the judgment of the court may not at the same time remove the prisoner from office. The statute says this shall be done, and the statute must control.

The indictment charges that the act of soliciting the bribe was “against the peace and dignity of the state of Ohio, ’' and not against the people of Wood county alone. But even if the people of Wood county were specially injured, the law requires the trial to be had where the crime was committed.

The exceptions are therefore overruled.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    State ex rel. v. Commissioners.

      Powers of legislature — Not competent to authorzie county commissioners to widen road — Costs to be as'sessed on lands benefited and on general taxpayers— Without consent of parties assessed — Such power administrative not legislative — Constitutional law — I validity of act of April SB, 1893. (90 Ohio Local Laws, 238.)

    1. It is not competent to the general assembly to authorize the commissioners of a particular county to widen, extend and improve a certain road in a prescribed manner, one-half the costs and expenses to be assessed on lands within a prescribed limit, according to benefits, and the other half to be levied on the general taxpayers of the county, without the request or consent of any of the parties to be assessed. The exercise of such power over the affairs of a county is administrative in character, and not legislative; and the act is, for such reason, invalid.
    2. Where, by a special act, the commissioners of a particular county are authorized to extend and improve a certain road according to a particular plan, and certain villages are, likewise authorized to dedicate their property to the county in furtherance of the plan, and the power to so dedicate is an integral part of the plan, the act is invalid, for the reason that it confers corporate power on such villages.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Hamilton county.
    This was a suit brought in Hamilton county common pleas by the state on the relation of Frederick Broerman against the commissioners of the county to enjoin them from widening, extending and improving Paddock road, as provided in a special act of the legislature passed April 25, 1893, and found in 90 Ohio Local Laws, 238, on the - ground that the act is unconstitutional. It was brought on the relation of Broerman, one of the abutting landowners, the prosecuting attorney having, on request, refused to bring the suit. A demurrer to the petition was sustained, and judgment rendered dismissing the action, which' was affirmed on error by the circuit court. The ruling on the demurrer is assigned for error here.

      Maxwell & Wilson, Theodore Horsiman and John R. Von Seggern, for plaintiff in Error.
    The act belongs to the class commonly known as mandatory improvement acts, where the legislature, in its wisdom, undertakes the improvement by special acts, in special localities, without permitting those who are to pay for the improvement to be heard as to whether or not they need or desire the improvement. It is true that this act differs from the Montgomery road act, in this, that the Montgomery road act uses the expression “authorize'and direct,” while the Paddock road act, uses the expression “authorize” in the first, second, and seventh sections, and the expression “authorize and direct,” in the title, and the imperative mood in the -other sections. Whether there be any real difference in 'this respect between the two acts may be questioned. Whether this act be mandatory upon the county commissioners, in the strictest sense of the word mandatory, or not, we contend that it is open to the objection made to the Montgomery road act by Judges Minshall and Burket in the case of Commissioners v. The State ex rel., 50 Ohio St., 653, and by Judges Minshall and Spear in Weston v. Goesling, as unrecorded except in 30 W. L. B., 291. Here, as in those cases, those who are to bear the burden of the assessment have no voice in the matter.
    It is provided that the probate court shall appoint three commissioners whose action,' in the absence of fraud; shall be final and conclusive. It seems to us to need no argument to show that to thus take away all remedy by appeal, or error, for ignorance or mistake, and all authority from the county commissioners, must invalidate this provision; and if this provision fall, the whole act must fall with it, for it is inseparable from the act.
    Another serious objection is that the legislature undertakes to provide upon what terms and conditions a perpetual right may (or shall?) be granted to a street railway company to operate a street railway on the road when it is finished, and in this matter neither the county commissioners, nor the public, abutting’ or otherwise, have any voice.

      Wells v. Laughlin, et al., 17, O., page 99. It may be conceded that the case State ex rel. v. Commissioners, 35 O. S., 458, would sustain the Paddock road act as to all its features, except those providing for the appointment of the three assessors by the probate court.
    Brief of Theodore. TIorstman.

    The constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes them as things already in being, with powers that will continue toexist so far as they are consistent with the organic law, until modified or repealed! Cass v. Dillon, 2 Ohio St., 608.
    If the general assembly can prescribe so much of the specifications of a certain road improvement in Hamilton county, there is nothing to prevent it from, making a part of a law the plans and specifications in detail for a court-house building for any county. We submit that this is not the exercise of legislative power. 21 Ohio St., 1; Kelly v. State 5 Ohio St., 239.
    The act further provides that such assessment commissioners, so appointed,' shall certify the assessment by them made to the county auditor for collection.
    It will be observed that such assessment commissioners are entirely independant of the county commissioners; they do not report to the county commissioners; but, whatever action the assessment commissioners determine upon is final and conclusive. They, therefore, exercise virtually the power of taxation, one of the highest attributes of official functions. Sections 1 and 2, article 10, of the constitution provide that all county officers shall be elected. State ex rel v. Brennan, 49 Ohio St., 33. As to what constitutes an officer, see 7 Ohio St., 546; 29 Ohio St., 347; 49 Ohio St., 33; 45 Ohio St., 196.
    Spiegel, Foraker & Bencligs and Millet: Outcalt for defendants in error.
    While the title of the act employs the language, “authorize and direct, ” and which would, therefore render the act mandatory were the intent and meaning of the act itself completely lodged in the phraseology of the title, yet, since it is not in the title of an act that we must look for the intent of the legislature, we must go to the text of the statute, and if that is plain and unambiguous the title can not have the effect to vary it. Sutherland on Statutory Constructions, section 210, page 278. See also Bishop on Written Laws, see. tion 45, 46, etc. State v. Pugh, 43 Ohio St., 98-113.
    There can be no question but that this is a special act: “Local and special legislation is not forbidden by the constitution. It plainly requires that ‘all laws of a general nature shall have a uniform operation throughout the state,’ but it does not require that all acts of the general assembly shall be of a general nature. State v. Pugh, 43 Ohio St., 111.
    We insist that this law does not in any of its provisions confer corporate power. Wherever express or implied power is attempted to be conferred by special legislation, it must be a new and additional power. Elliott on Streets, 107. 1st Beach on Public Corporations, section 564. Dillon on Municipal Corporations, section 89. 5 Ohio, 20; 5 Ohio St., 121. 18 Ohio St., 569. Revised Statutes, 1552.
    But, for argument’s sake, carrying the discussion further, we claim that, notwithstanding the fact that the part of section 7 above referred to may bé unconstitutional, still the law will stand becanse the parts are separable, and the part of the act in question may be disregarded wi thout affecting the remainder. Your court has repeatedly affirmed this principle.

      Bank v. Hines, 3 Ohio St., 1-34. State v. Baughman, 38 Ohio St., 460. State v. Frame, 39 Ohio St., 399-411. Railroad v Commissioners, 31 Ohio St., 388-344. Treasurer v. Bank 47 Ohio St., 503-524. Cooley on Constitutional Limitations, 109. Sutherland on Statutory Construction, sections 160-171.
    A second objection, made by counsel for plaintiff in error to the validity of this act, is in the method prescribed of making the assessment.

      The assessment, being in proportion and according to benefits accruing, a method is prescribed for the appointment by the probate court, of three commissioners to make said assessment, in accordance with the provisions of said law.
    These provisions of the law seem to us to be analagous to sections 2277, 2278, 2279, 2280, 2281, 2282, as well as 4836e and 4842, of the Revised Statutes, as against which we are unaware that any objection has ever been made. This law, therefore, in our judgment, would seem to wisely and properly provide for a method of preparing, equalizing and readjusting said assessment, with full notice to all such as may be interested therein, and does accord to all interested an opportunity to object and to be heard, without undue haste, by said commissioners. The law therefore, in this provision, does not in any sense seem to be open to the objection frequently urged against all objectional tax measures, that they deprive the citizen of his property or land without due process of law. Cooley on Taxation, 640; Cooley Const., Lim., 637; State of Ohio ex rel. Eastman v. Commissioners of Warren County, 17 Ohio St., 559. Bowles v. State, 37 O. S., 35. Carlisle v. Heatherington, 47 Ohio St., 236. Weston et al. v. Commissioners of Hamilton County, Ohio Circuit Court Reports vol. 6, page 641, affirmed by supreme court. Weekly Law Bulletin, vol. 30, page 291. Commissioners of Wood County v. Pargillis, 10 Circuit Court Reports, 376-392.
   Minshall, J.

