author: Spear, J.

text:
    Campf v. The State.

      Resisting officer in execution of office — State need not prove forcible means against officer — Interference zvith custody of property sufficient — Prosecution tinder section 6908, Revised Statutes.

    In a prosecution for violation of section 6903, Revised Statutes, ■which makes it an offense for one. to resist, obstruct, or abuse any officer in the execution of his office, it is not essential to a conviction that the state should prove the using of direct, active, or forcible or quasi-forcible means against the person of the officer. It is enough in that regard if it "is made to appear by the evidence, beyond a reasonable doubt, that the defendant knowingly and wilfully and in the presence of the officer, used forcible means to interfere with the custody of property lawfully in the possession of the officer and to take it unlawfully into his own possession.
    (No. 11565
    Decided May 18, 1909.)

      Error to the Circuit Court of Columbiana county.
    Plaintiff in error, James Campf, was indicted by the grand jury of Columbiana, upon a charge of resisting an officer. -The indictment set forth that defendant, “wilfully, knowingly, violently and unlawfully did resist in the execution of his office one Wellington Bobp then and there being an officer, to-wit: a supervisor of road district number seven of Salem township of said county, by violently and forcibly taking from the possession and control of the said Wellington Bobp, four head of cattle of the said James Campf without tendering or paying the fees for taking up said cattle, which said cattle were •owned by James Campf, and which he, the said Wellington Bobp, had taken up from off the public highway and roads of said district and were confined and impounded in a certain enclosed field of the said Wellington Bobp, said cattle having been found running at large on the roads and highways of said district,” etc., etc.
    A demurrer to the indictment having been overruled, the defendant was tried, convicted and sentenced. This judgment was affirmed by the circuit court. Defendant below seeks a reversal of both, judgments. Grounds of error urged in this court are: 1. That the trial court erred in overruling the demurrer to the indictment. 2. That that court erred in refusing to charge the jury as requested by the defendant, and in the charge as given.
    Further facts are stated in the opinion.

      Mr. C. S. Speaker and Mr. G. T. Farrell, for plaintiff in error.
    The question raised in this case, has-never been passed upon by the supreme court of Ohio, but upon principle and the overwhelming weight of authority the charge of the court is wrong and the requests are right. The word “resist” properly describes opposition by direct, active and forcible or-quasi-forcible means, and the acts forbidden by the terms of the statute must be directed toward the officer himself. State v. Welch, 37 Wis., 96.
    In the case of Mayor v. Ornburg, 22 Ga., 67, the defendant broke into a pound and rescued an animal put there by the city marshal under the authority of a city ordinance. The court held that the breach of the pound was no resistance or opposition of the officer in the execution of his office.
    In Davis v. State, 76 Ga., 721, in a statute which made it criminal to knowingly and wilfully obstruct, resist or oppose an officer in serving or attempting to serve or execute any lawful process, the word “obstruct” was construed with reference to the other words, resist or oppose, and held to imply force, and the crime was held to consist in obstructing, resisting or opposing an officer and not merely in impeding or defeating the execution of the process with which the officer is armed'.
    The rescue of property is not the offense of resisting an officer. Vince v. State, 113 Ga., 1070, 39 S. E. Rep., 435; Farris v. State, 82.Tenm, 295; Clay v. State, 22 So. Rep., 62; Cmmpton v. Newman, 46 Am. Dec., 251; 7 Words & Phrases Judicially Defined, 6172.
    If guilty of any crime, Campf is guilty of petit larceny. Davis v. State, 76 Ga., 721.
    Bobp had a lien upon the cattle for his fees, if they were at large when he took them up, and if Campf, the general owner, took the property from Bobp without paying the fees due the officer, he would be guilty of petit larceny. State v. Nelson,' 36 Wash., 126. 78 Pac. Rep., 790; Henry v. State, 110 Ga., 750, 36 S. E. Rep., 55; Ward v. People, 3 Hill (N. Y.), 395; 18 Am. & Eng. Ency. Law (2 ed.), 499.
    If plaintiff in error were prosecuted for petit larceny, he could not claim “once in jeopardy,” and successfully plead in bar conviction of resisting an officer. Methard v. State, 19 Ohio St., 363.

      Mr. M. J. M. Garry and Mr. Lewis P. Metzger, for defendant in error, submitted no brief.
   Spear, J.

1. The indictment. It is assailed as insufficient because it does not in terms aver that the officer was present when the cattle were seized and driven away by Campf. We think it is to be necessarily implied by the language of the indictment that the officer was present; otherwise he could not have been resisted or obstructed in the execution of his office, and the testimony fully supports this inference.

2. The prosecution is founded upon section 6908 of the Revised Statutes, which provides that:

“Whoever abuses any judge or justice of the peace in the execution of his office, or knowingly and willfully resists, obstructs, or abuses any sheriff, constable, or other officer in the execution of his office, shall be fined,” etc.

The state’s evidence, if believed, showed that one Wellington Bobp, who was at the time a road supervisor of road district seven, Salem township, had taken up four cattle of the defendant which he had found at large in the highway, and impounded them in an enclosure belonging to him, and had them there in his custody at the time ot the offense charged; that there is no pound in that township; that during the afternoon Campf came to the lot where the cattle were and commenced to throw down the fence; that Bobp said to him: “I have got your cattle;” that Campf réplied: “I see you have. I am going to have them.” Bobp then said: “Don’t take the cattle out without paying cost of them; if you do you will get into trouble.” Campf replied: “Trouble it is. I will take the cattle and if I have to pay it I will pay.it, and if I don’t I won’t.” Bobp then said: “Now, Jim, you will get into trouble just as sure as you take them, and I don’t want any trouble with you.” Campf replied: “Well, trouble it is,” and he then took and drove away the cattle.

It was the contention of defendant (here plaintiff in error) that in order to constitute an offense under this statute it must be shown that the accused used direct, active and forcible or quasi-forcible means against the person of the officer, and he therefore requested the court to charge:

“If the evidence adduced shows that the defendant, James Campf, opened the gate of the enclosure where his cattle were confined, and drove them out into the highway, without .using direct, active and forcible or quasi-forcible means against the person of the said Wellington Bobp, to get possession of said cattle, then the defendant would not be guilty of resisting an officer within the meaning of the law, and your verdict should be not guilty.”

The court refused to charge as requested, but did charge the jury as follows:

“It must appear beyond a reasonable doubt that there was either forcible means taken against the officer. himself, or forcible means taken to interfere with his custody of the property, if you find it to have been lawfully in his custody at the time in question. * * * If you find, beyond a reasonable doubt, that Wellington Bobp was in the execution of his office, that is, that these animals had been running at large, and that he had impounded them in accordance with duties imposed upon him by statute, and further find, beyond a reasonable doubt, that. without his consent and against his protest, the defendant did forcibly tear down the fence and drive these cattle from the premises, then it would be your duty to return a verdict of guilty as charged in the indictment.”

It is not claimed that the case is ruled by any reported decision of any court of this state, but, in support of the contention of the plaintiff in error, a number of decisions from other states are called to our attention. One much relied upon is that of State v. Welch, 37 Wis., 196. It is there held that the word “resist” properly describes an opposition by direct, active and quasi-forcible means; and the acts forbidden by the terms of the statute must be directed toward the officer himself. If the provisions of the statute of that state were the equivalent of our statute, as hereinbefore recited, this decision would have great weight. But the Wisconsin statute provides only that every person 'who shall knowingly resist any sheriff or other ministerial officer while engaged in the lawful execution of any civil or criminal process, shall be punished, etc. Clearly the mere reading of our statute shows that we have a different situation.

