author: WiuwAMS, C. J.

text:
    Railway Company v. Furnace Company.

      Railroad. Companies — Overcharges by, for freight — Acts of February 11, 1848, and March 30, 1875, construed — Penalty for overcharges, does not bear interest.

    1. By the phrase “its capital,” in the proviso of section 12 of the act of February 11,1848, (1 S. & C. 271) is meant the capital stock of the. company; and railroad companies, incorporated under that act, or by special act which confers upon the company the powers, and makes it subject to the restrictions and provisions of that act, whose net profits on an average of the ten years next previous to the passage of the act of March 30, 1875, (72 O. L. 143) amounted to a sum equal to ten per centum per annum upon the actual capital stock of the company, are bound by the provisions of the last named act, reducing the rates which may be charged for the transportation of persons or property upon the road of such company.

      Z. An issue of additional stock by such company, while the act of March 30, 1875, was in force, for amounts ascertained by computing interest on the original subscriptions, will not take the company out of the operation of the statute, although, for the year in which it was issued, the net profits óf the company were not equal to ten per cent, of the aggregate amount of the capital stock and such new issue.
    3. The provision of the act of 1848, that the reduction of the rates shall not be such “as to reduce the future probable profits below said per centum,” does not make it a condition to the validity of the reduction that' the future profits shall in fact equal that sum. While that provision enjoins upon the legislative body, the duty of exercising its deliberate judgment upon the facts before it, in regard to the probable future profits, it will be presumed, that in the enactment of legislation on the subject, that body has properly and in good faith performed the duty, and regulated the rates accordingly.
    4. Before judgment, the penalty allowed by the act of March 30,1875, for overcharges for carrying freight or passengers, does not bear interest.
    (Decided February 2, 1892.)
    Error to the Circuit Court of Lawrence county.
    The action below, was brought by the Furnace Company against the Railroad Company, to recover a penalty for an overcharge made by the defendant, for the transportation over its road of certain freight shipped by the plaintiff. It was originally commenced before a justice of the peace of Lawrence county, and taken thence, on appeal, to the court of common pleas, where the parties filed the following pleadings:
    “RFTITION.
    “The said plaintiff, Lawrence Furnace Company, says it is an incorporated company, duly organized under the laws of said state of Ohio, and that said Iron Railroad Company, defendant, is also an incorporated company, duly organized under the laws of said state; that this action came into this court on appeal from a judgment rendered by and before one Thomas Golden, a justice of the peace in and for Upper Township, in said county of Lawrence. And said plaintiff avers that said defendant is the owner of a certain railroad located in said county, known as the “Iron Railroad,” which said road is over twelve miles in length, and is not a road in course of construction, and the gross earnings of which, are less than four thousand dollars per mile per annum; that said plaintiff now is, and for the last six years and upwards has been the owner of Eawrence Furnace which is located in said county on the line of said railroad, ten miles from the city of Ironton, and for said period of six years and upwards, plaintiff has been manufacturing pig iron at said furnace and transporting the same upon and over said railroad to said city of Ironton, and for the like time has been transporting goods, merchandise and other articles of freight over said road; that on the 17th day of September, 1875, said plaintiff, in good faith and in due course of its business, caused to be transported upon and over said Iron Railroad while so owned and operated by defendant, as aforesaid, from said Eawrence Furnace to said city of Ironton, a distance of ten miles and no more (20,250 lbs) twenty thousand two hundred and fifty pounds of pig iron, for which transportation said defendant was entitled to demand and receive from said plaintiff the sum of $4.48 and no more, being at the rate of five cents per ton per mile; yet said defendant, its officers and agents, in violation of law, demanded and received of plaintiff for said transportation the sum of $10.10, being $5.62 in excess of the amount authorized by law for said transportation. By reason of the premises, plaintiff is entitled to recover from defendant the sum of one hundred and fifty dollars. The said plaintiff therefore, by virtue of and under the provisions of the statute of Ohio, in such case made and provided, asks judgment against said Iron Railroad Company, defendant, for said sum of one hundred and fifty dollars.”
    “ ANSWER.
    “ The said Iron Railroad Company for its first defense to the said petition of plaintiff says : That said Iron Railroad Company became and was incorporated by special act of the General'Assembly of the state of Ohio, entitled “An act to incorporate the Iron Railroad Company,” passed March 7, 1849, with powers to construct a railroad from the Ohio river in Upper Township, in Uawrence county, Ohio, to the south line of Jackson county, with the right at their discretion of continuing it in a northerly direction to the line of the Belpre and Cincinnati Railroad Company. By section three of said special act, it was and is provided that said company shall have the powers and be subject to all the restrictions and provisions of the act regulating railroad companies, passed February 11,1848, entitled “An act regulating railroad companies.” That the corporators named in said special act and their associates, shortly after the passage of said special act, to-wit: in the year 1849, as provided for by said act of February 11, 1848, and as authorized by said special act, organized the said corporation, accepted the privileges, powers, franchises and rights granted and conferred thereby, and became subject to all the restrictions, limitations and provisions of said act; and thereupon defendant under and by virtue of the rights, powers, privileges and franchises so granted and conferred, relying on and upon the faith thereof, proceeded to construct, maintain and operate a railroad from the Ohio river, in Upper Township, Uawrence county, for a distance of about thirteen miles and less than thirty miles in said Uawrence county, in the direction of and towards the south line of said Jackson county, and has also constructed and maintained side-tracks, turnouts, offices and depots as defendant deemed necessary, at and along the line of said road, and has constructed branches from the main line of said road to other places within the limits of said Uawrence county,-and in so constructing and maintaining said road, side-tracks, offices, depots and branches, and in equipping the same, defendant, from time to time and prior to the 30th of March, A. D. 1875, had expended and had then invested more than $400,000.00 of its capital. It avers further that in so constructing, maintaining, equipping and operating said railroad, side-tracks, offices, depots and branches, it availed itself of the powers, rights, franchises and privileges granted to and conferred upon it by said special act, and said act of February 11, 1848, and became and was subject to the restrictions and limitations of said last-named act and none other. It avers that for the transportation of property on its said road, ever since its said construction, it has charged and received such reasonable rates as were fixed by it from time to time, as authorized and provided for bj section 12- of said act of February 11, 1848. It • avers that by the provisions of said section 12 of said act it was and is provided that at any time after the expiration of ten years from the time any road constructed under the provisions of said act may be put in operation, it should be lawful for the general assembly to prescribe the rates to be charged for the transportation of persons or property upon said road, should they be deemed too high, and might exercise the same p'ower ten jmars thereafter: Provided, that no reduction should be made unless the net profits of the company, on an average for the previous ten years, should amount to a sum equal to ten per centum per annum upon its capital, and then not so as to reduce the future probable profits below the said per centum.
    “Defendant denies that on the 30th day of March, A. D. 1875, or at any time previous thereto, the contingency had arisen or existed that authorized or would authorize the general assembly to prescribe the rates to be charged b}' defendant for the transporation of persons and property upon said road, and especially it denies that at that time, or ■at any time previous thereto, the- exigencies existed that authorized or would authorize the general assembly to pass said act of March 30, 1875, and make the same applicable to defendant. It therefore says that as to defendant said act is unconstitutional and void.

