author: Okey, J.

text:
    Mitchell v. The State
    1. In this state, neither the common law in relation to crimes, nor the common law distinction between felonies and misdemeanors, nor the doctrine of merger in criminal cases, has at any time existed; the accused may he found guilty of the principal offense charged in the indictment, or acquitted thereof and found guilty of any offense in terms or hy necessary implication charged in the indictment; the constitutional inhibition against a second trial for the same oifense, embraces all criminal prosecutions; and the rule is, that the accused is once in jeopardy, when the plea of not guilty is interposed to a valid indictment, and the jury is sworn.
    2. While a juiy in a criminal case may, in certain circumstances, he discharged, and the accused lawfully subjected to another trial, this can only he done where he has consented to the discharge, or been guilty of such fraud in respect to the conduct of the trial as that he was in no real peril, or where there is urgent necessity for the discharge, such as the death or serious illness of the presiding judge or a juror, the serious illness of the prisoner, the ending of term before verdict, or the inability of the jury to agree, after spending such length of time in deliberation as, in the opinion of the judge, sustained hy the facts disclosed in the record, renders it unreasonable and improbable that there can be an agreement.
    3 In the absence of such consent or urgent necessity, if it appear that in fact the same identical act has been charged successively in two valid indictments, upon one of which the accused has been in jeopardy by a trial, and that- the evidence necessary to support the second indictment would have been sufficient to prove a legal conviction upon the first, the plea of former jeopardy to the last indictment will be sustained, and, ordinarily, otherwise not. Price v. The State, 19 Ohio, 423, followed and approved.
    4. Upon the trial of A., upon indictment under Rev. Stats. § 6820, in which it is charged that he did shoot B. with intent to kill him, where the evidence shows that A. did unlawfully shoot at B., with such intent, at the time and place and with a loaded weapon as charged, hut that the bullet failed to touch B.’s person, A. may be found guilty of an assault, and punished by fine and imprisonment, under Rev. Stats. § 6823 ; and where, in such case, the court, assuming to act under Rev. Stats. § 7303, discharges the jury after the evidence is heard, against the objection of the accused, with a view to a prosecution against him for shooting at B., with intent to kill him, such discharge is a virtual acquittal of A., as to all the matters charged in the indictment.
    5. Rev. Stat. § 7303, constitutes the presiding judge, in effect, a committing magistrate, so as to prevent a failure of justice with respect to cases where a crime is shown by the evidence to have been committed by the accused, but he cannot be convicted of any offense under the indictment upon which he is on trial; and, consistently with the constitution (Art. 1, § 10), the provision cannot have a more comprehensive meaning.
    Ebbor to the Court of Common Pleas of Franklin county.
    At the October term, 1883, of .the court of common pleas of Franklin county, an indictment was found against John Mitchell, in which it was charged, that on September 3, 1883, with a revolving pistol, loaded witli gunpowder and two leaden balls, he unlawfully, maliciously, purposely and feloni-ously did shoot Gleorge Eigensee, with intent to kill him.
    The defendant having pleaded not guilty, was placed on trial, a jury was impaneled and sworn, and evidence was offered to prove such shooting ; but the uncontradicted testimony was, that while the pistol was fired twice so closely to the person of Eigensee, that the burning powder scorched bis clothing, neither of the balls in fact touched him.
    After the evidence bad all been offered, and the cause bad been argued before the jury by the prosecuting attorney, and while the counsel of Mitchell was addressing the jury in his behalf, the judge presiding at the trial, sua suponte, and against the objection of Mitchell and his counsel, made and caused to be entered on the journal the following order: “ It appearing to the court that a mistake has been made in charging the proper offense in the indictment, the court doth discharge the jury without prejudice to the prosecution; to all which the defendant Mitchell then and there excepted.”
    At the January term, 1884, another indictment was found against Mitchell, in precisely the same form, except the word at follows the word shoot, so the indictment charges that Mitchell did shoot at Eigensee, instead of charging that he did shoot him.
    At the same term Mitchell pleaded in bar, in due form, the former indictment, and the proceedings thereon. To that plea the prosecuting attorney demurred, and the court sustained the demurrer, to which order exception was taken at the time. Mitchell then pleaded not guilty, and on his trial, at the same term, on the same identical evidence offered on the first trial, the jury returned a verdict that the prisoner was guilty in manner and form as charged, and accordingly he was sentenced to the penitentiary.
    A petition in error having been filed, upon leave, in this court, the sole question to be considered is as to the sufficiency of the plea in bar.

      G. S. Oherington and F. A. Davis, for plaintiff in error.

      J. Lawrence, attorney general, and R. B. Montgomery, prosecuting attorney, for the state.
   Okey, J.

The following positions are shown by the authorities to be impregnable.

1. In Ohio, as under the federal government (U. S. v. Hudson, 7 Or. 32; U. S. v. Coolidge, 1 Wheat. 415 ; U. S. v. Britton, 108 U. S. 197), we have no common law offenses. No act, however atrocious, can be punished criminally, except in pursuance of a statute or ordinance lawfully enacted. This proposition was not established without prolonged discussion. In Ohio v. Lafferty, Tappan, 81 (1817), it was held in an able opinion by Judge Tappan, that common law crimes are punishable in Ohio; but Judge Goodenow, a member of this court under the former constitution, in his work entitled “ Historical Sketches of the principles and maxims of American Jurisprudence, in contrast with the doctrines of the English common law, on the subject of crimes and punishments” (1819), completely refuted the soundness of that view, and'it is now perfectly well settled that Ohio v. Lafferty is not law. Key v. Vattier, 1 Ohio, 132, 144; Winn v. State, 10 Ohio, 345; Vanvalkenburgh v. State, 11 Ohio, 404; Allen v. State, 10 Ohio St. 287, 301; Smith v. State, 12 Ohio St. 466, 469; Knapp v. Thomas, 39 Ohio St. 377, 385.

2. In order that this statmentmay not mislead, it is proper to say, that while the rule is well settled that a statute defining .a crime and prescribing punishment therefor must be strictly construed (Denbow v. State, 18 Ohio, 11; Hall v. State, 20 Ohio, 1; Shultz v. Cambridge, 38 Ohio St. 659), still, where the legislature, in defining a crime, adopts the language employed by writers of recognized authority in defining the crime at common law, the presumption is that it was intended the commission of acts which at common law would constitute such crime, should constitute a crime under the statute, and the statute will be so construed. Accordingly it was held in Ducher v. State, 18 Ohio, 308, that where the- defendant obtained entrance into a house by fraud, with intent to steal, he entered “ forcibly and, on the same principle, it was held in Turner v. State, 1 Ohio St. 422, that where, by putting a person in fear, money is taken, not from his person, but from his presence, the money being under his immediate control, the crime of robbery is shown, within the meaning of the statute which punishes taking money “from the person of another.”

3. There being no common law crimes or punishment in Ohio, nor any such thing as “ corruption of blood or foi’fei-ture of estate” (Const. Art. 1, § 12), felony and feloniously ' are with us words without meaning, except as their import is fixed by statute. “ The term felony,” said Bartley, J. ih Matthews v. State, 4 Ohio St. 539, 542 (1855), “lias no distinct and well defined meaning applicable to our system of criminal jurisprudence. In England it lias a well known and extensive signification, and comprises every, species of crime which, at common law, worked a forfeiture of goods and lands. But under our criminal code, the word felonious, although occasionally used, expresses a signification no less vague and indefinite than the word criminal.” And see Hess v. State, 5 Ohio, 1, 13.

4. Attaching to the word felony a meaning wholly at variance with its meaning at common law, the statute provides: “ Offenses which may be punished by death or imprisonment in the penitentiary are felonies; all other offenses are misdemeanors.” 'Rev. Stats. § 6795. But, of course, this does.not assert or establish, in any sense, the common law distinctions between felony and misdemeanor.

5. The common law, with respect to merger in criminal cases, and the evils resulting from the law in that respect, have been thus stated by Lord Campbell: “ At common law, a person indicted for a felony which involved an assault, must have been wholly acquitted, although proved to have committed the assault charged in the indictment, and given in evidence by the crown as the means of committing the felony, if his attempt to commit the felony was not fully accomplished, or if a felony had been committed to which the assault did not conduce, or if no' felony had been committed or attempted. This was found to be extremely inconvenient ; for the prisoner, proved to have committed a grave offense of which he was accused, either got off with perfect, impunity, or a new indictment, was preferred against him for the same assault, and the same evidence was given against him before another jury. In the former event, public scandal was given by a failure of justice, and in the latter, the accused was unnecessarily harassed, and unnecessary expense and trouble were occasioned by a second trial.” R. v. Bird, 2 Den. 94, 216; s. c., 2 Eng. L. & Eq. 448, 526; 5 Cox C. C. 20. True, these indictments only charge misdemeanor at common law, and the doctrine of merger did not apply where both offenses were misdemeanors; and although the offenses charged in these indictments are called felonies under our statute, for reasons already given and others. hereafter stated, the doctrine of merger has no application. ,,

