author: Spear, C. J.

text:
    The State of Ohio v. Barlow.

      Selecting and drawing juries — Manner of concerns public rather than parties in cause — Law for choosing jury in force at commencement of prosecution — Amended to provide different mode of selection — Not error for court to ■overrule challenge to array of jurors — Selected under new law — Section 79, Revised Statutes.

    1. The manner of selecting and drawing juries concerns the public rather than the parties in a cause. The statutory provision therefor relates neither to the right of a party as to the merits, nor to the remedy for the vindication of that right, within the meaning of section 79, Revised Statutes.
    2. Where, at the time of the commission of an.offense the statute respecting the selecting and drawing of juries provides for a commission of three freehold electors for selecting the names, and that the jurors shall be drawn from the wheel in the presence of the court, or a judge thereof, and the clerk and sheriff, and is, after the commencement of the prosecution and before trial, amended so as to provide for a commission of four freehold electors, and that the drawing may be had in the presence of the clerk and sheriff only, the former law-being repealed, it is not error for the trial court to overrule a challenge to the array of jurors selected under the last cited act based on the ground that the jurors for the trial of that prosecution should have been selected under the provisions of the law in force at the time of the commission of the offense.
    (No. 8865
    Decided June 21, 1904.)
    Error to the Circuit Court of Franklin county.
    At the April term, 1902, of the court of common pleas of Franklin county, the defendant in error, George T. Barlow, was indicted for the crime of embezzlement charged to have been committed the nineteenth day of the preceding February, the defendant being then in custody by force of an order of commitment by the police court of Columbus, dated March 5, 1902. On the twenty-second day of the following October another indictment was returned in the same court charging the same offense-committed at the same time. The cause being at issue, on March 9, 1903, a jury was called to try the-indictment of October 2, 1902, to which jury the defendant interposed a challenge to the array, which challenge being overruled, the cause proceeded to-trial. The defendant was found guilty and sentenced to the penitentiary. On error prosecuted to-the circuit court that court reversed the judgment- and sentence on the ground that the trial court erred in overruling the challenge to the array. The state-brings error.

      Mr. E. L. Taylor, Jr., prosecuting attorney; Mr.. A. T. Seymour, Mr. Ifarl T. Webber and Mr. Wilbur E. King, assisting prosecuting attorneys, for plaintiff in error.
    The contention of the defendant in error is, that, he should not have been put to .trial under the act of September 30, 1902; because the crime which he is-alleged to have committed is .alleged to have been committed on the nineteenth day of February, 1902,. and that he is entitled to be put to trial under the-jury law in existence at that time; and he brings to-the support of this proposition the following: section 79, Rev. Stat.; Hartnett v. State, 42 Ohio St., 568; Palmer v. State, 42 Ohio St., 596; Bach v. State, 38 Ohio St., 664.
    The application of section 79, Revised Statutes, must rest upon the hypothesis that the selecting and. drawing of jurors is a remedy of a party to a cause: or proceeding; that section 79 and the act of September 30,1902, are in pari materia, and that wherever the provisions of section 79 are repugnant to the act of September 30, the later act must yield to said section.
    The selecting and drawing of jurors is not a remedy of a party to a cause or proceeding. We contend that the selecting and drawing of a juror is not a remedy of a party to a cause. That the selecting and drawing of jurors is a matter of public concern in which the parties to an action have no more interest than any other member of society. The selecting and drawing of jurors is not made with a view of giving the defendant a right or remedy. It is done for the purpose of distributing and equalizing the burden of jury service. Huling v. State, 17 Ohio St., 589; State v. Thomas, 61 Ohio St., 449.
    Section 5189<ü, Revised Statutes, the section under which this defendant in error claims the jury •should have been drawn to try him, in its provisions designate the clerk of the court, the sheriff and the judge, as persons who shall be present when the •drawing of the jurors take place.
    Under this section nor any other section of the jury law under which he claims, the defendant in error had no right to be present either in person or by counsel; he had no right to say in what manner -the jury should be drawn.
    The only difference there is between section 5189i and section 5165 of the act of September 30, 1902, is that this later statute provides that the clerk shall turn the wheel and proceed to draw the names from the wheel in the presence of the sheriff. This change was brought about for the convenience of the court, because in some judicial districts it was found very difficult for the court to he present when the names were drawn from the wheel. But what possible difference can this make to the defendant? Before he can complain some substantial right must be affected. •
    We further contend that the provisions of section 79 do not control the act of September 30,1902. The attempt here, to first claim that section 79 and the act of September 30, 1902, are in pari materia, and then because of their repugnancy force the act of September 30, 1902, to yield in section 79- violates every canon of statutory construction.
    It is a well settled rule of long standing that “Where the last statute is complete in itself, and intended to prescribe the only rule to be observed, it will not be modified by the displaced legislation, as laws in pari materiaSutherland on Statutory Const., sec. 286.
    The language and intent of the act of September 30,1902, requires that the policy of section 79 should be disregarded.
    We are aware that courts will not look with favor on repeals by implication. But if the statutes are flatly contradictory to each other the later repeals the former. Work v. Massie, 6 Ohio, 504; Commissioners v. McComb, 19 Ohio St., 321.
    By the provisions of section 7276,'Bevised Statutes, it is apparent that section 79, Bevised Statutes, is not intended to affect the selecting and drawing of jurors. Sutherland on Statutory .Construction, sec. 238.
    If the court holds that the selecting and drawing of jurors is not a remedy of a party then section 79 and the act of September 30, 1902, are not in pari

      materia, and all difficulty vanishes. If the court holds that the selecting and drawing of jurors is a remedy of a party under the act of September 30, 1902, or the jury law for other than capital offenses as it existed prior to the act of September 30, 1902,. then every person who is accused of crime committed before September 30, 1902, and who have not been tried can not now be tried because there is no law under which a jury may be selected and drawn to try him. This it seems to us is the dangerous consequence to be avoided in construing section 79, if it is to be considered in pari materia with the act of September 30,^1902. And the mere fact that it incidentally relates to the same subject matter is not sufficient to hold it in pari materia.

    The court below rested its opinion upon the case of Bach v. State, 38 Ohio St., 664. We see no analogy between this case and the case at bar. The only proper question to be made here is whether or not the defendant in error had substantial justice in the trial in the court of common pleas?
    Slight changes in' the jury law not affecting the substantial rights of the defendant in error; not changing the course of justice is not sufficient to sustain a finding of prejudicial error.
    Whatever substantial rights the defendant in error has they are given him by the constitution and the statute in express terms. And unless he can show some prejudicial error in the selecting and drawing of jurors under the act of September 30, which was the only jury law in existence at the time he was tried, he has no right to complain. Reed v. State, 15 Ohio, 222.
    In their reply to the brief of defendan' in error the counsel for plaintiff in error also cited and com.mented upon:

      Dolan v. People, 64 N. Y., 485; The People v. Petra, 92 N. Y., 128; Huling v. State, 17 Ohio St., 589; State v. Thomas, 61 Ohio St., 446; South v. State, 86 Ala., 619; Hawes v. State, 88 Ala., 37; Perry v. State, 9 Wis., 21; State v. McClear, 11 Nev., 55; State v. Collyer, 17 Nev., 275; Jesse v. State, 20 Ga., 164; Cooley’s Constitutional Limitations, 329.

      Mr. M. B. Earnhart; Messrs. Sater & Sater; Mr. •Geo. S. Peters and Mr. Jas. A. Allen, for defendant in error.
    Where a prosecution has commenced and the statute then in force relating to the selection of jurors is repealed, and, before the accused is brought to trial, a new trial is enacted in its stead, the jurors •should be selected under the law in force at the time • of the commencement of the prosecution, unless it be •otherwise expressly provided in the new law or its repealing clause.
    The court is not concerned with the question that, if the circuit court be sustained, Barlow cannot be tried at all because there is no law under which a jury may be selected and drawn to try him. That is a question which should have been addressed to the legislature at the proper time. The court simply interprets the laws as it finds them, nor will it be the first instance in which, if our contention is sustained, an action fails, or a right is lost, or an accused goes free, because the statute affords no remedy, or the legislature has blundered.

      Gompf v. Wolfinger, 67 Ohio St., 144, furnishes an .illustration of the sacrifice of the rights of litigants through “inadvertence” of the legislature, and of the inability of this court to restore the party whose rights were lost to his former condition.
    It is immaterial whether the act of September 30, 1902, is remedial in its nature or otherwise, because that act contains no express provision referring to pending prosecutions. Railroad Co. v. Hedges, 63 Ohio St., 339; Shuman v. Drayton, 8 Circ. Dec., 12; 14 O. C. C., 328; Cincinnati v. Davis, 58 Ohio St., 234; Ham v. Kunzi, 56 Ohio St., 538; Chinn v. State, 47 Ohio St., 579; Gilleland v. Schuyler, 9 Kan., 569.
    Instances are not wanting in which states having a statute similar to section 79, Revised Statutes, and desiring to control the mode of procedure in the trial of cases by amendatory or repealing statutes, have expressly provided in such amendatory and repealing statutes that the mode of procedure in the trial of pending cases shall be in accordance with their provisions. Bernier v. Becker, 37 Ohio St., 74; Hartnett v. State, 42 Ohio St., 568; Frazier v. State, 23 Ohio St., 551; Palmer v. State, 42 Ohio St., 596.
    The act of September 30, 1902, was not intended to have and did not have a retroactive effect and did not extinguish Barlow’s right to the selection of a jury according to the previously existing law — a right both sacred and valuable. It contained no provision making it applicable to pending actions, prosecutions or proceedings, and therefore the repealed statute, and not the new or amended statute, applied (State v. Rabbitts, 46 Ohio St., 183). It was wholly prospective in its operation. It had no effect whatever on Barlow’s rights, nor did it enlarge those of the state. His right to a trial by a jury selected under the law in force at the time the prosecution be'gan had already vested by virtue of the proceeding instituted against him in the police court and the indictment returned at the April term, 1902.
    The accused had a right to a trial by a jury selected in the precise manner provided by the law, applicable to his case. Bach v. State, 38 Ohio St., 664.
    This same doctrine is announced in State v. Thomas, 61 Ohio St., 461, in which Judge Williams held that mere irregularities in the correct mode of procedure are reached by challenge.
    Irregularities in selecting and drawing grand ju.rors which do not relate to or affect their personal qualifications must and may be taken advantage of, if at all, by challenge for cause. Doyle v. State, 17 Ohio, 222; Huling v. State, 17 Ohio St., 583; Wilson’s Ohio Criminal Code, 696; State v. Collyer, 17 Nev., 275; State v. McNamara, 3 Nev., 70; State v. Williams, 5 Port. Ala., 130; Dutell v. State, 4 Greene (Ia.), 125.
    That a grand jury must be such as is exactly prescribed by law appears from People v. Thurston, 5 Cal., 69, in which an indictment was held worthless because it was returned by twenty-three instead of .twenty-four grand jurors. Brazier v. State, 44 Ala., 387; People v. Ah Lee Doon, 97 Cal., 171; Borrelli v. People, 164 Ill., 549; Mitchell v. Likens, 3 Blackf., 258; Mitchell v. Denbo, 3 Blackf., 259; Jones v. State, 3 Blackf., 37; State v. Jenkins, 32 Kan., 477; Wright v. Stuart, 5 Blackf., 120; Powell v. People, 5 Hun., 169; McCloskey v. People, 5 Park. Crim. Rep., 310; Brown v. Commonwealth, 73 Pa. St., 321.
    In Kittanning Ins. Co. v. Adams, decided under the same law as the last case, supra, the failure to seal the jury box at all was sufficient cause for quashing the array. Baker v. The Steamboat Milwaukee, 14 Ia., 221; People v. Labadie, 66 Mich., 702; Gott v. Brigham, 45 Mich., 428.
    The difference between the two laws is not slight.: Bnt if they are not great, the foregoing authorities-, show that they are fatal.
    Counsel for defendant in error also cited and com-; mented upon: ': ,