This statute, we think, is invalid on several grounds. 1. It is an assumption of powers over the affairs of a county not possessed by the general assembly — it is administrative in character and not legislative. The act authorizes the commissioners of Hamilton county to widen, extend and improve the Paddock road from its present southern terminus to the northern corporation line of the village of Glendale in Hamilton county, in a specific manner. It would have been more properly designated, if it had been entitled, an act to widen, extend and improve the road as therein directed, with the approval of the commissioners of Hamilton county. All the authority conferred on the commissioners is to adopt the plan and carry it into execution. The title of the act is in fact, mandatory; and the act was evidently framed 'with that fact in view, but was afterward so changed as to make its execution subject to the authorization of the commissioners. The act prescribes the width of the road, the land that must be appropriated on each side to secure the width, except in the village of Glendale where the width is to remain as it is; it prescribes the grade of the road and the precise manner in which it is to be made: “On its subgrade, the crown of which shall be ten inches in the center and thoroughly rolled, shall be placed a layer of flat stones to a depth of not less than four inches, and the interstices filled up with broken stone, well rammed. On this shall be placed a layer of not less than five inches thick, of crushed or broken limestone and thoroughly rolled. This shall be covered by two layers each of two and one-half inches of crushed boulder or granite of the size to pass through a two and one-half inch ring; each layer to be separately rolled, and on this shall be placed a top dressing of screenings of boulder or granite, not less than one and one-half inch thick, which shall also be thoroughly rolled.”

One-half of the cost and expenses are to be levied on the general taxpayers of the county, and the other half is to be assessed on the lands and lots lying on both sides of the road and the ends thereof, within the distance of one mile, to be apportioned according to benefits by a commission to be appointed for that purpose. To meet the expenses in the first instance, the bonds of the county are to be issued and sold in an amount not to exceed the sum of $400,000. All this is to be done if the commissioners act at all, without the petition of a single person, interested or otherwise, although the costs and expenses may amount to the sum of $400,000, to be raised as above stated. Is the enactment of this law the fair exercise of legislative power? We think not. It is simply a usurpation of the powers heretofore always allowed to the proper administrative boards selected by the people of the localities concerned in the exercise of the right of local self-government; and always called into activity on the petition of, at least, a majority of those interested, not only in the benefits, but also in the costs and expenses of the improvement. This is shown in the road improvement laws of the state, under the one and two-mile systems, the ditch and levy laws, and the laws regulating the improvement of streets and alleys in municipal corporations.

The system of local self-government existed under general laws at the adoption of the present constitution; and there is nothing in it, nor in any of its provisions, from which a design can be inf erred to many way impair it; on the contrary every provision of that instrument, in any way related to the subject, manifests a purpose to preserve it unimpaired to the people. This appears in the provisions for the election of county and township officers by the people. Article 10, Constitution; who had theretofore always exercised these functions, at the instance of the parties concerned; and have always since done so, until within the last few moons. Commenting on the general features of a written constitution, Judge Cooley observes: “Lo,cal self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.” Constitutional Limitations, 45.

If it is competent to the general assembly to authorize the commissioners of Hamilton county by a special act to make such an improvement in that county, without the request of any one interested, then the same may be done in any county of the state, irrespective of the resources of the county, or of the ability of those who will be compelled to pay the large assessments made on their lands to meet the costs and expenses of the improvement. This is a wide departure from the principles of local self-government; and so wide, it is not possible to sustain it by any latitude of construction. It is true that, under this statute, the improvement must be authorized, or more properly approved, by the commissioners, which may be said to be some protection against the improvidence of the legislature. But, as already shown, when they act, they must proceed in the way and to the extent, mapped out by the legislature. The people interested have no control, and they are deprived of the initiative in the matter, which is the important point in the privilege of local self-government.

The fact that parties interested may be heard before a committee of the legislature, is not the equivalent of the right to be heard before the proper local board, where all may be heard and their objections considered, with little or no inconvenience or expense. Nor can the fact that, as stated by counsel the parties were heard in this case, make any difference. By the act no application or hearing of any kind is required; the commissioners may act sua aponte.

2. It is a special act conferring corporate power upon certain municipal corporations. The petition avers that the Paddock road and its proposed extensions will pass into or through the villages of Bond Hill, Carthage, Wyoming, Glendale and Avondale, in Hamilton county; and it is provided in section 7 of the act, that theocommissioners and the council ‘ ‘of any village owning any part of the lands necessary to be acquired for the purpose of carrying’ out the provisions of this act are hereby authorized to dedicate the same free of costs to the county.” This is a power not possessed by other villages of the state and is conferred on them by a special act. Under it they may so dedicate their streets to the county, and thereby relieve themselves from the duty of keeping them open, in repair and free from nuisances, as other villages are required to do. Here are two express powers conferred on these villages: One is to dedicate their property to the county, and the other is to relieve themselves from duties enjoined on other villages in regard to their streets and alleys. But it is suggested that the power here conferred is not essential to the plan, and may be disregarded without affecting the g’eneral provisions of the act. We do not adopt this view. The power intended to be conferred is the extension and improvement of a particular road according to a prescribed plan. To improve and extend it to and beyond these villages, or any of them, and not through them, would be a departure from the plan for which there is no authority in the act. It would be to adopt the plan in part and reject it in part, without anything in the act to warrant the court in saying that the one part is less material than the other; or that the legislature would have authorized a part of the improvement to be made without the whole. A material consideration may have been the making of the improvement through these villages. The act for this additional reason is invalid. Commissioners v. State ex rel., 50 Ohio St., 653.

There is still another ground on which this statute is, in my opinion, clearly invalid. The location and construction of public roads is a subject of a general nature, and should, therefore, be regulated by general laws, uniform in operation throughout the state. Const., article 2, section 26. And have always until recently been so treated. Cases may arise in which the peculiar circumstances may require special legislation of a local character. It may happen that a bridge is carried away by a flood, or that a court-house is destroyed by Are, and that under, existing laws, there is no power to meet the emergency thus created. Such circumstances create of themselves a special subject of legislation, growing out of the emergency, and are excepted by the law of reason out of the general rule upon the subject; or, more properly speaking, presenting, as they do, a special subject for legislation do not fall within the rule.

But as this question is presented in a number of cases now pending in this court, it is not now passed on by the court; nor are my associates in any way bound by what is here said. The points decided are expressed in the syllabus.

Judgment reversed, and judgment rendered for the plaintiffs.


author: Shauck, J.

text:
    Machader v. Williams.

      View by jury of properly, the subject of litigation — Solely for purpose of applying evidence upon trial — Section 5191, Rev. Stat.

    The view by the jury of the property which is the subject of litigation, or of the place where a material fact occurred, which may be ordered in a civil action under section 5191, Revised Statutes, is solely for the purpose of enabling them to apply the evidence offered upon the trial.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff brought suit in the court of common pleas alleging that she and the defendant are owners of adjoining’ lots in the city of Cleveland, that he had committed the various acts of trespass upon her premises set out in the petition, to her damage in the sum of $800.00 for which she prayed judgment.
    The answer denied the alleged trespasses and the allegations of damage.
    On the trial the jury, by direction of the court, visited and viewed the premises.
    After the court had given its general instructions to the jury, counsel for the plaintiff requested the court to instruct the jury that in connection with the evidence they should take into consideration their view of the premises as to changes of grade alleged to have been made. This instruction the court refused to give, and in lieu of it instructed that their view of the premises was merely to aid them in applying the testimony that had been introduced in the case. To this refusal and instruction the plaintiff’s counsel excepted.
    The jury returned a verdict in favor of the plaintiff for $25. Her motion for a new trial was overruled, and judgment rendered on the verdict. That judgment was affirmed by the circuit court, and the reversal of both judgments is sought here, the only assignment of error relied on being said refusal and instruction.

      John O. Winshvp, for plaintiff in error.

      Kline & Tolies, for defendant in error.
   Shauck, J.