6. In England and most of our states, the rule mentioned in the last two propositions has been abrogated by statute ; but, as we have seen, the rule was never in force in Ohio. Nevertheless, in 1869, the legislature made provision on the subject, which, in the Revised Statutes, is as follows : “ Upon any indictment the jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense; when an indictment charges an offense including different degrees, the jury may ñnd the defendant not guilty of the degree charged, and guilty of an inferior degree.” § 7316. This statute did not in terms enlarge' the powers of the court, as they existed at the time the statute was first enacted, and as it is remedial, and does not in terms abridge or limit the powers of the court as they existed at its passage, it should be construed as leaving to the courts the same powers they possessed at the time of its passage- — in other words, as declaratory of the law. As to the extent of those powers in this particular, we are not left in doubt. In Stewart v. State, 5 Ohio, 241, it appeared that Stewart had been placed on trial, charged in an indictment with assaulting another with intent to murder him, a crime then, as now, punishable by imprisonment in the penitentiary. He asked the court to charge the jury that they might, if the evidence justified such verdict, find him guilty of a simple assault. . The charge was refused, and for this error the court reversed the judgment. Lane, J.: “A jury may find a verdict of guilty for part, and acquit for the residue. . . . Where an accusation for a crime of a higher nature includes an offense of a lower degree, the jury may acquit for the graver offense, and return him guilty of the least atrocious. The cases and examples are collected in 1 Chitty’s Cr. L. 638, and there is no foundation in this country for the distinction made in England on this point between felonies and misdemeanors ; for here an indictment for the higher offense rather adds to than subtracts from his privileges.” And seo Vanvalkenburg v. State, 11 Ohio, 404, 406. In Balcer v. State, 12 Ohio St. 214, where the prisoner was also placed on trial charged in an indictment with an assault upon another, Avith intent to murder him, Scott, C. J., said “Under this indictment the defendant might clearly have been found guilty of the assault charged, and not guilty of the murder and accordingly a conviction for the assault was sustained, the prosecuting attorney having, during the trial, entered a nolle prosequi as to the allegation of intent. In White v. State, 13 Ohio St. 569, the prisoner was charged in an indictment with maliciously shooting another with intent to wound him. By the verdict he was found not guilty of shooting with intent to wound, but guilty of an assault, and this court sustained the conviction. In Heller v. State, 23 Ohio St. 582, the prisoner was indicted for maliciously shooting another Avith intent to kill him. A conviction for an assault Avas sustained. The court said, the indictment “ contains all the elements of an aggravated assault, and an indictment charging the crime of maliciously shooting with intent to kill, necessarily includes all the elements of the offense of assault and battery. 2 Eng. L. & Eq. 522, 523. In such case, the rule that where the offense charged consists of different degrees, ‘the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto,’ is applicable. Or. Code. § 168 ; 66 Ohio L. 312 (Rev. Stats. § 7316).” In Howard v. State, 25 Ohio St. 399, it appeared that the prisoner had been indicted for robbery and for an assault with intent to commit robbery, and-that the court had refused to charge the jury that he might, on such indictment, be found guilty of an assault and battery alone. For such refusal the judgment was reversed. In Marts v. State, 26 Ohio St. 162, it was held : “ On the trial of an indictment for murder, it is competent for the jury, where the evidence justifies it, to find the defendant guilty of an assault and battery only, and it is error to the prejudice of the defendant to instruct the jury otherwise.” In Barber v. State, 39 Ohio St. 660, the prisoner Avas convicted of maliciously cutting with intent to wound, on an indictment charging him with maliciously cutting witli intent to kill. While apjjroving Heller v. State, the court reversed the conviction on the ground that the offense charged and that of which the prisoner was convicted, were of the same grade and punishable with equal severity, and that one of them was not included in the other as an “ inferior degree,” within the meaning of the statute.

7. This indictment was found under Rev. Stats. § 6820, which is as follows : “ Whoever maliciously shoots, stabs, cuts, or shoots at, another person, with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary not more than twenty nor less than one year.” But the statute further provides (Rev. Stats. § 6823) as follows: “Whoever unlawfully assaults or threatens another, in a menacing manner, or unlawfully strikes or wounds another, shall be fined not more than $200 or imprisoned not more than six months, or both.” And “ when a fine is the whole or part of a sentence, the court or magistrate may order that the ]aerson sentenced shall remain confined in the county jail until the fine and costs are paid or secured to be paid, or the offender is otherwise legally discharged.” Rev. Stats. § 7327. And see Rev. Stats. § 1028.

Under the authorities cited in propositions 5 and 6, it is perfectly clear that Mitchell might have been lawfully convicted and punished on his first trial, under section 6823, by fine and imprisonment for an assault, on the evidence then offered, which evidence was also offered, and was essential to a conviction, on the last trial, the act of 'firing the pistol charged in each indictment and offered in evidence in each case, being the same identical act and not another or different act. Moreover, the maximum punishment under that section may be as severe as the minimum punishment under section 6820.

8. It being entirely certain that Mitchell could not be convicted on the last, trial without proving the identical assault for which he might have been lawfully convicted and fined and imprisoned on the first trial — the same identical assault being embraced and virtually charged in both indictments — the question is whether he had a right to plead the jeopardy in which he had been placed, in bar of the second prosecution.

9. The maxim, Nemo Ms funitur fro eodem delicto, has relation, as it found expression at common law, to felonies. In our former as well as our present constitution, the guaranty is, that no person shall “be twice put in jeopardy for the same offense” (Const, of 1802, art. 8, § 11; Const, of 1851, art. 1, § 10). The constitutional provision extends the common law maxim, which was limited to felonies, to all grades of offenses; and it is but the application to the administration of criminal justice, of a more general maxim of jurisprudence, that no one shall be twice vexed for one and the same cause. On this maxim rests the whole doctrine of res judicata.” The State v. Behimer, 20 Ohio St. 272, 276, White, J. ; 1 Bishop’s Or. L. §§ 990, 991.

10. In Price v. State, 19 Ohio, 423, the court re-asserted the rule first distinctly recognized in P. v. Vandercomb, 2 Leach C. C. 816, that if, in fact, the same identical act had been charged successively in two valid indictments, upon one of which the prisoner had been in jeopardy by a trial, and the evidencenecessaiy .to support the second indictment would have been sufficient to prove a legal conviction on the first, the plea of former jeopardy will be sustained to the last indictment, and otherwise not. No case, certainly no well considered case, can be found to the contrary. The cases in which the principle is asserted or recognized are very numerous, but we can do no more then cite a few of them. R. v. Elrington, 9 Cox C. C. 86; R. v. Stanton, 5 Cox C. C. 324; R. v. Yeadon and Birch, 9 Cox C. C. 91; R. v. Taylor, R. v. Cantwell, 11 Cox C. C. 261; R. v. Walker, 2 Moody & R. 446; R. v. Gould, 9 C. & P. 364; R. v. Bird, supra; R. v. Curran, 2 Ir. Jur. N. S. 235; Com. v. Sheldon, 6 Dane’s Abr. 731; Com. v. Roby, 12 Pick. 496; Bainbridge v. State, 30 Ohio St. 264; Com. v. Roberts, 1 Yeates, 6; Strous v. Com. 5 Barr, 83; Dinkey v. Com. 17 Pa. St. 126; Heikes v. Com. 26 Pa. St. 513; State v. Parish, 43 Wis. 395; State v. Smith, 43 Vt. 324; State v. Chaffin, 2 Swan, 493; State v. Colgate, 31 Kansas, 511; State v. Gleason, 56 Iowa, 203; Southworth v. State, 42 Ark. 270.

In R. v. Bird the plea was not sustained, but this was done solely on the ground that on the first trial Bird and wile could not have been convicted of the assault charged in the second indictment. Each of the judges of the queen’s bench and the common pleas, and each of the barons of the exchequer except Platt (who was absent),delivered an opinion, and all the opinions support the proposition as I have stated it. And so with Com. v. Roby, as will appear from Com. v. Drum, 19 Pick. 480; Com. v. Morey, 108 Mass. 433, 435, where Gray, J., said: “A conviction of an assault with intent to murder was held by this court to be no bar to an indictment for murder, before our statutes permitted a conviction of such an assault upon an indictment for murder. Com. v. Roby, 12 Pick. 496; St. 1805. c. 88, § 2; Rev. Stats, c. 137, § 11 and commissioners’ note; Gen. Stats, c. 172, § 16.” An attempt has been made to defend State v. Foster, 33 Ia. 525, which has been sometimes cited as opposed to this view, upon the grounds that the first conviction occurred before a justice of the peace, who had no jurisdiction of the higher offense. State v. Gleason, 56 Ia. 203; and see 1 Bishop’s Or. L. § 105S, note 7. A similar distinction was taken in Com. v. Curtis, 11 Pick. 134, but it is said there was no foundation for the distinction. 1 Bishop’s Or. L. § 1058, citing R. v. Walker, 2 M. R. 446; and see Com. v. Bosworth, 113 Mass. 200. In State v. Nichols, 38 Ark. 550, it was held that a prisoner could not plead to an indictment for maiming, his former conviction before a justice of the peace for assault and battery, for which offense the justice had jurisdiction to fine, but none to imprison. In Southworth v. State, 42 Ark. 270, however, the court refused to extend the principle to a case where the justice had power to imprison, and accordingly the court held, in the latter case, that a conviction of petit larceny before a justice of the peace is a bar to a prosecution by indictment for grand larceny in the circuit court. The nisiprius cases of R. v. Gisson and R. v. Goodby, briefly reported in 2 C. & K. 781, 782, note (a), were controlled by the common law distinction between felony and misdemeanor (1 Bishop’s Cr. L. § 804, note 8 ; 2 Russ. Cr. 62, note ; Whart. Cr. PI. & Pr. § 261, note 2), and so it was with R. v. Dungey, 4 F. & F. N. P. 99, as appears from the report of that case.

