author: Ranney, J.

text:
    John H. Shafher v. The State of Ohio.
    Marriages in this state, contracted by male persons under the age of eighteen and female persons under fourteen, are invalid, unless confirmed by cohabitation after arriving at those ages respectively.
    Such a marriage, not thus confirmed, does not subject a party to punishment for bigamy for contracting a subsequent marriage, while the first husband or wife is living.
    Error to the common pleas of Warren county.
    At the July term, 1850, of the court of common pleas of Warren county, the plaintiff in error was indicted for the crime of bigamy.
    He was charged with having married one Elizabeth Emerick, *on March 9, 1848, and while she was still living, on March 15, 1850, with having again married one Amanda Eitz. To this indictment he pleaded not guilty, and on trial at the October term of the court, for the same year, he was found guilty, and, a motion for a now trial having been overruled, was sentenced to three years’ imprisonment in the penitentiary. At his instance a bill of exceptions was signed and sealed by the judges, and made part of the record, upon which all the questions presented in this case arise. By that it appears that “after the prosecution had given evidence of the two marriages, as charged in the indictment, the defendant on his part gave evidence tending to prove that he was but sixteen years of age on May 26th following the first marriage, which took place with the consent of his father, and that ho was eighteen years of age in May following the second marriage; and that at the time he arrived at that age he was living and cohabiting with his second wife, and within eight or ten miles of the residence of the first one.” His counsel then requested the court to instruct the jury “ that if they were satisfied that he was under the age of eighteen years at the time of the first marriage, such marriage would be void; or, if not void db initio, but merely voidable, that it would become absolutely void unless affirmed by cohabitation after arriving at that ago.” This instruction the court refused to give, but did charge the jury that “ if he was married under the age of eighteen, and lived with his wife until near that age, he could not marry again without disaffirming that marriage, and that to do so on arriving at the age of eighteen, or within a reasonable time after, he must notify the first wife, by act or declarations, of such disaffirmance, that the contract was at an end, and that he would no longer be bound by it; and that such disaffirmance must be before another marriage; and further, that the mere fact that he had left the first wife, and, without her knowledge, married another, with whom he lived and cohabited, would not amount to a disaffirmance of the first contract.”
    ^-Exception was taken to the refusal to charge as requested, and to the charge as given.
    Errors assigned : that the court refused to charge as requested, and that the charge as given was improper.

      W. H. Baldwin, for the plaintiff in error.
    J. McCormick, attorney-general, for the state.
    The cause was submitted without argument.
   Ranney, J.

The main question arising in this case is, was the action of the court of common pleas erroneous? It is one of considerable importance and some difficulty. We have not been favored with an argument on either side, and are obliged to decide from the best lights that a limited examination of the books can give us.

The act upon which this indictment is predicated (Swan’s Stat. 230, sec. 7) provides, “ That if any married person, having a husband or wife living, shall marry any other person,” every such person, on conviction, shall be inrprisoned in the penitentiary not more than seven nor less than one year. The first indispensable step to be taken by the prosecution is, to establish the fact that the person prosecuted is a “ married person,” and has “ a husband or wife living.” To do this, a valid marriage in fact must be shown. The law will not presume it as it will in civil cases. Arch. Crim. Pl. 476.

The question arising upon this record may be thus stated: Can a male person under the age of eighteen, or a female person under the age of-fourteen years, contract a valid marriage in this state? To answer this question, we must first resort to our own statute laws. The first section of the act regulating marriages ” (Swan’s Stat. 582),, passed January 6,1824, provides, “ That male persons of the ago of eighteen years, and female persons of the age of fourteen years, not nearer of kin than first cousins, and not having a husband or wife living, *may be joined in marriage.” The last part of the section provides, that between these ages and the ages of twenty-one and eighteen, respectively, the consent of the parents or guardians shall first be obtained. Although the marriage relation has its foundation in nature, and is indispensable to the moral improvement and happiness of mankind, a great variety is found to exist in the municipal regulations of civilized states as to the age at which it may be lawfully entered into. Nature has fixed no precise period, and each state must for itself, by fixed and reasonable rules, regulate the matter with regard to its own peculiar circumstances. The common law, as is well known, borrowed from the Roman law, fixed the age at fourteen in males and twelve in females. The code Napoleon fixed it at eighteen in males and fifteen in females. In some of the states of this Union the common-law rule prevails, and in others the matter is regulated by statute. In Massachusetts and Illinois it is fixed at seventeen in males and fourteen in females ; but marriages contracted below that age ara rendered valid if followed by voluntary cohabitation. Michigan and Indiana follow the provisions of our own law. This diversity of regulation is not in all- cases accidental. Nature herself in many cases demands such variation; An age that would be right and proper in Spain and Italy would not be adapted to Norway and Sweden. A state of society and a system of policy that makes marriage in many cases a convenient means of controlling estates,, and confining property in particular channels, as in Great Britain, is best subserved by allowing marriages at a period of life when parental influence and authority is not likely to be overcome by the strong current of affection and independence incident to maturer years. But such a regulation would be poorly adapted to a state of society like our own, where no such policy is to be promoted, where fidelity to the marriage vow has all the sanctity of a religious sentiment, and where all experience has shown that the blessings of the marriage relation can only be realized when entered into with the utmost freedom of choice, and between persons of matured judgment and discretion.

^Although our statute differs from the common law in fixing the age at which this contract can be made, still, as it is entirely silent as to the effect of an attempt to enter into it before the period presented, we must resort to the exposition of the common law upon that point; and judicial determinations and the opinions of jurists under that system are strictly applicable. Blackstone, in his Commentaries (vol. 1, p. 433), has treated this subject with his usual clearness and force. In discussing the question as to how marriages may be contracted, and after remarking that the law regards them in no other light than as a civil contract, and that all persons willing and able to contract may enter into them, he proceeds to say that, “In general all persons are able to contract themselves in marriage, unless they labor under some particular disabilities and incapacities.” These disabilities are of two sorts, canonical and civil. In relation to the first, he says, “These in our land only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained.” In relation to the last, he remarks, “ These civil disabilities make the contract void ab initio, and not merely voidable; not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all; they do not put asunder those who are joined together, but they previously hinder the junction. And if any persons, under these legal incapacities, come together, it is a meretricious and not a matrimonial union.”

He then enumerates three legal disabilities that make the contract void. The first is prior marriage. He then proceeds to say, “ The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting ; a fortiori, therefore, it ought to avoid this the most important contract of any. Therefore, if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect, and when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void without any divorce or sentence in the ■spiritual court. *“Although,” he continues to say, “if at the age of consent they agree to continue together, they need not be married again.”

Chancellor Kent (2 Com. 78) states substantially the same. He says, “No persons are capable of binding themselves in marriage until they have arrived at the age of consent. Marriage before that age is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made.”

Judge Reeve (Domestic Rel. 200), in speaking of such contracts, says, “ Such a contract, I apprehend, is void, upon the principle that it is a contract against sound policy and contra bonos mores.” Wharton, in his treatise on Criminal Law, 555, says, “If a boy under fourteen, or a girl under twelve, contract matrimony, it is void, unless both husband and wife consent to confirm the marriage after the minor arrives at the age of consent.” See also Poynter on Marriage and Divorce, 154; Arch. Crim. Plead. 477; Co. Lit. 79; Rex v. Gordon, Eng. Crown Cases, 48.

We think these authorities very conclusively show that the contract of marriage when entered into by a person under the age fixed by law, is void, as well for the want of capacity in the infant to make it, as being opposed to sound policy and the positive requirements of the land. And while it is possible that an occasional case may arise, in which precocious villainy may escape merited punishment, we should remember, on the other hand, that it might as often happen that a different holding would place inexperienced and thoughtless youth irretrievably in the power of cunning, crafty, and interested persons of maturer years. Por our law furnishes no method of obtaining a judicial sentence for annulling such a marriage; unless the parties have the means of escape in their own hands, none exist. To admit the right, and deny the power to make it available, would amount to little less than absurdity. The court below refused to charge that such a marriage would be void until confirmed by cohabitation after arriving at the age of consent. In this we think they erred. They did charge that unless *he dissented from the contract on arriving at such age, and gave the wife notice of the fact, he could not avoid it. "W e think acts of assent after age must be shown to bind him. They did charge that the fact that he had left the first wife, and married another, with whom he was cohabiting at the time of arriving at the age of consent, would not amount to such dissent, while we hold that if such express dissent were required, such acts would be sufficient.

The judgment is reversed, and the cause remanded for a new trial.

      . In Co. Lit. 79, b., it is said: “ The time of agreement or disagreement when they marrie infra annos nubiles, is for the woman at twelve or after, and for the man at fourteene or after, and there need no new marriage if they so agree; but disagree they oan not before the said ages, and then they may disagree and marrie againe to others without any divorce; and if they once after give consent, they can never disagree after.” E. v. Gordon, E. & E. 48.