      Hawes v. State, 88 Ala., 37; Insurance Co. v. Myers, 59 Ohio St., 332; Hays v. Olentangy Park Co., 24 O. C. C., 354; Perry v. State, 9 Wis., 15; State v. McClear, 11 Nev., 55; State v. Collyer, 17 Nev., 275; Jesse v. State, 20 Ga., 156; Stevens v. State, 3 Ohio St., 453.
   Spear, C. J.

Whether the defendant should J^ave been tried by a jury selected under the act providing for the appointment of jury commissioners and the selection of jurors passed September 30; 1902, or by a jury summoned under the provisions of the act relating to the selection of jurors in force át the .timé the crime was committed and the prosecution begun, is the question principally argued.It was the opinion of the circuit court, and is the contention .of counsel for defendant in error here, that a jury to try the indictment should have been selected in conformity with the provisions of the latter act, and that therefore the overruling of the challenge to the array was erroneous. This contention rests upon the ground that while the act of September 30,1902, in terms repealed the former law, it did not provide that the new act should apply to pending prosecutions, and that by force of section 79 of the' Revised Statutes the old law was as to this prosecution still in force. It is urged that Barlow had a right to be tried under the law which existed at the time the prosecution against him was commenced, and that the act of September 30, 1902, did not abrogate any of his existing rights.

Two questions, therefore, arise: 1. Was it error to overrule the challenge to the array? 2. Was the overruling of the challenge prejudicial?

The difference in the two acts to which attention has been called relates to the number of commissioners to select the names to be placed in the wheel, and the persons who are to be present when the jury is drawn. Under the old law the commission for the selection of names was composed of three freehold electors and the court, or a judge thereof, must be present with the clerk and sheriff when the drawing was done; under the later act the commission was composed of four freehold electors, and the clerk and sheriff only are required to be present when the names are drawn from the wheel. The duty of turning the wheel and drawing therefrom the names of jurors is devolved upon the clerk by both acts alike, and the sheriff is required to be present by the provisions of both. If a person accused of crime has a vested right in the manner provided by the state for the selection of juries then this defendant’s rights were invaded by the refusal of the court to sustain his challenge. That such right exists is strenuously insisted upon in argument, but we find no good reason in the briefs of the learned counsel presented in support of the contention. If the change in the law made that criminal which before was not unlawful, or if the new act in any way made it more difficult for the defendant to be guaranteed an impartial jury, or more easy in any way for the state to procure a conviction, or more difficult in any way for the defendant to overturn the case made by the state against him, then there would be force in the proposition of a vested right. But no such result follows the change in the remotest manner. It wholly relates to the machinery by which the proper persons to serve as jurors are to be obtained; the qualifications of the persons selected are to be the same; all the tests of fitness and all challenges for cause are fully preserved. As well remarked by Welch, J., in Huling v. The State, 17 Ohio St., 583: “It is important to the defendant that he should not be subjected to a trial except upon an indictment found by a jury composed of good and lawful men; but, provided they are such good and lawful men, it is a matter of no interest to him in what manner they are selected and drawn. The manner of selecting and drawing jurors concerns the public rather than the parties to a cause, provided only that irregularities therein do not result in placing .in the box jurors who are disqualified. It seems to us, therefore, that the provisions of law for the.selection, distribution and drawing of jurors, should be regarded as directory, rather than as mandatory and indispensable. They were intended for public convenience, and to equalize the burden of jury service, as well as to insure the selection of competent jurors.” In that case the pleas interposed for the defendant were in abatement on account of divers alleged irregularities in the selection of the grand jury that found the indictment. The overruling of the pleas was sustained by this court, the court holding that the question could not. be made by such pleas, and added that: “Whether they set forth a good cause for challenge to the jury, need not now be decided.”

Section 79 of the Revised Statutes, much relied upon, provides that: “Whenever a statute is repealed or amended, such repeal or amendment shall iñ nó manner affect pending actions, prosecutions or proceedings, civil or criminal; and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed.” To have effect, therefore, upon a prosecution pending, the amendment must affect either the right of'a party to his cause of action or to his defense, or the remedy already existing for enforcing that right or making good that defense. It means, we suppose, that the general assembly may not, by new legislation, destroy or impair vested rights; and if it undertakes to change the remedy by which those rights are to be enforced so as to affect pending prosecutions, it must express that purpose: If we are correct in the conclusion above stated, nothing moré need be said respecting the first clause of this section, for it is clear that if no vested right of the defendant has been impaired by the change in the law then the change in no manner affects the pending prosecution. And as to the matter of remedy it cannot be said that the mere beginning .of a suit gives the party a vested right in any special form of remedy or entitles him, to have the same conducted at every stage according to the course of procedure which was prescribed by law when the suit was commenced. The rule is well settled by repeated adjudications that no one has a vested interest in any particular remedy for the enforcement of a right. The remedies which one legislature may have prescribed a subsequent legislature may modify provided a substantial and adequate remedy is left. But does the amendment, relate to the remedy at all? We think it does not. The change relates to certain processes of the law necessary to initiate and keep in motion the machinery which the law provides for the administration of justice, not the administration of justice in this class of prosecutions alone, but the general administration of justice, civil as well as criminal, while the term “remedy” within the meaning of the statute, is the means employed to enforce a right or redress an injury; that is, the legal mode for enforcing a right or redressing or preventing a wrong. To illustrate: we speak of the remedy for nonfulfillment of contract as an action, under the old practicé in assumpsit, covenant, debt, detinue, or in tort if the injury is to the individual, and the like, and under the code, the civil action embracing all of these; while in criminal prosecutions the remedy is by indictment; or information, or, in some minor offenses, by compláint before a magistrate. But in the trial of indictments the remedy no more relates to the manner of the selection of juries than to the manner in which the judge who may be called on to preside at the trial shall be selected. His relation to the interests of the party is just as important as is that of jurors, and if a party may object that the jurors empaneled to try bim have not been selected by the same jury commission that was empowered to act when the crime was committed, or that the persons required to be present at the drawing are not the identical persons who would have attended had the jury been drawn under the former law, why may he not object that the judge is incompetent to sit if it happens that he may have been, by reason of some late act of the legislature which has worked a change in the judicial subdivision, elected by a constituency in part composed of different electors from those who would have had the right to choose a judge at the time the crime was committed, or because the judge may have been chosen under an election law different from that in force at the time of the commission of the crime and the commencement of the prosecution? If this effort at fine sighting is to prevail we may next expect that some aátute and vigilant defender of “innocence” will be insisting that his client’s vested rights have been overthrown because in the appointment of the court bailiff who waits upon the jury due formality has not been observed, or because the court was held in a different building or room from that formerly, used for the holding of'court, or because the clerk has not kept his journal with the same precision and good taste as formerly, or because the court crier has. not observed the ancient formalities in opening or adjourning the court. There is no point to which absurdity may not be carried when we start on the quest of technicalities.

That the term “remedy” should be construed in its comprehensive sense rather than in the minute sense which counsel insist upon, is, we think, abundantly shown by comments of law writers on the subject. Prof. Black, in his Law Dictionary, 1019, gives this: “Remedy. Remedy is the means by which the violation of a right is prevented, redressed or compensated. Redresses are of four kinds: 1. By act of the party injured, the principal of which are defense, recaption, distress, entry, abatement, and seizure; 2. By operation of law, as in the case of retainer and remitter; 3. By agreement between the parties, e. g., by accord and satisfaction and arbitration; and 4. By judicial remedy, e. g., action or suit.” See, also, 2 Bouvier, 870; Castle’s Case, Cro. Jac., 644; Stephens v. Watson, 1 Salk., 45, and note; and Rex v. Robinson, 2 Burr., 803.

It may be added that the provision of section 7276, Revised Statutes, would seem to indicate that the selection and drawing of jurors has not been understood by our láw-makers to come within the purview of section 79. That provision is: “In all other criminal cases (meaning criminal cases other than capital offenses) the jury summoned and empaneled according to the provisions of law relating to the summoning and empaneling of juries in other cases, shall try the accused. ’ ’

Palmer v. The State, 42 Ohio St., 596, and Cincinnati v. Davis, 58 Ohio St., 225, are cited as sustaining the judgment of reversal. The question in the Palmer ease arose on the empaneling of the jury, and involved the competency of individual jurors. Nobody doubts that a party who is to be tried by a jury is entitled to a fair and impartial jury of good and lawful men. The law in force at the time the prosecution was commenced gave a wider latitude of challenge by the defendant than the amended law enacted before the trial, and this-court held that the defendant was entitled to challenge as provided in the old act. The Cincinnati case holds simply that a proceeding for the improvement of an alley begun under a proper board was properly completed under that board notwithstanding subsequent legislation gave jurisdiction over the improvement of alleys to another city board. Neither case reaches the question we have before us.