The subject of the effect to be given to the observations of juries upon view has evoked much apparent conflict of opinion. An extended collection of cases upon the subject may be found in Thompson on Trials, sections 875 to 902, inclusive; and that author’s conclusion is relied upon for a reversal of the judgment in this case. That conclusion is, however, seriously discredited by the fact that the subjective effect of the author’s consideration of the cases was to lead him to deplore “the effect which is produced upon the law by the effort of trained minds to reduce its rules to scientific precision.” A treatise upon the subject, written for the purpose of carrying that process of reduction yet further, might well show that cases apparently in conflict are not really so because some are civil actions and others proceedings to appropriate property in the exercise of the right of eminent domain, and because the conclusions of courts have been affected by a variety of statutory provisions.

In this case the view of the property was ordered by the trial court pursuant to section 5191, Rev. Stat., which provides:

“The court, when of opinion it is proper for the jurors to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by a' person appointed for that purpose; and while the jurors are thus absent, no person other than the person so appointed, shall speak to them on any subject connected with the trial. ”

The terms of the statute leave it to the discretion of the trial judge whether the view shall be had or not. Such has been the uniform course of decision. It is not to be supposed that the legislature intended that the observations of juries upon the view should have probative effect in determining the issues of fact joined between the parties, and yet leave to the judge discretion to prevent the taking of the view. It is the right of the party to have all competent evidence submitted to the consideration of the jury. No reason appears for holding that the court erred in limiting the effect of a view which it might have prevented.

The provisions of our statutes relating to practice authorize motions for new trials whereby the weight of the evidence may be made a question of law for the court, and for the signing of bills of exceptions containing all the evidence to the end that there may be, in the circuit court, a review of the decision of the trial court upon the question so made by the motion for a new trial; and the bill so taken may be presented to this court for the purpose of calling upon it to decide whether there was any evidence to support the verdict and the judgment which followed it. It is evident that all these purposes, clearly provided by the statutes, would be defeated if the observations of the jury while taking the view should be regarded as evidence.

Under statutes identical with our own, the view of the jury has been held to be, not for the purpose of obtaining evidence, but for the purpose of better understanding the testimony offered in open court subject to the rules of law as to its competency and effect, and by witnesses subject to cross-examination. Close v. Samm, 27 Iowa, 503; Brakken v. Railway Co., 29 Minn., 41. In the interpretation of statutes not appearing to be substantially different the same conclusion was reached in Railroad Co. v. Bowen, 40 Ind., 545, and Wright v. Carpenter et al., 49 Cal., 607.

The difference between-the effect of the view taken by the jury in civil actions and a view taken in special proceedings under statutes is made clear by section 4467, Revised Statutes, relating to the trial in the probate court in proceeding’s to establish ditches:

“The probate judge shall administer to the jurors an oath, faithfully, impartially and to the best of their ability, and from actual view of the premises along’ the whole route of the improvement, to examine and determine the particular matters appealed from, and to render a true verdict according to the facts appearing’ to them from actual view of the premises, and the evidence, under the charge of the court. ’ ’ The provisions of this section were the ground for the holding in Williams v. Lockoman, 46 Ohio St., 416. It discriminates between the facts observed by the jury upon a view and evidence, and the obvious inferences to be drawn from the case last cited justified the refusal and the instruction here questioned.

Judgment affirmed.


author: Bradbury, J.

text:
    Gill et al. v. Pelkey et al.

      Correction of mistake in deed — Probate sale of intestate's land by administrator — Mistake in appraisement of parcel of land carried into deeds of conveyance — Court of general jurisdiction in equity may correct mistake of probate court — Admission of parol evidence — Sections BISO and 5886, Revised Statutes.

    In proceedings in a probate court by an administrator to sell lands of his intestate to pay debts, a mistake occurred in the return of the appraisement, by which it appeared that one parcel of the land to be sold had been appraised with an adjoining tract of surface, whereas, in fact, such parcel had been appraised with a tract of coal land; this mistake was afterwards carried into the deeds made by the administrator conveying to different purchasers, the lands by them respectively purchased. The result of these mistakes was such that the parcel so appraised was conveyed to the purchaser of the adjoining tract of surface, who had neither bought nor paid for it, instead of to the purchaser of the coal tract who had done both. The latter went into possession of it. After- ' wards an action was brought by the heirs of the purchaser in whose deed the lands had been, by mistake, included, to recover the possession of the same from the real purchaser. The latter by a cross-petition set forth.'the mistake in the proceedings of the probate court, as well as that in the deed, and prayed for the correction of both mistakes. The plaintiff took issue, by their reply, upon the averments of the cross-petition respecting the mistakes in both particulars. Held
    (1) That a court possessing general jurisdiction in equity was authorized to correct the mistake in the proceedings in the probate court as well as that in the deed;

      (2) That parol evidence was admissible on the issue respecting the mistake;
    (3) That the issue arising on the cross petition and reply was not of right triable by jury by virtue of section 5130, Revised Statutes, but was appealable under the provisions of section 5226, Revised Statues.
    [Decided March 31, 1896.]
    Error to the Circuit Court of Belmont county.
    This action was .brought in the court of common pleas of Belmont county by the plaintiffs in error, to recover of defendants in error the possession of a certain parcel of real estate. The plaintiffs were successful in the court of common pleas, whereupon the cause was taken to the circuit court by appeal, where the defendants prevailed. The cause was then brought to this court on error to obtain a reversal of the judgment of the circuit court. The facts necessary to an understanding of the decision will be stated in the opinion of the court.

      Gallagher c6 Wocdbridge and J. O. Tollman, for plaintiffs in error.
    The petition in error in this court, makes three assignments of error, in addition to the overruling of the motion for a new trial.
    First — In overruling the motion of plaintiffs to dismiss the appeal.'
    Second — In the admission of parol evidence to contradict the record of the probate court. ■
    Third — In rendering judgment in favor of defendants.
    Did the defendants have a right of appeal, under our statutes, from the decision of the court of common pleas?
    If they had answered admitting the legal title to the land in controversy to be in the plaintiffs, but setting up an equitable defense only, we should not contend that the appeal was improper. And if they had for a first defense put in issue the facts set out in the petition, and for a second defense set up a good equitable claim to the property as against the plaintiffs, and the case had been tried upon the second defense and the reply thereto alone, we should concede that the appeal was rightly taken.
    We claim that under our decisions, if a defendant, sued in ejectment or trespass, desires to preserve his right to appeal to the circuit court, he must waive, for the time, at least, his legal defense, if he has any, and rely upon an equitable defense. He has no right to take his chance with a jury, or with the court instead of a jury, upon the legal defense, and then appeal the case upon his equitable defense, after he is beaten upon both. In such case, if the defendant choose to make and try two defenses, in one of which the issue made is triable by a jury, and in the other not, the former draws to it the whole action. Ladd v. James, 10 Ohio St., 437; Black v. Boyd, 50 Ohio St., 51. The sole question is whether under our code practice, and upon the issues made and tried, either party had the right to a jury trial. Gunsaulus v. Pettit, 46 Ohio St., 27.
    This was a suit for the recovery of specific real property, and all the allegations of the petition were put in issue by the answer, and tried by the common pleas court.
    Of course, it is conceded that the mere fact of the petition making an action, at law is immaterial, if the issues there tendered are not accepted by the answer ; and in many cases the answer, in the nature of a cross-petition, and the reply, make up the issues tried, and make them up as questions for the court and not a jury. In such cases there is a right of appeal. Massie v. Stradford, 17 Ohio St., 596; Taylor v. Leith, 26 O. St., 426; Rankin v. Hannan, 37 Ohio St., 113. But when an action is brought for the recovery of specific real property, and an issue of fact is made up, the parties are under the statute entitled to a jury, even though the answer sets upan equitable defense. Smith v. Anderson, 20 Ohio St., 76.
    In this last mentioned case, the defense was not only an equitable one, but affirmative relief was asked by the defendant. The mere matter of putting' in issue the averments of the petition in an ejectment suit, would not necessarily in every case prevent an appeal; if, in fact, a second or further equitable defense, in the nature of a counter claim or cross-petition, were set up in the answer, and the case was tried entirely upon this second defense and the reply thereto. Buckner v. Mear, 26 Ohio St., 514. Sheeful v. Murty, 30 Ohio St., 50. The truth of facts certified in a record cannot be collaterally impeached by evidence aliunde. Jones v. Judkins, 34 Am. Dec., 392. Shirley v. Fearne, 69 Am. Dec., 375. A record cannot be contradicted by parol evidence. Hanes v. R. R. Co., 40 Ohio St., 95. Herig v. Nougaret, 7 Ohio St., 480.
    The proceedings in a probate court are as conclusive as any other record. Shroyer v. Richmond et al., 16 Ohio St., 455. R. R. Co. v. Village of Belle Center, 48 Ohio St., 273. Simmons v. Saul, 138 U. S., 439.
    Appraisement proceedings are a part of the record. Daniels v. McBain, 2 Ohio St., 407, 415. Statutes of Ohio, sections 5395, 6157, 6162.