      . Evidence of two marriages, the former of which is void, will not sustain an indictment for bigamy. 3 "West. Law J. 134; 5 West. Law J. 376.
      On an indictment for bigamy, the admissionsof the defendant as to a prior marriage may be given in evidence to prove the fact of such marriage. "Wolverton v. Ohio, 16 Ohio, 173.
      The common law age of consent is changed by our statute to the age of eighteen in males and fourteen in females. Stat. 582.


source: Caselaw Access Project

license: Public Domain

text:
    Robert Hall v. The State of Ohio.
    Penal statutes are to he construed strictly, and can not be extended, by implication, to cases not falling within their terms.
    Such statutes of a local character, referring to per'sons, places, or things, unless otherwise expressed, are to be confined to such persons, places, or things as existed at the time of their passage.
    The act of February 9, 1846, “ to prohibit the sale of intoxicating liquors in. the vicinity of certain manufacturing establishments, in the counties of Scioto, Lawrence, and Jackson,” is to be confined to such manufacturing establishments as existed at the time of its passage.
    Error to the court of common pleas of Lawrence county.
    At the April term, a. d; 1848, of the court of common pleas of Lawrence county, an indictment was found against ^plaintiff in error, which charged “that Robert Hall, late of said county, on March 10, A. d. 1848, at the county aforesaid, did vend and sell certain spirituous liquors, to wit, one quart of whisky, to one Andrew J. Razor at the grocery store of said Robert Hall, then and there situate, within the distance of three miles of a foundry belonging to Peebles, Wood & Co., then and there an iron foundry, then and there used for the manufacture of iron-eastings within the county of Lawrence aforesaid, and not located within the town of Portsmouth, contrary to the form of the statute,” etc.
    The indictment was upon a local act of the general assembly, passed February 9, 1846, entitled “ an act to prohibit the sale of intoxicating liquors in the vicinity of certain manufacturing establishments in the counties of Scioto, Lawrence, and Jackson.” 44 Ohio L. L. 64. At the October term, 1848, Hall was tried and convicted. A bill of exceptions was taken, which shows that on the trial, “The state called as a witness Andrew J Razor, who testified that in March, 1848, he purchased of James H. Berkley, at a grocery store known by the name of ‘Hall’s grocery/ in Lawrence county, a quantity of whisky; that Berkley was keeping said grocery; that he had seen Hall present when Berkley was selling liquor, but whether Hall knew of it could not say; that witness had never purchased whisky of Hall or in his presence; that there were measures in the grocery for measuring liquids, in which witness had seen molasses, vinegar, liquor, and other liquids measured; that said grocery was within three miles of the iron foundry of Peebles, Wood & Co.

      “ Rodgers, witness for state, testified that said foundry was in operation only from February, 1848; that said grocery was- a regular place of business before the foundry was built, and had been continuously kept, from before the erection of the foundry.
    “ Frampton, witness for state, testified that Hall told witness, that he (Hall) owned said grocery, but had never seen Hall participate in the management of it.

      Hl)empsey, witness for state, testified, had heard Hall say he *had employed said Berkley as his clerk to attend to said grocery. The state then rested the case.”
    The defendant, in the court below, offered no evidence, but asked the court to instruct the jury, among other things, “ that, if the grocery mentioned in the indictment was an established place of business at the time when said foundry was built, and has been continued as such since, the selling adjudged in the indictment was not an unlawful selling,” which instruction the court refused. This was all the evidence given on trial. Motion for a new trial and in arrest of judgment in duo form overruled.
    The error assigned and chiefly relied upon is the refusal of the court to charge the jury as requested.
    Joseph W. Wheeler, for plaintiff:
    The conviction is erroneous, because:
    1. The act of February 9,1846, under which this conviction has been had, is opposed to the laws of Congress to regulate commerce with foreign nations and among the several states, in so far as it relates to the sale of imported liquors when sold in the original cask or vessel in which they were imported. The presumption of law upon the evidence in this case is that the sale complained of was a lawful one.
    2. That the act of February 9,1846, does not extend to the place where the alleged sale took place.
    3. That the act of February 9, 1846, is a private or local act, and should therefore have been specially set forth in the indictment, and proved to the jury.
    4. That the court erred in not charging as requested.
    We will consider these points in the order in which they are stated.

      First. The constitutionality of the act of February 9; 1846, so far as regards the sale of imported liquors, when sold in. the original cask or vessel in which they were imported.
    The extent of the power conferred upon the general' government ■*by virtue of that clause of the constitution which declares that Congress shall have power to regulate commerce with foreign nations and among the several states, has recently been so fully and ably discussed in the celebrated license cases reported in 5 Howard’s XT; S. Eep., that any attempt to further elucidate the subject by argument would be futile. We shall, therefore, merely point out to the court wherein we think the. principles settled in these eases are applicable to the present.
    ■ As we understand these decisions, the following principles are clearly laid down by the court:
    | 1. “ That the laws of Congress regulating foreign commerce authorize the importation of spirits, distilled liquors and brandy, in casks or vessels not containing less than a certain quantity specified in the laws upon the subject.”
    2. That any state law which prevents or obstructs the importation or sale of these articles in the original cask or vessel in which they were imported, is void.
    3. That the states ipay, as a mere matter of police regulation, impose a license upon, and, to a certain extent, regulate the traffic in these articles.
    j 4. But that no state law which attempts to prohibit the importation or the sale of these articles in the original quantity imported, can be supported as a police regulation. Ch. J. Taney, p. 557 ; McLean, J., p. 592 ; Catron, J., p. 601.
    If I am right, then, beyond all controversy, the law under which this prosecution originated is void, in so far as it regards the sale of imported liquors when made in the original quantity and vessel in which they were imported, because this law prohibits entirely, in the greater part of three entire counties of the state, the sale of any spirituous liquors in any quantity.

    j The legal operation of this law, then, must be restricted to the prohibition of the sale of domestic liquors, or of the sale of imported liquors when made in less quantity than by law is authorized to bo imported at one time in any one vessel.
    The next question is, does the record in the present case *show a state of circumstances which entitles the defendant to take advantage of the illegality of the law in this particular ?

      The indictment undoubtedly charges Hall with having made an illegal sale, because the laws of Congress do not authorize the importation and sale of spirituous liquors in so small a quantity as one quart; but the averment of quantity in the indictment is immaterial, and may be supported by proof of a sale of any quantity which may not he legally sold.

    The proof is that the defendant sold “ a quantity of whisky.” How much, or whether imported or of domestic manufacture, does not appear. Here, then, is proof of a sale which might he lawful or unlawful, as the character and quantity of the article sold might vary. What, then, is the presumption of law upon this state of facts ? Undoubtedly, that the ai’ticle sold was of the character and in the quantity which would make the sale legal; for every act which might be lawful is presumed to be so until its illegality is clearly established.
    The burden of showing the circumstances or facts relied upon as a justification, never rests upon the defendant, except where the defense is under a license, or under a subsequent law or subsequent clause of the same law declaring the offense. 1 Greenl. Ev. 90, 91.
    But in this case our defense is under the constitution and laws of the United States, which can never be said to form exceptions to the laws of a state. They establish the general rule, and the state law forms the exception.
    Where there is a trafile in an article which is lawful under the constitution and laws of the United States, and which a state can not interdict, and also a trafile in the same article which a state may legally prohibit, wo think a state, by illegally attempting to prohibit the entire traffic, can not render that traffic which they could not legally prohibit, prima facie illegal, so as to throw upon those engaged in the lawful traffic, the burden of being at all times prepared (in a state court) to show, affirmatively, the legality of their trade. Such a power might be so exercised as to effectually prohibit the traffic altogether.
    *If the legislature of Ohio, in enacting this law, had not attempted, by prohibiting the entire traffic, to transcend their constitutional powers, the burden of the whole proof would have rested upon the state, as it should. And can it be said that by this attempt to exceed their powers, they can cast upon the defendant the burden of showing his innocence?

      Second. The second objection upon which we rely for a reversal of this judgment is, that the act of February 9, 1846, under which the prosecution originated, does not extend to the place where the alleged sale took place.
    The foundry was put in operation in the month of February, 1848.
    The law in question was passed February 9, 1846, when, and for more than two years afterward, the foundry mentioned in the indictment was not in existence.
    We claim that this law can not be construed to extend to this foundry.
    This statute must be strictly construed, because:
    1. It is highly penal; “ and penal statutes are never to be extended by implication.” Andrews v. United States, 2 Story, 202.
    2. It is in restraint of trade; and “ statutes which impose restrictions on trade or common occupations must be construed strictly.” Sewall v. Jones, 9 Pick. 402.
    3. This- statute was enacted for the benefit of a particular class of persons—certain iron manufacturers—as opposed to the natural right of the citizen ; and “ statutes made in favor of corporations and individuals, in derogation of common light, should be strictly construed.” Sprague v. Burdsell, 2 Cow. 419.
    At the time of the passage of this law, and for two years afterward, it did not extend to the place where this sale took place, and nothing in the law itself, or which can be drawn from it by fair legal construction, will authorize this court to say that the legislature, at the time of its passage, intended that the law should apply to this particular place, or contemplated *its extension to any other manufactories than those in existence at the time.
    It is a well-settled principle that statutes referring to or affecting persons, places, and things, are limited in their application to persons, places, and things as they existed at the time the statute was passed. Kendall, Postmaster-General, v. United States, 12 Pet. 294; United States v. Paul, 6 Ib. 141; Mobile v. Eslave, 16 Ib. 243; Mobile v. Hallet, 16 Ib. 261.
    Again, we claim that this act can not be extended to manufactories erected since its passage, because such a construction would render the act itself, so far, unconstitutional.
    The legislative power of this state is vested exclusively in tho general assembly of the state, and it is not in their power to delegate to any man, or other body of men, any portion of that power.
    And any enactment of the general assembly, intended to operate, as a law of the state, to which the assent of any man or other body of men is rendered necessary to its. validity as a law, is an attempted delegation of the power of legislation.
    This principle is fully and clearly sustained in the case of Parker v. The Commonwealth, 6 Barr, 515, 516; and recently in the case of Barto v. Himrod et al., in Tompkins county, New York Supreme Court, in which Hon. Wm. H. Shankland, of the Supreme Co art, declared the late free-sehool law of that state unconstitutional, because “the tenth and fourteenth sections of the act expressly referred the question, whether the act became a law or not, to the people at the polls. The power to extend an existing law to a place where it did not extend, is as much a legislative power as the power to make the original law.
    If the operation of this law was made to depend upon an expression of the will of the people, it would be unconstitutional; But if such a law would be unconstitutional, much more would a law be unconstitutional which makes its application to a locality depend upon the mere act and will of a private individual or manufacturing company, exercised for mercenary motives.
    ^Before the erection of the foundry described in the indictment, the defendant was engaged at his usual place of doing business, in a traffic in spirituous liquors. This traffic was, under the then existing laws, a lawful business. But without any change in the law of the land, by the erection of the foundry of Peebles, (Wood & Co., and immediately upon its going into operation, the defendant’s business must be abandoned, or he punished as a criminal for exercising it.
    The authorities would go very far in warranting the court in declaring such a law void, even where the law itself was clear and positive.
    “ Statutes passed against the plain and obvious principles of common right and common reason, are null and void, so far as they are calculated to operate against these principles.” 4 Bac. Abr. 635, pl. 12 ; Ham v. Claws, 1 Bay. 93; Morrison v. Backsdale, Harper, 101.
    But whore the law itself is not clear and positive in its terms, the courts ought not, by construction, to give it an effect so manifestly unjust and unreasonable. 1 Black. Com. 91.
    S. M. Browning, prosecuting attorney, and J. McCormick, attorney-general, for the state,
    submitted the case without argument.
   Ranney, J.