11. Nothing is more clearly settled than that the jeopardy attaches the moment the jury is sworn, and that if the jury be thereafter discharged without a verdict, where no legal ground of discharge is shown, the effect will be precisely the same as if a verdict of acquittal had been rendered. Hurley v. State, 6 Ohio, 889 ; Mount v. State, 14 Ohio, 295; Poage v. State, 3 Ohio St. 230; Baker v. State, 12 Ohio St. 214; Dobbins v. State, 14 Ohio St. 493 ; Stewart v. State, 15 Ohio St. 155; Hines v. State, 24 Ohio St. 134, and see 1 Bishop’s Cr. L. §§ 1015, 1016.

12. But the right to insist on the discharge of a jury as a virtual acquittal, will be defeated, where the prisoner actually or in effect consents to the discharge (Stewart v. State, 15 Ohio St. 155), or was guilty of such fraud with respect to his trial that ho was never in real peril of a conviction, or where he was so sick as to be unable to remain in court. The death or sickness of the presiding judge or a juror, or the ending of the term before the trial is finished, warrants such discharge of the jury. So, where it appears from the record that the jury remained together without agreement such length of time that it was rendered reasonable and probable that they could not agree, such jury may be lawfully discharged. Dobbins v. State, Hines v. State. And see generally as to the question whether there has been jeopardy, 1 Bishop’s Cr. L. §§ 1012, 104T.

13. The Ohio cases bearing upon the last two propositions (11 and 12) are instructive, and they leave no doubt as to the law of Ohio with respect to the effect of the discharge of a jury unless by consent, or in case of inevitable necessity. We will state the view expressed in a few of them. In Mount v. State, 14 Ohio, 295, the indictment was stolen after a verdict of guilty, and instead of supplying it by proof of its contents, the prosecuting attorney moved the court to set aside the verdict, which motion having been granted, he entered a nolle prosequi by leave of court, and the prisoner pleaded the jeopardy to another indictment for the same offense. The plea was not sustained and the prisoner was convicted, but the supreme court reversed the judgment, holding that “after the jury is impaneled and sworn, if a nolle prose-qui be entered, with leave of the court, and without the consent of the prisoner, it is a good bar to another indictment for the same crime.”

In Poage v. State, 3 Ohio St. 230, the jury, after deliberating some time, informed the judge by a note that they were unable to agree, and he thereupon discharged them. The record did not disclose the fact that it was reasonable or probable that the- jury could not agree. This court held, that under such circumstances, the plea of jeopardy might well be pleaded in bar of another trial. Thurman, C. J., said: “ That a jury might be discharged by the court in a criminal case, where they cannot agree, without its operating to accpiit the accused, was expressly decided in Hurley's case, 6 Ohio, 399, and we are not disposed to question that decision, supported as it is by numerous authorities, although decisions of an opposite character may be cited against it. . . That the power to discharge is a most responsible trust, and to be exercised with great care, is too obvious to require illustration. ‘It is a discretion,’ said Mr. Justice Story, ‘to be exercised only under very extraordinary and striking circumstances.’ 2 Gall. 364. ‘The power,’ said the same judge, ‘ ought to be used with the greatest caution, under urgent circumstances, which would render it proper to interfere.’ U. S. v. Perez, 9 Wheat. 580. ‘I am of opinion,’ said Chief Justice Spencer, ‘ that, although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in case of extreme and absolute necessity.’ People v. Goodwin, 18 Johns. 187. That the discretion is a ‘ legal discretion, and to be exercised according to known rules,’ was - expressly held in McKee's case, 1 Bailey, 651, recognized in Mount v. State, 14 Ohio, 304.” P. 238.

In Baker v. State, 12 Ohio St. 214 (1861), where, after the jury had been sworn and the prisoner was on trial upon an indictment charging him with an assault with intent to murder, the prosecuting attorney, by leave of court, but without the prisoner’s consent, entered a nolle prosequi as to the intent, this court sustained a conviction for the assault, but Scott, C. J. said: ‘'In such a criminal prosecution, after the jury is impaneled, we think there is no doubt that the defendant has a right to demand such a disposition of the case, either by verdict of the jury or otherwise, as will constitute a bar to another prosecution for the same crime. If during the trial a nolle prosequi be entered to any part of the indictment, without the consent of the defendant it operates, so far, as an acquittal.”

In Dobbins v. State, 14 Ohio St. 493, it is asserted in the syllabus that the power to discharge before verdict, against the prisoner’s consent, “ only exists in case of absolute necessity, and when the jury have considered the case for such length of time as to leave no reasonable expectation that they will be able to agree upon a verdict.” The rule is correctly stated by Ranney, J., in that case, to be, that the jury may be lawfully discharged without prejudice to another trial, where insuperable obstacles have intervened to prevent a result upon the first attempt at a trial. On the other hand,” said he, “it is perfectly well settled, “that where the state intervenes without such necessity, and prevents a verdict, the accused cannot be subjected to a further trial consistently with the constitutional guaranty,” and that the rights of the accused can only be protected “ by making any interference, on the part of the government, by which a verdict is prevented, while a reasonable hope remains that one may be rendered, an absolute bar to his further prosecution.” P. 500.

In Stewart v. State, 15 Ohio St. 155, it appeared that after the jury had been sworn and the trial commenced, the fact was disclosed that one of the jurors had been a member of the grand jury which found the indictment a true bill; but the prisoner refused to waive the objection to the juror, and so, as the court held, virtually consented to discharge the jury. Speaking as to the posture of the case, if the prisoner had not insisted on his objection to the juror, Scott, J., said: “At that stage of the proceedings the defendant had a right to demand such disposition of the case, either by the verdict of a jury or otherwise, as would bar another prosecution for the same crime. Of this he could not be deprived, at the will of the court or the prosecuting, attorney, by the entry of a nolle j'prosequi or the discharge of the jury, without an absolute necessity therefor. Such action, taken without his consent, would operate as an acquittal and be a bar to any further or subsequent prosecution for the same crime. To hold otherwise would be to contravene the constitutional guaranty against being twice put in jeopardy for the same offense.”

In Hines v. State, 24 Ohio St. 134, the case of Robbins v. State was approved. The case is, in its leading features, identical with Poage v. State. Hines was indicted in the court of common pleas of Lucas county for receiving and concealing a horse and buggy, knowing them to have been stolen. Ho pleaded not guilty and was placed on trial at the October term, 1873, and a trial was had, and the jury having heard the evidence, arguments of counsel and charge of the court, retired to deliberate fifteen minutes before four o’clock in the afternoon. At six o’clock p. m., the jury not having agreed, the court directed the sheriff to keep them together until 11 o’clock p. m. when, if they had not then agreed upon a verdict, he should discharge them.- The jury was kept together by the sheriff until half after eleven, when having failed to agree, he discharged them. At the February term, 1874, Hines relied on such discharge as a bar to another trial, but the court held the discharge was authorized by law, and Hines was convicted and sentenced to the penitentiary. This court reversed the judgment and discharged the prisoner, holding that, notwithstanding the jury had deliberated on the case, after its final submission, for nearly eight hours, yet as the jury was discharged without inquiry by the presiding judge as to the probability of agreement, and as the record did not disclose any l-eal and urgent necessity for the discharge, the prisoner was virtually acquitted. Mcllvaine, J., forcibly stated the law as to the discharge of the jurors, as follows: “It is only when they have been kept so long to-gefcher that, under the circumstances, there remains no reasonable expectation, in the mind of the court, that they will be able to agree, that a legal necessity for their discharge arises; and until such necessity does exist in the case, it is the constitutional right of the accused to insist upon a verdict; and when the right is disregarded, by a discharge of the jury without his consent, such discharge is equivalent to a verdict of acquittal.” ,

14. That independently of statutory provisions, the discharge of the jury on Mitchell’s first trial would operate as an acquittal, will abundantly appear from the cases abstracted in the last (18th) pi’oposition, and numerous other cases that might be cited. But there was, at the time of such discharge, and still is, a statute (Rev. Stats. § 7303) which provides : If it appear, at any time before verdict, that a mistake has been made in charging the proper offense in the indictment, the jury may be discharged, without prejudice to the prosecution, and the accused, if there is good cause to detain him, may be recognized to appear at the next term of the court, or, in default thereof, committed to jail; and in such case the court may recognize the witnesses for the state to appear at the same time and testify.”

Obviously, in our opinion, this provision should be construed as applying to cases in which thére could be no conviction on the indictment on account of variance between the proof and allegations. In such case, where the evidence discloses the fact that the prisoner has committed a crime of which he cannot be convicted on that indictment, the presiding judge is made a committing magistrate, so as to prevent a failure of justice, through the escape of one who ought to be punished. Suppose the second grand jury had returned an indictment for an assault only. Could Mitchell have been lawfully convicted on such an indictment, notwithstanding he might have been convicted of the same assault on the first trial 1 I submit, the statute cannot receive the construction contended for by the state; but aside from that, it is the duty of the court to so construe the provision that it will be valid. It is clear that, construed as contended for by the state, the provision would be plainly unconstitutional.