A number of Georgia cases are cited, and they appear to come nearer to the case at bar than the Wisconsin case, although not exactly parallel. The Georgia statute provides that, “if any person shall knowingly and willfully obstruct, resist or oppose any sheriff, coroner or other officer of the state, or other person duly authorized, in serving or attempting to serve or execute any lawful process, he shall be punished,” etc. Perhaps Davis v. The State, 76 Ga., 721, gives the law of that commonwealth as distinctly as any other. In that case the sheriff had levied a writ of execution on two oxen as the property of defendant in execution and had caused them to be placed in a field belonging to a friend whom he constituted his agent to take care of the property, and the defendant privately took the oxen to an adjoining county in his absence. The trial court held that these acts of the accused constituted the offense of obstructing an officer in the execution of legal process within the meaning of the statute. The reviewing court, however, (two of the three judges concurring and the other dissenting), held that the word “obstruct” must be construed with reference to the other words in the statute — “resist or oppose,” which mean force. To obstruct an officer means to oppose that officer; it does not mean to oppose or impede the process with which the officer is armed, or to defeat its execution. And, as conclusion, held that the cattle were rightfully in the possession of the sheriff, and he had such qualified property in them as to make it larceny for any one to take and carry away the property with intent to steal the same. The defendant should have been indicted for larceny, the court said, but could not be held for obstructing an officer.

The rule here invoked is the doctrine of noscitur a sociis, said to be a free rendering of the common maxim that “á man is known by the company he keeps.” The rule, as one of frequent application, is conceded, although it is often difficult to determine in the given case, which person should be regarded as the “man” and which the “company.” And, however 'potent the rule may be in construing the Georgia statute, and in justifying the construction adopted by that court, it seems hardly sufficient to justify a like construction of the statute of Ohio. Our statute is much broader and more comprehensive than that of either Wisconsin or Georgia. It provides not only for the punishment of one who resists or obstructs, but for the punishment of one who abuses any officer in the execution of his office. One meaning of this word “abuse” is to wrong in speech, reproach coarsely, disparage, revile, malign, and this word is as much a part of the statute as any other verb found in the section. And if this definition of the word “abuse” be applicable, and we think it is, then quite clearly the statute may be violated by one who abuses, but who, although he uses force as to property, does not resist and does not accompany his abuse and his acts by any violence against the person of the officer. Not that we have a case of abuse in this record, but it is conceivable that an officer may be as certainly obstructed in the execution of his office by vile abuse, invective, or unjust censure, as by means involving physical resistance, and this consideration may properly be borne in mind in giving construction to our statute and as distinguishing it from' the statutes of other states herein-before referred to. But there is another difference of much more significance. By the Wisconsin and Georgia statutes the inhibited act is confined to a situation where the officer is serving, or attempting to serve, or execute process, while our statute applies to a situation where the offender resists or obstructs, or abuses the officer in the execution of his office. In the present case the officer was in the lawful possession of the impounded cattle. It was his duty to maintain that possession, and to do it as an officer. He was, therefore, while so retaining possession, in the execution of his office. The act of the defendant in taking and driving away the cattle was a forcible act, and while not directed against the person of the officer, it was an act which obstructed the execution of his duty, being an obstruction to his continued execution of his office in so maintaining custody of the property, and hence a violation of the statute. That is, the obstructing of the officer in the execution of his office may be accomplished- by means other than by violence to the officer himself. Resistence to an officer seems to imply opposition by direct forcible means as regards the person of the officer. But the statute includes as well acts of obstruction or opposition, the interposing of obstacles which impede the officer in the execution of his duty with respect to the particular matter in hand. That condition of opposition and obstruction is shown to have been present in the conduct of the defendant in the present case.

A case from Tennessee, and a number from other jurisdictions, cited by counsel for plaintiff in error, have been examined. They are based upon statutes essentially different from the Ohio statute, and are therefore not of importance in determining the question involved in the case at bar.

An instructive case in the line of the conclusion above stated is that of United States v. McDonald, 8 Biss. (U. S. C. C.), 439. The statute under review makes unlawful the knowingly and wilfully obstructing, resisting or opposing any officer in serving or attempting to serve or execute any process or warrant, etc. The court held that, “it is as much an offense to resist an officer who attempts to execute process as it is to resist him when serving or attempting to serve process. Holding attached property after seizure is part of the execution of the process; and if a person resists or obstructs an officer thus holding property he commits the statutory offense.”

In Woodworth v. The State, 26 Ohio St., 198, the main question was whether or not a supervisor of roads was an officer within the meaning of- the statute. The holding is that he is such officer. It is further held, as equally applicable to the case at bar, that, “to constitute the offense of resisting an officer, under the above section, (now section 6908) it is not necessary that the officer should be assaulted, beaten or bruised.”

It is insisted in argument by counsel for plaintiff in error that the indictment should have been for larceny instead of for resisting an officer, the officer having such ownership of the property as would have justified that sort of prosecution; that if the sentence in the present case is upheld, and the defendant were prosecuted for larceny, he could not plead once in jeopardy. We are unable to see why he might not, in the instance suggested, so plead. But whether he could or not it seems entirely manifest that alike difficulty would have .men encountered if the act of seizing the cattle had been accompanied by physical resistance directed to the person of the officer, and no one doubts that such act would be an offense against the section of the statute in review. .

We are of opinion that the demurrer to the indictment was properly overruled; that the trial court did not err either in the refusal to charge, or in the charge as given, and the judgments below should be

Affirmed.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Kellogg v. The Cincinnati Traction Company et al.

      Construction of overhead bridge over street — By owners of abutting lots on opposite side — Permissible under city license, when.

    The owner of lots abutting on opposite sides of the street may, under a license or permit from the city council, revocable at its pleasure, construct an overhead bridge for the purpose of transporting freight over the street and relieving the street of a serious obstruction to or interference with traffic along the street, the bridge being so constructed that its supports will not be in the street and so that it will -not interfere with the light and air of adjoining abutting owners.
    (No. 11406
    Decided May 18, 1909.)
    Error to the Circuit Court of Hamilton county.
    The facts are stated in the opinion.

      Messrs, Horstman & Horstman, for plaintiff in error.
    An obstruction not on the surface of the street is equally an obstruction if it occupies any portion of the space between the street lines extending up and down indefinitely. People v. Harris, 203 111, 272, 96 Am- St. Rep, 304.
    In view of the fact that municipal corporations have- no other powers than those which are expressly granted or necessarily implied, the power to divert some portion of the public street from its public use to occupation for the private uses of abutters or other persons must be based on statute. As the only statutory power imposes upon councils the duty of keeping streets open, in repair, and free' from nuisance, it is difficult to see how attempted authorizations of nuisances in streets can be justified. . Railroad Co. v. Dedance, 52 Ohio St, 262; Hibbard & Co. v. Chicago, 173 111, 516; State v. Board, 65 N. J. L, 307; Reimer’s Appeal, 100 Pa. St, 182; Anisfield v. Grossman & Co., 98 111. App, 180; Costello v. State, 108 Ala, 45; Denver v. Girard, 21 Col, 447; Platt v. Railway Co., 74 la, 127; Railroad Co. v. City, 76 Ohio St, 482; Railway Co. v. Elyria, 69 Ohio St, 415; 2 Dillon on Municipal Corporations (4 ed.), Section 660; Grove v. Ft. Wayne, 45 Ind, 429.
    The erection of obstructions of any kind in the streets has been made by statutes a misdemeanor. Section 6921, Revised Statutes. No right has been given to municipalities to grant the privilege of building bridges across streets for private purposes. The law is settled in this state that in municipalities the fee of the streets is in tne city or village in trust for street purposes.