      “ Second Defense. — For a second defense to the action of plaintiffs, defendant saj’s that plaintiff ought not to be permitted to maintain its said action against it, because it saj-s that the same is for a penalty accruing to them for an alleged violation of the provisions of the act of the legislature of the state of Ohio, passed March 30, 1875, entitled “An act to amend section 13 of the'act of May 1, 1852, entitled ‘An act to provide for the creation and regulation of incorporated companies in the state of Ohio as amended April 20, 1874, and to repeal an act therein named,’ ” and that the only right, if any, they ever had to maintain said action, was under and by virtue of said act of March 30, 1875, and that since the commencement of this action, and during the pen-dency of the same, to-wit: on the 6th day of April, 1876, by an act of the legislature then passed, and which took effect as of that date entitled “An act to amend section 13 of the act of May 1,1852,'entitled, ‘An act to provide for the creation and regulation of incorporated companies in the state of Ohio, as amended March 30, 1875, and to repeal an act therein named,” said act of March 30,1875 was repealed, and by the express terms of said repealing act, the repeal thereby of said act of March 30, 1875, had the effect to annul penalties accruing or accrued under said last-named act.”
    “ REPRY.
    “The said plaintiff, with leave, etc., now comes and for reply to defendant’s answer filed April 10, 1880, and as to the first ground of defense therein set forth, says it adinits the allegations to the effect that defendant was originally incorporated under said special act of March 7, 1849, and was subject to the powers, restrictions and provisions of said general act of February 11, 1848. That said railroad company organized under said acts and constructed thirteen miles of its line of road with sidetracks, turnouts, offices and depots, and workshops, and subsequently, under the general laws of the state, passed since the adoption of the present constitution of the state, and by virtue thereof, built branches. As to each and all other allegations of fact therein stated, plaintiff denies the same to be true.
    “For reply to the second ground of defense set forth in said answer, plaintiff denies that by the terms of said repealing act of April 6, 1876, or otherwise, plaintiff has been deprived of its right to prosecute to final judgment, its said cause of action, under the provisions of said act of March 30, 1875.”
    The case, coming on for trial, was submitted to the court upon the following:
    “AGREED STATEMENT OP EXACTS.
    “The facts in this case are agreed upon as follows:

      “ 1st. The Iron Railroad Company was incorporated under a special act of the General Assembly of the state of Ohio, passed March 7, 1849, and was granted all the powers and made subject to all the restrictions and provisions of the act regulating railroad companies, passed February 11, 1848. 3 Swan & Critchfield, Statutes 271, et 'seq.\ Ohio Railway Report, vol. 1, (1870,) 14, 520.
    “2nd. The railroad was constructed 13 miles upon the line designated in its charter, extending from the city of Ironton, in Eawrence county, to Centre Station, in said county. It was completed and put in operation between these points in December, 1852, and has been in operation ever since. It has not been extended beyond Center Station, but during the year 1873 the company built two branches, both within said county of Eawrence, called respectively, ‘Etna branch’ and ‘Hecla branch,’ of the aggregate mileage of 3J miles. At the date complained of, the road was not in course of construction, and its gross earnings were over $4,000 per mile, and net earnings or income about $1,700 per mile per annum.
    “3d. The facts admitted in the pleadings are to be treated as part of this agreement.
    “4th. The capital stock of the company was, by its charter, limited to an amount not exceeding $500,000.00. The amount subscribed was $123,700.00. Some small dividends in stock were afterwards made in the years 1857,1858, 1864 and 1865, to equalize the stockholders in respect to the different times when they respectively paid up their subscriptions; making the amount of the subscribed and paid for stock $129,550.00, for which certificates were issued to the several stockholders entitled thereto.
    “5th. From the year 1852 to 1876, the company, by its proper officers, made regular annual reports to the auditor of state, as required by the act of February 11, 1848, aforesaid, during which time ‘capital stock’ of the company was reported to be $129,550.00.
    “6th. On the 27th day of April, 1875, a stock dividend was declared by the company amounting to $175,550.00, and the annual report made to the auditor of state for the year 1876, shows this additional amount, making the whole capital stock $305,100.00, for which certificates of stock were duly issued to the several stockholders respectively entitled to the same.
    “7th. The said stock dividend, as claimed by said railroad company, was made upon the basis of computing interest on the several amounts paid on subscriptions of stock by the respective subscribers thereto, as authorized and provided in section 22 of said act of February 11, 1848, for a period of 22 years and 6 months.
    “8th. No cash dividend was made prior to said date, April 27, 1875, and the net earnings of said road remained in its business, and are used in improving the property, which, on the first day of April, 1875, amounted to $418,000.00.
    “9th. The charges for transportation complained of, were made by the defendant at the dates, for the quantities and distances, and at the rate stated in the plaintiff’s petition, and were paid by the plaintiff in the manner therein stated.
    “10th. Treating the ‘capital’ of the company within the meaning of the 12th section of the said act of February 11, 1848, as being the amount of its subscribed capital stock and paid in by its stockholders, viz: said sum of $129,550.00, the net profits of the company on an average for ten years immediately prior to either the 1st of April, 1873, or the 1st of April, 1875, amounted to a sum equal to more than ten per cent, per annum upon its capital. But treating the capital of the company as being $305,100.00, or as represented by and signifying the several amounts paid in, as aforesaid, by subscribers to the capital stock, with the accumulated profits retained in its business and as represented by the actual value of the property of the company, then the average net profits for said period of ten years prior to either of said dates did not amount to as much as ten per centum per annum on its capital.”
    Judgment having been rendered for the plaintiff, for the amount of the penalty claimed, and interest, amounting to the sum of $245.23, the defendant prosecuted error to the circuit court, where the judgment was affirmed; whereupon the defendant filed its petition in error here to reverse the judgments of the circuit and common pleas courts.
    Eleven other cases are pending in this court in which the railroad company is plaintiff in error, which involve the same questions here presented, and it is agreed by the parties thereto that judgment shall be entered in each of them in accordance with the decision of this case.