The plaintiff in error was indicted under the act of February 9, 1846, “ To prohibit the sale of intoxicating liquors, in the vicinity of certain manufacturing establishments, in the counties of Scioto, Lawrence, and Jackson.” On trial, he was found guilty of having sold, on March, 10, 1848, one quart of whisky, to one Andrew J. Razor, at his grocery store, within three miles of a foundry owned by Peebles, Wood & Co., in the county of Lawrence. We do not propose to notice but one of the eri’ors assigned by the plaintiff. It appears by the bill of exceptions, that it was proved to the jury on the trial, that the foundry was ex-ected in the month of February, 1848; that the grocery, at which the liquor was sold, was a regular place of bxxsiness before the foundry was built, and *had been con-

tinuously kept, from before the building of the foundry until after the sale of the liquor charged in the indictment. On this state of facts, the plaintiff in error requested the court to charge the jury, “that if the grocery mentioned in the indictment was an established place of business at the time when said foundry was built, and has been continued as such since, the selling alleged in the indictment was not an unlawful selling.” This instruction the court refused to give, and in this we think they erx’ed. The act upon which the indictment is founded, subjects to a fine of from ten to one hundred dollar's, or imprisonment in the county jail from ten to thirty days, or both, any person who shall “ sell, . or expose to sale, any spirituous or intoxicating liquox’S, at any place within a distance of three miles of any iron-furnace, fox’go, ■ or foundxy, used for the manufacturixxg of pig-iron, bar-iron, blooms, or iron-castings, within the counties of Scioto, Lawrence, and Jackson, in this state, except such furnace, forge, or foundry be located in the town of Portsmouth.” Several considerations connected with the policy of this law are not easily understood. If right in itself, why should its blessings have been confined to three counties? If necessary for the manufacturing intei’ests, why confine it to those of iron alone? And upon what principle do the people of the town of Portsmouth obtain a dispensation to do acts that are made highly criminal when committed by those not fortunate enough to live within her corporate limits ? But it is a law, and although we may not be able to see far enough to fathom its wisdom, we are bound to give it a fair construction and enforce its provisions. It is a highly penal law, punishing the sale of spirituous liquors, in any quantity, when, by the general law of the state, a quantity above a quart could be freely sold, and inflicting imprisonment upon the offender, in addition to a large fine, which it is believed no general law has ever done. It has long been settled that all such laws must be strictly construed. They can not be extended by implication to cases not strictly within their terms. Andrew v. United States, 2 Story, 202.

*The plaintiff in error, at the time this law passed, and for two years afterward, was engaged, so far as we know, in a lawful commerce. His place of business did not stand upon interdicted ground. He was not within a marine league of one of the favored establishments.

He was outside of the territorial limits covered by the law; it did not extend to him or over him; and the question is, could Peebles, Wood & Co., two years after its passage, carry it there, extend it over him, and break up his business? We think not. The statute prohibits the sale of spirituous or intoxicating liquors, within three miles of any iron-furnace, forge, or foundry within the counties named. There is no intimation in the act that it is to extend to establishments erected after its passage."

A well-settled rule of construction here comes in to our aid, which is, that “ a statute referring to, or affecting persons, places, or things, is limited in its operations, to persons, places, or things as they existed at the time the statute was passed.” I shall refer but to one case in illustration of this rule, and if I do not misjudge, it is identical in principle with the present.

It is the case of the United States v. Paul, 6 Pet. 141. The prisoner was indicted in the Circuit Court of the United States for the Southern District of New York, in October, 1830, and charged with breaking, with ah intention to steal, into a store situated at West Point, in the State of New York, and within the sole and exclusive jurisdiction of the United States. The indictment was founded upon section 3 of the act of Congress, entitled “ an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes,” passed March. 3, 1825. This section provides that “ if any offense shall be committed in any of the places aforesaid [forts, dock-yards, etc., ceded by a state to the United States], the punishment of which, offense is not specially provided for by any law of the United States, such offense shall, upon a conviction in any court of the United Slates having cognizance thereof, be liable to, and receive the same punishment as the laws of the state, in which such fort, *elc., is situated, provide for the like offense, when committed within the body of any county of such state.” The offense charged in the indictment was not burglary by the laws of New York, in 1825, but was made so in 1829. The question was whether this section was to be limited to the laws of the several states, in force at the time of its enactment, and upon this question the circuit court divided. The Supreme Court held that it was; that although the charge against the defendant was made burglary in 1829, a year before he had broken into the store, the prosecution was confined to the laws of the State of New York in force at the time the act of Congress was passed. The law of Congress refers to the “ laws of the state in which such fort, etc., is situated.” This statute refers to “ any iron-furnace, forge, or foundry within the counties of Scioto, Lawrence, and Jackson.” It would be quite as unwarrantable to extend this statute to all furnaces, forges, and foundries that might be afterward erected, as it would the act of Congress to laws of the states afterward- passed. We therefore give this extraordinary law a local habitation, by holding that it extended for three miles around every furnace, forge, and foundry in the counties of Scioto, Lawrence, and Jackson, existing at the time of its passage, always exempting the town of Portsmouth; and that it is not migratory in its habits or capacities—that it only punishes those who go within its reach, and does not go after them. It is only when Mahomet goes to the mountain, and not when the mountain comes to Mahomet, that its penalties can be invoked.

The judgment is reversed.


author: Caldwell, J.

text:
    *Charles Bucklin v. The State of Ohio.
    Where a witness is called for the purpose of impeaching the character for truth and veracity of a witness called on the other side, such impeaching witness can only speak of the general reputation of the witness sought to he impeached, in the community, and can not give his own opinion of his character.