      Mr. Murray Seasongood, for the street railroad companies, defendants in error.
    Where, as in this case, by reason of extraordinary circumstances, a legitimate use of a street at •a certain point seriously interferes with travel on such street and such interference can be prevented alone by a bridge, the supports of which rest entirely on property owned by an abutter on either side of the street, and the span of which is at such a height as not to interfere with any known use of the street, and the right is expressly reserved to require said bridge to be at any time'removed on thirty days’ notice, council has power to keep the street free and open by permitting the erection of such structure. Section 1536-131, Revised Statutes.
    The bridge in this' case-, is in no sense a nuisance, inasmuch as it neither “obstructs or incumbers * * * any street.” Cincinnati v.' Fleischer, Admr., 63 Ohio St., 229; Elster v. Springfield, 49 Ohio St., 82.
    An object which subserves the use of streets need not necessarily be considered- an obstruction although it may occupy some part of the space of the street. Wolff v. District of Columbia, 196 U. S., 152.
    In Hotel Co. v. Columbus, 5 N. P., N. S., 357, it was said that an areaway under the sidewalk if so constructed as not to endanger the public, is not a nuisance.
    See also, as to power of council to authorize structures in streets, Town of Spencer v. Andrew,
      12 L. R. A., 115; Cushing v. Boston, 128 Mass., 330; Sawyer ". Davis, 136 Mass., 239.
    No part of this bridge is in the street. In saying this we differ absolutely with the view that the street extends indefinitely upward and downward. Henry v. Cincinnati, 1 C. C., N. S., 289.
    The Ohio cases are clearly to the effect that the title which cities have to streets is a qualified or base fee for purposes of street travel and other ordinary street uses only. All other rights in the streets are reserved to abutters. Elster v. Springfield, 49 Ohio St., 82.
    The estate or interest which municipalities have in streets is so well established by the Ohio cases. Callen v. Light Co., 66 Ohio St., 166; Railway Co. v. Cumminsville, 14 Ohio St., 523.
    A bridge erected twenty feet above a street for a private purpose merely, namely, to connect the op-posit properties, no part of it being placed upon the surface of the street, is not 'a nuisance. Offutt v. Packing Co., 11C. C., N. S., 357.
    There are also other sections of the statutes in which the right to erect a bridge of this character is expressly given or necessarily implied. Sections 1536-100 (sub-section 18), 1536-176, 3337-17a, 3337-17d,- and 3337-17h, Revised Statutes.
    It is certain that the abutter has rights additional to the mere right of ingress and egress. He has a substantial interest, which is not conveyed to the city, and the abutter’s right in the street is “as much property as the lot itself.” Callen v. Light Co., 66 Ohio St., 166; Railroad Co. v. Cumminsville, 14 Ohio St., 523.
    In addition to the foregoing cases, the wide extent of the abutter’s rights has been recognized in a variety of cases. Crawford v. Delaware, 7 Ohio St., 459; Daily v. State, 51 Ohio St., 348; Railroad Co. v. Williams, 35 Ohio St., 168; Schaaf v. Railway Co., 66 Ohio St., 215; Traction Co. v. Parish, 67 Ohio St., 181; Phifer v. Cox, 21 Ohio St., 248; Reese v. Cleveland, 5 N. P., N. S., 193; Dodson v. Cincinnati, 34 Ohio St., 276; State, ex rel., v. Tooker, 9 C. C, 558.
    In People v. Chicago, 193 111., 507, the supreme court refused to exercise its original jurisdiction in mandamus, to order down a bridge connecting two buildings on opposite sides of the street, of a large department store in Chicago.

      Mr. Edward M. Ballard and Mr. Geoffrey Goldsmith, city solicitors, for the city of Cincinnati, defendant in error.
    A street is a public passage-way, embracing three elements: the surface; so much beneath the surface as is necessary for a foundation for the surface and for water mains, gas pipes, sewer pipes and conduits of various sorts; and lastly, enough above the surface to afford clearance for traffic. Henry v. Cincinnati, 1 C. C., N. S., 289, 15 O. C. D., 178.
    But, admitting as we unreservedly do, that a fee is the extent of estate possessed in streets by Ohio municipalities, nevertheless it has been firmly settled that that fee is in trust for street purposes. Raihvay Co. v. Cumminsville, 14 Ohio St., 546; Callen v. Light Co., 66 Ohio St., 166; Traction Co. v. Parish, 67 Ohio St., 181; Reese v. Cleveland, 5 N. P., N. S, 195.
    It follows that the measure upward and the measure downward advocated by opposing counsel is not precisely standardized. Surely the definition of a street, if not itself determinative of the perpendicular measure of a street is advanced to certainty in this state by those decisions, just cited,, designating how and why streets are held by municipalities; a neat example of symmetry in the law. So, though in our view what has been said amounts to demonstration of the definition of a street as urged, we cite corroboratively: Butler v. Cincinnati, 2 C. C., N. S., 377; Reese v.'Cincinnati, 5 N. P., N. S., 193.
    The rights of the public are these: To passage and re-passage; to foundation and municipal subsurface structures; to traffic-clearance. And these, and only these, without limitations or extensions, are to be had from the applicable cases. Traction Co. v. Parish, 67 Ohio St., 181; Henry v. Cincin- • nati, 1 C. C., N. S, 289. '
    The city had no control over such portions of such land and air as are not available for street purposes. Henry v. Cincinnati, 1 C. C, N. S., 289.
    A bridge; having no footing in the street and finding support in buildings or lands abutting the street and affording a clearance of twenty-four feet three inches, is or is not within the ambit of the second phase of Section 1536-131, Revised Statutes, and is not a nuisance. Offutt v. Packing Co., 11 C. C., N. S., 357; Reese v. Cincinnati, 5 N. P., N. S., 193; Hotel Co. v. Columbus, 5 N. P., N. S., 357; Butler v. Cincinnati, 2 C. C., N. S., 375.
   Summers, J.

The city of Cincinnati by ordinance granted permission to The Cincinnati Traction Company and The Cincinnati Street Railway Company to construct and maintain across Eastern avenue in the city, a bridge for the purpose of connecting the property of the companies upon the north side of the avenue with the property of the companies on the south side of said avenue, in order that coal might be carried from their elevator on the north side of the avenue to their power house on the south side of said avenue.

The plaintiff in error, Edwin E. Kellogg, filed a petition for an injunction against the city and the two companies. He avers that he is a taxpayer of the city and brings the action on behalf of the city and- that he, in writing, duly requested the city solicitor to bring the action, and that he refused to do so. He avers that the city by ordinance granted permission to the companies to construct, the bridge. He avers that Eastern avenue is one of the principal thoroughfares of the city, and that the companies threaten to erect and maintain the bridge, and he avers that the ordinance is invalid for the reason that the city did not have authority to make the grant, and that the erection of the bridge will result in the execution and performance of a contract made in behalf of the corporation, contrary to law, and will be an abuse of the corporate power of the city.