      The answer in this case is in form an equitable defense to a legal claim; but even should it be held to be in substance a cross-petition to correct and reform the deeds made to Pelkey and Gill, the necessary parties to the suit, are not made. Neither the grantor in the deeds, or his successor, is a party to the suit. Pomeroy’s Rem. and Remedial Rights, section 371.

      Alexander <& Reinlein and St. Olair Kelly, for defendants in error.
    It is argued by counsel for- plaintiffs that the tract could not be divided for sale without an order of the probate court. This objection certainly does not affect the title of the purchaser. If authority is needed we refer to Lessee of Stoll v. McAllister, 9 Ohio, 19, which decided that administrators may, at their discretion, divide an entire tract and sell in parcels.
    In the circuit court the plaintiffs moved to dismiss the appeal on the ground that the case was not appealable. The question involved is settled by several decisions, especially by Massie v. Stradford, 17 Ohio St., 596; Buckner v. Mear, 26 Ohio St., 514.
    The pleading was single, and upon a reasonable construction taking all its allegations, set up merely a case for relief in equity. But this question of construction is immaterial, for, even if the cross-petition should be considered as containing independent denials, the equitable issue was first to be tried and decided. Sheeful v. Murty, 30 Ohio St., 50.
   Bradbury, J.

This was a real action under the code of civil procedure, broug’ht by the plaintiffs, who are now plaintiff sin error, to recover the possession of a small parcel of land to which they claimed title in fee-simple and which was detained from them by the defendants, who were in possession. That the land in controversy was included in a deed of conveyance executed in due form and delivered to the ancestor of the plaintiffs by the administrator of the deceased owner, pursuant to an order of the probate court of the proper county in a proceeding to sell lands to pay debts is not controverted. Therefore the paper title of the plaintiffs was complete, and to successfully resist a recovery thereon, the defendants were compelled to attack and destroy this paper title; they sought to accomplish this end by interposing the following answer or cross-petition and amendment thereto:

“The defendants, for answer to the petition of plaintiffs, deny that the said plaintiffs are the owners in fee, have a legal estate in, or they are entitled to the possession of the real estate in the petition described, and they deny that they unlawfully keep the plaintiffs out of the. possession of said estate, and they say that they, the defendants, have the full equitable title to, and the right of peaceable possession of said real estate.

“Defendants further deny that any injury will be done plaintiffs by opening a coal mine on said premises, or that any injury will be done thereby to the plaintiff’s business or works.

“Defendants further say that the late John H. Heaton died seized of all the stone coal underlying a part of section No. 30, township No. 2, and range No. 2, in Belmont county, Ohio, described as follows: Beginning for the same at the center of Franklin street, in the city of Bellaire, Ohio, on the line of the land of Thornton A. Horn; thence with the said line west 178.60 rods to the northwest corner of the original tract; (old number 4 as described in Belmont county common pleas records, vol. 34, page 312, and following) thence south 19 rods; thence 172.41 rods to the center of said street; thence with the center line of said street north 17i degrees east, 331 feet 10J inches to the beginning, containing 21 acres and 10 perches of surface, all of which as determined by the commissioners in partition can be mined to advantage from the west boundary east far as the center of the projected street called Liberty street, being 18 acres of coal, which is very valuable; and seized also of a certain tract of land in said city of Bellaire, now divided into two parts by said Franklin street, one part being on the east side of said street, the other part being on the west side of said street, and being the same which is described in the petition, and is the only place or outlet for mining the coal above described, and without which said stone coal would be almost valueless to these defendants; that the administrator of said John H. Heaton filed his petition in the probate court of this county to sell all of the above real estate to pay debts; that the said land and coal, being appraised separately, were offered for sale twice and not sold, and then a new appraisement was ordered to be made by said probate court, and the appraisers then appraised, as they were directed to do, so that the same could be sold, the said coal tract and the tract of land west of said Franklin street together as one tract at $-, and the lot of land east of said Franklin street, as another track at $-; that said land on the west side of said Franklin street with the coal in connection therewith, was sold by said administrator to these defendants on July 16, 1888, and paid-for by them; that defendants took immediate possession of the same, inclosed it with a good and substantial fence and have held possession of the same from that time until the present, and all with the full knowledge of said James S. Gill,- now deceased, who, on or about the --- day of July, 1888, purchased that part of said tract of land which lies east of said Franklin street, and did not buy that part lying on the west side thereof.

“Defendants further say that they have been informed that by mutual mistake of the parties the lot of land they so bought and paid for was included in the deed to said James S. Gill, deceased, and not in the deed as originally made to them, as it should have been. Since that time, on the-day of - -, 18 — , thepresentadministratorof said Heaton estate made a deed to these defendants for said lot on the west side of Franklin street.

“Defendants, by leave of court, as an amendment to their answer and in addition to the allegations therein, say that by mere inadvertence and mistake the coal land was returned to said court as appraised in one tract, and the other tract or parcel of land as an entire tract, and the last named tract was by like mistake returned as sold as an entire tract to said Gill, where, in fact, the part described in the petition was appraised and sold with the coal tract to the defendants, as heretofore alleged ; and in the proceedings in the probate court there was the mistake aforesaid as to said description of parcels of land in the returns to and order of said court, as appears of record in said court.

“These defendants therefore ask that the mistakes in said deeds and in the returns of appraisement and sale be corrected, and that the quiet and peaceable possession of said lot on the west side of said Franklin street be decreed to them, free from any interference on the part of the heirs of the said James S. Gill, deceased, or any other persons claiming by, through or under them, and that their title thereto be quieted, and for all other just and equitable relief.”

The amendment was made in the circuit court upon leave..

.The plaintiffs filed a repiy to this answer, or cross petition, denying that any mistake was made in the proceeding in the probate court, or in the deed made pursuant thereto.

Upon the issue made in the court of common pleas, which related solely to the mistake in the deed, the plaintiffs prevailed, and from the judgment there rendered in favor of the plaintiffs the defendants appealed to the circuit court. The plaintiffs then moved the circuit court to dismiss -the appeal upon the ground that the action was one for the recovery of real property, which, by virtue of section 5130, Revised Statutes, was of right triable to a jury, and therefore not appealable by virtue of the provision of section 5226, Revised Statutes. The circuit court overruled this motion, to which ruling the plaintiffs excepted. Afterwards the defendants, upon leave, filed the amendment to their answer, as before stated, setting up, in addition to the mistake in the deed, a mistake in the proceedings had in the probate court ■ prior to its execution. The cause was tried in the circuit court upon the issue raised between the parties respecting the alleged mistakes. The finding and judgment there being for the defendants, the plaintiffs filed a motion for new trial, whiah being overruled, they embodied the evidence and proceedings in a bill of exceptions, and thereupon brought the cause to this court for review on error.

Two questions only arise upon the record of sufficient merit to demand consideration:

1. Whether the circuit court erred in overruling the motion to dismiss the appeal.

2. Whether it erred in correcting the alleged mistake in the proceedings in the probate court and in the deed made pursuant thereto.

The first question presents no difficulty in the light of either principle- or authority. True, the cause of action disclosed in the petition being simply for the recovery of specific real property and damages for its wrongful detention, was triable of right by a jury.

The answer took issue on the averments of the petition, and to that extent was a defense only. In setting forth the circumstances of the mistakes of which it complained, and in praying their correction, however, the answer is a cross petition, which contained not a technical defense, but an independent'equitable cause of action constituting a cross demand in favor of the defendants, the effect of which, if established, would extinguish the plaintiffs’ cause of action by destroying their deed and annulling.the proceedings of the probate court in as-far as either affected the title to the parcel'of land in controversy.

If the defendants, instead of setting forth the facts respecting these alleged mistakes in a cross petition in an action at law, had made them the subject of an independent action for relief, the equitable character of the cause of action would be apparent to every mind at all familiar with the distinctions between legal and equitable rights or causes of action. In the nature of things, a cause of action, which, if set forth by the plaintiff in a petition, would be properly denominated equitable, would retain its name and character, although set forth by a defendant in an answer, as a cross demand. Its character should depend upon the nature of the relief it establishes in favor of the party pleading it; and not upon the relation, as plaintiffs or defendants, which the parties bear to each other in the action.