■ The judgment of the circuit court appears to have been based on the case of Bach v. The State, 38 Ohio St., 664, The question in that case was whether it was error for the trial court, against the ■objection of the accused, to cause a special venire to issue for persons to fill vacancies, the names to be drawn from the box, where the statute requires ■such names to be selected by the presiding judge. 'The trial court did not' follow any law, and this ■court reversed the judgment for that error. Doubtless the decision worked some benefit as a matter of ■discipline, for manifestly it is the duty of all courts to follow the .statutej and not to disregard it. Whether in a like case a like holding would be made by this court at this time, we need not discuss.

We are of •opinion that the changes in the jury law affect neither, the vested rights of the accused ■on the merits, nor the remedy by which those rights are to be preserved, and that the overruling of the ■challenge to the array was not error. But suppose we are mistaken in this, still it is- not apparent that any prejudice has been wrought to this defendant, and if not, the error is not one which would warrant a reversal of the judgment of the trial court. It is •only for errors .which are prejudicial that a judgment should be reversed. Scovern v. The State, 6 Ohio St., 288; McHugh v. The State, 42 Ohio St., 154. As remarked by Williams, J., in The State v. Thomas, 61 Ohio St., 444: “It may be remarked at the outset that the objections are not to be tested by the over-refined technicalities that were the outgrowth of a system of criminal laws of unreasonable severity, and a humane desire on the part of the courts to shield those charged with their violation from excessive and cruel punishment, hut by the rule of our criminal code by which defects and imperfections are to be disregarded which do not tend to the prejudice of the substantial rights of the defendant bn the merits.”

The right of everyone accused of crime to a fair trial should be secured to him, and this court, as'in the past, will insist upon this, but we do not incline to search for unsubstantial errors, or to give.undue effect to them when discovered by others. .

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.

Davis, Shauck, Price and Crew, JJ., concur.

Summers, J., not sitting.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    State of Ohio v. Knapp.

      Phrase corpus delicti defined — Proof of, in trial for murder — Extra-judicial confession admitted as evidence, when — Effect of other confessions of crime than the one in trial — Not error to allow whole-confession to be admitted — Jury may take confession with them — Presumption of innocence and reasonable doubt — Defense of insanity — Court procedure — Criminal law.

    1. The phrase corpus delicti as used in criminal law means the substance of the crime; and on a trial under an indictment for murder, proof of the manner and means in and by which the crime was consummated, does not relate to the corpus delicti, but is proof relating solely and directly to the accused’s guilty agency in the crime.
    2. In such case, when the proof of the death is direct and positive, if the circumstances shown are of such force when taken together as to leave no room for doubt that the deceased was murdered, any extra-judicial confession b,y the prisoner, if otherwise competent, may be admitted in evidence for the purpose of establishing his connection with the crime.
    3. If the facts extrinsically proved by the state corroborate the confession, then full, direct and positive evidence of the corpus delicti is not indispensable to admit the confession in evidence; and if such extrinsic corroborative facts, when considered with the confession, persuade the jury beyond a. reasonable doubt of the prisoner’s guilt as charged, such evidence will.support a verdict of guilty. Blackburn v. State, 23 Ohio St., 146, approved and followed. ‘

      4. Where the prisoner has made a written confession admitting that he has perpetrated the crime charged in the indictment and other crimes, and the whole of the confession is offered by the state and is objected to on the part of the defendant, it is not error to allow the whole confession to go to the jury when the court at the time instructs the jury that it is admitted only to prove the killing of the person named in the indictment, and that they should disregard any portion of the confession which does not relate to such killing; and further that they should not permit the statements in the confession to prejudice them against the defendant, for the reason that they were only trying him on the charge of killing alleged in the indictment.

      5. Where the accused has made a written confession, under oath, in which he admits the killing charged in the indictment against him and the confession contains admissions of other murders, the action of the court in permitting the jury to have the confession with them in their room while considering upon their verdict is not prejudicial error.
    ■6. Where the court after stating the rule of law as to the presumption of innocence, adds that “in all doubtful cases this • presumption is sufficient to turn the scale in favor of the prisoner” and immediately follows it by a statement of the rule that unless the jury find the accused to be guilty beyond a reasonable doubt, he is entitled to an acquittal, such instruction is neither erroneous nor misleading.
    "7. A statement by the court in its charge to the jury, that “Sane men who are innocent, as a rule, do not make confessions of crime,” the defense of insanity and confessions by persons of sound and unsound mind being the subject of the instruction to the jury, such statement is’not prejudicial to the defendant.
    (No. 8737
    Decided June 28, 1904.)
    Error to the Circuit Court of Butler county.
    The defendant was tried and convicted of murder in the first degree. The victim of the murder was his wife, Hannah Gr. Knapp. The indictment charged that the defendant murdered his wife by choking .and strangling her until she died. The state introduced evidence tending to prove the corpus delicti .and supplemented it by certain confessions as follows : ‘ ‘ That before the finding of the body and on the day of his arrest the said defendant made a confession, first to the mayor of the city of Hamilton, and then to the chief of police of the city of Hamilton, in the presence of said mayor, in which Knapp said that he had killed his wife in the early morning of December 22, 1902, while she was asleep in bed; that at that time she was attired in but a night gown and a pair of stockings, and that he had killed her By 'choking her upon the neck with his hands thereby strangling her to death, and that after he had so choked and strangled said Hannah G-. Knapp that he procured a shoe box from a business house in Hamilton, Ohio, and hired a horse and wagon; that.he took the shoe box to his residence where laid the dead body of his wife, and that he doubled the body up, Hannah Gf. Knapp being a small woman weighing less than one hundred pounds, and placed it in this shoe box, and that he then secured the assistance of a passerby in having the box placed in the wagon, and that he drove to a point south of the corporate limits of the city of Hamilton, Ohio, along the roadí adjoining the Great Miami river to a point near what is known as the sucker hole, where there is an eddying current in the Great Miami river, and that he threw the box containing the dead body of his wife attired in this night gown and stockings aforesaid, into the Great Miami river, and that he returned the horse to the stable, went to Cincinnati,, afterwards returned to Hamilton, went to West Virginia, and thence to Hamilton, and thence to Indianapolis, where he married another woman, and was afterward arrested.” The state also offered a written confession which is as follows: ‘ ‘ Confession of Alfred A. Knapp. On June 21, 1894, I killed Emma Littleman in a lumber yard in Gest street, Cincinnati. And on August 1, 1894, I killed Mary Eckert in Walnut street, opposite the Y. M. C. A. building in Cincinnati. And August 7, 1894,1 killed my wife Jennie Knapp under the canal bridge at. Liberty street and threw her in the canal in Cincinnati. And in July, 1895,1 killed Ada Gebhart in Indianapolis, Ind. And on December 22, 1902,1 killed my wife Hannah Knapp at 339 South Fourth street in Hamilton, Ohio, and threw her in the river out by Lindenwald. This is true. Alfred A. Knapp. Hamilton, Ohio, February 26, 1903;-’ I make ’this statement by my own free will, and mot by the request of any officer or any one else.' Alfred A.' Knapp. ’ ’ This was sworn to - before Mayor Bosch' of Hamilton. Objection to the same was made and overruled, and the entire paper read to the jury; motions to exclude the whole paper,- and all- parts except that relating to Hannah Goddard Knapp, were made and overruled on the ground that the paper was one and indivisible; exceptions 'were- duly taken. The testimony in behalf of the defendant, as well as the testimony offered by the state in rebuttal, was all in •relation to the alleged insanity-of the defendant at the time of the murder. A large number of exceptions were taken on the trial. Oh a petition in error 'by the defendant, in which seventy-one errors were-alleged, the circuit court found that there was error in the proceedings as-follows': - :

      “First. That the state of Ohio failed to prove-according to law that the deceased came to her death in the manner and by the means alleged in the indictment; and that -the state produced no evidence-of the cause, manner or means of the death aside-from the alleged confession of the defendant in error, the defendant named in said indictment.

      “Second. That the court of common pleas erred in admitting in evidence the alleged written confession of the defendant in error, the defendant in said .cause in said court of common pleas, of other crimes than that charged in the indictment and in permitting the prosecuting attorney to read said alleged written confession as a part of Ms argument to the jury, and in permitting the jury to have said alleged written confession in the jury room during their deliberation upon the verdict.

      “Third. That the court of common pleas erred in its general charge to the jury in’ instructing the jury that ‘in all doubtful cases the presumption of innocence is sufficient to turn the scale in favor of the defendant.’

      “Fourth. That the court.of common pleas erred in giving to the jury the following instruction as part of its general charge: ‘ Sane men who are innocent, as a rule, do not make confession of crime.’ ”
    The circuit court for said reasons reversed the judgment of the court of common pleas and remanded the cause for a new trial. The state excepted to the ruling of the circuit court and its judgment of reversal; and prosecutes this proceeding in error to reverse the judgment of the circuit court and to.affirm the judgment of the court of common pleas.