• The city answers admitting the facts stated in the petition, it sets out a copy of the ordinance and denies that it is a contract, or its enactment an abuse of the corporate power of the city.

The answer of the companies is as follows:

“The Cincinnati Traction Company and The Cincinnati Street Railway Company, defendants, admit that the city of Cincinnati is a municipal corporation, that these answering defendants are corporations, and that the plaintiff, Edwin E. Kellogg, is a taxpayer and that he requested the city solicitor in writing and the latter refused such request as alleged. They further admit that the city of Cincinnati, on April 27, 1908, passed the ordinance the title to which is set forth in the petition; that it is their intent tp construct and maintain a bridge for coal purposes across Eastern avenue from their property on the north side of said avenue to their property on the south side thereof in accordance with the terms and provisions of said ordinance, except that the height of said bridge above the surface of Eastern avenue will be greater than the minimum height prescribed by the ordinance, that is to say, the bridge proposed is to be about ten (10) feet in width, with a clear span across said avenue and located so that the center line of the bridge on the north line of said avenue shall be about one hundred and fifty-one (151) feet west of the west line of St. Andrew street, measured along the north line of Eastern avenue, and that the center of said bridge at the south line of Eastern avenue is to be about the same distance west of the west line of St. Andrew street, measured along the south line of said Eastern avenue; and said defendants deny each and every other allegation in said petition contained.
“The defendants further aver that The Cincinnati Street Railway Company owns the fee and The Cincinnati Traction Company is the lessee of said owner and has a leasehold estate in the properties located on the north side and the south side of said Eastern avenue and so to be connected by means of said proposed bridge, together with an elevator at the north end of the bridge for lifting coal from railroad cars to the level of the bridge; that the total frontage of the property so located on the north side of Eastern avenue is two hundred,and twenty-seven and sixty-one one-hundredths (227.61) feet; that the total frontage of said property located on the south side of Eastern avenue is three hundred and seventy-six and fifty one-hundredths (376.50) feet; that the bridge as authorized is designed to be and will be constructed and maintained along a line at right angles to the center line of Eastern avenue and at the sole cost and expense of these defendant companies; that the distances on both sides of Eastern avenue between the eastern boundaries of the properties aforesaid of these defend-' ants and the center of said proposed bridge are about one hundred and fifty-one (151) feet, as hereinbefore stated; that the distance between the center of said bridge as proposed on the north side of Eastern avenue and the' west boundary of the said property located on the same side of Eastern avenue is about seventy-five (75) feet; that the distance between the bridge as proposed on the south side of Eastern avenue and the west boundary of the said property on the same side of the avenue is about two hundred and twenty-five (225) feet; that the plan of the proposed bridge has been completed and the bottom line of the truss construction supporting the same is to be twenty-eight and eighty-three one-hundredths (28.83) feet above the rails of the street railway tracks located at that point in said Eastern avenue, and the bridge will be constructed and maintained with a clearance of that height throughout the width of said avenue; that said proposed bridge can not and will not interfere in any respect whatever with the light and air of any property or structure of any owner or holder of property situated on either side of said avenue; that the said bridge is designed to be and will be constructed and maintained so that no part of the structure will rest in any portion of Eastern avenue, its supports being designed to be and will be placed wholly upon the property of these defendants; that the materials with which the bridge is to be constructed are of the most substantial, modern and durable steel work, thoroughly fire proof in all parts both as to supports and span, including also the floor, sides and roof of the bridge and all its connections, and its construction will be of such a character and the structure will be so enclosed as absolutely to prevent any part of the structure itself or anything carried thereon from falling into the street; and the right is expressly reserved to the city council by the said ordinance to revoke the bridge grant at any time and to require the defendant companies to remove the bridge upon thirty days’ notice.
“These defendants further aver that they maintain on the property located as aforesaid on the south side of Eastern avenue, one of the most important power stations they have or use in connection with their street railway system in Cincinnati; that it is necessary to place and maintain the bridge structure proposed in manner aforesaid in order to secure by railroad, which is the only means of securing sufficient supplies of the best obtainable smokeless coal, the north end of said proposed, bridge being designed to connect with the.Pennsylvania Railroad, the only railroad in that vicinity, and the defendants being required by ordinance of Cincinnati to operate their power house without the emission of smoke for more than six minutes in any one hour; that the quantity of coal now consumed at said power house is between 35,000 and 40,000 tons per annum, and much of this coal should be stored and carried in large quantities so as to avoid interruptions to street-car service through delays in railroad deliveries; that such storage is not now practicable but would be after completion of the proposed bridge; that these defendants have found it necessary and they propose to enlarge this power plant so as there to generate the electrical energy required to meet the increasing demands of the street railway traffic of the city and sufficient finally to enable the defendants to abandon some of their other power stations; and the quantities of coal that will be ultimately needed at the power station on- Eastern avenue to be supplied by means of this proposed bridge will be about 250,000. tons per annum; and the prevention of or any interference with the construction and maintenance of this bridge as proposed would work irreparable injury both to these defendants and the public.
“The defendants further aver that the only means for transporting coal from the railroad aforesaid or from any other railroad to the said power station is by teams; that the defendant traction company was authorized by ordinance of the city of Cincinnati, passed March 28, 1904, to construct and maintain surface tracks across Eastern avenue at or about the site of the proposed bridge for the purpose of transporting coal from the Pennsylvania tracks to the said power station, but subject, however, to a provision that there should be no obstruction to travel on Eastern avenue; that these defendants found that such a plan as that would be an obstruction to travel and would be impracticable as well as dangerous; that the use of teams has been and is now an obstruction to travel and is also attended by constant danger of collision with street cars, since the teaming has to be carried on at right angles to the line of travel in Eastern avenue; but that the plan proposed of supplying the coal by means of the bridge in question would not interfere with public travel of any kind or with any street use whatever.
“The defendants further aver that it has been and is the usage and custom in the city of Cincinnati through its council and controlling officials to permit the construction, maintenance and use of bridges of various kinds, including structures similar in character to the one involved herein, across and above the surfaces of streets and alleys, and that no interference with public traffic or street usage of any character has been experienced.
“Wherefore these defendants pray that both the temporary and perpetual injunctions prayed for be denied-and that they be dismissed hence with their costs.”

General demurrers to the answers were filed and overruled and the petition dismissed, and on error in the circuit court the judgment of the court of common pleas was affirmed.

The question for determination is, whether a city taxpayer may enjoin the construction by an abutter of a bridge over a street from his property on one side of the street to his property on the other, under an ordinance granting him the right to do so.

Tt is provided by statute, Section 1536-66, Revised Statutes, that “A proprietor of lots or grounds in a municipal corporation, who subdivides or lays the same out for sale, shall cause to be made an accurate map or plat of such subdivision, describing with certainty all grounds laid out or granted for streets, alleys, ways, commons, or other public uses,” and that when such map has been properly acknowledged and approved by the council of the city and recorded in the office of the recorder of the county, it shall be deemed a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons, or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended.