As the character, whether legal or equitable, of a cause of action does not depend upon the relation, as plaintiff or defendant, borne to the action by the party asserting it, so, neither should the mode of trial depend upon such relation. Whatever mode of trial is appropriate to the nature of the demand should be awarded to the parties, irrespective of their relations as plaintiff or defendant. Therefore, the statutes upon the subject should be construed accordingly, if the language they use permits such construction.

Section 5130, Revised Statutes, prescribes the actions in which the parties may demand a jury for the trial of issues of fact joined between them. The language employed for that purpose reads as follows: * * * “issues of fact arising in actions for the recovery of money only, or specific, real or personal property, shall be tried by a jury, unless a jury trial be waived or reference be ordered as hereinafter provided.”

The languageemployed is the same, whether the action be one for the recovery of money only, or to recover specific, real or personal property, and if operative in either of the classes of actions named, to control the trial of an issue of fact arising on a cross petition filed therein, it should have the effect in all of them.

An action for damages on account of a trespass to real estate is an action for the recovery of money only, and therefore an issue of fact arising therein, is triable by jury by force of the language quoted. Yet this court, in Massie v. Stradford, 17 Ohio St., 596, held that an issue of fact arising on a cross petition filed in such action, which set., forth an equitable cross demand, was not of right triable by jury, and therefore sustained the right to an appeal to the district court in respect of that controversy, and denied the right to a second trial upon that issue, to which either party would have been entitled by the statute then in force if a right of a jury trial existed.

Taylor v. Leith, 26 Ohio St., 428, and Buckner v. Mear, 26 Ohio St., 514, were each actions brought to recover damages for breach of covenants in a deed conveying land; they were actions for the recovery of money only, and triable as of right by a jury, by virtue of the provision of section 5130, Revised Statutes, just quoted. The answer in each case set forth a mutual mistake in the deed containing the covenants, the breach of which was the foundation of the action, and prayed for a reformation thereof. This court held in each case that the controversy arising on the cross petition being equitable was the proper subject for an appeal, and therefore not triable as of right to a jury. The first clause of the syllabus in Buckner v. Mear, is in the following terms: “Although a plaintiff’s cause of action may be triable by jury, yet where new matter is set up in the answer constitutes an equitable cause of action, which, if established, will extinguish or supersede the ease made in the petition, the issues taken on such new matter are triable by the court, and not as of right by a jury. And this is so whether issue is taken on the averments of the petition or not.” 26 Ohio St., 514.

The learned judge who delivered the opinion of the court in Smith v. Anderson, 20 Ohio St., 76, seems to have thought that in an action to recover specific real property, an issue arising upon an equitable cross-demand set forth in an answer, was triable by jury as of right and not appealable; but the syllabus stops short of that, and places the decision on the ground that the answer set forth a defense and nothing more.

It may be quite true that an equitable defense merely, that is, one which sets forth some equitable considerations for the sole purpose of resisting the plaintiff’s demands, without asking any affirmative action of the court whatever, will not affect the mode of trial, although it would have done so if the party had invoked some affirm ative relief. The difference between them beingthat the firstis simply a defense to the cause of action stated in the petition, while the other is a cross-demand constituting a cause of action in itself, on which a separate action mig'ht have been maintained. The former being merely a defense, cannot draw to itself a mode of trial different from that prescribed for the 'cause of action to which it relates. The latter being a distinct cause of action, is of equal dignity with the one set forth in the petition, and therefore equally entitled to its appropriate method of trial. ■

This view of the matter will reconcile Smith v. Anderson, supra, with Massie v. Stradford, 17 Ohio St., 596; Taylor v. Leith, 26 Ohio St., 4; Buckner v. Mear, Ib., 514, and the latter decisions of this court upon the subject. Sheeful v. Murty, 30 Ohio St., 50; Dodsworth v. Hopple. 33 Ohio St., 16; Rankin v. Hannan, Adm'r, 37 Ohio St., 113. In Buckner v. Mear and Dodsworth v. Hopple, the authority of Smith v. Anderson is expressly limited to instances where the answer sets forth an equitable defense merely without asking affirmative relief.

In view of these cases it may be regarded as the s ttled law of this state, that while an equitable defense merely will not affect the mode of trial or right of appeal, yet an equitable cross-demand set forth by a defendant in a cross-petition upon which he asks affirmative relief, will draw to itself the mode of trial appropriate to such cause i f action, and give the same right of ppeal as it would do if set forth in a petition by the plaintiff in an action. The second question relates to the jurisdiction of courts of equity to relieve against mistakes of fact in the records of another court.

Jurisdiction to relieve against mistakes of fact in the rendition of judgments at law has been often exercised by courts of equity.

They, also, have assumed to correct clearly established mistakes in the terms of such judgments. The circumstances under which this jurisdiction has been exercised have varied with the cases in which it was inv ked.

And in none of them that have fallen under our observation are they similar to those in the case under consideration. Chase v. Manhardt, 1 Bland Ch. (Md.), 350; Ford v. Ford, Walker (Miss.), 505; Drew v. Clarke, Cook (Tenn.), 373; Brewer v. Jones, 44 Ga., 71; The County of Buena Vista v. R. R. Co., 49 Iowa, 657; Wilson v. Boughton et al., 50 Mo., 1; Barthell v. Roderick, 34 Iowa, 518; Boon et al. v. Miller's Ex'rs., 16 Mo., 457; Partridge & Co. v. Harrow & Harrow, 27 Iowa, 96; Hedge et al. v. Sims et al., 29 Ind., 574; Griffin v. Bixby, 12 N. H., 454; Lanman v. Crooker, 97 Ind., 164.

The cross-petition did not seek a correction of an error of judgment in the probate c'óurt; no ruling of that court was attacked on the ground that it was erroneous. Any attempt to do that must have failed; for the power to correct errors of law committed by other courts does not lie within the province of the courts of equity. Nor is it claimed that any mistake intervened by which land was sold, that the administrator did not intend to sell, or that any was sold which was not included in the order to sell. The controversy arose between different purchasers of separate parcels thereof. The mistake alleged in the cross-petition, when analyzed, was in fact that of the administrator; it was the result of inadvertence or carelessness by him or his attorney. His purpose was to cause the parcel in controversy to be appraised and sold with a tract of coal land, because it would be impracticable to mine the coal from the coal tract without transporting the product over the. former tract. It is alleged that these two tracts were in fact appraised together as an entirety, but that the return did not so state. It being the duty of the administrator to have this return state the truth, its failure to do so should be attributed to him. The return not only failed to state that the parcel of land in controversy was appraised with the coal tract, but instead stated that it was appraised with another parcel of surface which it adjoined. These two mistakes were necessarily carried into the records of the probate court. The administrator, supposing that the return of. the appraisement showed that the lands had been appraised according to his intention sold the coal tract and the parcel in controversy as one tract to the defendant in error who paid for both; the other tract he sold to the ancestor of the plaintiffs in error. The administrator in executing conveyances to these purchasers carried in the respective deeds made to them the same mistake that occurred in the return of the appraisement. Therefore, although the purchaser of the coal tract actually bought and paid for the parcel in controversy, it was in fact conveyed to the purchaser of the adjoining tract who had done neither.

Upon this state of facts it is clear that justice called for relief. A purchaser who had neither bought nor paid for a parcel of land, ought not in justice and good conscience to retain it -from one who had done both. This injustice would .have been accomplished by the judgment in this case, unless the mistake could be corrected. This correction must be invoked either by an application to the probate court, or by recourse to the equitable jurisdiction of the chancellor. In Stites v. Wiedner, 35 Ohio St., 555, this court sustained the jurisdiction in equity to correct a mistake in the proceedings of the court of common pleas for the appraisement and sale of real estate under a mortgage.

This case sustains the action of the circuit court now under consideration unless a full and adequate remedy could be had in the probate court. The correction could not be made by a nunc pro tuno order in the probate court, for that remedy is available only where the court has acted and its action not correctly recorded.