      Henry S. Neal and J. L. Anderson, for plaintiff in error.

      W. A. Hutchins and E. V. Dean, for defendant in error.
   WiuwAMS, C. J.

The plaintiff’s claim to the penalty, for the recovery of which the original action was brought, is based upon the act of March 30, 1875, (72 Ohio L. 143), which, among other things, provides, that “any corporation operating a railroad, in whole or in part, in this state,” which “shall demand or receive,” more than five cents per ton per mile for the transportation of pig iron, iron ore, etc., for any distance of five miles or more, “shall pay to the part3'' aggrieved for every such overcharge a sum equal to double .the amount of the overcharge, but in no case less than one hundred and fifty dollars to any bona fide claimant using said road in the due course of his business.” The provisions of the act are made applicable “to all railroads now in operation in this state, or organized under the provisions of the act entitled ‘ an act regulating railroad companies,’ passed February 11, 1848, and all other railroad companies now in operation chartered' by special acts of the general assembly since the passage of said act, which by the acts of incorporation make such railroad companies subject to the restrictions of said act of February 11, 1848, and to all railroads and railroad companies organized under any of the laws of Ohio;” except railroads not exceeding twelve miles in length, and those in course of construction, whose gross earnings are less than four thousand dollars per mile, “where such railroads are not owned or operated by corporations operating another road.”

The defendant company, it appears from the record, was incorporated under a special act of the general assembly, passed March 7, 1849, by the third section of which, it is provided, that the company “shall have all the powers and be subject to all the restrictions and provisions of the act regulating railroad companies, passed February 11,1848.” The twelfth section of the last mentioned act, authorizes such railroad companies to charge such reasonable rates for the transportation of freight for a less distance than thirty miles, “as may be from time to time, fixed by said company.” It contains the further provision, that “ at any time after the expiration of ten years, from the time any such road may be put in operation, it shall be lawful for the general assembly to prescribe the rates to be charged for the transportation of persons or property upon said road, should they be deemed too high, and may exercise the same power ten years thereafter: Provided, that no reduction shall be made, unless the net profits of the company, on an average for the previous ten years, shall amount'to a sum equal to ten per centum per annum upon its capital, and then not so as to reduce the future probable profits below the said per centum.”

In a case between these parties, reported in 29 Ohio St. 208, it was held, that railroad companies, incorporated as was the defendant, which had not relinquished their right to be governed by the act of 1848, “ and had not realized a net profit of ten per cent, on their capital for the ten years next preceding the passage of the act of March 30,1875, are not bound by provisions of the latter act reducing their rates of fare or freight below those allowed by section 12 of said act of 1848.” Unless, therefore, the defendant, either realized such profits for the period mentioned, or relinquished its right to be governed by the act of 1848, it did not incur the penalty recovered against it in the courts below. But if it did either, then the judgment for the penalty was correct. Whether the requisite amount of profits were so realized, depends upon the effect given the term “capital,” as used'in the proviso of section 12 of the act of 1848. If, by it, is meant the actual capital stock of the companj'', then the parties agree that the profits of the defendant were sufficient to make it subject to the provisions of the act of March 30, 1875. But, if it embraces not only the capital stock, but also the accumulated profits retained in its business, and as represented by the actual value of the property of the company, or, stock dividends amounting to $175,550.00, for which stock was issued on the 27th day of April, 1875, to the subscribers to the capital stock, as interest on the amount of their subscriptions, then the profits were not sufficient. When applied to corporations, the word “capital” is sometimes used in the sense of corporate property, and is distinguished from the shares and certificates of stock, which are the individual property of the stockholders and form no part of the capital of the company. Bradley v. Bauder, 36 Ohio St. 28. But the capital of a corporation, is generally understood and defined to be the property or means contributed by the stockholders as the fund or basis for the business or enterprise for which the corporation was formed. The word “stock” is sometimes added, and the phrase “capital stock,” is used couvertibly with the word “capital.” It is so used, in at least one instance, in the statute under consideration, as will be seen by reference to section six, which is as follows: “That whenever any railroad company heretofore incorporated, or created and incorporated under the provisions of this act shall, in the opinion of the directors thereof, require an increased amount of capital stock, the3 shall, if authorized by the holders of a majority of the stock, file with the auditor of state a certificate setting forth the amount of such desired increase, which shall not exceed the amount of the original capital of said company, and, thereafter, such company shall be entitled to have such increased capital as is fixed by said certificate.” This, while not controlling, is not without its importance in determining with what meaning and intent the legislature used the word “capital” in the subsequent section (section 12) of the same statute. Grounds of a more satisfactory character, however, for the construction we have concluded the statute should receive, are found in section twenty. That section requires each railroad company incorporated under the act, to make a report, in January of each year, to the auditor of state, “showing the amount of the capital stock of such company, the gross amount of tolls or receipts during the previous year, the cost of repairs and incidental expenses, the net amount of profits, and the dividends made; with such other facts as may be necessary to a full statement of the affairs and condition of such road, and the auditor shall annually, present an abstract of such report to the general assembly.” The object of the report to the auditor, and of the abstract required of him, evidently was, to furnish the legislature, the necessary information, to enable that body to intelligently exercise the power reserved to it by the twelfth section. With the amount of the gross receipts, the cost of repairs, and expenses of operating the road, before it, the legislature could readily ascertain the net profits for the period covered by the report; and having before it also, the amount of the capital stock, it is but a matter of calculation to determine whether the profits equal ten per cent, of that amount. And it is this result, for the requisite period of time, we think, that determines the power of the legislature, under the twelfth section, to reduce the rates for the trans--portation of persons or property by such companies. If it had been intended, that the value of the corporate property should be the basis of the computation, and, that the profits must equal ten per cent, on that amount for the specified number of years, to authorize the enactment of any law making reductions in the rates, it seems improbable that the legislature would have failed to require the value of the corporate property to be set forth in the report. True, it is provided, that the report shall contain “ such other facts as may be necessary to a full statement of the affairs and condition of such road,” and under this provision the company might include in its report the value of all the property belonging to the corporation; but it is not likely, that a matter so important, would be left to the discretion of the company, or be provided for only, in such general terms. The statute, in specific terms, requires the amount of the capital stock to be shown in the report, the necessity of which is not apparent, unless that is to be taken as the basis of the computation. Treating it as such, that, with the other facts which are also required to be specifically shown by the report, afford the general assembly all the information essential to intelligent legislation on the subject. looking to the whole statute, we are of the opinion, that by the phrase “its capital,” in the proviso of section 12 of the act of February 11, 1848 (1 S. & C. 271) is meant the capital stock of the company; and railroad companies incorporated under that act, or by special act which confers upon the company the powers, and makes it subject to the restrictions and provisions of that act, whose net profits, on an average of the ten years next previous to the passage of the act of March 30, 1875, amounted to a sum equal to ten per centum per annum upon the actual capital stock of the company, are bound by the provisions of the last named act, reducing the rates which may be charged for the transporation of persons or property upon the road of such company.