      Mr. Warren Gard and Mr. R. 8. Woodruff, prosecuting attorney, for plaintiff in error.
    The contention of the state here is, that the corpus delicti was a question to be proven to the satisfaction of the jury, and that all of the testimony in the case was properly submitted to the jury for the purpose of having the jury decide whether the body found was the body of Hannah Gf. Knapp, and whether said Hannah G. Knapp came to her death at the hands of the defendant, Alfred A. Knapp, in the manner and by the means set forth in the indictment, and that the fact that the death of the woman was shown, and the finding of the body under conditions and circumstances entirely consistent with the statement of the defendant made before the finding of the body, allows properly the statement or confession of the defendant as to the means he employed to kill said deceased to be properly put in evidence, not as alone establishing his guilt as charged in the indictment, but that it be taken and used for that purpose in connection with other evidence. Blackburn v. The State, 23 Ohio St., 146; Hotelling v. State, 2 Circ. Dec., 366; 3 C. C. R., 630;. Abbott’s Criminal Trial Brief, sec. 156; State v. Davis, 48 Kan., 1; 28 Pac. Rep., 1092; People v. O’Neil, 109 N. Y., 251; Dunn v. State, 34 Tex. Crim. Rep., 257; 30 S. W. Rep., 227.
    The circuit court held that in permitting the paper in its entirety to go to the jury, permitting the prosecutor to read it to the jury and permitting the jury to take it in the jury rooms on retirement, that the court below erred, and indicated that while so much of the written confession as related to the killing of Hannah Gr. Knapp was admittedly competent, that the paper writing as made by the defendant should have been obliterated or blotted or cut out so that there would appear therein no statement of any other crime.
    In the trial of this cause in the court of common pleas the court not only once, but several times told the jury that the accused was on trial but for one crime, and that crime the killing of Hannah Gr. Knapp, as alleged in the indictment, and that the accused was not to be prejudiced by statements made by him as to tbe commission of any other crime or crimes than tbe one mentioned in tbe indictment.
    Declarations must be considered in their entirety. 3 Rice on Evidence, sec. 492.
    Suppose that tbe defendant in tbe common pleas court bad written two lines upon one sheet of paper, one line reading “I did not kill Hannah G. Knapp” and tbe other line reading immediately below tbe first “I did kill Hannah Gr. Knapp;” it is evident that tbe state could not cut tbe last line from tbe sheet and introduce it as an admission of guilt, nor could tbe state’s attorney paste tbe slip over tbe first line totally obscuring it and then offer tbe paper as evidence, yet tbe circuit court in its opinion intimates that this should have been done. Tbe written confession was and is an entirety. It should have been received as a whole unchanged and without obliteration, or else altogether rejected. Tbe confession must be taken as a whole. Greenleaf on Evidence, sec. 218.
    Therefore it must be true that it is proper to allow tbe entire writing to be read to tbe jury, even though it contains admissions of guilt of crimes other than tbe one charged in tbe indictment, tbe court first' cautioning tbe jury to disregard all tbe parts not referring to tbe particular crime under investigation and which is charged in tbe indictment.
    We submit tbe following authorities that under tbe rules of law tbe entire confession was competent as evidence to go to tbe jury to tbe caution of tbe court and tbe instruction of tbe court that it was only received as bearing upon tbe crime mentioned in tbe indictment. Abbott’s Criminal Trial Brief (2 ed.), p. 453, sec. 133; State v. Underwood, 75 Mo., 230;
      Gore v. People, 162 Ill., 259; 44 N. E. Rep., 500; 6 Am. & Eng. Ency. Law (2 ed.), 568, 569, 574, 576.
    The circuit court also said that when the common pleas court said “sane men who are innocent, as a rule, do not make confession of crime,” the court erred and indicated that the judge in so charging usurped the power of the jury in telling the jury what his experience of the actions of men was.
    It is contended by the state that this is not a personal observation of the court or an instance of the court’s experience of men charged with the commission of crime, but that it was a logical deduction and a proper statement of law considered in the light of all the authorities bearing upon the question of admissions and confessions and presumptions arising from either. Rice on Evidence, sec. 306; Greenleaf on, Evidence, sec. 215-219; Fouts v. State, 8 Ohio St., 98.

      Mr. Thomas H. Darby and Mr. John M. Thomas, for defendant in error.
    It is necessary under the laws of Ohio, that the manner and means of death in a charge of murder in the first degree shall be set out in the indictment.
    In Ohio we have no statutes upon the subject of criminal pleading, and necessarily the rules of the common law upon that subject are applied.
    Section 7217, Eevised Statutes, expressly warrants the omission of the manner and means of death in murder in the second degree and manslaughter, and sets out what will be sufficient allegations in either case.
    The failure to enumerate murder in the first degree in this section indicates most clearly that the legislature intended to leave the indictment in first degree as it had been.
    It has been held in Ohio that, previous to the passage of section 7217, it was necessary, even in a case of manslaughter, to set out the maimer and means of killing, and it was also held that the indictment for manslaughter in the ordinary common law form was sufficient in Ohio. Sutcliffe v. The State, 18 Ohio, 477; Michael v. Florida, 40 Fla., 265; Dyre v. State, 14 Tex. App., 185; Edwards v. State, 27 Ark., 493; Commonwealth v. Martin, 125 Mass., 394; 2 Bishop New Crim. Proc., sec. 514-1; Lamberton v. State, 11 Ohio, 282; Ellars v. State, 25 Ohio St., 385; Blair v. State, 3 Circ. Dec., 242; 5 C. C. R., 496; Fouts v. State, 8 Ohio St., 114.
    There is no law in Ohio that allows the proof of an essentially unlike means of death to that averred. Section 7215 in no wise applies to the necessary averments setting forth the essential elements of murder in the first degree. Burke v. The State, 34 Ohio St., 79.
    It is necessary when the means of death is alleged in a certain way, that that way must be substantially proven. If it is not substantially proven, the defendant is entitled to an acquittal. R. v. Martin, 5 Car. & P., 128; Guedel v. People, 43 Ill., 226; Helmerking v. Commonwealth, 100 Ky., 74; 47 La. An. (1), 158.
    Upon an indictment charging the offense of cutting with intent to kill a verdict of cutting with intent to wound will not be sustained. Barber v. State, 39 Ohio St., 660; Riflemaker v. State, 25 Ohio St., 395.
    In no case that we have found, has it been maintained that the corpus delicti can be proven by the confession of the defendant unsupported by other testimony tending to prove the unlawfulness of the killing.
    There must be some independent evidence of a crime before the confessions can be received dr justify a conviction, and in the absence of that independent evidence, the defendant is entitled to . be acquitted.
    No effort was made to prove that the same were procured by improper means. The testimony of all persons who heard the verbal confessions was before the jury. Theirs was the only testimony given and no claim was made by the defendant on their examinations, either preliminary or before the jury, that they or either of them had improperly induced defendant to confess.
    The paper as to the offense charged did not contain one item or iota of evidence as to any new fact in the case.
    It was the duty of the court to interpose of its own motion, when such evidence was offered, to prevent such an enormous and unprecedented wrong to any one on trial. Reed v. State, 15 Ohio, 217; McHugh v. State, 42 Ohio St., 158; State v. O’Connor, 65 Mo., 374.
    Over defendant’s objection, the court permitted the jury to take in its retirement the said alleged written confession to aid the jury in determining the issue of the killing of Hannah G. Knapp. Stites v. McKibben, 2 Ohio St., 592; Dunn v. P., 172 Ill., 582; McGuire v. The State, 2 Circ. Dec., 318; 3 C. C. R., 551.
    The court expressly recognizes the fact that a mere withdrawal of highly prejudicial evidence from a jury does not withdraw the prejudicial effect upon the jury’s mind, and that proper cases occur in which, notwithstanding such withdrawal, a new trial should be granted.
    If there can be a case in which incompetent, prejudicial evidence was offered without any color of right or any reason except prejudice to the defendant, we have shown it in this case. Marshall v. State, 5 Tex. App., 273; Erben v. Lorillard, 19 N. Y., 302; Coleman v. People, 58 N. Y., 555; Rochester v. Shaw, 100 Ind., 258; State v. Noland, 85 N. C., 576.
    The court charged the jury on the subject on the presumption of innocence, as follows: “In all doubtful cases, this presumption is sufficient to turn the scale in favor of the defendant.”
    We submit to the court that this charge was misleading and incorrectly stated the law, because in any doubtful case the law does not justify conviction, and it is not necessary to add to the doubt which may exist in the case, the presumption of innocence in order to turn the scale in favor of the defendant. Donaldson v. The State, 5 Circ. Dec., 98; 10 C. C. R., 613; Harrington v. The State, 19 Ohio St., 269.
    The court also charged the jury as follows: “Sane men who are innocent, as a rule, do not make confession of crime.” State of Ohio v. Tuttle, 67 Ohio St., 440; Blackburn v. State, 23 Ohio St., 146; McGuire v. State, 2 Circ. Dec., 318; 3 C. C. R., 551; State v. Leuth, 3 Circ. Dec., 48; 5 C. C. R., 94.
    The following cases confirm the principle laid down in the “Leuth” case (5 C. C. R.), and in each one of them, there was required the positive evidence of death by violence, before the court would permit a conviction of the accused based upon confessions.
    For cases of larceny under this rule, see 111 Ill., 386; 92 Ill., 342; Andrews v. People, 117 Ill., 201, Robbery: See 89 Mo., 424; two cases of murder, Pitts v. State, 43 Miss., 472-481; 4 Minn., 386; see also 26 W. Va., 116; Dreessen v. State, 38 Neb., 375; Wharton’s Criminal Evidence, secs. 324, 325, 632 and 633, and 1 Whart. Cr. Law, sec. 311; Pitts v. State, 43 Miss., 472; People v. Palmer, 109 N. Y., 110; 16 N. E. Rep., 529; 4 Am. St. Rep., 423; 3 Greenleaf on Evidence (16 ed.), sec. 30.
    The constitution of Ohio guarantees to the defendant that he shall have the right “to demand the nature and cause of the accusation against him, and to have a copy thereof. ’ ’ Article 1, sec. 10.
    This provision prevents trying persons for offenses of which they have not been indicted, and concerning which they have had no opportunity to prepare for defense, and evidence of which would prejudice their lawful defense.
    • The courts of Ohio have ever held the law to be that where one is charged with a single offense, evidence of other crimes is inadmissible.
    On an indictment for one sale of liquor to a person in the habit of getting intoxicated, evidence of other ■sales is inadmissible. Stockwell v. State, 27 Ohio St., 563; Farrer v. State, 2 Ohio St., 54; Barton v. State, 18 Ohio, 221; Coble v. State, 31 Ohio St., 100; Snurr v. State, 2 Circ. Dec., 614; 4 C. C. R., 393; Cheny v. State, 7 Ohio, 222; Knight v. State, 54 Ohio St., 365.
    The rule is the same whether the evidence offered of the other crimes is independent and direct evidence thereof, or evidence of confessions of the accused.
    Fortunately the question presented here is almost new in this particular form, while the principle underlying it is as old as the subject of evidence itself. Commonwealth v. Campbell, 155 Mass., 537; Commonwealth v. Keys, 11 Gray, 323; R. v. Butler, 2 Carr. & Kir., 221.
    A statement in a dying declaration that the accused had made prior threats against deceased, is inadmissible in evidence, being no part of the res gestae, but the remaining parts are admissible. State v. Moody, 18 Wash., 165; State v. Wood, 53 Vt., 560; State v. Perigo, 80 Ia., 37.
    The objectionable part of such dying declaration should be stricken out before reading. Jones v. State, 71 Ind., 67; People v. Sing, 64 Cal., 253.
   Davis, J.