We must look to the condition of the law as it existed in 1802, when it was ordained that no person “ shall be twice putin jeopardy for the same offense,” which guaranty was re-asserted, in the same words, in our present constitution ; and as to the state of the law, in the particular we are considering it, there was no uncertainty in this state. Plainly, according to all the cases, a discharge under such circumstances, operated then as an acquittal; and the constitutional provision having been adopted with that principle incorporated in it, the legislature cannot alter or abridge it.

In State v. Behimer, 20 Ohio St. 572, 577, in speaking of the constitutional provision which protects every person accused of crime from being placed twice in jeopardy for the same offense, White, <L, stated in very clear terms,, that “ the object of incorporating it into the fundamental law was to render it., as respects criminal cases, inviolable by any department of the government.” Mr. Bishop, seeming to anticipate such legislation as the state claims section 7303 to be, uses this language in his Criminal Law, vol. 1, § 1019 : “ If the jeopardy only began on the rendition of the verdict, the constitutional provision could have, no force against a statute enacted to override .it’ Should the legislature direct (what the court might as well do without the direction), that, whenever the evidence appeared to the judge to be insufficient to convict, he should discharge the jury without taking a verdict, and hold the defendant to another trial before another jury, no protection against any number of trials and any amount of harassment would be afforded to defendants, so long as this interpretation of the constitution prevailed.” In short, such legislative interference can only be sustained when, losing sight of. the true meaning of our constitutional provision, we hold the general assembly to be clothed with all the powers of parliament over this subject.

People v. Hunckeler, 48 Cal. 331, is instructive upon this question. The constitutional provision in California is in the same words as our constitution. The penal code provided :

“ If it appears by the testimony that the facts proved constitute an offense of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed or continued on, or admitted to bail to answer any indictment whicli may be found against him for the higher offense. If an indictment for the higher offense is found by the grand jury impaneled within a year next thereafter, he must be tried thereon, and a plea of a former acquittal, to such last found indictment, is not sustained by the fact of the discharge of the' jury on the first indictment.” § 1112. “ If the defendant Avas formerly acquitted on the ground of variance between the indictment and the proof, or the indictment was dismissed upon an objection to its form or substance, or in order to hold the defendant for a higher offense, without a judgment of acquittal, it is not an acquittal of the same offense.” § 1021. The jury having been duly impaneled and sworn on the trial of Hunckeler, indicted for manslaughter, and the evidence having been heard, the presiding judge, being of opinion that the offense was murder, ordered the jury to be discharged, and' directed that the matter be submitted to another jury, the court assuming to act under the statute, and the defendant objecting. The new grand jury having returned an indictment for murder, the prisoner pleaded thereto the former jeopardy, and the supreme court held the plea to be good, notwithstanding the statutory provisions, and discharged the defendant. And see Williams v. State, 42 Ark. 85.

In harmony with People v. Hunckeler, is the case of Com. v. Williams, 78 Ky. 93, in Avhich the court of appeals held the following section of the criminal code of Kentucky to be in conflict Avith the provision against second jeopardy in the constitution .of that state : “ The attorney of the common-Avealth, with permission of the court, may at any time before the case is finally submitted to the jury, dismiss the indictment as to all or any part of the defendants, and such dismissal shall not bar a future prosecution for the same offense.” There, 'Williams was placed on trial on an indictment for grand larceny. With respect to part of the property, there was a misnomer as to the owner, and the defendant, by reason of that fact, could not be found guilty of grand larceny, but might have been found guilty of petit larceny with respect to that part of the property properly described. The commonwealth’s attorney, by permission of the court, but without» the prisoner’s consent, dismissed the indictment for grand larceny, and another indictment for grand larceny, properly describing all the property, and correctly alleging the names of the owners, having been found by another grand jury, Williams pleaded "thereto the former jeopardy, and the court of appeals sustained the plea and discharged the prisoner, holding, as already stated, the provision quoted from the criminal code of that state to be unconstitutional. The case is directly in point, though it is not necessary here, as it seems to have been there, that the statutory provision should be held to be unconstitutional. And see, as asserting kindred principles in denying to the legislature authority to abridge constitutional guarantees or powers, U. S. v. Klein, 13 Wall. 128, 148; State v. Hipp, 38 Ohio St. 199, 221; Sutherland v. Governor, 29 Mich. 320; Monroe v. Gollins, 17 Ohio St. 665; Knapp v. Thomas, 39 Ohio St. 377.

15. It follows therefore, necessarily, from the foregoing propositions, that the court of common pleas erred in sustaining the demurrer to the plea in bar; and this court, reversing the judgment of the court of common pleas, and proceeding to render the judgment which that court should have rendered, overrules the demurrer; and as the state does not desire leave to reply, but admits the truth of the averments in the plea, we hold that Mitchell is entitled to a discharge.

Judgment reversed and prisoner discharged.

JohNsoh, C. .1., and MoIlvaine, J., dissented.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Hampton v. The State.
    1 In a criminal case “ except for capital offenses where the proof is evident or the presumption great ” (Const. Art. 1, § 9), after a verdict of guilty and before sentence, the court may, in its discretion, take a recognizance for the appearance of the prisoner to abide the judgment of the court.
    2 After failure so to appear and on forfeiture of the recognizance, the sureties are liable on the recognizance.
    Eekoe to the District Court of Gallia county.
    "William G. Hampton was indicted in Gallia county for burglary and for grand larceny. ' He was tried and convicted of burglary.
    When the jury returned into court with their verdict, thé defendant was in court; on the rendition of the verdict of guilty, he was ordered by the court into the custody of the sheriff, and the sheriff so took and held him.
    The Journal entry in the case reads as follows :
    “ And thereupon the defenda'nt by his counsel gave notice of a motion for a new trial; motion filed. And thereupon personally came the defendant, William G. Hampton, and with him personally came also John T. Hampton and John 13. Clendinen, before the clerk of this court, and who each jointly and severally acknowledged themselves to owe the State of Ohio the sum of two thousand dollar ($2,000), to be levied of their goods and chattels, lands and tenements, if default be made in the condition following, to wit: That if the said William G. Hampton shall personally be and appear before this court on Thursday, March 22, A. D. 1883, and from day to day thereafter when called, and abide the judgment of the court thereon on said indictment, and not depart without leave, then this recognizance shall be void, otherwise to be and remain in full force and effect in law. Thereupon the motion for a new trial in this cause is set down for hearing on Thursday, March 22.” This was during the same term.

      William Gr. Hampton, until so ordered into the custody of the sheriff, was under a. $500 bond for his appearance in the case. He did not appear in court on the 22d day of March, but left the state and remained absent. The recognizance was forfeited at that term of court.
    Action on this recognizance was brought and judgment for the full amount was rendered against the plaintiffs in error, John T. Hampton and John B. Clendinen; this judgment was affirmed by the district court, and plaintiffs in error now seek to reverse the judgments of the courts below.

      Samuel Nash and A. J. Green for plaintiffs in error :
    A court of common pleas has no power to take a recognizance after conviction of a felony. State v. Clark, 15 Ohio, 599. The theory and spirit of the legislation of the state, and the decisions of this court, is, that bail, in felonies that are bailable at all, shall be taken only when the presumption of innocence — doubt of guilt — prevails ; when that is overcome and removed by conviction, imprisonment must follow. It is the conviction — the verdict — after trial, that settles the question of guilt or innocence, until the effect of that conviction lias been annulled by reversal. 2 Coke Inst. 188; 2 Com. Dig. Bail, F. 2; People v. Lohman, 2 Barb. 450. The jurisdiction of the courts of common pleas and the judges thereof, shall be fixed by law. § 4, art. 4, of the constitution. The constitution confers no jurisdiction. Stevens v. State, 3 Ohio St. 453 ; State v. MoGehan, 27 Ohio St. 282 ; McGill v. State, 34 Ohio St. 271. The ' legislation having given no authority to admit to bail after conviction,1 none exists. Hence the recognizance in this case is absolutely void. Powell v. State, 15 Ohio, 580 ; Sargent v. State, 16 Ohio, 276; 7 Mass. 280 ; 11 Id. 337; 16 Id. 198.

      W.H. O. Eekers, prosecuting attorney, and O. M. ILglcoml), for defendant in error :
    By the constitution of the state all persons are bailable, by sufficient sureties, except in capital cases, and there also unless the proof be evident or the presumption great. In capital cases it is a matter addressed to the mind of the trial judge, as to when a person is bailable or not. Section 9, article 1 — of the Bill of Rights. Then by this section, and proTision of our constitution, no restriction as to the time when the taking of bail shall end, is placed upon the court, the power of taking bail is by this section of our constitution given exclusively to the courts. And there this power to admit to bail remains until limited or qualified by the lawmaking power. See Rev. Stats. §§ 7321; 7325 ; State v. Levy, 24 Minn. 362. At common law, courts of superior jurisdiction possessed the power, though it was exercised rarely, and only when special circumstances existed to justify it, to admit to bail after verdict and before sentence. 1 Bae. Ab. 588, title “ Bail; ” 1 Bish. on Cr. Pr. § 696 ; 1 Caines R. 72, McJSfeil ease ; Commonwealth v. Field, 11 Allen, 488; 24 Minn. 368.
   Follett, J.

The plaintiffs in error seek to avoid liability on the recognizance, on the ground that the court had no power to take the same and permit the prisoner to go out of the custody of the sheriff.