The limitation upon the amount of the reduction, contained in section 12 of the act of 1848, namely, that the reduction of the rates shall not be such “ as to reduce the future probable profits below said per centum,” does not make it a condition to the validity of the reduction, that the future profits shall in fact equal that sum. It simply enjoins upon the legislative body, the duty of exercising its deliberate judgment upon the facts before it, in regard to the probable future profits of such companies, and it must be presumed, that in the enactment of legislation on the subject, that body has properly and in good faith performed the duty, and regulated the rates accordingly. And if at the time of the passage of the law, the necessary facts exist which authorize its enactment and application to such companies, a subsequent change in the condition or affairs of the company will not take it out of the operation of the statute. Such changes may call for future legislation, from time to time, but cannot defeat the application of the statute so long as it continues in force. Hence, the fact, that after the adoption of the act of March 30, 1875, the defendant declared certain stock dividends, and issued stock for amounts ascertained by computing interest on the original subscriptions, as shown by the agreed statement of facts, did not affect the application of that act, nor relieve the defendant of the consequences of exacting rates in excess of those allowed by it.

Nor did the repeal of the statute, by the act of April 6, 1876, afford a ground of defense. The plaintiff’s cause of action accrued, and the action was commenced before the repeal occurred; and the repealing statute expressly saves actions pending at the time of its passage, and causes of action which theretofore “accrued to any person from whom such railroad company or corporation, by its officers or agents, shall have demanded or received fare or freight, at a rate above that allowed by law; provided, such person paid overcharge while using such railroad in the due course of his or her business, and not for the purpose -or with the view of obtaining the penalty provided by law for such overcharges, and such person may maintain his or her action in any court of competent jurisdiction for the recovery of such penalty.” The plaintiff’s action is within the terms of the saving clause.

But, while we think the plaintiff below was entitled to judgment for the penalty, it was error, in our opinion, to include interest upon it. The statute creating the penalty does not allow interest, and the liability is not of that character which entitles it to draw interest under the general statutes regulating the subject. Section 3179, (Revised Statutes) gives parties to bonds, bills, promissory notes and other instruments of writing for the forbearance or payment of money at a future time, the .right to stipulate therein, for the. payment of interest at any rate not exceeding 8 per cent, per annmm; and section. 3180, requires that “Upon all judgments, decrees, or orders, rendered upon any bond, bill, note, of other instrument of writing containing stipulations for the payment of interest in accordance with the provisions of section 3179, interest shall be computed till payment at the rate specified in such instrument.” Section 3181 provides, that “ In cases other than those provided for in the two preceding sections, when money becomes due and payable upon any bond, bill, note, or other instrument of writing hereafter made, upon any book account, or settlement hereafter made between parties, upon all verbal contracts hereafter entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract hereafter made, or other transaction which hereafter occurs, the creditor shall be entitled to interest at the rate of six per cent, per annum and no more.”

It is evident, penalties given by statute, do not belong to any of the classes of liabilities which bear interest under either of the sections alluded to. And, as was said by McElvaine, C. J., in Higley v. First National Bank of Beverly, 26 Ohio St. 81: “ Interest on such a claim, before judgment, not being expressly given by the statute, cannot be allowed.” Besides, no interest was claimed in the petition.

As the precise amount of interest recovered.is apparent on the face of the judgment, it is not necessary to remand the cause for the correction of that error, but the judgment will be here modified by deducting the interest, and in other respects affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Wiuwams, J.

license: Public Domain

text:
    Seville v. The State.

      Prize-fighting — What is a good indictment for — Agreement to engage in a prize-fight, a conspiracy to commit crime— When declarations of either party, admissible against the other — • What is a prize-fight — Expert testimony, not admissible, to determine —How must be determined.