Here the administrator had neglected to procure the proper action, no act having been done, and left unrecorded, no grounds existed for asking a nuno pro tuna order. Neither the purchaser who complained of the mistake, nor the one who denied it, were parties to the proceedings in the probate court. If, however, the party complaining- of the mistake became, by reason of his purchase, so connected with the proceeding’s that he might have applied to the probate court to correct them, yet that court could not afford a remedy so complete and adequate as a court possessing general equity jurisdiction could give. We hold, therefore, that the cross-petition stated a cause of action for relief, the granting of which is within the general equitable jurisdiction, possessed by the circuit courts and the courts of common pleas of this state. Were this not strictly so, yet, in the case under consideration, an action had been begun to dispossess the defendants, and was pending in a courthaving complete jurisdiction in equity, and therefore' able to afford them full relief. To deny to such court, under such circumstances the power to grant full relief, and require it to send the parties elsewhere would contravene both the spirit and letter of our code of 'civil procedure, the principle purpose of which is to simplify proceedings in courts of justice by determining in a single action all the controversies arising between the parties that relate to the subject of the action.

Upon the trial of an issue to correct the records of a judicial tribunal on account of inadvertence and mistake therein, pertinent parol testimony may be received. Stites v. Wiedner, 35 Ohio St., 555; Hedge et al. v. Sims et al., 29 Ind., 574.

Doubtless all courts whose powers are invoked to correct mistakes, alleged to exist in judicial records will exercise those powers with due regard for the stability of judgments, and will require the mistake to he established by clear and convincing evidence before granting- relief upon that ground.

Judgment Affirmed.


author: Spear, J.

text:
    Knight et al. v. The State.
    Indictment— Ven-ue an essential element of section 7315, Rev. Stat.— Trial of county commissioners for entering into corrupt contract —Evidence of corrupt offer by defendants at another time, not competent.

    1. Venue is an essential requisite of an indictment. And where, in an indictment, there is a defect in failing to allege that the offense was committed at the county where the indictment is found, such defect is not cured by section 7215, Revised Statutes, which provides that “no indictment shall be deemed invalid * * * for want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; * * * nor for want of averment of any matter not necessary to bo proved ; nor for any other defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’
    2. Upon the trial of hn indictment charging that defendants, as ■ county commissioners, did, on the 3^ day of May, 1893, unlawfully, knowingly and corruptly, make a contract with certain architects for the making by said architects of plans and specifications for the erection of a court house, it is not competent for the state to give evidence of an offer made by defendants to another architect, April 8, preceding, to let to him the architect’s work on condition that he should pay them a money consideration therefor.
    [Decided March 31, 1896.]
    Error to the Circuit Court of Wood county.
    At the February term, 1891, of the common pleas of Wood county, an indictment was presented against the plaintiffs in error, Samuel Knight and James Gibson, and one Jacob Stahl, containing two counts, the first of which is as follows:

      “The State of Ohio, Wood county, ss.-
    “In the court of common pleas, Wood county, Ohio, of the term of February, in the year of our Lord one thousand eight hundred and ninety-five.
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Wood, impanelled, sworn and charged to inquire of crimes and offenses committed within the said county of Wood in the name and by the authority of the state of Ohio, on their oaths do find and present that Jacob Stahl, Samuel Knight and James Gibson, late of said county, on the 3d day of May, in the year of our Lord one thousand eight hundred and ninety-three, in said county of Wood and state of Ohio, were then and there the county commissioners in and for said county, having been duly and legally elected and duly qualified to perform the duties of said office of county commissioner during the term of office to which they had been severally elected, as aforesaid; that said Jacob Stahl, Samuel Knight and James Gibson had for a long time before said 3d day of May, A. D. 1893, been and for a long time thereafter continued to be the count}?- commissioners in and for said county, duly elected and qualified as aforesaid, and the said Samuel Knight and James Gibson still continue to be, and now are, county commissioners in and for said county, and are acting in that official capacity; that said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said Wood county, Ohio, acting in their said official capacity, did on said 3d day of May, 1893, resolve upon and declare their intention to erect a new court house in and for said county of Wood and state of Ohio, under and by virtue of the provisions of an act of the general assembly of the state of Ohio, entitled, ‘An act to authorize the commissioners of Wood county, Odio, to build a court house, ’ which said act was passed and took effect on the 2d day of February, A. D. 1893.
    “That thereupon on said 3d day of May, A. D. 1893, said Jacob Stahl, Samuel Knight and Janies Gibson, as such county commissioners of said county as aforesaid, did unlawfully, wilfully, knowingly and corruptly make and enter into a certain contract with a partnership then and there doing business under the firm name and style of Yost & Packard, whereby they employed the said Yost & Packard to make the plans and specifications for and supervise the erection of said new court house; that prior to said last named date, to wit: on the 28th day of February, A. D. 1893, the judges of the circuit court in and for said county of Wood, and state of Ohio, had duly and legally appointed Earl W. Merry, Frank A. Baldwin, Edward B. Beverstock and John Ault as the building committee, under and in accordance with the provisions of the aforesaid act of the general assembly of the state of Ohio, to act and vote with the aforesaid county commissioners in procuring, making and approving plans, estimates and specifications for said court house and in determining all questions in connection with the erection of said court house, all of which the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county, as aforesaid, unlawfully, knowingly, wilfully and corruptly failed, neglected, omitted and refused to act with the aforesaid building committee in the procuring of said plans and specifications for said court house, and unlawfully knowingly, wilfully and corruptly refused to permit the aforesaid building committee to' act with or to vote with them, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, in procuring the said plans and specifications for said court house, and in making the aforesaid contract therefor and unlawfully, knowingly, wilfully and corruptly prevented the aforesaid building committee from in any manner acting or voting or participating in the procuring of said plans and specifications for said court house and in providing for the supervision of the erection thereof, and they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners, as aforesaid, in the manner and by the means herein-before stated, and without the co-operation therein by the aforesaid building committee, did unlawfully, knowingly, wilfully and corruptly make and enter into the aforesaid contract with said firm of Yost & Packard, and caused the aforesaid plans' and specifications for said court house to be made by the said firm of Yost & Packard, and did commence and proceed with the erection of said court house, and did cause the work of the erection and construction of said court house to be done under the supervision of said firm of Yost & Packard.
    “And so the jurors aforesaid, on their oaths aforesaid, do find and say that the said Jacob Stahl, Samuel Knight and James Gibson, being county commissioners, as aforesaid, are guilty of misconduct in office in the manner and form aforesaid.
    “Contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”
    A motion to quash, a plea in abatement, and a demurrer to each count having-been overruled, a plea of not guilty was entered, a trial had, and a verdict of guilty on the first count returned, consideration of the second count having been withdrawn .from the jury. Sentence followed, which, as to the plaintiffs in error, was affirmed by the circuit court; the judgment as to the defendant Stahl being reversed. A reversal is asked by plaintiffs in error. >