The recognizance was the mode by which William Gr. Hampton -was taken from the custody of the sheriff and delivered to the plaintiffs in error, who thereby became entitled to his custody, and they were responsible for his appearance in court as per the terms of the recognizance; and at any time before default they could have taken him by force and surrendered him.

By the common law, all offenses, including treason, are bailable, though the high crimes are so not of right but only in the discretion of the court. 1 Bac. Ab. 588-596; Reg. v. Barronet, Dears. 51; 1 Bish. Cr. Pr. § 256.

There was complaint that this judicial discretion was abused to the great damage of prisoners, even by Lord Mansfield ; and, to guard as far as possible the rights of individuals, the people of Ohio placed in her constitution, section 9 of the Bill of Rights, the following: “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great.”

This fundamental provision the laws and the courts carefully guard. The only other restrictions upon the exorcise of this power are the following statutes: In cases of misdemeanor, the Revised Statutes, by § 7321 and § 7322, provide that the execution of a sentence or judgment may be sus. pended on giving a proper recognizance ; and, in cases of felony, the Revised Statutes, § 7325, provide: “.When a person is sentenced for a felony, and execution of the sentence is suspended, the court shall order him into the custody of the sheriff to be imprisoned until the case is disposed of.”

The power to admit to bail is amply given to the courts, and is incidental and necessary to the due administration of justice; and this power is not taken away until the prisoner, found guilty of a felony, has been sentenced.

Thus it is clear that after conviction and until sentence, the court has power to admit to bail. The object of bail is to secure the appearance of the one arrested when his personal presence is needed; and, consistently with this, to allow to the accused proper freedom and opportunity to prepare his defense. The punishment should be after the sentence.

We do not say that after a verdict of guilty of felony, the prisoner, on tendering sufficient bail, can demand as of right his discharge from the sheriff’s custody, pending his motion for a new trial; we only say, the court, in the exercise of a wise judicial discretion, may so admit to bail.

The court might be satisfied that the testimony did not warrant the verdict of guilty, or that the prisoner’s life would be endangered by his imprisonment. This position is established by numerous authorities both English and American, some of which are cited in 1 Bishop on Criminal Procedure, § 256. The case of State v. Levy, 24 Minn. 362, fully sustains this decision. See also Ohio v. Summons, 19 Ohio, 139, where it is held that: “ The court will not, as a matter of course, admit to bail because the jury in a trial for murder have not agreed upon a verdict. If the evidence exhibited on the hearing of the application, be of so weak a character that it •would not sustain a verdict of guilty against a motion for a new trial the court will admit to bail.” And our laws do not prohibit this power until aftor sentence. Rev. St. § 7325. And in all cases of felony after verdict of guilty, the court, on application to admit to bail, will take into account the verdict rendered in the case, and in the light of all the facts can administer justice by a due exercise of judicial discretion and legal power.

In this case the court had power to take the recognizance, and the plaintiffs in error are bound by' their obligation.

Judgment affirmed.


author: McIlvaine, J.

text:
    Brown v. Noble.
    Where administration, of an estate is committed to two or more persons residing in different counties, “ the moneys, credits and investments” belonging to the estate must be listed for taxation under section 2735 of the Kevised Statutes, in the county where the administrator, having actual possession and control of the property to be listed, resides at the time of listing.
    Error to the District Court of Adams county.
    David Noble on the 4th of September, 1881, died intestate at his residence in Highland county, Ohio.
    On the 12th of November, the probate court of Highland county, appointed C. N. Overman, of Hillsboro, Liberty township, in said Highland county, and Arthur Noble, a resident of Winchester township, Adams county, administrators of the estate of said deceased, who qualified as such upon the execution of separate bonds, and returned an inventory of the assets, consisting of moneys, credits and investments, of the appraised value of $269,090, to said probate court.
    By agreement between said administrators, and for convenience in the administration of said estate, all.the assets thereof were left in the actual possession and control of said . administrator O. M. Overman, and they ever since have been kept by him in the Citizens’ Bank of Hillsboro, of which he is,President, and no part of' said assets has ever been in the actual possession or control of said administrator Arthur Noble, or in the county of Adams.
    In April, 1882, O. M. Overman, as such administrator returned for taxation to the assessor of Liberty township, Highland county, all the assets aforesaid, and the entire sum of $269,090, stands charged against him as such administrator for taxation upon the duplicate of Highland county for the year 1882.
    In the spring of the same year, 1882, the assessor of Winchester township, Adams county, listed for taxation in the name of Arthur Noble administrator of said David Noble, deceased, but against the protest of said Arthur Noble, one-half the value of said estate, and there now stands charged against the said Arthur Noble, as such administrator, for taxation on the duplicate of Adams county, the sum of $ 135,546 on account of the same moneys, credits and investments listed for taxation by O. M. Overman in Highland county.
    The original action was brought by Arthur Noble as administrator of David Noble, deceased, in the court of common pleas of Adams county, against W. B. Brown, treasurer of Adams county (G. M. Overman as administrator of David Noble and E. B.. Pierson, treasurer of Highland county, having subsequently been made parties thereto), to restrain the collection of said taxes in Adams county.
    The district court of Adams county to which the cause was taken by appeal perpetually enjoined' the collection of •said taxes in Adams county.
    It is now sought to reverse the decree of the district court.

      JohnK. Billings, for plaintiff in error.

      Steel & Hough, for defendants in error.
   McIlvaine, J.

It was decided in Ohio et al. v. • Mathews, 10 Ohio St. 431 : “ That where- three executors of a:' estate, reside in the same township, two of them within the corporate limits of a village, the other without such limits, and the three have possession in the law of the taxable moneys, bonds and stocks of the estate, the same must, in view of the' equities and analogies of the statutes — which does not expressly provide for such case — be entered for taxation, one-third as of. the place of residence of each executor.”

In 1882, the statute remaining substantially the same, the foregoing case was followed by this court in Todd v. Hughes et al., reported only in 3 Ohio Law Journal, page 206. In this case it appeared that there were four executors of the will of David Todd. Two of the executors resided in Mahoning county at the late domicil of the testator, one resided in the same county but within the city of Youngstown, and the other within the city of Cleveland, Cuyahoga county. The assets of the estate were kept at the late domicil of the testator.

In this case, it was held that one-fourth of the assets were taxable in the city of Youngstown, where one of the four executors resided, and the balance was taxable in the township where the property was, in fact, situated outside the city limits. No question was made as to the rule where the situs of the property was in one county and the residence of one or more of the executors in another ; but the theory seems to be that the whole of the property was taxable in the county where situated.

It is not disputed, that, as a general rule, the situs of personal property is, in law, the residence of the owner; nor that the administrator or executor of an estate is the owner of the assets, within the meaning of this rule. But granting this, it is nevertheless true, that the legislature may fix the place where personal property, including moneys, credits and investments, subject to taxation in this state, must be listed.

The question now before us is: Had the legislature designated the place for listing the “ moneys, credits and investments” of Noble’s estate, as they existed in 1882, and if so, what was the rule ?

Section 2734 of Revised Statutes provides, that the property of every estate of a deceased person shall be listed by his executor or administrator, and section 2735 provides:

Every person required to list property on behalf of others shall list the same in the same township, city or village in which he would be required to list it if such property were his own ; but he shall list it separately from his own, specifying in each case the name of the person, estate, company or corporation to whom it belongs; all merchants and manufacturers’ stock, and all personal property upon farms shall be listed in the township, city, or village in which the same may be situated; and all other personal property, moneys, credits, and investments, except as otherwise specially provided, shall be listed in the township, city or village in which the person to be charged with taxes thereon may reside at the time of the listing thereof, if such person reside within the county where the same are listed, and if not, then in the township, city or village where the property is when listed.”

It will be observed that bythis section no distinction is made, except as to merchants’ and manufacturers’ stock and personal property on farms, as to the place for taxation, between tangible and intangible proj erty. A distinction, however, is recognized between the place where personal property, moneys, credits and investnients are to be listed for taxation, and the residence! of the person to be charged with taxes thereon, and this distinction is based on county limits.

Section 2736 provides: Each person required to list property shall, annually, upon receiving a blank for that purpose from the assessor, or within ten days thereafter, make out and deliver to the assessor a statement, verified by his oath, of all the personal property, moneys, credits, investments in bonds, stocks, joint stock companies, annuities or otherwise in his possessions or under his control, on the day preceding the second Monday of April of that year which he is required to list for taxation either as owner or holder thereof, or as parent, husband, guardian, trustee, executor, administrator, receiver, accounting officer, partner, agent, factor or otherwise.”

From this section, in connection with section 2734, which reads: Every person of full age and sound mind shall list the personal property .of which he. is the owner., and all moneys in his possession, all moneys invested, loaned or otherwise controlled by him as agent or attorney, or on account of any other person or' persons, company or corporation whatsoever, and all moneys deposited subject to his order, check or draft; and all credits due or owing from any person or persons, body corporate or politic, whether in or out of said county, etc.,” it seems clear to us that the situs of moneys, credits and investments for the purpose of taxation, is the residence of the person whose duty it is to list the same, and not the residence of the owner if they be located in different counties.

The question then arises, whose duty was it to list the moneys, credits and investments belonging to Noble’s estate ? The obvious answer is, the administrator or administrators who had possession and control of the property.