Judge Dillon says, (Section 664a) that “The later and better considered judgments hold that it is comparatively unimportant, as respects the relative rights of the abutting owner and the public in and over streets, whether the bare fee is in one or the other. If the fee is in the public the legal rights of the adjoining owner are in their nature equitable easements; if the fee is in the abutter his rights in and over the streets are in their nature legal; but, in the absence of controlling legislative provision, the extent of such rights is, in either event, substantially, perhaps precisely, the same.” And in Barney v. Keokuk, 94 U. S., 324, it is said: “On the general question as to the rights of the public in a city street we cannot see any material difference in principle, with regard to the extent of those rights, whether the fee is in the public or in the adjacent land-owner, or in some third person.” The decisions in this state are in accord with these statements of the law. Langley v. The Mayor and Trustees of the Town of Gallipolis, 2 Ohio St., 108; Crawford v. Village of Delaware, 7 Ohio St., 459; The Cincinnati and Spring Grove Avenue Street Railway Company v. The Incorporated Village of Cumminsville, 14 Ohio St., 523; Railway Company v. Lawrence, 38 Ohio St., 41; Callen v. The Columbus Edison Electric Light Company, 66 Ohio St., 166.

If the fee is in the city it is in trust for the purposes of a street, and if it is in the abutter it is subject to the easement of a street.

The estate that is vested in the city is measured by the uses and purposes for which the dedication is intended; the remainder remains in the dedicator and vests in the owners of the abutting property. (The Kinnear Manufacturing Company et al. v. Beatty, 65 Ohio St., 264.) The abutting owner’s interest in the street is a property right, and he may make any use of the property that is subject to the easement of a street, or that is held in trust for a street, that does not impair its use for any purpose for which it may be used as a street. Dillon on Municipal Corporations, Sections 656a, 656b, 723c.

“Public streets, squares, and commons, unless there be some special restriction, when the same are dedicated.or acquired, are for the public use, and the use is none the less'for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control, and regulation of them to the local authorities. The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.” Dillon, -Section 656. Accordingly it is held, that a franchise to construct a railway in a street, or to lay water, natural or artificial gas pipes, or heating pipes, or to construct telegraph or telephone or electric lighting poles and wires in the streets, or other franchises, may not be granted by a municipality unless it is expressly authorized so to do by the legislature, and there are cases that hold, that the municipality in the absence of power delegated to it by the legislature, either expressly or impliedly, may not license or permit encroachments upon the street, or the use of the street for any private purpose, and that a delegation of such power is not to be implied from a general grant of power to supervise and control the streets. Elliott on Roads and Streets, Sections 451, 653 and 740.

In People v. Harris, 203 Ill., 272, it is held, “An ordinance permitting the construction of a bay window extending into the street or any other encroachment thereon, for purely private purpose or private use, is void.”

“The streets in their entirety are public streets, exclusive for public use, and no part of them can be devoted exclusively to private persons or private use by virtue of municipal ordinances or otherwise.” In Costello v. State, 108 Ala., 45, it is held, that a fruit stand on the sidewalk is an unlawful obstruction, and that the city could not authorize it by license. To the same effect is Denver v. Girard, 21 Colo., 447. In Grove v. Ft. Wayne, 45 Ind., 429, it is said: “The power of a city over its streets and the right of the public to them extends upward indefinitely for the purpose of their preservation, safe use and enjoyment; and the duty of the city in this respect is commensurate with its power.”

' We concur in the view that a franchise can be granted only by the state, or by the municipality under power expressly granted, but there are many uses or encroachments upon the streets that are not, and never have been regarded as, nuisances, so long as they serve a useful purpose and do not inconvenience the public, and which may be permitted or licensed under general powers such as that conferred by Section 1536-131, Revised Statutes, which provides that “In all municipal corporations council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, acqueducts and viaducts within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.”

In Elster v. Springfield, 49 Ohio St., 82, a water pipe had been laid in a street under a grant or license by the city, for the purpose of conveying water from a spring to a paper mill several squares distant. In the construction in the street of a large sewer by the city, more than twenty-one years after the pipe had been laid, the water pipe was destroyed and the owner sued the city for damages. In the opinion it is said by Spear, J., (96) “The laying of sewers, like that of gas and water pipes beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose, and long continued usage.” And again he says, (97) “As we have seen, the city as to its streets, is a trustee for the use of the public. A trustee of property for the benefit of the public could not, any more than could a trustee of private property held for known specific and continuing uses alien or encumber the property to the prejudice of the beneficiary, and a purchaser dealing with the trustee, in either case, would be bound to take notice, at his peril, of the limitation of the power. 2 Dillon on Mun. Corp., Section 671; Alton v. Trans. Co., 15 Ill., 60. Hence it would follow that whatever grant may have been made by the town of Springfield to the Kills, to maintain water-pipes in Center street, could have no greater operation than as a temporary license, subject to be revoked at the will of the town, or city, as its necessities in the future uses of the street might require. It necessarily results from this that the enjoyment of the street beneath the surface for the laying of the pipes and the flowing of the water through them was a permissive use, and that no permanent right could be acquired by long continuance.” And it is there held: “The use of the street by the plaintiff, for his water pipes being allowed by license, there was no enjoyment adverse to the city. Nor had the city power by grant, to give plaintiff any right in the street inconsistent with the future legitimate uses of the street by the city. Hence, no right by prescription to maintain the pipes in the street would vest in the plaintiff, although he had enj oyed the use more than twenty-one years, and any damage accruing to plaintiff by removing the pipes, and thus interrupting the flow of water through them, would be damnum absque injuria." In The City of Cincinnati v. Fleischer, Admr., 63 Ohio St., 229, it is held that the city is not liable for personal injuries sustained by a person in falling over a carriage block of the usual size and occupying the usual position of such blocks near the curb upon the street, merely because it permitted it to be in the street.

The immemorial practice has been for the abutter to maintain in the street shade trees, carriage blocks, hitching posts, lamp posts, areas, cellar ways, coal cellars or holes, steps, stairways, fire escapes, porticos, bay windows, awnings, signs, and other conveniences, and' to place his building flush with the street so that the eaves project over the street and his window shutters open over the sidewalk. In a large city where land is very valuable, it is not unreasonable that a property owner should wish to build flush with the street and to place an area way to the basement and bay windows over the street, for they may add very materially to the enjoyment of his building without inconveniencing the public, but if in order to have them he must set his building back from the street line, he will do without, for he cannot afford them at that cost, and so everything will be brought to a dead level and beauty be sacrificed for convenience.

When a franchise is granted, without limit as to time, and invested with the elements of a contract, it is usual for the grant to be made by the state, subject to the approval of the municipality, and when the question is as to the power of the city to make such a grant, it should be held not to exist unless expressly given or necessarily implied, but when the use is not in the nature of a franchise, but is a use that is recognized as permissible by an abutter, the city may authorize it by a permit or a license, under the general power given it of care, supervision and control. Such a permit or license is a mere regulation of the use; it contains none of the elements of a contract, and is revocable at the pleasure of the city. It is so held respecting a permit to an abutter to occupy a street with building materials, to be used in a building on the abutting lot in The City of Columbus v. Penrod, 73 Ohio St., 209.