The circuit court held (Knapp v. State, 25 O. C. C., 571) that “where the indictment charges that the crime was committed by choking and strangling to death the deceased, the corpus delicti in such case consists of the death of the victim together with facts which show that she met her death by being choked and strangled, and it is incumbent on the state, in order to warrant a conviction, to prove, other than by extra-judicial confessions of the accused, the death of the victim and that the crime was committed by the> accused substantially in the manner charged in the indictment.” Assuming for the purposes of this case only, that under the code of criminal procedure of this state the description of the crime in the indictment and of the manner in which it was done must be strictly proved, and that the' failure to so prove it would he a material variance, we nevertheless think that proof of the manner and means and by which the crime is consummated does not relate to the corpus delicti, but is proof relating directly and solely to the accused’s guilty agency in the crime... Corpus delicti means the substance of the crime, and the substance of the crime charged in this indictment is that Hannah G-. Knapp was murdered.

The proof of her death is direct and positive, so that if the circumstances shown are of such force when taken together as to leave no room for reasonable doubt that she was murdered, then any extra-’ judicial confession by the prisoner, if otherwise competent, may be considered for the purpose of establishing his connection with the crime; and if the facts extrinsically proved by the state corroborate the confession then “full, direct and positive evidence of the corpus delicti is not indispensable” to admit the confession in evidence. People v. Badgley, 16 Wend. (N. Y.), 53; State v. Hall, 31 W. Va., 505; Winslow v. State, 76 Ala., 42; Ryan v. State, 100 Ala., 94; State v. Keeler, 28 Ia., 551; and see State v. Lamb, 28 Mo., 218. And if such extrinsic corroborative facts, when considered with the confession, persuade the jury beyond a reasonable doubt of the prisoner’s guilt as charged, such evidence will support a verdict of guilty. In Blackburn v. State, 23 Ohio St., 146, the counsel for the prisoner asked the court to instruct the jury as follows: “Mere extra-judicial confessions alone cannot be used to prove the body of a crime, and also to identify the prisoner. They cannot alone be received to prove the body of the crime at all.” The court.refused to so instruct the .jury; but instead charged as follows: “Mere extrajudicial confessions alone cannot be used to prove the body of the crime, and also to identify the prisoner. But they may be taken in connection with other evidence in the case, either positive or circumstantial, in making out what is called the corpus ■delicti.” This court held that there was no error in that instruction.

Upon the trial of this case the state proved that the deceased was the wife of the prisoner; that the last time the deceased was seen alive she was in company with her husband at their rooms on December 21, 1902; that on the following morning, December 22, 1902, he hired a horse and spring wagon at a livery stable; that early on that same morning he had obtained from a shoe store a packing box, such as is used for packing shoes, and took it to his residence; that on the same morning he was seen with the horse and wagon on a road near the banks of the Miami river a short distance below the city of Hamilton; that the wagon contained a .box of the size, dimensions and description of a shoe box; that in February, 1903, the body of the deceased was found floating in the Ohio river near New Albany, Indiana; that said body was not clothed save by the fragments of a night gown and by black stockings, one of which covered a white stocking bandage over' a sore or abcess upon one of the legs; that when the body was found it was in a cramped or doubled up condition, with the knees drawn up toward the chin; that the identification of the body was complete by her friends, and that this was made certain by a ring on one of the fingers, ear rings in the ears and by other marks; that on the morning of the disappearunce of the deceased the defendant wrote a note to an nncle of the deceased stating that he and his wife had gone to Cincinnati and would not réturn until .after Christmas ;• that he went to Cincinnati to the home of his sister and inquired for his wife, saying that she had been called to Cincinnati by a telegraphic message from his sister; that he made conflicting statements concerning said message, its contents, the time and manner of its receipt and the time of her leaving Hamilton; that he remained in Cincinnati for several days and pretended to search for his wife; that he returned to Hamilton and made other conflicting statements relating to the disappearance and absence of his wife; that he said his wife had gone away and would not return; that he sold and gave away the personal clothing and effects of the deceased; that all of her clothing except a night gown and a pair of black stockings and a white stocking covering the abscess on one of her legs remained in their house after her disappearance and was disposed of by defendant; that he sold part of his household goods and shipped the remainder to Indianapolis; that he returned to Cincinnati and pretended to be making preparations to go to West Virginia; that after this he spent one day and one night in Hamilton during which time, speaking of the absence of his wife, he said that he knew that she would never return; that he then went to Indianapolis, Indiana, where about February 3, 1903, he was again married.

The circumstances detailed above, except the finding and identification of the body which occurred later, led to the arrest of the defendant on February 25, 1903, upon the charge of murdering his wife, Hannah G. Knapp; and on the same day he made the verbal confession which will be found in substance in the statement of the cáse above. The finding of the body and its identification followed within a very few days.

Now there is no room for dispute upon the proposition that the facts so shown by the prosecution and extrinsic to the confession are strongly corroborative of it and even would seem to conclusively establish its truth. Therefore, under the ruling in Blackburn v. State, supra, the confession may be taken in connection with the other evidence and used for the purpose of proving the body of the crime. It is true that outside of the confession there is nothing in the evidence to show that the deceased came to her death by choking or strangling; but as we have said the manner of producing the death is not an essential part of the crime. Murder may be committed in innumerable ways; but the statute defines the crime in the words, “Whoever purposely, etc., kills another.” The statute does not, nor did the common law, make the manner of killing an essential element of the crime. We think therefore that the circuit court misconceived the scope of the corpus delicti and by so doing erred in holding that the state had failed to prove according to law that the deceased came to her death “by the manner and means alleged in the indictment. ’ ’

The circuit court also held that the court of common pleas erred in admitting in evidence the written confession of the defendant in its entirety. This written confession contained admissions of the killing of four women besides the one for whose death he is now prosecuted, and at as many different times. It does not very clearly appear upon what reasoning the circuit court arrived at this conclusion. But in substance the counsel for the defendant argue that the written confession is unnecessary evidence for the state, irrelevant and prejudicial; that it is unnecessary evidence because the state already had the benefit of oral confessions in detail relating to the crime for which he was tried; that so far as it relates to other crimes it is irrelevant and raises issues which cannot be tried in this case; and that it is prejudicial to the defendant because it may have impressed the jury with the idea that he is an habitual criminal. As to the first point it is only necessary to advert to the principle that there is no limit except the discretion of the court, to the admission of cumulative evidence on the same point. On occasions during the trial when the question as to the competency of this evidence arose, the court said to the jury that it was admitted only to prove the killing of Hannah Gr. Knapp; that they were to disregard all portions of it which do not relate to said killing; and that they should not permit the statements in the confession to prejudice them because they were only trying the defendant for killing Hannah Gr. Knapp. The state could not lawfully be permitted to give evidence to prove as facts pertinent to the case, that the accused had perpetrated other crimes; but it does not require close analysis to demonstrate that giving in evidence a formal written confession in which the accused admits that he has been guilty of other like crimes stands upon a different footing. In the latter case he admits the crime charged and others with it. In the other he stands as denying all. If the confession is to be offered as evidence, it is the well settled and undoubted right of the accused to have all of it. admitted, whether -it be exculpatory or inculpatory in effect. The defendant in this case was being defended on the ground of insanity. There are statements in the confession which may well have been, used to support that plea. The jury found that the-defendant was not insane; and it is conceivable that, if the whole confession had not been admitted in evidence that would have been now assigned for error..

In Gore v. People, 162 Ill., 259, it was held that confession by the accused of a crime other than that, charged in the indictment, while not admissible as a. substantive fact, may, when not separable from a. competent confession, go to the jury under cautionary directions from the court. In the opinion, Phillips, J., said: ‘ ‘ Objection was made to the admission of evidence showing defendant made statements as-to the commission by him of other crimes than that for which he was on trial. Evidence of confession of other crimes is not admissible as a substantive fact. But it appears when the confession by defendant as to the crime charged was made he also admitted in the same conversation that, he had committed the other crimes referred to;, and when the witness was called upon to give defendant’s confession he stated all defendant said at that, time as a part of an inseparable admission or confession. The court correctly instructed the jury as-to the purpose for which such statements were admitted, and cautioned them not to consider the statements as to the other crimes as evidence of the commission of the crime charged. ’’ State v. Underwood, 75 Mo., 230, is also in point.

But the statements made in the confession. as to other crimes were not, and could not he,, prejudicial. They were not more prejudicial than the admission that the prisoner was guilty of the crime charged in the indictment. The chief,, if not the only, defense was insanity. That defense was not sustained. The jury could not do otherwise, therefore, than to return a verdict, of guilty upon the admission that he was guilty of the crime charged in the indictment. That alone, with the other evidence in the case, was sufficient to sustain, and even to require, a verdict of guilty. How could the statements as to other crimes. affect a verdict in this case which was assured without them? But it may be answered that they may nevertheless have influenced the minds of the jury in arriving at their verdict. The court had cautioned, the jury not to consider those statements for any purpose and when we find in the record abundant evidence to support the verdict we cannot presume that they did consider statements which could have-no bearing to establish guilt as to the crime charged..

The circuit court found that the court of common-pleas erred in the following particular portions of' the charge to the jury, viz.: “In all doubtful cases, this presumption (i. e. the presumption of innocence) is sufficient to turn the scale in favor of the. defendant.” And “Sane men, who are innocent, as. a rule, do not make confession of crime. ’ ’ The first, of these propositions was stated in connection with the rule as to presumption of innocence and the rule-as* to reasonable doubt. The second stands in intimate connection with the instructions as to confessions by insane or sane persons. When considered in the light of what is said in connection, we do not think that either of these propositions is misleading or improper. Indeed, we think that both of them standing apart from the context are more favorable to the defendant than to the prosecution.

As the circuit court found no error in the record save as considered above, and as we are of the opinion that the circuit court erred in all of those particulars.

The judgment of the circuit court is reversed, and that of the court of common pleas affirmed.

Spear, C. J., Shauck, Crew and Summers, JJ., concur.


author: Price, J.

text:
    Geiger v. The State of Ohio.

      Charge of murder in first degree — Testimony of child of prisoner and murdered wife — At police station — Admission of such testimony at trial, prejudicial error — Law of evidence — Criminal law — Charge to jury.