      Cyrus EhMng and Parker c& Frier, for plaintiffs in error.
    The only allegation of venue in the indictment is, that the defendants were at the county of Wood the duly elected and qualified county commissioners.
    There is absolutely no attempt to lay a venue for this offense, and venue lies at the basis of every indictment, for venue determines the jurisdiction of the court. Nor can this defect be cured by any provision of law defining the duties and powers of the county commissioners, for in this matter they cannot be presumed to have followed the law, as they are expressly accused of violating it. The rules of criminal pleading require that the words “then and there,” be repeated before' every issuable fact where venue is once laid, or demurrer lies. State v. Finch, 3 W. L. M., 82. Nor has this rule of pleading been superseded by the statute. Ellars v. State, 25 O. S., 385; Lamberton v. State, 11 O. S., 282.
    There is no allegation in the indictment as to where the defendants did the acts constituting the alleged offense. That they were commissioners of Wood county; that they were acting upon contracts pertaining to the building- of a court house in Wood county, etc., is stated with great precision; but when it comes to the acts constituting the alleged offense, i. e., the employment of the architects, etc., there is not the slightest reference to the place where the acts were done, either by a “then or there” or otherwise. It will not do to infer that it was done where the commissioners should act when acting officially, and lawfully. Obliging the defendants to go to trial did not deprive them of the right to insist upon' this point, though the proofs showed that the act was done within the jurisdiction.
    Again, if the acts were done in another county •the offense (if any) would consist of a mere attenvpt to make a contract or to employ architects, which miscarried because the commissioners could not make a lawful contract except at the office of the auditor in their own county. Whether they were to be put on trial on a charge of such abortive attempt, or for doing the act effectively (so far as their authority went), they had a right to know. Rev. Stat., 7215. 1 Arch. Crim. Proc. & Pl. pp. 280, 281 and notes. 1 Bish. Crim. Proc., sections 407, 408, 414. Wharton’s Crim. Proc. & Pl., sections 120, 131, 132, 133, 134, 146, 150. 12 Allen, 145. The rules require that the time and place of every act essential to the crime shall be stated. The indictment states that the acts were corruptly done. This is doubtless necessary. Hatch v. Sheriff, 2 C. C., 163.
    But there is no act óf corruption or fact from which a conclusion that the act was corrupt, charged in the indictment.
    Exceptions to admission or rejection of evidence.
    The crime charged here is (1), that the defendants made this contract knowing they had no legal right to do so, and (2), that they did so with a corrupt motive. It cannot be claimed that this evidence is of part of the res gestae. It is as separate a transaction as the attempted shooting of a person on April 8, and the actual shooting of another person on May 3. Nor is it competent as showing intent or motive. In this view it could only reflect on a motive which is corrupt by its terms. If one kill another with a deadly weapon, is it competent to prove he killed another with the same weapon in order to prove he knew it was deadly ? If one accept a bribe, is it necessary to prove he knew it was wrong, or competent to prove it by showing other bribe takings ? Barton v. State, 18 O., 221. Cable v. State, 31 O. S., 100. Farrer v. State, 2 O. S., 54. Snurr v. State, 4 C. C., 393.
    “The principal act in this case, the corrupt bargain with Yost & Packard, must be first proved in order to admit the illustrative act.” Wharton Criminal Evidence, par. 45 and notes. Stephens on Evidence, part 1, 'chap. 3.
    We contend that leaving out the Weary evidence, or limiting it to any proper office it may have in the ease, there is such an entire absence of evidence of guilt as entitle the defendants to a reversal. Walley v. Stanley, 39 O. S., 354. Turner v. Turner, 17 O. S., 449. Potter v. Potter. 27 O. S., 84. Ford v. Osborn, 45 O. S., 1.
    The general rule that evidence must be confined to the issue, and fact that reasons for strict enforcement are stronger in criminal than in civil cases — stated. Bradner on Ev., p. 9. Rule and apparent exceptions (which are shown to not be exceptions, but within the rule), stated. Green-leaf, Ev., sections 51 to 53, inclusive Wharton’s Crim. Ev.. sections 29 to 48, inclusive.

      Definition of term “relevant.” Reynold’s Steven’s, Ev., p. 5. Rules and Illustrations, pp. 18, 19. Farra v. State, 2 O. S., 54, 72, 73, 74, 75, 76. Cable v. State, 31 O. S.,100. Barton v. State, 18 O., 221.

      A. B. Murphy, prosecuting attorney, for defendant in error.
    The venue being once laid, repetition is unnecessary. R. S., section 7225, Stat. of Jeofails. The only place this act complained of could be performed by the commissioners, was in Wood county, Ohio. The indictment charg’es that at the time they made this contract for the employment of the architect and the supervision of the work, they were the duly elected, qualified and acting county commissioners of Wood county, Ohio, and made the contract as such acting commissioners. The only possible place where they could make it was in Wood county, Ohio. R. S., sections 846-7-8-9 and following, provide where and how the commissioners shall proceed. By every reasonable rule of construction, saying nothing about the statute of Jeofails and the preliminary statement of time and place, the indictment charges that the act complained of was done in .Wood county, Ohio.
    The “Weary Evidence” was proper to show motive. The contract about which the commissioners were talking to Weary was the same contract which they soon afterwards let to Yost & Packard. The state sought to show the reason why the commissioners ignored the building committee and refused to act and vote with them. What could show their motive better than to show that they had tried to sell out this contract for a bribe? Suppose that they had gone to various architects just previous to the letting of the contract to Yost & Packard and solicited bribes for the contract, would it not furnish a very lucid explanation of why they wanted to get rid of the building committee? It most certainly, it seems to us, would be proper evidence as to their reason and motive in not desiring to act with the building committee. Because the state proves but one such solicitation, does not render the evidence less competent. We contend that the Weary evidence shows the real reason why the commissioners violated the special act and ignored the building committee, as the indictment charges that they did. It shows a motive in their own minds for desiring the seclusion of their own number rather, than the company of the building committee. The state did not claim that the contract, made with Yost & Packard was fraudulent, in that the commissioners received a bribe from Yost & Packard, but only that it was fraudulent because made without permitting and while refusing to permit the building committee to take part in the making as provided in the special act. But the state did claim that it was with corrupt intentions that the commissioners took this contract into their own hands without the knowledge or consent of the building committee, and the Weary evidence was offered to show that such was the case. If they had solicited a bribe from Yost & Packard, for this contract evidence of that solicitation would have been competent to show the reason for their desire to get rid of the committee. Because the bribe was solicited from another renders the evidence no less competent. Suppose that upon Monday the commissioners, saying nothing to the building’ committee, had gone with this contract to an architect and offered to let him have it if he would pay them three thousand dollars, and he had refused, and upon Tuesday they had gone to another with the same proposition and the same result, and so on for five days of the week, and upon Saturday, having concluded that it was impossible to sell it, they had gone to Yost & Pack- and let it to that firm, would not 'evidence of these transactions of the week be competent to show their purpose in saying nothing to the buildingcommittee? 15 Am. & Eng. Ency. Law, 936, 3d Rice on Evidence, 459-4 and notes. Stephen on Evidence, page 43, article 2d, and notes.
   Spear, J.

The indictment is founded on section 6915, Revised Statutes, which reads as follows: “Whoever, being a county commissioner, is guilty of any misconduct in office, shall be fined not more than four hundred dollars, and forfeit his office, ”

Many questions arise upon the record, but we find it necessary to consider only that relating to the sufficiency of the indictment, and two of those relating to the competency of testimony.

1. The indictment. Is venue sufficiently alleged?

The indictment shows that it. was found by the grand jury of Wood county, and presented to the court of common pleas of that county; that the jury had been empanelled, sworn and charged to inquire of crimes and offenses committed within that county; and that the defendants, late of that county, were on the 3d day of May, 1893, then and there county commissioners in and for that county, duly elected and qualified, etc. Then follow allegations to the effect that defendants, as such commissioners, on the 3d day of May, 1893, declared their purpose to erect a new court house in and for the county of Wood, etc., and that “thereupon, on said 3d day of May, A. D. 1893, said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners as aforesaid, did unlawfully, wilfully, knowingly and corruptly make and enter into a certain contract with a partnership then and there doing business under the firm name and style of Yost & 'Packard, whereby they employed the said Yost & Packard to make plans and specifications for and supervise the erection of said new court house,” etc. Nowhere in the instrument is there any allegation that the offense was committed in the county of Wood. Indeed, every allegation of the indictment might be fully proven as stated, had the entire transaction occurred outside the limits of the county, and for that matter the state.

It is elementary, we suppose, that an indictment, in order to be sufficient, must aver, with reasonable certainty, all the material facts necessary to a conviction. Nothing is to be left to intendment or inference which is necessary to prove in order to make out the crime. State v. Philbrick, 31 Maine 401; U. S. v. Hess, 124 U. S. 483 ; Am. Eng. Enc. of Law, vol. 19, p. 566, and authorities cited.

Venue is one of the essentials of an indictment for a number of reasons. One is that it must appear that the court to which the indictment is presented has jurisdiction of the offense. Another that the defendant may be informed of the charge in this respect so that he may be prepared to meet it. A third is that the judgment may be pleaded in bar to any second indictment for the same offense. The State v. Cotton, 4 Foster, 143; Bishop’s Crim. Proc., p. 225. And that the prosecution must be had in the county where the unlawful act was committed, was held by this court in the recent case of The State v. Knight et al., 35 W. L. B., 175.