In Clark v. Fry, 8 Ohio St., 358, where an abutting owner had contracted for the construction of an area, six by twenty feet, in a street in front of his building with steps down the area leading into the Basement, and where a person had fallen into the area and brought suit for damages for his injuries, it was successfully contended by Morrison R. Waite, counsel for plaintiff in error, and afterwards Chief Justice of the Supreme Court of the United States, that the trial court had erred in charging the jury," “That, as the defendant had shown no license or authority from the authorities of the city of Toledo or state of Ohio, to make such an excavation in the street in front of his lot, such excavation was unlawful; and, being unlawful, the defendant Clark was liable for any damage which occurred, by reason thereof, to the plaintiff, when he (the plaintiff) was not himself in fault, although the work was done by Freeman under a contract with Clark entered into for that purpose.”

The easement for a street extends as far below, and as high above the surface of the ground, as is necessary for street purposes, but if the abutter may for a useful purpose, and when the public is not inconvenienced, build an area way in the street to the basement of his building or place structures under the street, he may subject to the same limitations place structures above the street. There is no complaint here that the public will be inconvenienced, or any property rights injured, but the demurrer admits the statements of the answer to the effect, that the bridge will promote the public convenience in the street.

The rule that every incumbrance is unlawful, unless expressly authorized by the legislature is certain and easy of application, but is not according to experience and may result in a very great inconvenience to many and hardship to a few; and so long as such permits or licenses are revocable at the pleasure of the city, whenever the public'convenience requires, and inasmuch as a right to maintain them can not be acquired by their use, however long continued, it is better to suffer the few contentions that may arise than to escape them at the expense of the convenience of so many.

Judgment affirmed.

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


author: Crew, C. J.

text:
    The State of Ohio v. Groves.

      Variation in terms of printed statute — And original enrolled act of legislature — The latter prevails — Indictment under Section 683s, Revised Statutes — Need not define particular felony — Burglary and other breakings.

    1. Where there is a variance or repugnancy in terms, between the printed copy of a statute published under the authority of the state, and the original enrolled act signed by the presiding officers of the two houses of the general assembly, approved by the governor, and deposited with the secretary of state, the latter controls.
    2. An indictment framed under Section 6835, Revised Statutes, as amended and passed April 9, 1908, which, in all other respects, sufficiently describes and charges an attempt to break and enter an inhabited .dwelling house with intent to commit a felony, will not be held bad for omission to designate and define the particular felony intended to be committed.
    (No. 11706
    Decided May 18, 1909.)
    Exceptions by Prosecuting Attorney to decision of the Court of Common Pleas of Champaign County.
    At the October term, 1908, of the court of common pleas of Champaign county, Ohio, the grand jury of said county found and presented against the defendant David Groves, the following indictment: “The State of Ohio, Champaign County, ss. The Court of Common Pleas of the County of Champaign, and State of Ohio, of the term of October in the year of our Lord One Thousand Nine Hundred and Eight.
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Champaign, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Champaign, in the name and by the authority of the state of Ohio, on their oaths do find and present that David Grove's, late of ■ said county, on or about the 7th day of November, in the year of our Lord One Thousand Nine Hundred and Eight, at the county of Champaign aforesaid, in the night season of the same day, to-wit, about the hour of eleven thirty at night in the county of Champaign as aforesaid, into a certain dwelling house of Andrew Brown there situate, which said dwelling house was then and there inhabited by the said Andrew Brown and his family, did unlawfully, maliciously and forcibly attempt to break and enter with intent then and there and thereby to commit a felony, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.
    “George Waite,
    “Prosecuting Attorney, Champaign County,
    “Ohio.”
    To this indictment the defendant filed the following motion:
    “The defendant David Groves now moves the court to quash said indictment by reason of certain defects apparent upon the face of the record in this, to-wit:
    “1. Said indictment does not charge any ofifense against the laws of the state of Ohio.
    “2. Said indictment is too indefinite and uncertain to advise defendant of the nature of the charge against him and permit him to make proper defense.

      “3. In charging that the attempt to break and enter was 'with intent then and thereby to commit a felony/ the indictment pleads a mere conclusion of law, and defendant is entitled to know whether the contemplated purpose of breaking if accomplished would have constituted a felony within the laws of the state of Ohio.

      “4. The indictment does not charge an offense against any duly authorized, published, promulgated and certified law of the state of Ohio, and the state of Ohio is estopped from claiming or asserting that the law is other than as found in its laws as promulgated, published and certified by it in the manner provided by law through its duly authorized officers, and cannot in good conscience be permitted to repudiate and deny its own official acts and declarations to the detriment and harm of any of its citi-. zens.
    ''David Groves,
    “By G. V. Fromme, his attorney.”
    This motion to quash was sustained, and an order was made by the court of common pleas, “that said defendant be not required to answer further to said indictment.” To this ruling and order of the court the prosecuting attorney duly excepted, and he now prosecutes this proceeding on behalf of the state, to obtain the decision of this court as to the law to govern in -similar cases.

      Mr. George Waite, prosecuting attorney,, for plaintiff. . -
    The journal of the house of the legislature may be searched in order to determine what the law: is, and they govern and. control regardless of what . may be the law as printed in the legally published books. State v. Price, 8 C. C., 25.
    The general rule is that intent may be averred in general terms, and that the use of the language of the statute in an indictment is sufficient. Joyce on Indictments, 326; State v. Malloy, 34 N. J. L., 410; People v. Martin, 52 Cal., 201; Evans v. United States, 153 Ü. S., 584; Sutcliffe v. State, 18 Ohio, 469; Sharp v. State, 19 Ohio, 379; Vanvalkenburg v. State, 11 Ohio, 404; 1 McLain’s Criminal Law, Sections 124, 125.
    The enactment of officially published statutes may be impeached by the records of their enactment. Miller & Gibson v. State, 3 Ohio St., 475; State, ex rel., v. Smith, 44'Ohio St., 348; JVrede v. Richardson, 77 Ohio St., 182.

      Mr. G. V. Fromme, for defendant.
    The secretary of state must print at the end of each volume of the Ohio Laws his certificate that the laws printed therein are true and exact copies. This certificate to volume 99 of the Ohio Laws will be found on page 645 of said volume. This certificate makes the contents of volume 99 “competent evidence” of the laws therein contained and of “the same force and effect as the originals would if produced.” Section 5245, Revised Statutes. In other words, the original acts of the legislature filed in the office of the secretary of state cannot be brought into court to impeach the law as certified, as required by law, bv the secretary of state. Both are of the same weight, force and effect, by virtue of the statute, in the eyes of the law; and to hold that the original roll may be brought into court to contradict the law as certified by the secretary of state is to nullify Section 5245, Revised Statutes.
    The secretary of state is the official custodian of our statute laws, and we have long been familiar with the rule founded upon statutes that his certificate is conclusive as to what the law is. Wrede v. Richardson, 77 Ohio St., 182.
    The indictment should set forth the facts con- ' stituting the crime, so that the accused may have notice of what he is to meet, and so that the court applying the law to the facts charged may see that a crime has been committed. Lambert on v. State, 11 Ohio, 282; Redmond v. State, 35 Ohio St., 81; Fonts v. State, 8 Ohio St., 98.
    It is well settled by a-long line of authorities in this and other states, a few of which are submitted herewith, that the language of the statute is not sufficient in an indictment if such language is not of a character to inform the accused fully and distinctly of the facts relied upon to prove the essential elements of the crime; also, that an indictment must aver with reasonable certainty all the material facts which are necessary to be proven to procure a conviction. Anderson v. State, 7 Ohio (part 2), 250; State v. Lang, 5 N. P., N. S., 369; Hogue v. State, 13 C. D., 567; Dillingham v. State, 5 Ohio St., 280; Aylmore v. State, 30 W. L. B., 370; Ellars v. State, 25 Ohio St., 385; Sutcliffe v. State, 18 Ohio, 469; United States v. Carll, 105 U. S., 611; Potter v. United States, 155 II. S., 438; Titus v. State, 49 N. J. L., 36.
    An indictment for burglary which charges that the defendant entered, etc., with intent to commit a felony, without stating what particular felony, does not state any offense. There is no such distinctive crime as felony. People v. Nelson, 58.Cal., 104; State v. Lockhart, 24 Ga., 420; Portwood v. State, 29 Tex., 47; Mason v. People, 26 N. Y., 200; State v. Williamson, 50 Tenn., 483; Milburn v. State, 41 Tex., 237; White v. State, 1 Tex. App., 211; People v. Young, 65 Cal., 225.
   Crew, C. J.