    1. An indictment which, with proper averments of time and place, charges that the accused did unlawfully engage as principal in an unlawful and premeditated fight and contention, commonly called a prize-fight, with another person named, and in said fight, the accused and such other person, did each the other unlawfully strike and hruise, and attempt to strike and bruise, for and in consideration of prize and reward, is a good indictment under section 6888, of the Revised Statutes, which provides, that “whoever engages as principal in any prize-fight,” shall be punished as therein prescribed.
    2. It is not necessary that the indictment aver that the fight took place in Ipublic; nor, that it contain averments which negative the existence of the matters mentioned, in the proviso of section 0890, of the Revised Statutes.
    3. An agreement to engage in a prize-fight, is a conspiracy to commit a crime; and the declarations of either party with reference to the common object, or in furtherance of the criminal design, while engaged in its prosecution, are competent evidence against the other, though the agreement was made by or through backers or other representatives of the principals, and the latter were unknown to each other.
    4. Tetters written by one of the principals, while in training for the-fight, describing what the fight is to be, stating when and where it is to occur, and requesting the presence of his friends and others thereat, are in furtherance of the unlawful enterprise, and admissible in evidence against the other.
    5. On the trial of an indictment for engaging in a prize-fight, it is not error to exclude as evidence, a license issued by the mayor of the municipality where the encounter occurred, to an athletic club, to have a glove contest therein on the same day; nor, to exclude the articles of association of such club.
    0. Whether a pugilistic encounter is a fight, or a boxing exhibition,, is not a question upon which expert testimony is admissible, on the trial of an indictment for engaging in a prize-fight. The question must be decided by the jury upon the evidence of what actually took place, under proper instructions from the court, and not upon the opinions of professional pugilists, and others experienced in such combats, or the rules adopted by associations for conducting such contests.
    (Decided March 2, 1892.)
    Error to the Circuit Court of Athens county.
    So much of the record as is deemed material to a proper-understanding of the questions upon which the case is= reported, will be found in the opinion.

      E. A. Guthrie and L. M. Jewett, for plaintiff in error.
    I. The indictment is clearly bad. The statute is silent as. to what shall constitute a prize fight, does not define it and leaves the matter wholly to judicial construction.
    There is no allegation in this indictment that Seville engaged .in a prize fight, and the allegation that he engaged in a “contention” commonly called a prize fight, falls far short of complying with the terms and requirements of the statute,. which is to receive a strict, and not a liberal, construction.
    What.sort of a “contention” did Seville and Majesty engage in? The pleading attempts to say it was commonly called a prize fight, but nowhere is it alleged in the indictment that they did engage as principals in a prize fight.
    We ask the court to read section 6890, Revised Statutes, in connection with section 6888, as we.claim that the indictment should contain, under the proviso of that section, a negative averment, that the alleged prize fight was not an athletic club exercise.
    Now it was lawful for Seville to have engaged in a boxing exhibition under the license of the mayor (Revised Statutes, sec. 6890,) and hence we claim it is not sufficient to indict by the use of the statutory words, but the indictment should in apt words set forth the facts that it claims constitutes the offense defined by sec. 6888 and attempted to he plead in the indictment, together with the negative averment above referred to. Him v. State, 1 Ohio St. 16-24, 25; Woodworth v. State, 4 Ohio St. 487; Howard v. State, 11 Ohio St. 328; Sullivan v. State, 7 Southern Rep. 275.
    See Webster’s definition of “prize fighter,” and "prize fighting.”
    We claim that there must be fighting in public, and we claim that the indictment is defective in this case by reason of the failure to aver that it was to be a fighting in public. Regina v. Young, 10 Cox Crim. Cases, 371.
    II. The court erred in excluding the evidence, that a license was obtained from the mayor to hold the exhibition. The contract or agreement by which Seville was to come to Nelsonville, was made in Columbus, and Nelson had already testified in behalf of the state.
    The court, in sustaining the exception of the state, in effect excluded the defendant’s defence, as his claim was that he came to Nelsonville to engage in a glove contest under the auspices of the Athletic Club of that place, and under a license issued by its mayor as provided by section 6890, Revised Statutes.
    The court also erred in excluding from the evidence the articles of association of the Nelsonville Athletic Club.

      The court erred in excluding the licence to hold said exhibition from the jury, and exhibit “B” attached thereto.
    The court erred in excluding from the evidence the entry in a book containing the proceedings of the Nelsonville Athletic Club.
    Seville had a right to show, as reflecting upon his intentions and purpose, as to whether or not he was guilty of the crime alleged in the indictment, and that in point of fact he was going to enter into an athletic exercise, and that it was sanctioned under sec. 6890, Revised Statutes, and hence he had a right to show that such a club was formed and that a license was issued by the mayor, and that he would not have entered the contest but for the assurance that he received, that such would be the case.
    Seville was deceived into the belief that he was going to Nelsonville to engage in an ordinary boxing exhibition, and yet the court excluded the very evidence upon which he based his defence; the state claiming that he had engaged as a principal in a prize fight, while the defendant’s claim was that he was entering into a mere boxing exhibition under the auspices of a regularly organized athletic club protected by a license of the mayor.
    III. The court clearly erred in admitting the letters of Arthur Majesty. These letters were admitted by the trial court bn the theory that it was a declaration of a co-conspirator of Seville, made during the pendency of the criminal enterprise and in furtherance of the common object. Chronology here becomes important. The agreement made at Columbus was in the early days of February, 1891, and Seville was assured that his contestant was to be Tracy and not Majesty, and Seville had never heard of Majesty until the night of the contest, February 24, 1891. Majesty’s first 'letter bears date February 15, 1891. The second letter bears date February 20, 1891. Both of these letters were written before Seville knew who Majesty was, and before he knew that he was to meet Majesty in the contest. The letters were a mere advertising scheme to get people to come and see the contest, over which Seville had no control. The whole record shows clearly that there was no evidence tending to show any conspiracy by which Seville was to enter into a prize fight at Nelsonville, with Majesty or any other person. The letters upon their face show that they were not declarations made during the pendency of a criminal enterprise and in furtherance of the common object. They were not concomitant with the principal act, and connected with it, so as to constitute a part of the res gesta.