As between administrators residing in the county where, in fact, the property is situated, the mere technical right of possession and control would, it seems, be sufficient. But if the residence of administrators be in different counties the possession or control must be actual. The statute recognises the actual possession and control of credits subject to taxation. C. M. Overman, the administrator resident at Highland county, as the case shows, had the actual possession and control of all the moneys, credits and investments belonging to the estate. Arthur Noble, the administrator residing in Adams county, had no such possession or control. It was therefore the duty of Overman, as such administrator, to list the whole of such property for taxation in Highland county, in the township of his residence ; and, inasmuch, as double taxation was unauthorized, it follows that no part of this estate was properly taxed in Adams county. See Pelton v. Transportation Co., 37 Ohio St. 450.

Judgment affirmed.


author: Owen, J. Okey, J.,

text:
    Bridenbaugh v. King.
    The holder of such certificate of purchase of state land as entitled him to a deed from the state upon its presentation, who has remained out of possession and omitted for forty-three years,without excuse, to perfect his title by obtaining his deed, cannot he heard, as against a subsequent occupying purchaser in good faith, and for full value from a subsequent grantee of the state, to call in question the validity of the deed from the stale, in an action by such purchaser to quiet his title as against the holder of such certificate, by showing the recitals of the state’s deed to be untrue.
    Ekroe to the District Court of Hardin county.
    On the 14th of May, 1836, James Scott purchased of the state of Ohio forty acres of her canal lands, situated in Iiardin county, and received certificates from the receiver and register which entitled him to a deed from the state, upon presentation of the register’s certificate. In October, 1836, Scott granted and conveyed by deed all his interest in this forty acre tract to John McKiggon, and delivered to him his certificates. McKiggon was never in possession of the land. No deed was issued by the state to either Scott or McKiggon, — the title of the latter resting solely upon his certificates, and the fee remaining' in the state, — until December, 1866, when the governor, in behalf of the state, issued to one George Clarke a deed for the land, reciting the foregoing facts, and in addition thereto, that it appeared that John McKiggon had died, and that his sole heir-at-law had conveyed the land to George Clarke.
    By mesne conveyances the title passed from Clarke to William E. King, the defendant in error (so far as the form of conveyance could have that effect), who, on the 1st day of February, 1879, acquired whatever title passed from the state to Clarke by virtue of the governor’s deed to the latter, for the consideration of $1,100 (its full value at the time), and without knowledge of any adverse claim of title thereto.

      The recital in the governor’s deed of 1806, that McKiggon was dead, was not true. On the 12th of February, 1879, McKiggon executed a deed of conveyance for the land to Conrad Bridenbaugh, the plaintiff in error, for a grossly inadequate consideration. King, and those under whom he claimed and held, paid the taxes on the land for more than thirty-three years prior to the commencement of the action below, and for nearly twenty-one years next prior thereto had been in continuous possession of it, making valuable improvements.
    The certificate of the register, which would have entitled McKiggon to a deed, and which he held until his conveyance to Bridenbaugh, was never presented for that purpose, nor does the record disclose any reason for the failure to present it.
    In 1845 the land was sold at forfeited land sale, for nonpayment of taxes, and in 1847 a deed was made by the auditor to one Leighton, from whom, by mesne conveyances, whatever title he had acquired by it passed to King, the defendant in error. The proceedings of this tax sale were sO far defective as that no legal title passed by virtue of .this deed, although it was, upon its face, evidence of a legal title. On • the 22dday of February, 1879, King commenced the action below, which was one to quiet his title to this land as against Bridenbaugh — alleging in his petition his ownership in fee, his possession, and the adverse claim of the defendant.
    The cause was appealed to the district court, which, upon the foregoing facts, found the equities to be with King, and decreed accordingly. To reverse this judgment the present proceeding is prosecuted. Other facts appear in the record, but the foregoing statement embraces all the facts material to the determination of the case.

      Stilling & Allen and West, Walker c& -West, for plaintiff in error.

      F. G. <& J. W. Dougherty, for defendant in error. ■
   Owen, J.

If Bridenbaugh, the successor in title of McKiggou, was in a position to call in question the deed from the governor, of December 18, 1866, from which King derived whatever legal title he was invested with, the [decree of the district court was erroneous and should be reversed. There can be no question that the deed from the governor to Clarke passed the legal title to the latter, as against all the world, except McKiggon and his successors in title. Johnson v. Townsley, 13 Wall. 72; Shepley v. Cowan, 13 Wall. 92; Knapp v. Thomas, 39 Ohio St. 386, and cases there cited; People v. Livingston, 8 Barb. 253.

To the governor was confided the determination of the facts upon which the deed was issued. It was conclusive as against all collateral attack, and unassailed in the action below except upon the alleged ground of fraud in its procurement. The attack upon it rested upon the fact that its recitals of the death of McKiggon and the conveyance by his sole heir-at-law to Clarke were false. But so far as the record shows, this deed may have been innocently procured, and in the belief of the truth of the recitals. There is no warrant for the assumption that either fraud or perjury in the procurement of this deed can be imputed to Clarke, except that the recitals were shown tó be untrue. Bridenbaugh could assert no higher or better rights or equities than his grantor, McKiggon. He took his place and succeeded to his equities. Each party stood below in a court of equity to invoke its intervention in his behalf. Let us briefly examine these respective equities.

Por more than forty years McKiggon held the evidences of his equities — the certificates of purchase — upon presentation of which, to the proper officer, he was entitled to a deed from the state. Why he did not so obtain his deed is wholly unexplained. In the meantime valuable rights were acquired in the land by payment of taxes for thirty-six years, and by possession and improvement for more than twenty years. Thirteen years prior to King’s purchase the state had in due form executed a deed of conveyance to his grantor. During all this time McKiggon had remained silent, and his silence is utterly unexplained, although he was a witness with good opportunity to be examined and heard.

We need not inquire in this discussion, whether or under what circumstances a party may divest himself of his legal title to lands by protracted absence or dereliction.- It will serve the purposes of this opinion to inquire whether and to what extent the equities of Bridenbaugh (which are the equities of McKiggon) are affected by delay and failure to assert .them.

The principle that a party is to be held to promptness in asserting his equities, as against those innocently acquiring legal interests, is fundamental.

In Smith v. Clay, 3 Brown’s Chan. 640, Lord Camden says : “A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights or acquiesced fora great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing. Laches and neglect are always discountenanced.” This language has been expressly approved by this court in Tuttle v. Wilson, 10 Ohio, 27; Pendleton v. Galloway, 9 Ohio, 180; and Clark v. Potter, 32 Ohio St. 59; Wood, J., in Tuttle v. Wilson, supra, says: “Where rights are unreasonably neglected the presumption is legitimate of an intention to abandon them.”

In the case of Pickett v. Dowdall, 2 Wash. (Va.) 137, it appeared that one Crap, in the year 1741 obtained a warrant from the office of Lord Fairfax, the proprietor, for surveying a certain parcel of land. The survey was made and returned in the same year. No grant was made nor applied for, for over thirty years. In 1762, Lord Fairfax issued a warrant to Pickett who surveyed a tract of land embracing a part of Crap’s survey. A grant was made of this tract to Pickett. Marshall (afterward chief justice), contended as counsel, that Crap must be held to have abandoned his interest. The court so held. The president of the court said: “I think the abandonment of Crap is fully proved. ■ It is true that legal rights once vested must be legally divested, but equitable rights may be lost by dereliction.”

Flemming, J., in the same case says: “I am of opinion that the right of Crap was lost by his neglect, and that Lord Fairfax might legally grant the lands to appellants or any other person.”

Carrington, J., says in same case “The appellant, having forfeited any right which he ever had to the land in question by the most unreasonable negligence, has no ground, upon which to establish an equity that can entitle him to relief.”

This case was approved and followed in Curry v. Burns, 2 Wash. (Va.) 156. It is also cited approvingly in Dikes v. Miller, 24 Texas, 424, Wheeler, J., adding: “ Easements and incorporeal rights annexed- to land, may be lost by abandonment. So may an incipient right to land, as a location and survey, or other merely equitable title not perfected into a grant nor vested by deed.”

In the case of Phillips v. Shaffer, 5 Sergt. & Rawle, 215, the contention was between the plaintiff who claimed under a land warrant for 300 acres of public land, dated August, 1174, — survey made April, 1778, — survey returned 1781, and patent dated Sept. 1782 ; and the defendant tinder a warrant dated 1769 — survey made 1777, —returned, April, 1783.

The defendant’s title would have commenced from the time of survey, 1777, in the absence of special circumstances.

Judgment for plaintiff was affirmed. Tilghman, O. J., says : “An application vests in the applicant a right, though not a perfect right. It is the inception of a title which may be rendered perfect by future proceedings, or it may be voluntarily abandoned by the applicant or lost by his negligence. .„ . . Whether the facts in this ease showed such’ negligence as should deprive the defendant of his advantage of priority of application, was a question which the court was not bound to decide as matter of law. The point might therefore very properly be submitted to the jury.”

Woodward, J., discussing this subject in Grant v. Allison, 43 Penn. 431, says; “ It is a general principle that the holder of an equitable title should always- be prompt and eager to perfect it, and it is ¡reculiarly applicable to a settler. Whilst he remains in possession and keeps his flag flying, the commonwealth indulges his delay in taking a warrant, but when he finds himself out of possession, from whatever causes, delays are dangerous, and if continued for ten years without adequate excuse, fatal.”