The indictment in this case against the defendant David Groves was found and presented under favor of Section 6835, Revised Statutes, as amended April 9, 1908, which amended statute as passed by the general assembly, approved by the governor and filed in the office of the secretary of state reads as follows: “Whoever in the night season maliciously and forcibly breaks and enters any inhabited dwelling house with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury shall be imprisoned not more than thirty years nor less than five years; and whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter, any uninhabited dwelling house, or any kitchen, smokehouse, shop, office, storehouse, warehouse, malthouse, still-house, mill, pottery, factory, water craft, schoolhouse, church, or meeting house, barn or stable, railroad car, car factory, station house, hall or any other building, or attempts to break and enter any inhabited dwelling house with intent to steal property of any value, or with intent to commit a felony, shall be imprisoned in the ■ penitentiary not more than fifteen years, nor less than one year; and if any person shall have, or keep in his possession any tools, implements,, or any other things used by burglars, for housebreaking, forcing doors, windows, locks or buildings, or other places where goods, wares, merchandise, or money is kept with the intention of using such tools or implements burglariously, shall be imprisoned in the penitentiary not more than five years nor less than one year.” As officially published in volume 99 Ohio Laws, pages 98 and 99, said statute is made to read as follows: “Whoever in the night season maliciously and forcibly breaks and enters any inhabited dwelling house with intent to commit a felony, or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury shall be imprisoned not inore than thirty years nor less than five years; and whoever in the night season maliciously and forcibly breaks and enters, or attempts to break and enter, any uninhabited dwelling house, or any kitchen, smokehouse, shop, office, storehouse, warehouse, malthouse, stillhouse, mill, pottery, factory, water craft, schoolhouse, church, or meeting house, barn or stable, railroad car, car factory, station house, hall or any other building, or attempts to break and enter an uninhabitated dwelling house with intent to steal property of any value, or with intent to commit a felony, shall be imprisoned in the penitentiary not more than fifteen years, nor less than one year; and if any person shall have, or keep in his possession any tools, implements, or any other things used by burglars for housebreaking, forcing doors, windows, locks, or buildings, or other places where goods, wares, merchandise, or money is kept with the intention of using such tools or implements burglariously, shall be imprisoned in the penitentiary not more than five years nor less than one year.” It will be observed upon comparison of the sections above quoted that there is a substantial difference and disagreement in terms, between the statute actually enacted by the legislature, and the statute as printed and published in said volume 99 of Ohio Laws. In the statute as published, through inadvertence and by manifest mistake, the word “uninhabited,” or as it is therein printed “uninhabitated,” was erroneously substituted for the word “inhabited,” the latter being the word employed and used in the statute as it was passed and became a law. Thus it results that while by the provisions of amended Section 6835, as in form and language enacted by the legislature April 9, 1908, it is made an offense, to attempt, in the night season, to break and enter an inhabited dwelling house with intent to commit a felony, — which is the particular offense alleged and charged in' the indictment in this case, —yet, exactly the opposite of this is true under the provisions of said section as printed and published, for within the provisions of the statute as printed it is no offense to attempt to so break and enter an inhabited dwelling house, but is an offense to thus attempt to break and enter an uninhabited dwelling house. Upon this state of fact the question here presented is, must the court, in determining what the law is, be governed by the statute as printed or by the enrolled statute. It is the contention and claim of counsel for the defendant, that inasmuch as Section 128, Revised Statutes, makes the secretary of- state the lawful custodian of all laws passed by the state legislature, and Section 129, Revised Statutes, requires of him that he, “make accurate copies of all laws and resolutions of the general assembly, and deliver the same to the supervisor of public printing; and he shall cause to be printed at the end of each volume of the laws his certificate that the laws and resolutions as printed therein are truly copied from the original roll in his office,” that therefore such certificate when so made and appended is, by force of Section 5245, Revised Statutes, final and conclusive, and cannot be contradicted or impeached by production of the original statute, as enrolled and deposited in the office of the secretary of state. To this claim of counsel we are unable to yield our assent. While true that the certificate of the secretary of state printed at the end of each volume of the laws, makes the contents of such volume competent and prima facie evidence of the correctness and authenticity of the laws as therein printed, it is not conclusive of that fact, and where the verity of a statute officially published is challenged or attacked, on' the ground that the same is incorrectly printed, and was not enacted by the legislature in the language and form in which it appears in the printed volume; the best and most conclusive evidence of what the legislature did enact, is the original enrolled statute signed by the presiding officers of both branches of the general assembly, approved by the governor and deposited in the office of the secretary of state. Upon such an inquiry, in the absence of the enrolled statute, the statute as printed will be taken and considered as presumptively correct, but when the original enrolled statute is itself before the court it is conclusive, and must be given controlling effect in the determination of what the law is. To hold the rule otherwise, or as it is claimed by counsel for defendant, would require that effect be given to the printed statute, because officially published, although such statute was never in fact enacted and passed by the legislature. Such rule, opposed as it is to both reason and authority, should not receive judicial sanction. Upon the proposition, that where a discrepancy exists between the printed official statute,, and the enrolled statute, that the former must give way to and be controlled by the latter, all the authorities are, we believe, in harmony and agreement, and we cite only the following. Lewis’ Sutherland Statutory Construction, volume 1, section 74; Bruce v. State of Nebraska, 48 Neb., 570; Wilson v. Duncan, 114 Ala., 659; Greer v. State, 54 Miss., 378; 26 Am. & Eng. Ency. of Law, (2 ed.), page 555; Simpson v. Union Stock Yards Co., 110 Fed. Rep., 799; Weaver v. Davidson County, 104 Tenn., 315; Hulburt v. Merriam, 3 Mich., 144; McLaughlin v. Menotti, 105 Cal., 572; Purdy v. The People, 4 Hill, 384. If we are right then in our conclusion, that where there is a variance or disagreement between the statute as printed and the enrolled statute the latter controls, it follows, that the indictment in the present case charges an offense that is within the provisions of amended Section 6835, Revised Statutes, as enacted and passed by the general assembly April 9, 1908,-and therefore the first and fourth grounds of defendant’s motion to quash were not well taken and should have been overruled.