    Error to the court of common pleas of Henry county.
    At the May term, 1849, of said court, Bucklin, now plaintiff in error, was indicted for retailing spirituous liquors by less quantity than a quart without license ; and at the April term, 1850, he was tried and convicted on said indictment, and fined.
    During the trial a bill of exceptions was taken, which shows that the state introduced as a witness, Reuben Lamphier, who gave evidence tending to prove the defendant on trial guilty. “ The defendant then called L M. Yeris, as a witness on the part of defendant, who testified that he was acquainted with the prosecuting witness, Reuben Lamphier, and that he had the means of knowing his character for truth and veracity. Defendant then asked said witness ‘what the character of said Lamphier was for truth and veracity;’to which question the state, by the prosecuting attorney, objected, and said objection was sustained by the court. The court decided that the question should be as to the general reputation of the said witness, Reuben Lamphier, for truth and veracity, which question was then asked by the defendant’s attorney, in accordance with said decision of the court.”
    The errors assigned are :
    1. That the court erred in refusing to permit the defendant’s attorney to ask the witnesses as to the character of said Lamphier for truth and veracity.
    2. *The court erred in deciding that the proper question to be asked was, as to what was the reputation of Lamphier for truth and veracity.
    Spink & Murray, for plaintiff:
    This case is reserved for the purpose of settling a question of practice, and presents the question: Whether the testimony of a witness on the stand will be permitted to be impeached by testimony of his general bad character for truth and veracity, or whether a party seeking to impeach the testimony of a witness is restricted in his inquiries as to the reputation of the witness for truth and voracity.
    Did the court of common pleas decide correctly in refusing to allow us to prove the general bad character of this witness for truth and veracity, for tho purpose of impeaching his testimony? We claim that they did not. The proper distinction between general character and reputation is this: that in the first case the witness testifies from his own personal knowledge of tho character of the witness sought to be impeached, as he may have become acquainted with it in his general habits and conduct. On tho other hand, the witness who testifies from reputation alone, testifies from the mere rumor and scandal of community—neighborhood talk—without any reference to the truth or falsity of those reports.
    Tho question having never before been thought worthy of consideration in bank, we are compelled to look to the decisions of tho court on the circuit, and to the reason of the rule in tho case of Jane Wilson v. Runyan, decided in Wright, 651. The court, per Wright J., say: “It has been repeatedly decided by this court that the proper questions to ask on such examinations are:
    “ 1. Have you the means of knowing the general character of the witness for truth ?
    “If the answer be in the negative, you can ask no further; *but if the answer be affirmative, you may ask one or the other of the following questions:
    “2. From your knowledge of his character, would you believe him under oath ; or,
    “ Is his character for truth as good as that of men in general ?”
    These are precisely the questions sought to be asked in this case.
    The court further say : “It is the character, the conduct, and tho habits of the witness which it is sought to learn, not his reputation alone, or what the world says of him. His character may bo well known to the witness as infamous, such as to render him unworthy of belief; and yet the knowledge of it may not have gone abroad so as to affect his reputation. Suppose I have raised a child, and know him to be a thief and a liar, unworthy of belief on oath, but the knowledge of his character has not gone abroad. It is obvious that it is my knowledge which discredits the witness, and which should go to the jury. A good reputation may be offered to sustain the character as one means of refuting the impeaching evidence, for without a good character it must be supposed difficult to acquire a reputation for one.” Seely v. Blair, Ib. 683.
    Establish the rule as claimed by the court, and what is the result ? You pay a premium on hypocrisy. No matter how criminal, how abandoned, how vicious a man may bo—if
    “ he was a man "Who stole the livery of heaven, To serve the devil in”—
    if he had skill and cunning sufficient to secure for himself a reputation in community at variance with his true character and practice—he is safe, he may testify with impunity; and the man who does know him, who has detected his private character, has beheld him stripped of the guise that covers him, he is prohibited from making that character known, and is compelled to admit the general reputation of the man to be *good, and in effect, to confirm and strengthen his testimony, even when conscious that the character of the man is such as ought to cause a jury to look upon his testimony with suspicion, if not to reject it altogether. Phillips on Ev. 212; Rex v. Clark, 2 Stark.; Boyd v. Lewis, 13 Johns. 504. See also Jackson v. Osborn, 2 Wend. (N. Y.) 555; see also Manson v. Hartsink, 4 Esp. N. P. C. 102; Hume v. Scott, 3 Marsh. 261; Noel v. Dickey, 3 Bibb, 268; McNally’s Ev. 221; King v. Rockwood, 4 State Trials, 461, and cases cited; Commonwealth v. Murphy, 14 Mass. 387; 2 Hayw. 300 ; 3 Dev. (N. C.) 209; State v. O’Neal, 4 Iredell, 88; Blue v. Kirby, 4 Monroe, 195; People v. Rector, 19 Wend. 569.
    J. McCormick, attorney-general, for defendant:
    I do not find the form of question ruled out by the court, sustained by any of the elementary writers. They invariably carry the question to general character or general reputation, as contra-distinguished from specific character or reputation within the private knowledge of the individual testifying, and declare the latter inadmissible.
    It is true that in some English cases, impeaching witnesses, on examinations in chief, have been permitted to give their opinions, formed from their own Knowledge of the habits and conduct of the witness impeached, and also their knowledge of particular circumstances and transactions, which were discreditable to the witness; but so far as my examination extends, these were cases growing out of political transactions, in which the conviction of the defendant had boeomo necessary to the government; and in which the ordinary and well-recognized rules of law were sot aside.
    .Apart from cases of this sort, I know of none which go so far as the cases cited by the plaintiff in error from Wright’s Reports, nor do I think the rulings in those cases, or the reasons thereof, maintained by the principles of justice or sound philosophy.
    *The words “character and reputation,” and the terms “gen-oral character and general reputation,” have been used by judges and elementary writers indiscriminately, and as having and conveying the same meaning. 1 Greenl. Ev. 540; 1 Stark. Ev. 211, n. 1; 2 Phil. 431, 432; 4 Phil. 750-760.

       Upon this question, the cases of Wilson v. Runyan, Wright’s S. C. 651, and Seely v. Blair, Wright, 683, are overruled.

   Caldwell, J.

The plaintiff in error was indicted for selling liquor without a license, tried and convicted. On the trial a bill of exceptions was taken to the ruling of the court, on which a single question is presented. After the state had rested, the defendant called J. M. Teris as a witness, who testified that he was acquainted with the prosecuting witness, Reuben Lamphier, and that he had the means of knowing his character for truth and veracity. Defendant then asked said witness what the character of said Lamphier was for truth and veracity, to which question the prosecuting attorney objected, and the objection was sustained by the court. The court decided that the question should be as to the general reputation of the said witness, Reuben Lamphier, for truth and veracity, which question was then asked by defendant.It is contended that the court erred in overruling the question as above stated.

In 1 Phillips’ Evidence, 291, the rule is laid down thus;

“ The party against whom a witness is called may disprove the facts stated by him, or may examine other witnesses as to his general character.”

The author then quotes the language of Chief Justice Buller:

“ That to impeach the credit of a witness, you can only examine as to his general character, and not to particular facts. And the reason given is, that every man is supposed to be capable of supporting his general character; but is not to be supposed capable of supporting his character as to particular facts.” It is stated that the regular mode of inquiring into general character, is to inquire of the witness whether he has the means of knowing the former witness’ general character; and if so, what it is. In the case of Kimmel v. Kimmel, 3 Serg. & Rawle, 337, Justice Gibson says: “The witness is to give, not his own judgment of the matter, but the aggregate result *of at least a majority of the voices he has heard; or, in other words, ho must state what the common report is among those who have the best opportunity of judging of the habits and integrity of the person whose character is under consideration.” The judge further remarks: “The reputation of the neighborhood is the only thing that is competent.”

In 1 Starkie’s Evidence, 147, in a note, the rule is laid down as follows: “A witness called to impeach or support the general character (reputation) of another, is not to sjicak of his private opinion, or of particular facts in his own knowledge; but he must speak of the common reputation among his neighbors and acquaintances. The only proper questions to bo put to him, are, whether he knows the general character (reputation) of the witness intended to bo impeached in point of truth, among his neighbors, and what that character (reputation) is—whether good or bad?”

In 1 Greenleaf’s Evidence, 539, the author says: “But in impeaching the credit of a witness, the examination must be confined to his general reputation, and not be permitted as to particular facts. The regular mode of examining into the general reputation, is to inquire of the witness whether he knows the general reputation of the porson in question among his neighbors; and what that reputation is.”

There is one thing to be observed in reference to the terms character and reputation: that, although differing widely in signification, when strictly used, yet when-used in this connection, both by authors and courts, they are generally used as synonymous terms ; the term general character being used to signify what would perhaps be more definitely expressed by general reputation. The term character,” when more strictly applied, refers to the inherent qualities of the person, rather than to any opinion that may be formed or expressed of him by others. The term “reputation ” applies to the opinion which others may have formed and expressed of his character ; so that, as has been remarked-in some of the books, when treating on this subject, a man’s character may really be good, when *his reputation is bad, and, on the other hand, his reputation may be good, when his character is bad. But, as we have before intimated, the terms, when used in connection with this subject, are generally used in contradiction to this distinction; the term “general character” beingused in legal signification, as it is frequently used in common parlance, to express the opinion that has generally obtained of a person’s character—the estimate community generally has formed of it. When you ask. a witness, then, in this sense of the term, what a man’s general character is for truth and veracity, he is called on to answer as to what opinion is generally entertained and expressed of him, by those acquainted with him. When, on the other hand, you ask a witness what is the character of a person for truth and veracity, without the qualifying term, you ask him to state what is his own opinion of the character of the party, rather than the general opinion of community. The current of authorities is very strongly in favor of the rule, that it is the general opinion of the party’s character, and not the individual opinion of the witness called for the purpose of impeaching, that is competent to be given in evidence. The reason given in most of the books for the rule, that you can not impeach the character of a witness by the proof of specific facts, is, that whilst every man, in contemplation of law, is supposed to be always ready to defend his general character, he is not presumed to be ready, without notice, to defend his character against specific charges. The same objection would exist to permitting an impeaching witness to give his individual opinion of the character of the witness that he may be called on to impeach. A person can no more be presumed to be able, without notice, to disprove the opinion which individuals may have formed of his character, than he could be to disprove specific facts.

As to the charge of general bad reputation, if untrue, every person in the neighborhood can give specific evidence rebutting it. If not able to state affirmatively, that the person is well spoken of in the neighborhood, the witness can state that he knows of no such general bad reputation; which goes *directly to rebut the allegation of its existence. In the case now before us, the question was not put as to the general character or reputation of the witness sought to be impeached; and in this we think it was objectionable, and that the court did Dot err in ruling it out.

The case of Wilson v. Runyan, Wright, 653, and also Seely v. Blair, Ib. 683, are relied on by plaintiff in error. In both those cases the reasoning is predicated on the theory that the impeaching witness may state the character of the person sought to be impeached from his own knowledge, without reference to the reputation such person may have acquired in community. We think, however, these cases are contrary to the current of authority.

Another question was suggested in argument, which does not arise in this case, but which-is certainly one of some importance; and that is, whether the question should be limited to general character for truth and veracity, or whether it should not be permitted to general character without such limitations. There are some very strong reasons in favor of the latter rule; but as that question does not now present itself for our decision, we do not feel'authorized to go into a discussion of it.