McKiggon’s dereliction was protracted for forty-three years, during which he' did nothing to assert his equities or perfect them by demanding a deed. There is an entire absence of facts explaining or excusing his neglect and delay. In the meantime, and for a period of thirty-six years, King and those under whom he claims paid the taxes on the land, and for nearly twenty-one years continuously possessed, and improved it. Thirteen years prior to McKiggon’s conveyance to Eridenbaugh (which -was for a grossly inadequate consideration), the state, in due form, executed a deed to King’s predecessor in title, which deed has since been of record in Hardin county.

King in good faith paid full value for the land. The plaintiff in error, Eridenbaugh, went into court armed only with the equities of McKiggon to assail the title of King, as well the state’s deed of 1866, as the forfeited tax deed of 1847, each of which was prima facie evidence of a perfect legal title. Turney v. Yeoman, 14 Ohio, 207. This the court below found, upon the facts of the case, he could not do. Did the court err?

We are not called upon, as a matter of law, to fix the limit nor prescribe a rule which shall determine the length of time within which the owner of an equitable estate in land shall be held to have abandoned his right by dereliction, or to have waived them by absence or delay. The better rule would seem to be to leave the entire subject to the determination of a jury or the trial court upon the peculiar circumstances of each case.

The court below found King in possession. He was the purchaser in good faith and for full value of the legal title, good against all the world except McKiggon and his successor in title, Eridenbaugh, and good also against the latter, unless he was in a position to assail it.

The court below found, we must suppose, fyom the facts of the case, that McKiggon’s equities ought not to prevail against the legal title of King, and we cannot say the court erred in decreeing to him the relief prayed for.

Judgment affirmed.

Okey, J.,

dissenting. In the action of William E. King against Conrad Bridenbaugh, the district court of Hardin county, at its March .term, 1881, rendered a judgment quieting the title of King, as against Bridenbaugh, to a forty acre lot in that county. The action was prosecuted under Rev. Stats. §.5779. That section is broader than the former provisions on the subject, as it does not require that the plaintiff should have the legal title. Collins v. Collins, 19 Ohio St. 468. But where the title of each party, as here, is only an equity, the equity of plaintiff must not only be superior to that of the defendant, but such an equity as fairly calls upon the court to enjoin the defendant from clothing himself with the legal title. That King presents a case calling for such relief, I deny. Indeed, to give him relief is to violate the principle that a right in equity cannot grow out of an illegal and void transaction. •

The view which supports the judgment in favor of King, is well presented in the foregoing opinion by Owen, J. I regret my inability to concur in it, and deeming the decision a clear departure from principle, I feel called upon to state the grounds of my dissent. In doing so I find it necessary to re-state the facts.

James Scott purchased from the state of Ohio the land in dispute, and paid for it in full, May 14, 1836, as appears from the receipt of the receiver of public lands at Tiffin, and on the same day Scott produced the receipt at the Ohio land office, to the register, who gave him a certificate which entitled him to a deed from the governor. During the same year, Scott conveyed the land to John McKiggon, who, in 1879, conveyed the same to Conrad Bridenbaugh, plaintiff in error. It is said the consideration for the latter conveyance was grossly inadequate, but it was and is, so far as the record discloses, entirely satisfactory to Scott as well as McKiggon, and nobody else has ^any' interest in the question. Allegation and proof on that subject are alike immaterial. Briden-baugh’s position is as impregnable as was Scott’s, at the time he made the purchase, paid the money and received the receipt and certificate.

In 1866, George Clarke, of New York, upon the testimony of witnesses who committed perjury, procured from the governor a deed for the land, which deed contained the false statement that McKiggon had died, leaving as his only heir Mary J. Potter, of New York, who had conveyed the land to Clarke. That deed, after reciting the purchase by Scott and the payment of the purchase money, further recited the conveyance by Scott to McKiggon, and that on the 9th day of July, 1866, Mary J. Potter, only heir of the said John McKiggon, deceased, conveyed the said land to George Clarke of the city, county and state of New York;” and further, that “ whereas it appears- that the deed was executed by the governor of the state of Ohio, to the said James Scott, soon after the entry, and that pursuant to law the said deed was sent to the said receiver for delivery, and that not having been delivered, it was burned at the burning of the land office at Defiance, April 10, 1851.”

The evidence upon which Clarke procured such deed from the governor, in 1866, was an instrument purporting to be a deed from Mary J. Potter and her husband to Clarke, and the following affidavit:

State of New York, City and County of New Yorlc, ss :
We, David Wood, and Susan Wood, being by me duly sworn according to law, doth depose and say that they are and have been intimately acquainted with Mary J. Potter, the wife of William Potter, for the past thirty years, and who are the persons described in and who executed the foregoing deed to George Clarke, bearing even date herewith for the following described lands: The southwest J of the north J of section twenty-seven, and the southeast quarter of the southeast J of section twenty-seven, and the northwest J of the northeast J- of section thirty-four, all in township three south, in range eleven east, in Hardin county, Ohio ; also one other tract of land, the east half of the southeast quarter of section five, iu township sixty-two north, in range seven west, in the state of Missouri, containing eighty acres ; and all of said lands were formerly owned by John McKiggon of Alleghany county, Pennsylvania, during his life and up to the time of his death, and who died during the summer of 1842, leaving no wife or children, no father or mother, and but one brother and one sister; that his brother was never married, and has since died without issue, and we know the said Mary J. Potter, the wife of the said William Potter, to be the sister and only heir-at-law of the said John MaKiggon, dec’d, and that the said Mary J. Potter was married to her present husband previous to her brother’s death. David Wood.
SusaN Wood.
Sworn to and subscribed this 9th day
of July, A. D. 1866, before
JOHN Beady, Notary Public,
New York.”

McKiggon testified.in his deposition as follows:

“ My name is John McKiggon. I am about seventy-five years old. I live at No. 1436 Providence avenue, Chester, Pennsylvania. I think I have lived there about nine years.
Q. 2d. State what the fact is as to whether you at any time resided in the town of Alleghany, in the state of Pennsylvania, and if so, at what time, and for what length of time and during what time did you reside there ?
A. I don’t know where Alleghany county is. I passed through there once on my way to Ohio. I never made my home there.
Q. 3d. State if you have now, or at any time have had any knowledge of a person by the name of Mary J. Potter, and what relation or kin there is now or ever was between yourself and the said Mary J. Potter.
A. I never saw a person by the name of Mary J. Potter, and don’t know her and she is no relation of mine whatever.
Q. 4th. State if yon at any time bad a deed of conveyance from James Scott and Mary Scott for 120 acres of land situate in Hardin county, Oliio, and if so for wbat length of time was the deed in your possession, and to whom if any person did you deliver the deed, and what time was the deed delivered by you, and what other papers or evidence of title were delivered by you at same time and to whom ?
A. I had at one time a deed of conveyance from James Scott and Mary Scott for 120 acres of land in Hardin county, Ohio. I had the deed in my possession for over forty years. I let Joseph Taylor have the deed. He had it for years. I gave all the papers 1 had to Taylor along with the deed.
CROSS INTERROGATORIES.
Q. 1st. Have you ever had in your possession the deed from the state of Ohio to the grantee, one Scott, for the land in controversy ?
A. I think I had ; it was the old deed from the state of Ohio.

Mrs. McKiggon testified substantially in the same way. [The forty acres in question here were part of the 120 acres conveyed by Scott to McKiggon.]

It is said Clark may have been guiltless of fraud; but, looking to the record, the whole of which substantially, so far as it relates to this question, is above set forth, nothing could be more improbable than that he was innocent; indeed, that David Wood and Susan Wood committed perjury, if they made the alleged affidavit, cannot be seriously questioned ; and besides, it is clear that the consequences will be precisely the same whether Clark was innocent or guilty ; for he, and those claiming through him, are endeavoring to avail themselves of the fruits of the felony. The pretended rights of Clark, passing through Isaac Bryant, were acquired by William E. King, defendant in error, in 1879, the same year Bridenbaugh, the plaintiff in error, purchased from McKiggon. True, possibly the governor’s deed of 1866 may not be subject to collateral impeachment, even as to the recital of the destruction by fire of the governor’s first deed, which is shown by the testimony of McKiggon to be untrue ; but, according to all authority, the governor’s deed of 1866 may be directly attacked by a suit in equity. Bridenbaugli’s answer was in the, nature of a cross-petition, and the relief prayed for was that the deed should bo set aside and held for naught, or that it should be held as a conveyance in trust for Bridenbaugh’s benefit. That this had all the force and effect of an equitable action to set aside the governor’s deed, or to have the trust declared, or the first deed declared effectual, is perfectly clear. Klonne v. Bradstreet, 7 Ohio St. 322; Conway v, Duncan, 28 Ohio St. 102; Truman v. Love, 14 Ohio St. 144; and see cases in supreme court of the United States, cited 39 Ohio St. 387.

The title first relied upon by Bryant was based on a tax deed, under which lie went into possession in 1859, and that was the beginning of the alleged adverse possession. The tax title, it is conceded, is wholly defective, and it is well settled that equity will not aid such title. Gwynne v. Neiswanger, 20 Ohio, 556. Eor any taxes lawfully assessed upon the land and paid by Bryant, the law gave him a lien. And as the suit was brought in 1879, the same year King acquired whatever interest he has, and as it is not claimed there was any adverse possession prior to 1859, it follows that an action by Bridenbaugh, to recover the land, would not be barred, even if he had been clothed with the legal title during all that period. For any improvements of a permanent cluiracter which Bryant placed upon the land, of course he would have the rights of an occupying claimant.