It is further objected by counsel for defendant that the indictment in this case is defective and insufficient, in the respect that it does not definitely state what- particular felony the accused, at the time of the attempted breaking and entering, intended to commit. While it is a rule of criminal pleading, grounded upon sound • principles, that the offense alleged to have been committed must be -described with such precision and certainty as to advise the accused of the nature and character of the crime or offense charged against him, yet, as said by this court in Stoughton and Hudson v. State, 2 Ohio St., 563: “Unreasonable strictness ought not to be required; and where an indictment clearly charges a crime, and fairly advises the defendant what act of his is the subject of complaint, the principal object of pleading is attained. The highest degree of certainty is not required; certainty to a common intent is sufficient, and no rule ought to prevail, which would only serve to shield the guilty, instead of protecting the innocent.” The statute under which the indictment in the present case was found and presented provides as follows: “Whoever in the night season maliciously and forcibly * * * attempts to break and enter any inhabited dwelling house with intent to steal property of any value, or with intent to commit felony, shall be imprisoned in, the penitentiary not more than fifteen years, nor less than one year.” In charging the latter offense, as thus described and defined, the prosecuting attorney in framing the indictment herein, employs and follows the language of the statute. While in some cases, and in charging certain offenses, this perhaps would not be enough, in the present case, by way of charging this offense, it is, we think, all that is required. Under this statute, a general intent either to steal property of some value, or to commit a felony, the other constituent elements of the offense being present, completes the offense, and it is wholly immaterial what particular property the accused intended to steal, or what particular felony he had in mind to commit. Hence, an averment;in the language of the statute, that the accused attempted to break and enter with intent to commit a felony, is sufficiently definite, and from the very nature of things, in many instances, such intent could not be more particularly or certainly stated. An acquittal of the defendant on such an indictment, would be a complete protection and bar to another prosecution for the same “attempt” though laid with intent to commit a particular felony. In Spencer v. State, 13 Ohio, 401, the first paragraph of the syllabus is as follows: “In an indictment for burglary with intent to steal goods and chattels, it is not necessary to aver what specific goods were intended to be stolen.” Wood, J., in the opinion in that case, says: “If it be necessary to specify, with certainty, the particular goods and chattels which the burglar designs to steal, when the felonious breaking and entry is made with such guilty intention, but he is arrested in his progress before a larceny is actually committed, it appears to us the main object of this statute would be, in a great measure, defeated. Every material averment in an indictment must be proved. The law would not presume an intention to select one article in preference to another. The lone thief, who enters the well filled storehouse, or jeweler’s shop, can not, reasonably, be supposed to enter with the design to abstract the whole that either contains. It would be beyond the ordinary power of man to consummate, or his skill to conceal; and it would be only in case of voluntary confession, in which the thief should announce the chattels he intended to take, that a conviction could be had, if larceny was not consummated, when the statute makes the breaking and entering, with the intention, the crime. Upon what principle would it be presumed, if goods and chattels were specified, that they were the ones intended to be taken, in preference to others? And, how could this material fact, thus averred be proved? . Very few, it is perfectly clear, would be the cases in which it could be done, though the general intent to steal might be perfectly manifest, from the time, manner, and other surrounding circumstances of the entry. We are, therefore, of opinion, it is not necessary to the sufficiency of an indictment, under this statute, that it should de-, scribe any specific goods and chattels intended to be stolen.” So in the case at bar,' to hold this indictment fatally defective for want of an averment as to the particular felony the defendant had in mind to commit, at the time when he attempted to break and enter said dwelling house, would be to set up and require an impracticable standard of certainty and particularity whereby the prosecution, in almost every instance, would be entrapped into making allegations which, on the trial, it would be impossible to prove or establish. Numerous authorities are cited by counsel for defendant, as sustaining their claim in this behalf, all of which we have carefully examined and considered. Some of these authorities we do not regard as in conflict with the views we have herein expressed, when considered' with reference to, and in connection with, the facts, or particular statute, upon which they are based. Others, we think, are opposed to the view- herein taken, but these are in conflict with the weight of modern authority, and not in harmony with the former decisions of this court. We are of opinion that the indictment in the present case is sufficient,

both in form and allegation, and that the motion to quash should therefore have been overruled.

Exceptions sustained.

Summers, Spear, Davis, Shauck and Price, JJ., concur.


author: By the Court.

text:
    Critchfield v. Robinson. Critchfield v. Minier et al.

      Proceedings when judgment of justice reversed — Common pleas court retains case as on appeal, when — Section 6733, Revised Statutes.

    When the court of common pleas reverses a judgment of a justice of the peace upon a ground other than a want of jurisdiction, ■ it properly, under Section 6733, Revised Statutes, retains the case for trial as upon appeal, and until judgment is rendered upon such trial a proceeding in error in the circuit court is premature.
    (Nos. 10898-10899
    Decided May 18, 1909.)
    Error to the Circuit Court of Ottawa County.
    The defendants in error brought separate actions before a justice of the peace against the plaintiff in error to recover possession of quantities of wheat described in their bills of particulars. Critchfield interposed -an objection to the jurisdiction of the justice which was overruled. The causes proceeded to trial and Critchfield interposed objections to the competency of evidence offered by the plaintiffs and these were overruled. The trials resulted in judgments for the plaintiffs. Critchfield thereupon filed petitions in error in the court of common pleas to obtain a reversal of the judgments of the justice. In the court of common pleas those judgments were reversed for error in the admission of evidence, the common pleas court then ordering that the causes be there retained for retrial according to law. Without awaiting a retrial of the causes in the court of common pleas, the original plaintiffs filed petitions in error in the circuit court where judgments were entered reversing the judgments of-the court of common pleas and affirming those of the justice of the peace.

      Mr. Wade H. Ellis; Mr. W. EL Miller and Mr. Smith W. Bennett, for plaintiff in error.

      Mr. William Gordon, for defendants in error.
    The cases were argued orally on behalf of the plaintiff in error by Mr. Clarence D. Laylin.

   By the Court.

The jurisdiction in error of the circuit court is conferred by Section 6709, Revised Statutes. The section defines and limits that jurisdiction by the provision that “A judgment rendered or final order made by any court of common pleas, or a judge thereof, may be reversed, vacated or modified by the circuit court,” etc. The court of common pleas in these cases had not rendered judgements because it had not determined the rights of the parties. Nor had it made a final order in the cases. The orders which- it made did not prevent judgments but expressly retained the cases for retrial and judgment. Its action in that behalf was strictly in pursuance of the provisions of Section 6733, Revised Statutes, that “When the proceedings of a justice of the peace áre taken on error to the court of common pleas, in manner aforesaid, and the judgment of such justice is reversed or set aside, the court shall render judgment of reversal, and for the costs that have áccrued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause, except when the reversal is because the justice had no jurisdiction of the plaintiff in error, or of the subject of the action, shall be retained by the court for trial and' final judgment, as in cases of appeal.”

These provisions of the statute regard the substantial consideration, obviously overlooked by the circuit court, that a review of the judgments of reversal entered by the court of common pleas may be quite unnecessary, for its judgment upon the retrial which it ordered may be as favorable to the original plaintiffs as were those of the justice of the peace.

The judgments of the circuit court will be reversed, the petitions in error in that court will be dismissed, and the causes will be remanded to the court of common pleas for trial according to its orders.

Judgments reversed.

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