The judgment of the common pleas is affirmed.


author: *Hitchcock, C. J.,

text:
    *David Wilson v. The State of Ohio.
    Where distinct offenses are charged in separate counts of an indictment, the jury must either return a general verdict, or else respond to each charge in their finding.
    Where the defendant was charged in one count with an assault with intent to commit murder, and in another count with shooting with intent to kill, which are distinct offenses under the Ohio statute, and the jury returned ■ guilty of “ an assault with intent to kill and murder George Lewis, in manner and form as alleged, etc.,” but said nothing as to the charge of shooting, etc., the finding is insufficient.

      Error to the court of common pleas of Lucas county.
    In that court Wilson was tried and convicted upon an indictment containing two sets of counts, upon two distinct statutory offenses, to wit: an “assault with intent to commit a murder,” under section 17 of the act for the punishment of crimes; and a “ shooting with intent to kill,” under section 24 of the same act.
    The jury returned, as their verdict, “ that the defendant is guilty of an assault with intent to kill and murder George Lewis, in manner and form as is alleged in said indictment.”
    Thereupon followed a sentence of imprisonment in the penitentiary for four years, etc.
    Before the jury was sworn at the trial term, the defendant below moved the court to compel the prosecutor to elect upon which class of the counts in said indictment he would undertake to convict the defendant, but the court overruled the motion, and exception was duly taken.
    *The defendant below also moved for a new trial for insufficiency of evidence, and in arrest of judgment, because the indictment charged the defendant with different crimes which have different punishments. Both of these motions were overruled, for which reason a bill of exceptions was taken.
    The overruling of all these motions, and the insufficiency of the verdict to warrant judgment, are assigned for error.
    Spink & Murray, for plaintiff:
    The finding of the jury does not pass upon all the issues submitted to them, .and is not sufficient to sustain the judgment. It is true they have passed upon the issue presented by the sot of counts charging an offense under section 17 of the statute; but upon that set of counts charging an offense under section 24 of the statute, they have not passed; and it seems to us that upon this state of facts, and in despite of the positive prohibition of the constitution of the state that he shall not be twice put in jeopardy for the same offense, the plaintiff in error may still be indicted and tried for the same offense of shooting at George Lewis, with intent to kill. We believe it to be a well-established rule of civil practice, that a jury must pass upon all the issues submitted to them, else their finding is bad. 4 Ohio, 108 ; Thornton v. Sprague, Wright, 165; Patterson v. United States, 2 Wheat. 221. See also French v. Thompson, 5 Vt. 54; Miller v. Tate, 1 Ld. Raym. 324; Hadley v. Stiles, 2 Salk. 664; Garnish v. Train, 3 Pick. 124; Triplett v. Micon, 1 Rand. 269.
    The finding the prisoner guilty of an assault with intent to murder, is not an acquittal on those counts charging the shooting with intent to kill,—nor is it a substantial finding of any kind on them. The reason is obvions. David Wilson may be guilty of both offenses. If guilty, he may have been charged in two separate indictments, tried, convicted and punished for both offenses; and wo presume it will not for a moment be ^claimed that a trial and conviction, or acquittal,-under one indictment, would be a bar to a prosecution under the other. Hurley v. The State, 6 Ohio, 403; 6 Johns. 688; Jones, 163; Caine’s Ab. 478.
    We claim that the court erred in refusing to compel the prosecuting attorney to elect on which sot of counts he would prosecute, while we admit that a grand jury may find as many separate indictments against the same person for the same offense as they see proper, and no objection can bo taken on that account, further than the record, in one case, would be a bar to the further prosecution of the others; yet we claim the rule to be equally well established, that where different offenses are charged on separate counts in the same indictment, it is the -duty of the court, on the request of the defendant, to compel the prosecutor to elect on which set of counts he will proceed; that it does not rest in the discretion of the court to grant or refuse the motion at pleasure, but is so far a duty that their proceedings thereon may bo reviewed on error.
    We claim, that the indictment in this case is defective, for the reason that it contains counts charging different offenses of a different nature and degree. We suppose there can bo no dispute of the proposition that offenses of the same nature and degree may be charged in different counts in the same indictment; and we suppose it to be an equally well-settled rule, that where there are separate and distinct offenses charged, so that the record in one case would not be a bar to prosecution in the other, they can not be joined, even in different counts, in the same indictment. Barton v. State of Ohio, 18 Ohio, 221.
    We further claim that this indictment is defective for the reason that the several counts are good counts, not only for assault with intent to murder, but are also good counts for shooting with intent to kill, and are therefore bad for duplicacy.
    Wm. H. Hall, prosecuting attorney, and J. McCormack, attorney-general, fot the state,
    submitted the case without argument.
    *Spaulding, J.
    We have once before reviewed and reversed the proceedings of the Lucas common pleas upon an indictment for this same offense. Wilson v. The State, 18 Ohio, 143.
    That indictment had but four counts, while this has eight. The merit of an indictment is not always enhanced in an exact ratio with the number of counts.
    Nothing contributes more to the strength and safety of criminal pleadings than brevity.
    Prolixity tends to the embarrassment of both judge and jury.
    “ It has been the constant aim of modern legislation,” said Lord Denman, in Reg. v. O’Connell, 11 Clark & Fin. 15, “to simplify criminal charges, nor is any object worthier of attention in framing the code of every civilized country.”
    For my own part, I do not like the practice of setting forth more than one distinct offense in the same indictment.
    But certain it is, if the prosecutor be permitted to charge the prisoner with divers crimes, subject to different shades of penalties, all in the same indictment, the plea of not guilty, by the accused, puts in issue the truth of all the charges, and we are of opinion that the finding by the jury should be equally extensive.
    “The jury may acquit the defendant of a part, and find him guilty of the residue. They may convict him upon one count of the indictment, and acquit him of the charge contained in another, and, in general, where from the evidence it appoars that the defendant has not been guilty to the extent of the charge specified, lie may be found guilty as far as the evidence warrants, and be acquitted as to the residue.” 1 Chitty’s Crim. Law, 637.
    In the case at bar, the jury have found the defendant guilty of an “assault with intent to murder,” which is punishable by imprisonment in the penitentiary for a term not more than seven years, and have said nothing in regard to the charge of “shooting with intent to kill,” which last crime may be punished by imprisonment in the penitentiary for twenty years.
    *These are distinct and independent offenses, and if permitted to bo joined at all in the same indictment; we think should be responded to by the verdict.
    In the case of Hurley v. The State, 6 Ohio, 404, Wood, Judge, in pronouncing the opinion of the court, takes occasion to say, “A verdict in either a civil or criminal case must -be considered an entire thing.
    “ It must respond to the whole declaration, and to every count in the indictment, or the court can not legally receive it as the verdict of the jury.”
    We are not prepared to take this dictum, of the learned judge to be law without many grains of allowance. The point did not arise in the case, and was not necessarily decided by the court. We are aware, too, of tho reported decisions in several of the states recognizing the doctrine that when an indictment contains two counts, and a verdict of guilty is found upon one, and there is no finding as to the other, the verdict is good, and judgment of acquittal should be entered upon the one not noticed. 4 Scam. 351; 6 Ala. 200; 7 Blackf. 186, etc.
    But we think it prudent in the case of distinct and independent offenses, especially where they arc made so by the statute,'and are subjected to different degrees of punishment, to require the jury, in the absence of a general verdict, to affirm or negative each charge in their finding.
    This may not be absolutely necessary to protect the accused against a second prosecution -for the offense not passed upon by the jury ; but, if there be any doubt at all upon that subject, it is sufficient to warrant us in establishing the rule.
    That it does admit of some doubt, we may gather from pretty high authority:
    In United States v. McKeen, 1 McLean, 444, the judge says, “ On four of the counts, the jury have found the defendant guilty; on one of them there is no finding.....The suggestion is not without some force, that finding the defendant guilty on the' four counts, implies strongly that he is *not guilty of the other count. In this view, however, the question is not clear of difficulty. The finding of the jury is not special as to the facts, but it may be said to be partial, as it does not include all the counts. And there is no precedent in such a case for amending the verdict.
    “ The finding is full on the four counts, but it is admitted that prisoner was in jail, and could not be present; that the indictment was insufficient in law; that the court rendered judgment on the verdict.
    Tho biLl of exceptions shows that upon the trial of the accused, “ after the evidence was closed upon both sides, and the prosecuting attorney opened the cause to the jury, by argument, the court adjourned for dinner, and thereupon the sheriff placed the said Luke Rose, defendant, in jail, where he remained until after the cause was argued on the defense and closed by the state, and the verdict returned by the jury and received by the court, in the absence of said defendant, the prisoner, and while said prisoner was so in jail, but during all said time the counsel of the prisoner was present, and made no objection to said proceedings,” because of the absence of the prisoner.
    D. W. Stambaugh, for plaintiff in error,
    cited 11 Ohio, 472; 18 Ib. 469; 16 Pick. 423; 5 How. (Miss.) 730.
    J. McCormick, attorney-general,
    submitted the case without argument.

       On an indictment containing two counts substantially alike, a verdict of acquittal upon one, and of guilty upon the other, does not necessarily present such a case of repugnancy as to require an arrest of judgment. 13 Ohio, 453.
      Where an indictment contains two counts for the same offense, one good and the other had, judgment may he given on the good count, upon a general verdict of guilty. Turk v. Ohio, 7 Ohio, 240, pt. 2.