    1. On the evening of February 12, 1903, sometime after six o’clock, •Ada M. Geiger was killed at her residence in Cincinnati, and on the dead body were numerous incised wounds about the head, and throat, and there were on the head several wounds which indicated that they had been inflicted with some blunt instrument, all tending to show that she came to her death by violence. Shortly after the discovery of the body the same evening, her husband, Frederick Geiger, was suspected of having committed the homicide, and was taken into custody by one or more of the police officers of the city, and he was by them, and the coroner, both before and after his arrest, interrogated as to his whereabouts that evening and as to the condition of the rooms in the house when the body was found. He was taken to the police station and there questioned about many things supposed to bear upon his connection with the crime, and these interviews were kept up by the police and others during a considerable portion of the night. The next morning the prisoner was taken from his cell in the police station, to the office of the inspector of police, Casey, where there were already assembled several police officers, including Ralph Crawford, newspaper reporters, a stenographer, and other persons. After the prisoner was seated, facing the inspector of police, the little son of the prisoner and his deceased wife, about four years of age, was brought into the room and placed on the knee of the inspector, and a conversation passed between them in the presence of the prisoner, which appears below. In April thereafter the prisoner was indicted for killing his wife, and he was therein charged with murder in the first degree, and later he was placed on trial. The state, among other witnesses, called Casey, superintendent of police, to give the conversation between him and the little boy at his office, alluded to above, and, over the prisoner’s objection, Casey was permitted to testify as follows:
    Q. I will ask you to state what the boy said. A. When I took the boy on my knee, his father, Fred Geiger, there leaned over to him and said to the boy, he will not tell a lie, before I had asked the boy any question.
    Q. When was this you have just detailed that Geiger made this remark? A. It was during the examination of him at the office of chief of police the day after the arrest.
    Q. And at what time was it made by him in reference to the child Stephen being brought in? A. It was after the boy was brought into the room and placed upon my left knee.
    Q. Had you asked the boy any questions at that time? A. No, sir.
    -Q. Now just detail the conversation between you and the boy. A. I asked the boy in the presence of his father, who sat very close to me and facing me, what his name was. He said his name was Stephen Geiger. I asked him how old he was. He said he was four years old. I asked him if his papa and mamma had trouble last night. He said yes. I asked him what papa done to his mamma. He said he cut her. I asked him what he cut her with. He said with the scissors. I asked him where he got the scissors. He said in the sewing basket.
    ■Q. Anything else? A. That was about all I can remember. I also asked him if he was afraid, and he said yes.
    ■Q. Now then, at the time the child gave this conversation that you have just given us what did Geiger say? A. He said nothing.
    Ralph Crawford, another police officer present at the conversation, was also called by the state and, over the objection of the prisoner, was allowed to testify as follows:
    Q. What official position do you occupy in the city? A. Inspector, police department.
    Q. Do you know who little Stephen Geiger was? A. Yes, sir.
    Q. I will ask you if you were present in the office of Inspector Casey as acting chief on the day that said Stephen Geiger was brought in? A. Yes, sir.
    Q. At the time that he was brought in, where was Inspector Casey, and where was Geiger, the defendant? A. Sitting down just inside the office. Geiger was sitting on a chair. They were sitting close together.
    Q. Who was sitting close together? A. Geiger and Inspector Casey.
    Q. Where was the little boy Stephen? A. Well, immediately he was taken upon Inspector Casey’s lap.
    Q. Now then, did you hear any conversation that passed between Inspector Casey and the little boy in the presence of the defendant? A. Yes, sir.
    Q. Now detail the conversation, if you please. A. The first that was said, Geiger started to talk to the boy. Casey told him to wait a moment. Geiger stopped, and then Geiger said, he . says, he is my boy, he will not tell a lie, and then Casey asked the little boy his name. He answered, telling his name, Stephen Geiger. He then asked him his age. He answered he was four years old. Then he asked him if he knew that man sitting there, pointing to Geiger, and he said it was his papa. Then he asked him if his papa and mamma had any trouble last night. He said yes. He asked him then what his papa done to his mamma. He said he hit her. He asked him then, what with. The little boy says scissors. And he asked him where he got the scissors. He said he got them in the sewing basket. That is about all that I heard, and went out. '
    Q. At that time what did Geiger say? A. He made no reply.

      Held: That the admission of the above testimony is prejudicial error.
    2. Having committed error in admitting the above evidence, it was error for the court to charge the jury that its weight and value were for their determination under all the circumstances attending the conversation narrated. Instead of such charge, the court should have ruled the testimony from the jury, with instructions to wholly disregard it. Murphy v. State, 36 Ohio St., 628, distinguished.
    (No. 8892
    Decided June 30, 1904.)
    Error to the Circuit Court of Hamilton county.
    On the fourth day of April, A. D. 1903, the grand jury of Hamilton county, returned into' the court of common pleas an indictment in which it charged Frederick Geiger, now plaintiff in error, with the crime of murder in the first degree.
    The victim of the alleged murder was his wife, and the indictment describes the deed in the fob lowing language: “That Frederick Geiger on the twelfth day of February in the year nineteen hundred and three, with force and arms, at the county of Hamilton aforesaid, in and upon one Ada M. Geiger,, then and there being, did unlawfully, purposely and of deliberate and premeditated malice, make an assault in a menacing manner, with intent, her the said Ada M. Geiger, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder, and with a certain flat iron, which he, the said Frederick Geiger in his hands then and there held, he the said Frederick Geiger, her the said Ada M. Geiger, in and upon the head of her, the said Ada M. Geiger, then and there, unlawfully, puiv posely and of deliberate and premeditated malice, did beat, bruise and strike, with the intent aforesaid, thereby then and there giving her, the said Ada M. Geiger, mortal wounds and fracture of the skull, of which mortal wounds and fracture of the skull, she,, the said Ada M. Geiger, then and there instantly died. * * * ” •

      Then follows the conclusion of the grand jury as to the crime committed, usually found in indictments for first degree homicide.
    When arraigned to plead to this indictment, the prisoner presented and filed his plea in abatement, wherein he attacked the organization of the grand jury, alleging that the jury commission which supervised the selection of grand and petit jurors was not composed of judicious free-holders, electors of Hamilton county, as required by law, and that the statute under which the selection and drawing was had is unconstitutional, etc., and that the grand jury was not drawn, selected and impaneled as required by law. The state replied and denied the allegations of fact made in the plea, but, the defendant, on leave of the court, having amended it by leaving out the averments respecting the qualifications, or want of qualifications, of the jury commission, the reply was withdrawn, and a demurrer filed by the state. The court sustained the demurrer, and the plea in abatement held insufficient. The prisoner took exception. A plea of not guilty was entered and the case came on for trial in June, 1903.
    A motion to quash the array of the petit jury had been previously filed and overruled. Motions to quash the several special venires issued to complete the panel had also been filed and overruled. The prisoner excepted to all rulings of the court against him.
    Numerous challenges were made of jurors composing the panel, and when overruled the prisoner excepted.
    During the progress of the trial there were many controversies over the admission and exclusion of testimony, and the prisoner saved exceptions to all adverse rulings of the court. He requested many special charges, some of which were given and others were refused.
    Exceptions were taken to the, general charge. Additional statement of the history of the case is contained 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, as charged in the indictment. On this verdict the court sentenced the accused to imprisonment for life, and the circuit court affirmed the judgment. The case is here on error to reverse the judgment of each of the lower courts.

      Messrs. Shay & Cogan, for plaintiff in error,
    eited and commented upon the following authorities:

      Palmer v. State, 42 Ohio St., 596; sec. 10, art. 1, constitution; McHugh v. State, 38 Ohio St., 153; Cooper v. State, 16 Ohio St., 328; Kring v. State, 170 U. S., 221; 2 Sup. Ct. Rep., 443; Kirk v. State, 14 Ohio, 512; Work v. State, 2 Ohio St., 296; Bram v. U. S., 168 U. S., 545; Rose v. State, 7 Circ. Dec., 226; 13 C. C. R., 346; affirmed 56 Ohio St., 779; Rufer vState, 25 Ohio St., 464; Spears v. State, 2 Ohio St., 584; State v. Rorie, 74 N. C., 148; Russell on Crimes (6 ed.), 478; 1 Greenleaf on Ev. (15 ed.), par. 219, 225, 226; Whart. Taylor’s Ev. (9 ed.), par. 872; 1 Bishop’s New Crim. Proced., par. 1217; Boyd v. U. S., 116 U. S., 629; Rex v. Tyler, 1 C. & P., 129; Rex v. Enoch, 5 C. & P., 539; Rex v. Court, 7 C. & P., 486; People v. Ward, 15 Wend., 231; Whart. Cr. Ev. (9 ed.), sec. 631; 2 Taylor’s Ev., ch. 10, p. 588; Brown v. Walker, 161 U. S., 591; State v. Edwards, 13 S. C., 32; Hendrickson v. People, 10 N. Y., 13; Teachout v. People, 41 N. Y., 9; People v. McMahon, 15 N. Y., 384; People v. Mondon, 103 N. Y., 211; State v. Clifford, 86 Ia., 550; 3 Am. & Eng. Ency. Law, 488; Horton’s Cr. Ev. (9 ed.), sec. 668, 669; 3 Russell on Crimes, 510; Bell v. State, 93 Ga., 557; State v. Matthews, 66 N. C., 111; 2 Hawkins P. C., ch. 46, p. 595; Iowa v. Clifford, 86 Ia., 550; Jackson v. State, 56 Miss., 311; 1 Archibald’s Crim. Pl. and Pr. (Pomeroy’s ed.), 386; Josephine v. State, 39 Miss., 614; Rex v. Lewis, 6 C. & P., 161; Rex v. Davis, 6 C. & P., 177; sec. 7278, Rev. Stat.