It is insisted by counsel for the state that venue suffiicently appears, and that whether it does otherwise or not, it must be inferred that the criminal acts were committed in the county of Wood because it is charged that the defendants made the contract as county commissioners, and the only possible place where such a contract could be made was within the county of Wood. If it were conceded that the commissioners could not legally make such a contract outside the limits of Wood county, yet it would not follow as a legal conclusion that the transaction did not occur outside the county, for manifestly the acts were such as it was possible to commit without the county; especially does it not follow in view of the character of the prosecution. As pithily observed by counsel for plaintiff in error: “ They 'cannot be presumed to have followed the law, as they are expressly accused of violating it. To infer that they acted lawfully in this respect in order to support a charge that they acted unlawfully in another respect would be a strange application of legal presumptions. ’ ’

But, be'this as it may, the claim cannot be maintained for, as already stated, the indictment must be explicit, and leave nothing to mere inference. Am. & Eng. Ency. of Law, vol. 10, p. 567; Phipps et al. v. The State, 22 Md., 380; The State v. Seay, 3 Stewart (Ala.), 123; Smith v. The State, 21 Neb., 552; U. S. v. Morrissey, 32 Fed. Rep. 147.

It is further argued that, even though the indictment might not he good at common law, yet it is saved by section 7215, Revised Statutes, called the statutes of Jeofails. The clauses of that section which bear relation to this question are these: “No indictment shall be deemed invalid * * * for want of an allegation of the time or place of any material fact, when the time and place have been once stated in the indictment; * * * nor for want of averment of any matter not necessary to be proved; nor for any other defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ”

The proposition is not tenable. If allegation of place of the offense had “ once been stated in the indictment,” then by proper incorporation of “then and there” at other places where allegation of place is wanting, the requirement of certainty might have been assumed, but we have found that the instrument is barren of any allegation of place. Now, can it be said that the place of the offense, i. e., the county, was not necessary to be proven, for how could a conviction be sustained without it? Neither can it be said that the question of [place did not affect the substantial rights of the defendants, for how, if not alleged, could they intelligently prepare their defense, or how could the record serve the defendants as a bar to a second prosecution for the same offense ? In general terms it may be said as to this defect that the indictment fails to aver' all the material facts necessary t<? a conviction. Lamberton v. The State, 11 Ohio, 282. And such failure is fatal, as well since the statute as at common law. Ellars v. The State, 25 Ohio St., 385. The demurrer to the indictment should have been sustained. It was error to overrule it.

2. Evidence. Against objection and exception by defendants, the state was permitted to introduce testimony tending to show that on the 9th ' day of April, 1893, at Akron, in Summit county, the defendants, Knight and Gibson, proposed to one Weary, an architect, to let the architect’s work on the proposed court house to him for a money consideration to be paid by him to the defendants. If made out, this was a violation of section 6900, Revised Statutes, which makes it an offense for an officer to solicit a bribe. In other words it was - an attempt to prove a distinct offense, committed at .another time, in no way connected with the charge in the indictment.

This charge, the trial court assumed, was naturally separable into two phases respecting the motive inducing the conduct of the commissioners into making the contract with Yost & Packard. One involved the element of corruption from a hope or expectation of personal g’ain; the other the element of culpable, narrow-headed stubbornness. The first was practically eliminated by the charge as will be shown more fully further on; and to the other the court charged the jury as follows: “If a law which charges a duty upon a public officer is disobeyed and violated by him from passion or prejudice, or from a spirit of wilful, improper opposition, that is just as corrupt as if he had in violation of existing law, acted from a money consideration. ” The contention of the state is that the testimony was relevant to the latter theory; that it tended to make manifest the motive of the commissioners in dealing with Yost & Packard; to illustrate and give color to their acts; while the claim of the plaintiff in error is that it was not competent as applied to either phase of the case.

It is fundamental, as a general proposition, that proof of one offense is not competent in order to prove that the party committed another distinct, unrelated offense. Such facts are regarded as collateral.. A reason for the rule excluding testimony of collateral facts is given by Prof. Greenleaf, volume 1, section. 52: That such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it. ” And yet there are cases where such evidence is admissible, although it may tend to prove the commission of another crime, being in the nature of exceptions to the general rule. One frequently met with in practice is that of admitting such testimony where proof of scienter is necessary, as in the case of passing other counterfeit money in order to show that the party knew the money, the subject of the crime, was counterfeit. Another instance is where the occurrence charged and the one sought to be proven were parts of a single crime, connected by unity of plot and design, and thus in effect one transaction. So, too, such testimony is sometimes admitted in order to show a motive in the mind of the accused inducing the crime charged, as in case of murder by a husband of his wife, proof of adultery with a paramour is admissible in order to show motive prompting the guilty party to get rid of the victim; although in such case it would hardly be claimed that evidence of the killing of a former wife could be admitted to show a tendency on the part of the accused to kill his wives. Other exceptions are recognized, but it is not necessary to pursue the inquiry further in that direction here. The subject is discussed more or less in the following text books and cases: Barton v. The State, 18 Ohio, 221; Farrer v. The State, 2 Ohio St., 54; Brown v. The State, 26 Ohio St., 176 ; Coble v. The State, 31 Ohio St., 100; Commonwealth v. Tuckerman, 10 Gray, 173; The State v. Lapage, 57 N. H., 245; The People v. Sharp, 107 N. Y., 427; Wharton’s Crim. Ev., par. 45 and notes; Commonwealth v. Campbell, 7 Allen, 541.

One thing is apparent in the case before us.. The testimony was, on its face, open to thé objection that its admission would violate the well-established sanction of the law already adverted to. Therefore it was incompetent unless it should be brought clearly within one of the recognized exceptions.

It is difficult to see how the conversation with the witness Weary, as bearing upon the .ease on trial, tended to show more than a desire to be bribed. Equally difficult is it to perceive why evidence of any other like dishonest act would not have the same effect, and would not have been equally competent. The natural inference drawn by the jury would be that these persons, being shown to be of evil mind, probably committed the offense charged, and. this would be clearly inadmissible. How, in reason, could the testimony be said to bear upon their knowledge that their acts in entering into the contract with Yost & Packard were unlawful? Or, would the temptation to accept a bribe be stronger when presented in the making of a contract which the parties knew they had not authority to make than it would be when connected with a contract otherwise lawful? And how, we inquire, unless this were so, could the testimony serve to illustrate or give color to the charge of passion, prejudice or a spirit of wilful opposition, since it tended to disclose a state of mind apparently in no way related to this condition and purpose? At best, the relevancy of this testimony is matter of very serious doubt. In such an aspect of the question it is always safer to exclude; A majority of the court is satisfied that the testimony did not fall within any recognized exception to the general rule, and should not have been admitted.

But if there should remain doubt as to the claim of error in admitting the testimony for some purpose, there seems no room to doubt that it was left to the jury in a way to be used for an improper purpose. Both counsel for the state, and the court, informed the jury that there was no claim that Yost & Packard were in any way guilty of wrong-doing, the lauguage of the court on that point being: “It has already been stated in the trial, by counsel for the prosecution, and very properly under the evidence submitted, that it is not claimed by the state that the contract made between the defendants and Yost & Packard was corrupt,” etc. Logically, this left the transaction with Weary to bear alone upon the other phase of the case. But this the jury might not, and probably would not, understand. It was, therefore, the duty of the court, having admitted the testimony for the purpose, as argued, “of showing motive in their own minds for desiring the seclusion of their own number rather than the company of the building committee,” to limit it to that consideration in the charge to the jury. This was not done. In the charge this language appears: “Incase you find the defendants did act unlawfully as charged in the indictment, then whether the same was done knowingly, wilfully and corruptly, the jury, must determine from all the evidence and circumstances found in the case;” and this is in no way qualified in other parts of the charge. This left it to the jury to make use of the Weary incident that in their judgment was proper; to conjecture, if they were so minded, that the defendants had made a corrupt arrangement with Yost & Packard for a similar unlawful reward, and in general to treat it as tending to prove the commission of the offense charged. This could not fail to be prejudicial to the defendants. Whether or not this omission, had the testimony been competent for any purpose, would be error which the defendant could take advantage of, not having requested a charge limiting the effect of the testimony, is not important, as a judgment of reversal must follow in either view.

Against objection and exception there was admitted, and read to the jury, a protest, dated July 27, 1893, signed by three members of the building committee, and entered on the auditor’s journal, declaring the action of the commissioners illegal, and protesting against it. This action of the committee, having occurred long after the alleged offense of the commissioners, could have had no proper bearing upon the question of their guilt or innocence, and its admission, though. probably not of much consequence as evidence, was clearly erroneous.

For the foregoing errors the judgments below will be reversed and the cause remanded to the court of common pleas with direction to sustain the demurrer to the indictment and for further proceedings according to law.

Reversed.