        Where an indictment contains three separate counts, and the jury say they find the defendant not guilty on the first, but can not agree on the other counts, it is not error for the court to refuse to receive the verdict and have it recorded. Hurley v. Ohio, 6 Ohio, 399.

   *Hitchcock, C. J.,

delivered the opinion of the court.

From the facts disclosed in the bill of exceptions, it appears that, on the trial of this case, the accused was in court from the commencement of the trial until the close of tho opening argument for the prosecution, at which time the court adjourned for dinner. Upon the adjournment of the court, the sheriff took the prisoner into custody, and committed him to jail, where he remained during the residue of the argument, and until after the verdict had been returned, and the jury discharged. The counsel for the ¡irisoner were present during tho trial of the prisoner, and when tho verdict was returned. On account of the confinement of the accused, as before stated, and his absence from the court, he moved for a new trial, which was overruled; and the question presented for the consideration of this court is, whether, under the circumstances, the accused was entitled to a now trial.

In section 11, of article 8, of the constitution of 1802, it is provided: “ That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses, face to face,” etc. Now an accused person can not enjoy these privileges, especially the last, unless the first count, on which there is no finding, must be disposed of; and if this can not be done by the entry of not guilty, as above suggested, or by a discontinuance, the verdict must- beset aside.”

This opinion was pronounced on a motion for a new trial, and the conclusion was that Judge McLean permitted the district attorney to enter a nolle prosequi on the first count, and then proceeded to render judgment on the verdict.

It is deemed unnecessary to notice further the points made by plaintiff in error.

The judgment of the common pleas will be reversed, and the cause remanded for further proceedings.


text:
    Luke Rose v. The State of Ohio.
    'On the trial of an indictment for a criminal offense, and at the return of the verdict, it is the right of the accused to he present; and, if prevented by imprisonment, or other improper means, he is entitled to a new trial.

    Error to the court of common pleas of Huron county.

       In criminal cases the verdict should be received in presence of the prisoner, that he may have the jury polled. Sargent v. State, 11 Ohio, 412.

   At the February term, 1851, of the court of common pitas of Huron county, the plaintiff in error was indicted for an ^assault and battery upon one Caroline Rose, with an intent to commit a rape upon the person of the said Caroline. To this indictment the accused pleaded not guilty. ' The case was tried by a jury, who returned a verdict of guilty against the plaintiff in error, as charged in the indictment.

The plaintiff -in error then moved the court for a new trial, which motion was overruled, and judgment was announced in, pursuance of law.

To the opinion of the court overruling the motion for a new trial, the plaintiff in error excepted, and his bill of exceptions was signed by the judges of the court, and made part of the record.

The errors assigned are: That the court overruled the motion for a new trial; and the court erred in proceeding with the trial, charging the jury, and receiving the verdict of the jury, while the jurisdiction conferred upon it by the act of February 7,1831, “ to organize the judicial courts,” Swan’s Stat. 222; and the act of February 7, 1831, “directing the mode of trial in criminal cases.” Swan’s Stat. 724.

Error to the Supreme Court of Hamilton county.

The plaintiff in error was indicted in the court of common pleas of Hamilton county, at the July term, 1849, for the *murder of John Brasher. The indictment contained but one count, and the charge was murder in the first degree. The plaintiff in error elected to be tried in the Supreme Court, to which court the indictment and other papers in the case were certified pursuant to the statute.

At the May term, 1850, of the Supreme Court, the case was submitted to .a jury, and by the jury the accused was found guilty of murder in the second degree; whereupon the then defendant, now plaintiff in error, moved the court for a now trial, and assigned the following reasons:

1. That the court erred in refusing to'charge the jury that a constable or watchman of the city of Cincinnati has no authoi’ity to arrest a person, except on actual viow or commission of an offense, or to preserve the peace, without a warrant legally issued, authorizing such arrest; and the judges being equally divided in opinion as to the law in such case, refused to charge on that point.

2. The court erred in not directing the jury that a difference in opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocence of the accused, created a reasonable doubt to be construed in the prisoner’s favor.

3. The court ei'red in permitting the prosecuting attorney to comment upon and denounce the character of the accused as corrupt, vicious, and criminal, when said accused had not put his character at issue.

4. The court erred in permitting persons to testify as witnesses who were entitled to a reward upon the condition that the accused should be convicted.

5. The verdict of the jury was not warranted by the evidence.

This motion was overruled by the court, and the prisoner was sentenced to imprisonment in the penitentiary, pursuant to law. Thereupon the then defendant excepted to the opinion of the present in court during his trial, so that he may be said to have a constitutional right to be present.

Again, an accused person, when a verdict of guilty is returned against him, has a right to have the jury-polled. This privilege is never in this state denied in a criminal case, although it is a matter of discretion with the court whether it shall or shall not bo allowed in a civil case. Of this privilege the accused poi’son is deprived unless present when the verdict is returned. We conceive it to be the right of an accused person to be present during the trial of his case, and at the return of the verdict, and we think that when deprived of these privileges by being imprisoned in a jail, or in any other improper manner, the verdict returned against him should not be followed *by judgment or sentence of the court, but a new trial should be ordered if requested.

These rights may be waived by the accused person, if he think proper, but whether they can be waived by his counsel is matter of doubt. But, certainly, the fact that his counsel are present in court during the trial, and at the return of the verdict, and do not raise any objection on account of his absence, does not amount to a waiver.

The court of common pleas erred in not granting a new trial, for which error the judgment is reversed, and the case remanded for a new trial.


author: Hetchcock, C. J.

text:
    Jesse Jones v. The State of Ohio.
    The mere failure of an inferior court to instrhet a jury upon a particular point of law arising in a case is not erreonous.
    To make such failure a ground of error, the court should have been requested to instruct upon the point.
    The judgment of an inferior court can not be reversed for matter not apparent upon the record, and if the errors assigned have any reference to the facts of a case, those facts should be made part of the record by bill of exceptions.

    The act of March 12, 1845, to regulate the judicial courts and the practice thereof,” 43 Ohio L. 80, does not take from the Supreme Oourt the criminal court in overruling his motion for a new trial, and his bill of exceptions was allowed, sealed, and made part of the record, as follows:
    Be it remembered, that on the trial of the above cause, etc., there was no evidence that the said John Brasher, who was a day-watch, had a warrant to arrest the said Jesse Jones, and there was evidence tending to prove that said Brasher had, on the day previous to the alleged killing, arrested, without warrant, and discharged the said Jesse Jones, and, at the time of the killing, was attempting to arrest the said Jesse Jones without any warrant» but only upon the charge and suspicion that the said Jesse had committed a crime; that, on the facts, it was material matter of law to determine whether a constable or watchman had the right to arrest without warrant, and the court being divided in opinion as to the law upon that point, so told the jury, and said that they could not charge them whether a warrant was necessary or not, and did not charge the jury upon that point of law ; and, also, that the prosecutor commented injuriously upon the character of the prisoner, when the same had not been put in issue, and the prosecutor claimed it as a matter of just inference, for which, and other reasons assigned on motion of a new trial, the court refused to grant a new trial, and overruled the same, to which ruling and determination the counsel for the prisoner excepts, and prays that this bill of exceptions be signed and sealed as a true bill, and that the same be made part of the record in this case.” .
    This writ of error is prosecuted to reverse the sentence and judgment of the Supreme Court. The errors assigned are :
    I. That the court erred in not charging the jury that a warrant issued in due form of law, by a magistrate or other officer legally authorized, was necessary to enable an officer to effect a legal arrest, except upon actual view of the commission of an offense.
    II. That the court erred in not charging the jury that a difference of opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocense of the accused, was a reasonable doubt to be construed in the prisoner’s favor.
    III. That the court erred in permitting the prosecutor to *comment upon and denounce the character of the plaintiff in error as corrupt, vicious, and criminal, when the said plaintiff had not put his chai’acter in issue.
    IT. That the court erred in admitting the testimony of persons who were entitled to a reward upon the condition that the said plaintiff, in error should be convicted.
    T. That the verdict is unwarranted by the evidence.
    TI. That the court erred in overruling the motion for a new trial.
    VII. That the. judgment should have been in favor of the plaintiff in error.
    N. C. Bead and James T. Worthington, for the plaintiff:
    Mr. Worthington submitted a lengthy argument, in which he made the following points :
    1. An arrest can not be made in Ohio without a special warrant) showing probable cause, supported by oath or affirmation, except upon actual view of the commission of an offense.
    2. The authority of watchmen of the city of Cincinnati, in matters of arrest, extends only to offenses committed in their actual view; and day watchmen of the said city have no official authority in the night season. 1
    3. The equal division of opinion of the Supreme Court upon a material question of law, raises a doubt which should be considered beneficially to the defendant.
    4. The prosecutor can not go into any inquiry in regard to the defendant’s character, unless the same has been put in issue by the defendant himself.
    5. Persons having a pecuniary interest in the result of the trial, and depending upon the conviction of the defendant, are not competent witnesses.
    6. The Supreme Court has no jurisdiction in criminal cases.