      Messrs. Ruliston, Morris & Sawyer, for defendant in error,
    cited and commented upon the following authorities:

      Davis v. State, 25 Ohio St., 369; Blair v. State, 3 Circ. Dec., 242; 5 C. C. R., 496; Abbott’s Crim. Trial Brief, 253; sec. 5, p. 214; Goins v. State, 46 Ohio St., 457; Jones v. State, 7 Circ. Dec., 305; 14 C. C. R., 35; Londenback v. Lowry, 2 Circ. Dec., 422; 4 C. C. R., 65; 12 Am. & Eng. Ency. Law (1 ed.) 360, note 3 and cases; Shufflin v. State, 20 Ohio St., 233; State v. Willis, 71 Conn., 293; Bishop’s New Crim. Proced., ch. 83; State v. Tatro, 50 Vt., 483; Abbott’s Crim. Trial Brief, 444, and note 1 and cases cited; 2 Taylor on Ev., sec. 879; Wharton’s Crim. Ev. (9 ed.), sec. 657; Whittaker’s Code of Ev., sec. 214; Commonwealth v. Brailey, 134 Mass., 527; Railroad Co. v. Schultz, 43 Ohio St., 270; Kelly v. People, 55 N. Y., 565; Ackerman v. People, 124 Ill., 563; Ettinger v. Commonwealth, 98 Pa., 338; Wharton Crim. Law, 689; Donnelly v. State, 2 Dutch., 463; People v. McCrea, 32 Cal., 98; State v. Pratt, 20 Ia., 267; Rex v.
      Bartlett, 7 C. & P., 832; State v. Perkins, 3 Hawks, 377; Bram v. U. S., 168 U. S., 532 (558); Chase’s Stephens Dig. of Ev., art. 21, note 2, p. 75, citing Murphy v. State, 36 Ohio St., 628, which approved and followed Kelly v. People, 55 N. Y., 565; Sparf v. U. S., 156 U. S., 51; Commonwealth v. McCabe, 163 Mass., 98; Richards v. State, 82 Wis., 172; Chase’s Stephens Dig. of Ev., art 8, p. 25, note 1 and cases cited; Martin v. State, 39 Ala., 523; People v. McCrea, 32 Cal., 98; State v. Fournier, 68 Vt., 262; Underhill Crim. Ev., 157; Abbott’s Crim. Trial Brief, pp. 311-312, and cases cited; 37 W. L. J., 243; U. S. C. C. App., 6 Circuit, S. D. O.; sec. 7286, Rev. Stat.
   Price, J.

Within the time allotted for the writing of this opinion, it is impossible to notice and dwell upon each of the numerous assignments of error, the same being more than thirty in number. Nor could the expenditure of the time and labor necessary in doing so, be profitable to either the prisoner or the state. The record is very voluminous and contains the plain marks of a stern legal contest from the commencement to the close of the trial, during which many questions were raised for the determination of the trial court; and in instances somewhat frequent, it appears that errors of a technical character occurred, which is not uncommon to a tedious and sharply contested judicial investigation.

We do not find it our duty to enumerate these occurrences at the trial, nor to give them much, if any, weight in arriving at our conclusions.

We find no error in sustaining the state’s demurrer to the plea in abatement. After the accused eliminated from it the charge, that the men composing the jury commission which selected the names, from which the grand and petit jurors were drawn,, were not judicious freehold electors of Hamilton!' county, and perhaps some other questions of fact not, relied upon, the plea raised questions of law which were properly settled on the demurrer.

The law under which the commission was appointed and organized, is a valid law and its provisions were substantially followed in the selection and drawing of the grand jury which indicted the accused, at least so far as disclosed in'the plea in abatement.

We are of opinion also, that he had a legal petit, jury to try his case. It seems that the trial court was. exceedingly careful in respect to the issue of special venires, and where'the sheriff made return that some-whose names were in such venire could not he found,, the prisoner had no right to he heard to impeach such return as was attempted in this case.

Page after page of this great record, swollen by tedious and oft-times fruitless cross-examinations, is. occupied by the names of men called to fill and complete the jury. Very many fell under the defendant’s challenges, and after reading the examination of the jurors who finally composed the panel, we are-constrained to say, that a jury of good and lawful men, as the law demands, was obtained for the trial of the accused, and the court did not err in any ruling-made during the empaneling of the jury.

In short, we find that the indictment was found by a legal grand jury, and that the prisoner was tried by a legal petit jury.

When we roach the consideration of some of the testimony admitted against the plaintiff in error, it becomes necessary to give some preliminary history of the case not found in the opening statement above-given, because it will reflect light upon what we regard as the vital point in the record.

The deceased, Ada M. Geiger, was the wife of the-accused, Frederick Geiger, and the only other member of the family was a little boy about four years of age and named Stephen Geiger. This family resided,, at the time of the killing, on Linn street, in Cincinnati. The husband and father was a worker in a carriage factory and returned home from his work, on the evening of February 12th, about the usual hour for the evening meal, or about 5 :30 to 6 o’clock.. The prisoner stated that after eating supper and. about 7 P. M., he left the house, with everything in. the usual order to visit his mother in another part of the city, and returned about ten o’clock the same-night, when he found his wife had been murdered.. His absence from home during this time was controverted by the state, by strong circumstantial and! perhaps direct evidence.

When found, the wife was lying on the sink in the-kitchen, face downward, her chest resting in or on. the sink, the abdomen on the drain board and the legs, hanging down from the drain board. The body was lifeless. There were several incised wounds upon the neck, head and shoulders, as if made by some pointed or sharp instrument. There were also on the head wounds that indicated the use of some blunt instrument.

From some of these wounds, no doubt, the death of Mrs. Geiger resulted. When her condition was. first made known a number of neighbors went in,, and a call for the police brought several of them to the Geiger residence, and later, the coroner of the county.

The evidence tends to show that the husband was soon suspicioned and closely interrogated by the police that night, and shortly thereafter was taken into custody by the police and locked up for the night. But during the night he was plied with questions while in prison, by divers police officers at different times. They were relentless and untiring in their efforts to converse with and question the prisoner, and but little time was afforded him to rest from their importunities. The police judge and police prosecutor took part'in the visitations, and on the next morning after the murder, it was arranged that the prisoner should be taken from prison to the office of acting chief of police Casey. This was done, and the evidence of Casey shows that there were present in his office at the time, detectives Jackson, McDermott, and Mr. Dunbar, a newspaper man — Mr. Frey of the Post and a number of others. A stenographer had been summoned and was also present. These were all in the room when Geiger was brought in, and he was seated so. as to face the scene that was about to be enacted. When all was ready, Stephen Geiger, the four-year-old son, was brought in and placed on Casey’s knee. The following is what occurred, as narrated by acting chief Casey, as found on page 668 of the record, et seq.:

Q. “I will ask you to state what the boy said.” (Objected to by counsel for defendant, objection overruled and exception.) A. “When I took the boy on my knee, his father, Fred Geiger there, leaned over to him and said to the boy, he will not tell a lie, before I had asked the boy any question.” On mution of the defendant the latter part of the answer was ruled out.
Q. “When was this you have just detailed that Geiger made that remark? ” A. “It was during the examination of him at the office of chief of police, the day after the arrest.”
Q. “ Now at what time was it made by him in reference to the child Stephen being brought in?” A. “It was after the boy was brought into the room and placed on my left knee. ’ ’
Q. “Had you asked the boy any questions at that time?” A. “No, sir.”
Q. “Now just detail the conversation between you and the boy.” (Objected to, overruled and exceptions.) A. “I asked the boy in the presence of his father who sat close to me and facing me, what his name was. He said his name was Stephen Geiger. I asked him how old he was. He said he was four years old. I asked him if his papa and mamma had trouble last night. He said yes. I asked him what papa done to his mamma. He said he cut her. I asked him what he cut her with. He said with the scissors. I asked him where he got the scissors. He said in the sewing basket.”
Q. “ Anything else ? ” A. “ That was about all I can remember. I also asked him if he was afraid and he said, yes.”
Q. “Now, then at the time the child gave this conversation that you have just given us, what did Geiger say?” A. “He said nothing.”

This same scene is described by Ralph Crawford, another police officer who was present, as follows:

Q. “I will ask you if you were present in the office of Inspector Casey as acting chief on the day that Stephen Geiger was brought in and the defendant was there?” A. “Yes, sir.”
Q. “Did you see the child brought in?” A.. “Yes, sir.”
Q. “At the time that he was brought in where was Inspector Casey and where was Geiger, the defendant?” A. “I followed them into Inspector Casey’s room. Geiger was sitting just in a chair.. They (Casey and Geiger) were sitting close together.”
Q. “Where was the little boy, Stephen?” A-“Well, immediately he was taken up on Inspector Casey’s lap.”
Q. “Now, then did you hear any conversation that passed between Inspector Casey and the little-boy in presence of the defendant?” (Objected to by defendant.) A. “Yes, sir.” The Court: “It is. admitted only to go to show the conduct of the prisoner at the time.”
Q. ‘ ‘ Now, detail the conversation, if you please. ’ ’" (Objection and exception.) A. “The first that was-said, Geiger started to talk to the boy. Casey told him to wait a moment. Geiger stopped, and then Geiger said, he is my boy and he will not tell a lie, and then Casey asked the little boy his name. He-answered, telling his name, Stephen Geiger. He-then asked him his age. He answered he was four-years old. Then he asked him if he knew that man-sitting there, pointing to Geiger, and he said it was-his papa. Then he asked him if his papa and mamma had any trouble last night. He said yes. He asked', him then what his papa done to his mamma. He said he hit her. He asked him then what- with. The: little boy says scissors, and he asked him where he got the scissors. He said he got them in the •sewing basket. That is about all that I heard and went out.”
Q. “At that time what did Geiger say?” A. “He made no reply.”

The introduction of this conversation was objected to and it was permitted, for the only purpose of showing the conduct of the prisoner.

Was the evidence, under the circumstances and surroundings, competent? This is a grave question, for the evidence could not fail to impress the jury, when placed in connection with other testimony in the case.

It is not claimed by the state that the boy’s statements are evidence, or that he was a competent witness to make statements in or out of court, and he was not called as a witness. The scene was prepared in order to see how the prisoner would conduct himself in the presence and hearing of his boy while the conversation was being had, and what he would say, if anything, concerning it. Hence, Casey, and Crawford, whose testimony we have quoted, said when asked what Geiger said, answered that he said nothing, or made no reply. In short, the state claims that Geiger’s silence when the conversation with the boy ended, was a confession — a confession by silence. We cannot refrain from the observation, that before a court admits this class of confessions, great caution should be exercised to see if the grounds for their admission are clearly laid. It is not every instance of silence in the hearing of accusation that renders it admissible, as admitting guilt. Was the prisoner called upon to speak? And if he attempted to speak did he have permission to do so ?