    Seville did not know Majesty; did not know that he was to contest with him; he was assured that he was to meet a Nelsonville miner, Tracy. He had the right to refuse to enter the contest when he discovered the fraud that had been practiced upon him; there was no privity or connection between him and Majesty to bring him within the rule laid down by this court in Patton v State, 6 Ohio St., 467, 470; Fouts v. The State, 7 Ohio St.., 471.
    Where was the perfected arrangement between Seville and Majesty? None, they did not even know each other; they had never met. How can the state build upon the fraud that was practiced concealing Majesty under the guise of Tracy, a Nelsonville amateur, so as to make these letters competent? The law of conspiracy is well settled, and the court below erred in applying the law to the facts of this case. Chase’s Edition of Stephen’s Digest of Evidence, 11, Art. (b); Rex v. Hardy, 24 S. T. Passim, 451; Riifer & Egner v. The State, 25 Ohio St., 474; Greenleaf on Evidence, vol. 1, Sec. 232; State v. Newton, 4 Harrington, (Del.) 567; Preist v. State, 10 Neb., 393; Gove v. State, 58 Ala., 391; State v. Thibau, 30 Ver., 100; Ditchers. State, 42 Ohio St., 173.
    IV. It was clearly a case where expert testimony was competent to aid the'jury in determining the question of the defendant’s guilt or innocence, in view of the failure of the legislature to define what is a prize fight, and the general obscurity upon the subject, taken in connection with the legislation under consideration. Correction Ins. Co. v. Harmar, 2 Ohio St., 456.
    V. The Statute is silent as to what is a prize fight. It was not an offense under the common law, and the subject was not one of general and common kuowledge, and the evidence of these skilled experts would have thrown much light to the court and jury in determining, in point of fact, what a prize fight is, and what constitutes a boxing exhibition. The court for the same reason erred in excluding the London prize ring and Queensbury rules.
    The court erred in excluding the evidence of the mayor showing the payment of $5, for the license to hold said exhibition. It was one of thé links in the chain that reflected upon the claim of the plaintiff in error, that he was in good faith engaging in an athletic club exercise, and not a prize fight. The state had taken the money for the license, and suppressed the fact from the jury by excluding the evidence. Railroad; Company v. Schultz, 4B Ohio St., 280; Sowers v. Dukes, 8 Minn., 2Z-,Tathom v. Wright, 2 Russ. & Mylne, cited in the note to section 513,1 Wharton’s Evidence ; Chase’s Edition of Stephen’s Digest of Evidence, page 103, art. 49, note 1; Spring Company v. Edgar, 99 U. S. (9 Otto) 657.
    An examination of the' record shows that the whole controversy between the state and Seville was whether he intended to fight a glove contest or a prize fight. It was a question that skilled experts could have added their knowledge as to the difference between a prize fight and a boxing contest under the statute, a subject that the defendant was entitled have all of the light that could be given to the jury. 7 >-Atn. Ency. of Eawr 492, and note 5; Jones v. Tucker, 411\. H., 547; 7 Am. Ency of Law, 494, notes and numerous authorities there cited.
    VI. The court erred in its general charge to the jury as to its definition of a prize fight. It must be, as we claim, a fight to the finish or until one of the contestants is so exhausted that the fight cannot further proceed, and distinguished from a contest for a certain number of rounds for points, as a sparring match. In a prize fight there is no limit of time as to the number of rounds, the parties are permitted to wrestle and throw each other, and the round is ended as soon as one party is down, either knocked down, thrown down, or succeeds in falling.

      In a glove contest, the round is to end in a certain number, there is a limit of time. The parties are not permitted to wrestle but are required to continue the contest at the •call of the referee until the end of the time limited, (which was in this case three minutes). In a prize fight, the agreement is always to fight to a finish. In a glove contest there is no agreement to fight to a finish, but the contest is to end at the termination of a particular round agreed upon, and the result is to be decided by a referee. In a prize fight the contestants are required to wear spikes in their shoes, so that the fight cannot take place upon a floor, or anywhere where the spike cannot attach itself. In a glove contest no spikes are permitted to be used, and the contest may take place upon a bare floor, as well as elsewhere. In a prize fight, the parties fight with bare knuckles. In a glove contest the parties are permitted to use gloves of such weight as is agreed upon, and these gloves are used for the purpose of avoiding material injury. The same reasoning applies to the portion of the general charge relating to prize fighting, given at pages 2 and 3, excepted to by the plaintiff in error, and for the same reason, said general charge of the court as given was erroneous.
    We claim the law to be correctly set forth in the special charges requested by the plaintiff in error to be given to the jury, and that the refusal of the court to give these special instructions was error. Regina v. Young, 10 Cox Crim. Cases, 871; Sullivan v. State, supra.

      J. P. Wood, prosecuting attorney, and C. H. Grosvenor, for the defendant in error.
    Brief of J. P. Wood.

    I. The objection raised to the indictment is, that the same does not state that the contest mentioned therein, was held in public. In answer to this proposition, I would call the attention of the court to sections 6888 and 7117, of the Revised Statutes of Ohio. The former prescribes a penalty for engaging as a principal in a prize fight; the latter, in terms, defines a prize fight.

      The indictment embodies this statutory definition of a prize fight in connection with the allegation that the plaintiff in error engaged as a principal therein. The indictment further sets out the acts of each party while engaged in the contest, and avers that the same was “ for and in consideration of prize and reward.”
    The averments of these specific acts is probably unnecessary and surplusage, but it in no way qualifies the essential averments of the indictment, to-wit: The statutory definition of a prize fight and the engagement of Seville as a principal therein.
    But, assuming that the statutory definitions of what constitutes a prize fight is too vague and general to be used alone in an indictment for the crime, then I urge that .all the averments of the present indictment taken together are a sufficient and complete definition of the crime.
    The principal object of legislation against prize fighting is to provide against the evil arising from the inducement prize and reward offers to combatants to inflict severe and oft-times fatal injuries upon one another. The question of its “degrading influence upon the public” evidently was not in the minds of the legislature when the law was enacted, for by section 6890, the same kind of a contest (shorn of the prize and reward feature), is legalized upon conditions therein named.
    The reason of this legislation is clear. When no prize is offered there is no material inducement for contesting parties to inflict severe injury upon one another, but their efforts would naturally be confined to scientific points. Whereas, in a prize fight, whether in public or private, the desire for securing the prize stimulates each contestant to so injure his opponent as to render him helpless and unable to further contest. It is the fighting for the prize that is the gist of the offense, and so careful was the legislature to guard against the commission of the offense, that, by the section above referred to, it provided that no exhibition of boxing or fighting at fisticuffs should occur, unless under the auspices of an athletic club and a license from either the sheriff or the mayor.