      First. The first and principal point presented, is as to the authority of a watchman to make an arrest without a warrant. U . S. Constitution, art. 4 of amendments; Constitution of Ohio, art. 8, sec. 5 ; 2 Hill, 296; 3 Burr. 1743; 1 Black. 555; 2 Hawk. P. C., ch. 13, see. 10; 1 Hale’s P. C. 580; 4 Black. Com. 291.
    The American doctrine, then, in the first place, is that general warrants arc illegal and void. 3 Cranch, 458, 453; U. S. Constitution, 4th amendment; Constitution of Ohio, art. 8, sec. 5. If this be the true interpretation of the constitutional provisions upon this topic, but two other modes of effecting an arrest can be inferred, either by special warrant, or without any warrant, but simply virtute officii. It is conceded that an officer can make an arrest for an offense committed in his actual view and presence, but beyond this he can not move a single step without a warrant legally issued. 2 Black. Com. 293; 2 Hawk. P. C., ch. 13, sec. 8; 1 Chitty’s C. L. 17; 1 Hale’s P. C. 587; Rawle on Constitution, 124.
    In Ohio, a magistrate is authorized to cause arrests only in two ways; either on view of a criminal offense, or on complaint made on oath or affirmation. Swan’s Stat. 537, sec. 1; 3 Binn. 38 ; Constitution of United States, 4th amendment; Constitution of Ohio, art. 8, sec. 5 ; 3 Story on Constitution, 748; Rawle on Constitution, 124; 3 Cranch, 448, 453 ; 4 Crunch, 75 ; 3 Wend. 350 ; 1 Bald. C. C. 571; 4 Black. Com. 292; 2 Iredell, 201.
    Under what circumstances are watchmen empowered to make arrests virtute officii?

    No act can be performed virtute officii, which the power of the government is incompetent to authorize, and if the preceding construction of the organic law of the land be correct, the state government can confer no authority upon its officers beyond the limits therein prescribed; or, in other words, no arrest can be made by an officer virtute officii, except on actual view. A constable (and a fortiori a watchman) has no more authority to make an arrest than a private person has, by virtue of his office alone. 2 Hawk. P. C., ch. 13, sec. 7; 1 Chit. Crim. Law, 18. Even the 'old common-law rule, that *a constable, when a felony has actually been committed by some one, may arrest a person upon reasonable cause of suspicion, can .have but little, if any effect, in aiding us in the determination of this question.
    Has a constable any authority in any matter beyond that which the statute expressly confers upon him? We maintain that he has not. Swan’s Stat. 541, see. 25; 12 Com. Law R. 266.

      Second. But the officer who attempted to make the arrest in this case was a day-watchman of the city of Cincinnati.
    The office of watchman is the creation of the city charter, and although his authority could not extend beyond that of a constable, it does not follow that it equals it. Let us inquire, then, what authority the city of Cincinnati has power to confer upon watchmen, and what authority she has attempted to invest them with. The city is authorized, by its charter, to establish a city watch, “ prescribe its duties, and define its powers, in such a manner as will most effectually secure the inhabitants thereof from personal violence, and their property from fire and unlawful depredation.” 32 Ohio L. 244, sec. 9.
    But let us examine what action the city council have taken, and what authority they have attempted to confer upon watchmen. Several ordinances, at different periods, have been ordained, under the charter, and the one in force at the time the alleged offense was committed, entitled “an ordinance to organize, prescribe'the duties, define the powers, and fix the compensation of the city night-watch,” was passed April 9,1845. Ord. City Cin., vol. 2, p. 84. A. prior Ordinance, passed May 27,1842, entitled “ an ordinance to establish a day-watch” (and amended August 30, 1848, only increasing the number of watchmen—Ord. Cin., vol. 5, p. 23), and still in force, confers the same powers upon the day-watch, while on duty, as are conferred on the night-watch. Ord. City Cin., vol. 1, p. 205. By reference to the ordinance of April, 1845, it will be found that the fifth section thereof invests night-watchmen with the power to arrest in the night season, and *take before the mayor, for trial, any person or persons who shall have committed, or be in the act of committing, any criminal offense; and under a preceding section of the same ordinance, they are invested with the same powers, for the enforcement of the city ordinances, etc., as are conferred upon constables ; and they are required* in “the night season to arrest and apprehend all persons committing, or who shall have committed, any criminal offense,” etc. If the ordinance referred to is intended to confer any authority in matters of arrest, beyond the fact of commission in actual view, any such arrest becomes not only “ unreasonable ” and “ unwarrantable,” but such delegated authority is general authority to arrest, and must operate as a general warrant, which is expressly unconstitutional. 4th Amend. U. S. Const.; Ohio Const., art. 8, sec. 5; Rawle on Const. 124; 3 Story on Const. 748; 3 Binney, 38; 3 Crunch, 448; 4 Cranch, 75 ; 4 Black. Com. 291; 3 Burr. 1743; 1 Black. 555; 1 Hale’s P. C. 580; 2 Hawk. P. C., ch. 13, sec. 10.
    In attempting to arrest Jones, Brasher acted solely in the capacity of a day-watchman, appointed under the ordinances of May 27, 1842, and August 30,1848, which conferred upon him the same powers that are conferred upon night-watchman, only while on duty.

    The language of the ordinance of May, 1842, is, “and the persons selected by the city council to act as day-watch, shall, whilst on duty, have the same powers as are now, or may hereafter be conferred on the night-watch ” (City Ord., vol. 1, p. 205) ; and that of the ordinance of August 30,1848, “ that the said day-watchmen shall perform the same duties, be clothed with the same powers, be governed by the same rules and regulations, and receive the same compensation, as the night-watchmen elected under the ordinance to which this is. an amendment. City Ord., vol. 5, p. 23.
    In attempting, therefore, to arrest Jones in the night season. Brasher acted solely as a private citizen, without any color of legal authority.

      *Third. The court were equally divided in opinion as to the necessity of a warrant to effect a legal arrest, and on this point did not charge the jury.
    This division of opinion of the Supreme Court of the state certainly implied a doubt of the law, the benefit of which should have been given to the plaintiff in error. 1 Greenl. Ev. 97; Roscoe Crim. Ev. 15; Wright’s S. C. 20, 392, 617; Ohio Const., art. 8, sec. 6; 11 Ohio, 424.
    The jury are the judges of the facts, both in civil and criminal cases, but they are not the judges of the law in either. 2 Blackf. 151. The maxim, ad queestionem juris non respondent juratores, is as old as the common law. Co. Lit. 155, b.

    In Ohio, in cases of writs of error in prosecutions, the punishment whereof is capital, or by imprisonment in the penitentiary, upon an equal division of opinion in the court in bank, the judgment is reversed. 42 Ohio Stat. 53, sec. 2. This statute clearly determines that where doubts of the law arise in the minds of the court, and there is a division of opinion upon the law, the doctrine in this state is, that the person on trial is to receive the benefit arising from those doubts and opinions.

      Fourth. The bill of exceptions also discloses the fact that the prosecuting attorney was permitted to comment upon the character of the plaintiff in error, denouncing it as vicious, corrupt, and criminal, when the said plaintiff had not put his character in issue. It is a well-settled principle that the character of a person charged with crime can only be put in issue by himself, and unless he does 60 voluntarily, the prosecutor has no right whatever to refer to that character, or introduce evidence in regard to it. McNally’s Ev. 324; Whart. C. L. 172; 1 Chit. C. L. 574; Roscoe’s Crim. Ev. 89; Peake’s Ev. 9; Bull. N. P. 296; 2 Mass. 318; 14 Wend. 111; State v. O’Neal, 7 Iredell, 250.

      Fifth. It is also claimed that tho court erred in admitting tho testimony of persons who were entitled to a reward, upon the express condition that the plaintiff in error should be convicted.
    *A reward was offered for the “ arrest and conviction of Jesse Jones,” and witnesses on the trial, who had made the arrest, and received a part of the reward, were permitted to testify, which was objected to upon the ground of direct interest in the result, but the objection was overruled. 1 Greenl. Ev. 326, 327, 386; 3 Stark. Ev. 1729; 1 Phil. Ev. 45 ; McNally’s Ev. 59 ; Bull. N. P. 283 ; Roscoe’s Crim. Ev. 126; 1 Chit. C. L. 596.

      Sixth. But one more question remains. It is the question of tho jurisdiction of the Supreme Court in criminal cases. We claim that it has none.
    Whatever jurisdiction the Supreme Court has in criminal or other cases was conferred by tho act passed February 7, 1831, entitled “an act to organize tho judicial courts. Swan’s Stat., 222. Under section 2 of this act, the Supreme Court derived its jurisdiction in criminal cases, and under the authority thereby conferred, solely has the court tried capital cases. This section of the act provides “that the Supremo Court shall have original jurisdiction of all offenses, the punishment whereof is capital.” But section 9 of an act entitled “ an act to regulate the judicial courts, and the practice thereof” (43 Ohio Stat. 80), passed March 12, 1845, is as follows: “ Section 2 of an act entitled an act to organize the judicial courts, passed February 7, 1831, except so much thereo f as gives the Supreme Court original and appellate jurisdiction in proceedings in chancery, together with all acts and parts of acts inconsistent herewith, are repealed.”
    By the act of March 7, 1831, entitled “ an act directing the mode of trial in criminal cases” (Swan’s Stat. 724), it is enacted, that “ when any person charged with the commission of an offense, the punishment whereof is capital, hath been indicted and arraigned before the court of common pleas, ho or she, before pleading thereto, shall be at liberty to declare whether he or she elect to bo tried in the Supreme Court;” and although there is no law repealing this provision in express *terms, yet it is claimed that if jurisdiction is taken away, the right to elect ceases, ex necessitate rei.