The conversation was not addressed to him. The meeting at the inspector’s office was all planned be-before he became a part of it. He was not there of his own accord, bnt was in custody of the officers of the law and was taken there to see about him several policemen who had interrogated him the night before, also reporters for newspapers, a stenographer and many others, who were either invited or permitted to be present. To Geiger, whether guilty or innocent, the time and place was awe-inspiring, and to one whose mind was perturbed by the exciting incidents which preceded the meeting, calmness and self-possession would be strangers. To avoid the effect of silence when accusations, or incriminating statements are made in his hearing, must the prisoner in all cases speak and protest? Did the law expect him to contradict or protest against the prattle of his own little child, or bear the presumption that silence is confession of guilt? We cannot think so. The law is not cruel enough to exact that a father, beset as was Geiger at the time and place, should deny the words of his infant child, or brand them as false.

It is said by Greenleaf, in volume 1, section 197, of his work on Evidence: “Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply, from men similarly situated. To affect a party with the statements of others, on the ground of his implied admission of their truth, by silent acquiescence, it is not enough that they were made in his presence; for, if they were given in evidence in a judicial proceeding, he is not at liberty to interpose when and how he pleases, though a party.”

And in .section 198, of same authority: “Nothing, it is said, can be more dangerous than this kind of evidence. It should always be received with caution; and never ought to be received at all, unless the evidence is of direct declarations of that kind which naturally calls for contradiction; some assertion made to the party with respect to his right, which, by his silence, he acquiesces in. A distinction has accordingly been taken between declarations made by a party interested and a stranger; and it has been held that, while what one party declares to the other, without contradiction, is admissible evidence, what is said by a third person may not be so. It may be impertinent, and best rebuked by silence; but if it receives a reply, the reply is evidence. Therefore, what the magistrate, before whom the assault and battery was investigated, said to the parties, was held inadmissible, in a subsequent civil action for the same assault.”

Recurring to the facts connected with the silence of the prisoner it may be said that it was not a judicial inquiry that was being conducted. It surely was not, but to one not versed in legal procedure, it may have made upon his mind the impression that he was undergoing some kind of judicial inquiry — a star-chamber investigation.

When he attempted to speak to his boy, he was told to wait, and he did wait. He was not informed that he had a right to speak, and he was given no opportunity to speak. This appears fairly from the examination of the two police officers called by the state .and from whom we have quoted. While we respect .and admire the skill and assiduity of officers of the law in ferreting out crime and apprehending criminals, and even do not need to condemn the so-called “sweat box,” we cannot be unmindful, of the twofold relation such officers sustain to society. No one who reads this record can conclude it with entire ■complacency and approval of all that led up to the scene of that morning.

The prisoner was in their custody and wholly at their mercy. It was their duty to protect him from mob violence without and from any violation of his legal rights within the prison, or while in their ■charge. The only object in introducing the conversation between Inspector Casey and the little boy, was to get the further fact before the jury that •Geiger said nothing — was silent, — from which the jury might infer guilt. The questions of Casey and answers of the boy could have occupied but a few moments of time. Geiger was neither asked for reply or explanation, nor does it seem that he was given time for either. In the distress and surprise at what was enacted before him, and with a memory of what so recently preceded, he might well have expected a shifting of the scenes, and wait until all was over. He was told to wait and therefore his silence was not voluntary, and it should not count against him.

We have examined the authorities cited pro and con upon this question, but it is unnecessary that we review them here. It is sufficient to say, that we find no case that upholds the admissibility of the evidence we have been considering. It was greatly prejudicial.

It has been said in argument that the lower courts were somewhat influenced in their judgments by the case of Murphy v. State, 36 Ohio St., 628. Even a casual reading of that case will show how plainly it differs from the present issue.

The facts, the entire opinion and the syllabus of that case mark it as one of a very different character'. The two men, with part of the stolen goods on their person, which they were carrying away, were apprehended by a police officer and one, in the presence of the other, made incriminating statements affecting both, and the other remained silent. On the trial of the silent prisoner, the incriminating statements made by the other were properly admitted. So this court decided in that case. It should not be and is not an authority on the facts of the case at bar.

The charge of the court in the main is a correct statement of the law of homicide as applied to the case on trial. But the evidence which we have found improperly admitted being still with the jury, the court felt his duty to give instructions upon the subject, as follows:

“I want to call your especial attention to the statements alleged to have been made in the presence of the defendant by Stephen Geiger, and while Stephen was sitting on the knee of Inspector Casey, in the office of the superintendent of police.
“Such statements were admitted, not as themselves evidence of the truth of the facts stated, but to show the conduct of the defendant at the time, and you, gentlemen of the jury, cannot consider such statements for any other purpose.
“An admission or confession may be implied from the conduct of the party in remaining silent when charged with crime, or when statements are made, by third persons, in his presence, affecting him, when the circumstances surrounding him at the time afford him an opportunity to act or speak in reply, and men similarly situated, would voluntarily deny the implied guilt or make explanation of the Statements.
“The degree of credit you may give to such tacit admission is always to be determined by the jury, under the circumstances of the particular case. Such evidence should be received with caution, and attention should be directed to the defendant, and to the circumstances and conditions surrounding him that would be likely to influence his actions, with a view to determine the motive that induced his silence, if he was silent.
“If it be doubtful whether the statements were perfectly heard or understood by the prisoner, or circumstances existed which might prevent a reply or render it improper or inexpedient to reply, or his silence may be attributable to fear, or any other motive than acquiescence in the truth of the statements to which his silent assent is claimed, the evidence would be entitled to no weight; but its value is to be determined by you, gentlemen of the jury, considering all the circumstances and conditions surrounding him at the time and considering the manner in which such statements were made by little Stephen and the conditions surrounding him.”

The court in this instruction left the weight of the evidence with the jury, making it dependent upon certain facts which should have been found and passed upon by the court, before the dialogue between Casey, the interlocutor, and little Stephen Geiger, was allowed to go to the jury. The court was still treating it as some evidence against the prisoner, but just how much or how strong, the jury were to determine.

If we are right in the views we have already expressed concerinng this evidence, there was but one proper charge respecting it, and that would be a charge ruling it out of the case, and a pointed instruction to give it no consideration whatever. In not doing so, we think the court erred. We have no sympathy with crime or criminals, but the law of a fair trial must be upheld.

For these errors, we reverse the judgments of the lower courts and remand the cause for new trial and further proceedings according to law.

Judgments reversed.

Spear, C, J,, Davis, Shauck and Crew, J J., concur.


text:
    No. 8019.
    Jones et al. v. Atwater, Guardian, et al.
    (Decided February 16, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Foran, McTigtie & Baker, for plaintiffs in error.

      Mr. C. W. Fuller; Mr. Chas. F. Morgan and Messrs. Henry & Couse, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8229.
    The State of Ohio v. The Southern Ohio Traction Co.
    (Decided February 16, 1904.)
    Error to Circuit Court of Montgomery county.

      Mr. J. M. Sheets, attorney general; Mr. G. H. Jones, assistant attorney general; Mr. S. W. Bennett and Messrs. Craighead & Craighead, for plaintiff in error.

      Messrs. McMahon & McMahon and Mr. W. C. Sheppard, for defendant in error.
   Judgment affirmed.

Spear, C. J., Shauck, Price and Crew, JJ., concur.


text:
    No. 8261.
    Bank v. Akron Street Ry. Co. et al.
    (Decided February 16, 1904.)
    Error to Circuit Court of Summit county.

      Messrs. Slab an,gh & Seiberling, for plaintiff in error.

      Messrs. Musser & Kohler; Mr. N. Morse and Messrs. Rogers, Rowley, Bradley & Rockwell,- for. defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.


text:
    No. 8397.
    Shields v. Gibson, Tr.
    (Decided February 16, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Richards, Baer & Richards and Mr. W. M. Ampt, for plaintiff in error.

      Messrs. Ampt, Ireton, Collins & Schoenlé, for defendant in error.
   Judgment affirmed.

Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8428.
    Biddison, Tr. v. Luchs.
    (Decided February 16, 1904.)
    Error to Circuit Court of Washington county.

      Messrs. Leivis & Sayre, for plaintiff in error.

      Messrs. Way & Hancock and Mr. A. D. Follett, for defendant in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Crew and Summers, JJ., concur.


text:
    No. 8727.
    Bowers, Tr. v. State ex rel. Lancaster.
    (Decided February 16, 1904.)
    Error to Circuit Court of Fairfield county.

      Mr. J. W. Miller; Mr. C. D. Martin and Mr. M. A. Daugherty, for plaintiff in error.

      Mr. A. W. Mithojf; Mr. C. W. McCleery and Mr. G. E. Martin, for defendant in error.
   . Judgment affirmed.

Spear, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8737.
    State ex rel. Wilson v. Gibson, Tr., et al.
    (Decided February 16, 1904.)
    ' Error to Superior Court of Cincinnati.

      Messrs. Ampt, Ireton, Collins <& Schoenle, county solicitors, for plaintiff in error.

      Mr. Frank F. Dinsmore, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8027.
    The Hamlet of Arlington Heights v. Anderson et al.
    (Decided February 23, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Gorman & Thompson, for plaintiff in error.

      Mr. Wm. Worthington, for defendants in error.
   Judgment affirmed.

Spear, C. J., Davis, Price, Crew and Summers, JJ., concur.


text:
    No. 8055.
    Gompf et al. v. Wolfinger et al.
    (Decided February 23, 1904.)
    Error to Circuit Court of Marion county.

      Messrs. Crissinger £ Guthery, for plaintiffs in error.

      Messrs. J. F. McNeal £ Sons and Messrs. Scofield, Durfee £ Scofield,lot defendants in error.
   Judgment reversed and judgment for plaintiffs in error on the facts found by the circuit court.

Spear, C. J., Davis, Setauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8064.
    The Toledo Railway & Terminal Co. v. Hayes et al., Trustees.
    (Decided February 23, 1904.)
    Error to Circuit Court of Wood county.

      Messrs. King & Tracy; Messrs. Baldwin & Harrington and Mr. J. O. Troup, for plaintiff in error.

      Mr. B. A. Hayes, for defendants in error.
   Judgment affirmed.

Spear, C. J., Crew and Summers, JJ., concur.