      If, in order to constitute a prize fight, the same must be had in public, in the broad sense of that term, then the statute is a dead letter.
    The common law affray has been abrogated by our statute which describes an affray to be (among other things), “Any two persons who agree to willfully fight or box at fistcuffs ” (6890 Revised Statutes), thus eliminating the ancient common law idea of publicity; and, according to a fair construction of our statute, the only difference between an affray and a prize fight is that the former is not, and the latter is, for a reward or prize.
    As to rules of law governing the pleading of negative averments, I refer to Bishop on Criminal Procedure, section 688 et seq.

    II. Did the court err in admitting, over the objection of the defense, the letters written by Arthur Majesty to Alfred Stevens? These letters were admitted upon the theory that it was a declaration of a co-conspirator in crime, in pursuance of the common object and in furtherance of the general purpose of the conspirators. It is unnecessary to argue that a conspiracy was formed, several weeks before the contest took place, by Seville and Majesty as principals, and Nelson and Rosser as managers, and others, to commit this crime. The record is clear and convincing on this point. The only claim that the defendant made at the trial was, that he did not know who his opponent was to be. But the agreement he entered into with Nelson and Rosser, who were backing Majesty, was to fight any man without limitation, except as to weight. He neither asked nor cared who his adversary was to be. He knew that he was in training at Nelsonville. He knew that Nelson and Rosser had already selected his opponent, and with the full knowledge of these facts, he entered into the scheme. Further than that, the record shows that one of his friends (Kelly) discovered several days before the fight, the identity of Seville’s opponent and made the same known to Seville. Seville’s testimony shows this to be a fact.
    The only question in regard to the admissibility of these letters is whether the same, the declarations made therein, were in furtherance of the common design of the conspirators. One was written nine days and the other three daj’S before the fight.
    The writer was one of the principals in the conspiracy: The letters were written while he was engaged in active preparation for the contest. Their object was to secure spectators. Another, and to my mind, more conclusive grounds for the admissibility of these letters, is the fact that by the terms of the agreement the umpire or referee, was to be chosen from the audience. Hence the absolute necessity of the presence of others than those immediately interested.
    In either of the three views presented, as to why these letters were admissible in evidence, it will be understood that the letters had for their object the procuring of not only Stephens, but as many others as Stephens could influence to attend the contest. Such attendance would be not only profitable to the backers, but would help in encouraging the fight to go on and also furnish material for the selection of the referee.
    III. Did the court err by refusing to allow witnesses for the defense to testify as to the difference between a prize fight and a glove contest? Certainly not. The statute defines a prize fight, and if it does not, courts are not surely compelled to depened upon the self constituted rules of criminals whose business is engaging in such contests. In other words, it is for the court to tell the jury what does, or what does not, constitute a prize fight, and in so doing the court should be governed by the statutory definition, if given; if not, the common law definition so modified as to conform to the spirit of our statutes on the subject.
    It would not be contented for an instant that witnesses could be produced to testify as to what does or what does not constitute the crime of burglary, and to the difference between burglary and larceny, even though we had no statutory definition of these crimes. Then why should witnesses be allowed to testify to the difference between the crime of prize fighting, which is a felony, and that of a boxing contest, which is an affray?

      IV. Another principal error assigned by the defense, is that the court erred in ruling out testimony offered by the defense, tending to show that the contest was held under the auspices of an athletic club and a license from the mayor of Nelsonville.
    How could this line of testimony in any way affect the case? The statute forbids prize fighting without any qualification whatever, and even if this contest had been held under the auspices of a club and duly licensed by. the mayor, yet, that would not legalize the same, if it was for prize and reward.
    Again, if the theory of the state be correct, to-wit: That the fact that the contestants fought for prize and reward stamps the proceeding a prize fight under any and all circumstances, then the errors complained of were in no way prejudicial, for it is admitted by the defense that the prize was the moving cause for the parties to fight and that Seville, the victor, received the same.
    The testimony of many of the spectators and the physical condition of Majesty after the fight, as testified to by physicians who held the autopsy, show that great force and violence were used and that the punishment inflicted was severe in its character, to such an extent, indeed, that Majesty’s body was terribly bruised, his skull fractured, and a blood vessel in his brain ruptured, causing his death.
    Brief of C. H. Grosvenor.