    J. MoCoRMtCK, attorney-general, for the state:
    I do not deem it necessary to reply to the elaborate argument on constitutional law, presented by counsel for the plaintiff, and correct the error into which he has fallen, in applying the principle contained in provisions intended to guard the citizen against the operation of general search-warrants, to the case at bar, in which a known criminal was arrested upon the charge of having committed a known crime. Halley v. Mix, 3 Wend. 350; Wakely v. Hart, 6 Binney, 316 ; Commonwealth v. Deacon, 8 S. & R. 49. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested; but if no felony be committed, and a private individual arrest without warrant, such arrest is illegal; an officer, however, would be justified if he acted upon information from another, which he had reason to rely on. An arrest of a felon may be justified by any person without warrant, whether there be time to obtain one or not, if a felony has in fact been committed by the person arrested. 3 Wend. 350; Wrexford v. Smith, 2 Root, 171.
    When one not generally known as an officer makes an arrest, he must show his authority, if demanded, or he may be lawfully resisted; but it is otherwise of a known officer. The State v. Curtis, 1 Hayward, 471; Arnold v. Stevens, 10 Wend. 514.
    The right, however, to demand of one not generally known as an officer, to produce his authority, is where the party submits himself to the arrest, not where he immediately resists, and by his own wrongful act prevents the officer from doing his duty. Commonwealth v. Field, 13 Mass. 321. Parties thus resisting do it at their peril. The rule deducible from the foregoing decisions appears to be, that when a well-known officer arrests *a party he need not produce his warrant for so doing, even if demanded after a voluntary surrender, and certainly not when the arrest is made by violence, either when the party attempts escape, or resists the arrest by force.
    It is perhaps unnecessary to notice the other questions discussed, except that raised as to the ineompetency of witnesses on the ground of interest. The interest which disqualifies must be direct and immediate, not contingent and remote. The conviction •in this case did not entitle the witnes's to the reward, but only to recover the reward, provided he brought himself within the conditions annexed to the offer thereof. The interest being contingent and remote, only goes to affect his credibility, which is a proper question for the jury. Irvine v. Lumberman’s Bank, 2 Watts & Serg. 190; Clark v. Robinson, 5 B. Mon. 55; Smith v. White, 5 Dana, 376.
    The statement of facts made by counsel for plaintiff in error, is dehors the record, but did they appear on the record the results would not be changed, or it would be in the power of any party accused of crime, for whose conviction a reward was offered, to defeat justice and public policy, and disqualify the witness of his crime, by procuring to be offered and paid a private reward for his own conviction.

       On a writ of error, nothing is examinable but what is set forth in the record. 7 Ohio, 212, pt. 1.

   Hetchcock, C. J.

Before proceeding to the consideration of the specific errors assigned in this case, it is proper to remark that the bill of exceptions is very defective. It discloses no. part of the evidence in the case, so that it is impossible to determine upon some of the errors assigned, whether the court did or did not err.

The first error assigned is “ that the court erred in not charging the jury that a warrant issued in due form of law, by a magistrate or other officer, legally authorized, was necessary to enable an officer to effect a legal arrest, except when on actual view of the commission of an offense.”

Whether it was the duty of the court to charge upon this point at all, must depend upon the facts which had been disclosed *upon the trial; because, if there was no evidence relating to the point, the court could not properly charge upon it.

What is stated in the bill of exceptions is as follows: “ Be it remembered, that on the trial of the above cause, there was no evidence that the said John Brasher, who was a day-watch, had a warrant to arrest the said Jesse Jones, and there was evidence tending to prove that said Brasher had on the day previous to the alleged killing, arrested without warrant, and discharged the said Jesse Jones, and at the time of the killing was attempting to arrest the said Jesse Jones without any warrant, but only upon the charge and suspicion that the said Jesse had committed a crime, and that on the facts, it was material matter of law to determine whether a constable or watchman have the right to arrest without warrant; and the court being divided in opinion as to the law upon that point, so told the jury, and said they could not charge them whether a warrant was necessary or not, and did not charge the jury upon that point.” According to this part of the bill of exceptions, it seems that the court hearing the case, was of opinion “ that on the facts,” this “ was a material matter of law to determine.” This, howover, is not sufficient. This is a question for this.court, acting as a court of errors, to determine, and it can not be determined but upon a disclosure of the facts in the bill« of exceptions.

But what, in reality, is the error complained of? Not that the court refused, upon request of the party, to instruct the jury upon a particular point of law arising in the case. Not that the court violated any principle of law, in the instructions given, but that the court neglected, or forbore to instruct upon one point of law, which is said to have been material in the case.

Suppose, after the testimony and ax-guments of counsel are closed, the court submits the case to the jux-y without any instructions whatever; would this be error, for which the judgment subsequently rendered could be reversed? I apprehend not, fori know of no rule of law which requires a court, of its *own mere motion, to instruct or charge a jury at all; and perhaps those who hold—and there are many such—that in criminal cases the jury are the judges of the law, as well as of the facts, would hold that it was erroneous for the court, in such cases, to give any instructions at all. It is customary for our courts, as a general rule, to charge or instruct juries; but I am not aware of any law which, as a matter of course, imposes any such duty upon them. If it would not be erroneous to neglect to give any instructions whatever, it certainly can not be erroneous to neglect to instruct upon a particular point which may arise in a case. But if the parties to a case, or either of them, request the court to instruct the jury upon the whole case, or upon particular points which may be involved, it is the duty of the court to do it, and if the law is mistaken by the court, it is error.

The rule of law upon the subject I suppose to be this : If the court, in its instruction to the jury, mistakes the law of the case, or if the court is requested to instruct upon a point of law involved in the case, and refuses such instruction, it is error.

Now apply this principle to the case before this court. How does it stand, so far as the first error assigned is concerned? The judges of the court before whom this case was tried, differed upon, a point of law, which, in their opinion, was involved in the case. They so stated to the jury, and for this reason neglected to instruct upon that point. Neither the plaintiff in error nor his counsel made any objection to this action of the court, nor requested any instruction ujion the particular point. Having failed to do this, it is now too late to compilain. Had the plaintiff in error, or his counsel, requested the court to instruct the jury that the law upon this particular point was as they now allege it to be, and had the court refused, the foundation for a writ of error would have been laid, and this court would have been called upon to settle the law upon the subject.

Such, however, is not the state of case, and we do not feel that it would be proper for us to undertake to settle the principal ^question, which has been elaborately and ably argued by counsel. That question, in substance, is, whether a ministerial officer, without process, has any better right to arrest a man suspected of (¡rime than has a private citizen. ¥e are aware that it is a question upon which there is a great contrariety of opinion, and it will be soon enough for the court to decide it when a case is presented rendering it necessary.

The second error assigned is, “that the court erred in not charging the jury that a difference of opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocence of the person accused, was a reasonable doubt, to be construed in the prisoner’s favor.”

There is the same difficulty with respect to this assignment of error as with respect to the first. It is a mere allegation that the court failed so to instruct, not that there was any refusal of the court so to instruct, when requested. There is also this additional difficulty : the bill of exceptions does not show whether there was or was not any such charge, nor whether any such charged was requested. All that appears in the record is, that this was assigned by counsel as one of the reasons why a new trial should be granted.

The third error assigned is, “that the court permitted the prosecutor to comment upon, and denounce the character of, the plaintiff in error, as corrupt, vicious, and criminal, when said plaintiff had not put his character in issue.”

Upon this point the bill of exceptions contains this statement: “ The prosecutor commented injuriously upon the character of prisoner, when the same had not been put in issue; and the prosecutor claimed it as matter of just inference.” There is nothing to show that there was any action of the court upon this subject at all. All that appears is, that the counsel for the prosecution commented upon the character of the accused, and claimed that he had a right so to do. Whether he had such right was not a question made to the court. Possibly he may have been too severe in his remarks. But this is nothing *uncommon. Counsel frequently take great, and, in fact, unpardonable liberty in commenting upon the character of j>arties, and more especially of witnesses. It does not conduce to the ends of justice. It is a bad practice; and the members of the bar who are addicted to it, from respect to themselves, and to the courts in which they practice, should abandon it. But we should bo unwilling to reverse judgment because the court in which it was rendered had not interfered to prevent improper remarks of counsel.

The fourth and fifth errors assigned are, “ that the court erred in admitting the testimony of persons who were entitled to a reward upon condition the said plaintiff should be convicted,” and “that the verdict is unwarranted by the evidence in the case.”

As to these errors, it is sufficient to say that the record does not show that such persons wore admitted as witnesses, nor does it show what evidence was before the court and jury. The bill of exceptions is silent upon the subject.

The sixth error is, that the court overruled the motion for a new trial; and the seventh, that the judgment was against the plaintiff in error, when it should have been in his favor.

Nothing appears in the record to lead this court to the conclusion that a new trial should have been granted; and, if not, it follows, of course, that the judgment is correct.

Another point is made in the argument of plaintiff’s counsel, which is not noticed in the assignment of errors. It is claimed that by the act of March 12, 1845, “to regulate the judicial courts and the practice thereof” (43 Ohio L. 80), all previous laws conferring criminal jurisdiction upon the Supreme Court were repealed. Such is not the construction which has been put upon the statute by this court. True, the question has never been decided by the court in bank, but it has frequently been agitated upon the circuit; and upon the circuit the court have uniformly exercised the same criminal jurisdiction as before the enactment of the law of 1845.

*In the whole case we discover nothing erroneous. The sentence and judgment of the Supreme Court is affirmed.