The contention of King is, — and in this he is sustained by the district court and this court, — not that Bridenbaugh, or those under whom he claims, had done any act which ought to defeat his rights, but that the mere delay to cause the governor’s deed of 1866 to be set aside and a new deed to be made by him, or the governor’s first deed to be declared effectual, amounted to an abandonment of all interest in the land. This is said in the statement of the case and emphatically reiterated several times in the opinion. I deny that the position is tenable. The receipt and certificate, above mentioned, and the deed from Scott to McKiggon, were delivered by the latter to Bridenbaugh, at the time Bridenbaugh received bis deed from McKiggon, and it seems to me the court below lost sight of the force and effect of the title which Bridenbaugli acquired, especially in view of the first deed executed by the governor.

According to decisions in Missouri, Illinois, Iowa, Kentucky, California, and some other states, such certificate vests an inchoate or imperfect title in the vendee, which will enable him to maintain ejectment. But in Ohio, as in the United States courts, the purchaser has only an equitable title, though it is a title which cau be aliened or devised, and, upon the death of the purchaser, before the issue of such deed, the title descends to his heirs, and the purchaser’s alienee, devisee and heirs, respectively, are entitled to the deed in place of the person to whom the certificate was given. The legal holder of the certificate has a perfect equity, and is, in truth, owner of the land; and it is perfectly well settled that, as against the holder of such certificate, the statute of limitations will not run in favor of one in possession of such property, until the deed is executed. This is well illustrated in the carefully considered case of Wallace v. Minor, 6 Ohio, 366; s. c. on re-argument, 7 Ohio, 1 pt. 249. There the patent was issued in 1818, when the land had been in the adverse possession of another person for twenty-five years, and such person continued in possession until ejected in that case in 1831, the suit having been brought in 1830. Collett, J., said : “ It is believed that it is not very uncommon for surveys in the Virginia military district to remain unpatented for twenty-five years, especially where the owners die or are non-residents, as is frequently the case.” Again: “It is the opinion of a majority of the court, that the owner of an entry and survey in the Virginia military district, cannot sustain an ejectment to recover the possession of the land entered and surveyed; that he must, before lie brings his action, obtain the legal title from the United State; that before he does this, his title is an equitable one only. No right of action having accrued to Powell, in hjs lifetime, nor to his heirs until their patent issued in 1818, which is not yet twenty-one years, this action is not barred by the statute.” And that decision is followed or supported by several cases, among them Dake v. Thompson, 16 Ohio, 34; Green Tp. v. Campbell, 16 Ohio St. 11; Clark v. Southard, 26 Ohio St. 408; Seeley v. Thomas, 31 Ohio St. 301.

Returning to the question of. the neglect of McKiggon to obtain a deed from the governor, or to cause the governor's deed of 1866 to be set aside, and even laying out of view the governor’s former deed, upon what ground can it b.e said that the title of Bridenbaugh is defeated ? McKiggon, at the time of his purchase was, and he has continued to be, a resident of Pennsylvania, illiterate, and now nearly or quite eighty years of age. When he purchased the land it was an unbroken forest, and so it remained for more than twenty years. He has done no act calculated to mislead or deceive anybody, and, as already stated, .the sole complaint is his neglect to obtain another deed from the governor and place it on record. “ A man cannot lose the title to his lands by leaving them in their natural state without improvement, or forfeit them by nonuser.” Boston v. Lecraw, 17 Howard U. S. 426, 436.

Several cases are cited in the opinion of the majority, which are claimed to support this decision ; but I deny that any one of them, when carefully examined, will lend it any support. A passage is cited from the opinion of the chancellor in the great case of Smith v. Clay, 3 Br. C. C. 639, but when all that he said upon the subject is examined, it will show very clearly that this decision is in direct opposition to it. The opinion upon that point is as follows : “ There are two questions. First, what period of time is a bar to a bill of review ? Second, from what time this period shall be computed. To the first question the answer here is easy. Twenty years is the period. Edwards v. Carrol, 5 Bro. Par. Cas. 466, is decisive, and not now open to argument. A court of equity, which is never active in relief against conscience, or public convenience, has always refused to aid stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court. Therefore, in Fitter v. Lord Macclesfield, Lord North said rightly, that “ though there was no limitation to a bill of review, yet after twenty-two years, he would not reverse a decree but upon very apparent error. Fxpedit repúblicas nt sit finis litium, is a maxim that has prevailed in this court at all times, without the help of an act of parliament. But as the court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, or a minute, or a year, it was governed by circumstances. But as often as parliament had limited the time of actions and remedies to a certain period, in legal proceedings, the court of chancery adopted that rule, and applied it to similar cases -in equity. For when the legislature had fixed the time at law, it would have been preposterous for equity, which by its own proper authority always maintained a limitation, to countenance laches beyond the period that law had been' confined to by parliament. And therefore, in all cases where the legal right has been barred by parliament, the equitable rights to the same thing have been concluded by the same bar.” Then, after stating several instances, he proceeds with the other question as to the time from which the period is to be computed.

The same view is strongly enforced in Larrowe v. Beam, 10 Ohio, 498, 502, in which Smith v. Clay is approved. Grimke, J., said: “ It appears that a period of more than thirty years has elapsed from the death of George Resley, sen., the time when the right to demand dower first accrued, and the commencement of this suit. But as the petitioner resided out of the state until the year 1835, it is attempted to avoid the effect of the exception in the statute of limitations, by a reliance on the laches and gross negligence indicated by not having instituted these proceedings at an earlier period. And xmdoubtedly the mere lapse of time, which has been truly said to obscure all human testimony, may sometimes be a bar to the assertion of a stale demand. In such cases courts of equity act sometimes by analogy to the statute of limitations, and sometimes upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been extreme and unreasonable backwardness in the prosecution of the claim. Mit. Eq. 269, 274. But I do not know that there is any case in which the defense has been distinctly placed upon this ground, where there has been a statute of limitation applicable to the case. If the party be guilty of such laches in prosecuting his title as would bar him if his title were solely at law, he will be barred in equity. Smith v. Clay, 3 Br. C. C. 640. But further than this the courts have not ventured to go. If there is a statute of limitation in force, a court of equity acts not merely in analogy to it, but in strict obedience to its provisions.” In that suit in equity for dower, jmosecuted by the widow, it was held that it was not only the duty of the court to have regard to the statute of limitations of twenty-one years, but that regard must also be had to the exception then in force which prevented the statute from running against those who were non-residents of the state. As the widow was a non-resident from the death of her husband in 1809 until 1835, and brought her suit in 1840, it was held she was not barred, although there had been continuous adverse occupancy for more than twenty-one years. So in Gibler v. Trimble, 14 Ohio, 333, 343, it was said : “ Stale equities will not be enforced. Where a party having an equity neglects to enforce it for a period which would constitute a bar at law, under the statute, in analogy to the statute it will also be barred in equity.” And there are many other cases to the same effect in this state and elsewhere.

As King commenced this litigation, it was the plain duty of the court to hold that the governor’s deed, which was obtained by fraud, should be set aside and held for naught, or that it should be held as a conveyance in trust for the benefit of MeKiggon and those claiming through him, or that, setting aside the governor’s deed of 1866, effect should be given to his first deed. If the first course had been adopted and the suit had been dismissed without prejudice to a future action by either party, I would have been content. That would have left Bridenbaugh at liberty to obtain a decree setting aside the governor’s deed of 1866, so that he might clothe himself with the legal title, if1 not then clothed with it, -with a view to an action to recover possession of the land; and it would have left King free to protect himself, if he could be protected, by the statute of limitations. It is difficult, however, to answer the claim that King, having instituted the suit when he had no right to maintain it, the court of equity which thus acquired jurisdiction of the subject matter and parties, should have decreed that the deed of 1866 enured to the benefit of Bridenbaugh, and that the governor’s former deed should have full effect, and thus ended, instead of laying a foundation for, future litigation. But the result,- as determined by the district court and this court is very different. Although King is entitled to neither relief nor protection by reason of his tax title, except by way of lien for the amount paid, because the tax title is void ; although he is not entitled to relief or protection, except with respect to improvements, by reason of lapse of time during which he has occupied the property, -because in analogy to the statute of limitations the period is twenty-one years, and that period liad not elapsed when this suit was brought; although he is entitled to no relief or protection by reason of the deed of 1866, which is the source of his title, for the sole foundation of that deed was perjury, and the court should have so declared; yet the court not only refuse to hold that the deed of 1866 should enure to the benefit of Briden-baugh, not only refuse to give effect to the governor’s former deed, but adjudge that King, whose pretended legal title is founded on felony, shall be quieted in his title as against Bri-denbaugh, and yet Bridenbaugh had all the rights of Scott, who honestly and in good faith bought the land from the state of Ohio, the owner,— paid the purchase money in full,— and received a certificate of purchase in due form, and the governor’s deed to Scott was actually executed. Vie-wing the claim of King in the most favorable light that can be claimed for it, the decision only proves that “ hard cases make shipwreck of the law.”

Eollett, J., concurred in the foregoing dissent.