    First, it is said that the court erred in over-ruling the demurrer to the indictment, and mainly because it is not averred in said indictment that the prize fight was a public one. It will be a very novel decision in the state of Ohio if, following the dictum, or rather the suggestions, of the Supreme Court of Mississippi, it shall be discovered that it is a lawful thing for a mob of individuals to get together, issue tickets to each other, assemble in a hall, cellar or barn, and lock the doors and have a prize fight for money and reward. There is nothing in the policy of the statute which separates prize fighting from fisticuffs, or assaults and battery, or any of the assaults in which personal violence is used. It is the thing itself that the law inveighs against, and not the place where it is done, nor the number of people that are looking at it.
    It is said that the court erred in admitting the evidence of two certain letters, written by Arthur Majesty.
    . I have not the decision of the Supreme Court of Illinois in the case of the Anarchists, where the whole doctrine relating to this question was fully discussed and decided ; but I cite G-reenleaf on Evidence, 13th edition, paragraph 111, page 134, volume 1.
    I assume that this is the law of the country to-day, just as it is here laid down, and that it does not need any occult argument to impress the court with the character of this rule of the law.
    Such being the law, were these letters competent? The evidence as disclosed by this record shows that in the latter days of January, or the early days of February, Seville, with divers others, met Nelson and Rosser in Columbus, -and agreed to enter into what we say is a prize fight at Nelsonville, at a date to be fixed later and with a person to be found later. Shortly afterwards a person was found, and that person’s name was Arthur Majesty. Communication was .had by and between the persons who entered into the contract, to-wit: Nelson and Rosser with Majesty; and, while it is true that Seville swears that he did not know until the day of the fight with whom he was to fight, Kelley, who appeared all the way through, as a friend of Seville, testified that he told Seville who his opponent was at a date earlier than the date of these letters. But it does not make a particle of difference. He was engaged to fight with an unknown man, and the unknown man thereby became, as soon as selected, and as soon as he had entered into the agreement, a conspirator; he was a part of the conspiracy; he was one of the principals in the prize fight; he was to be discovered and selected by Rosser, and there was no limitation as to whom the man was to be, except as to his size and weight. Thereupon, Arthur Majesty came to Nelsonville, and on the fifteenth and twentieth days of February was engaged in the work of preparation for the battle.
    One of the incidents of the prize fight was to have a number of people present for two purposes: First, for the purpose of electing a referee, for the referee was to be chosen from the audience, as the record shows; the second, was to have enough people come and pay to get in to make the performance a profitable one. In this interest Majesty engaged. He proceeded to write these letters in furtherance of‘the common design to have an audience to select the referee and to pay gate money. It was a part of the scheme that afterwards was developed in the publication of hand-bills and the notices that were sent by Rosser and Nelson all over the country, and which brought together such a gang as we have described in the record. So these letters were written in furtherance of the common design, and these declarations were made in the same way; and the letters were competent.
    It is said the court erred in its definition of the term “prize fight.” I think it did too. The use of the language that it must be in public, is error,' in my judgment; and it was error against the state, and not against the other side.
    Once let it be established as the law of the state of Ohio that one of the incidents and necessary ingredients of a prize fight, under the statute, is that the public may attend and that the exhibition is open to the public gaze, and we should have prize fights in locked up halls, in barns and in cellars, where all the parties to the prize fight would give out special notice and witness the brutality of the principals, and simply lock the door after a goodly and sufficient number had made their appearance.
    What is there in this statute which makes publicity an element? It is said that it is brutalizing and demoralizing. I think it is quite as much so when carried on in private as in public. I desire to call the attention of the court to the case of The Queen v. Slavin and McAuliff, tried at the Eon-don Court Sessions, England, Nov. 14, 1890, a full report of which is herewith filed.
    But the court ruled out and refused to allow the defendant to prove facts and circumstances connected with the rooms of an athletic club, so-called, and the fact that the mayor of Nelsonville had issued a license for a glove contest on the night and at the time and place where this prize fight took place. There is nothing in the question. The state had to rely for conviction upon proof that a prize fight took place. It was not a question of intent; it was not a question of mind. It was a question of fact as to what did take place. If the state proved that a prize fight took place it did not make a particle of difference whether a license was issued, whether it had been a glove contest, whether there had been an athletic club or no athletic club ; it could not affect' the real question in the case. Therefore, it was incompetent and calculated to mislead the jury.
    The mayor licensed one thing, we will say, and the state proved another thing. A license to sell liquor by the drink could not be proved upon an indictment for selling to a man in the habit of becoming intoxicated; the payment of the Dow Raw tax, and the consequent authority to sell liquor in Ohio, would not be competent evidence to go to a jury on a trial for selling liquor on Sunday. A license to go upon my ground and drive a horse and buggy would not be good and competent evidence on the trial of a man indicted for stealing my horse.
    But they put on a series of expert witnesses, and they ask the witness to testify as to the difference between a prize fight and a boxing match. The court refuses to allow that to be done. In this the court ruled right. There cannot be any doubt about it. If the opinion of this expert was wanted the nearest approach to competency would have been to have put a hypothetical question. That would not have been competent, in my judgment, but it would have come much nearer to it then the attempt to give a comparison between :two different things altogether.
   Wiuwams, J.

The plaintiff in error, David Seville, was - indicted for a violation of section 6888, of the Revised Statutes, which provides that, “whoever engages as principal in :any prize fight shall be imprisoned in the penitentiary not more than ten years nor less than one year.” The indictment charges that, on the 25th day of February, A. D. 1891, at the county of Athens, David Seville “ did unlawfully engage as principal in an unlawful and premeditated fight and contention commonly called a prize fight, with one Arthur Majesty, and in said fight the said David Seville and Arthur Majesty did, each the other unlawfully strike and bruise and attempt to strike and bruise for and in consideration of prize and reward.”

The trial resulted in the conviction of Seville, which was followed by the sentence of the court; and one of the grounds upon which he asks a reversal here, is, that the indictment is defective.

The specific objections made to the indictment are, (1) that it fails to allege the fight was in public; (2) that it does hot negative the existence of the facts mentioned in the proviso of section 6890, of the Revised Statutes, and, (3) that it contains no direct averment that the accused engaged in a prize fight.

In support of the first of these objections, the case of Sullivan v. State, 67 Miss. 346, is cited, and relied on. The Supreme Court of Mississippi, in that case decided that an indictment drawn under a statute, making it “unlawful for any person to engage in prize fighting,” in that state, was insufficient, because it did not, aver that the fighting took place in public; the court holding, that the statute was intended to prohibit prize fighting of a public character only. We are not inclined either to approve of that decision, or adopt a corresponding construction of our statute. While, no doubt, it was one of the purposes of the statute, to prohibit public exhibitions of prize fighting, on account of their tendency to incite quarrels and breaches of the peace, it was, we think, none the less its purpose to suppress all prize fighting, because of its brutality, and consequent danger to human life, as well as the demoralizing and pernicious effect it has on the good order and well being of society. It is not, by our statute, made an essential ingredient of the crime of engaging in a prize fight, in this state, that it take place in public. The term “prize fight,” has no technical legal meaning. The Century Dictionary defines it as, a pugilistic encounter or boxing match for prize or wager;” and other lexicographers who define it, give it substantially the same definition. It is used in the statute in its ordinary signification of a fight for a prize or reward, and includes all fights of that character, however conducted, and whether witnessed by many or by few people.

Section 6890, of the Revised Statutes, makes it an offense, called an affray, for any two persons to agree and wilfully fight or box at fisticuffs, or engage in any public sparring or boxing exhibition, with or without gloves; for which, the penalty is fine, or imprisonment, or both. The section contains a proviso, to the effect, that it shall not apply to the exercises in any public gymnasium or athletic club, if written permission therefor shall have been obtained from the sheriff of the county or mayor of the municipality in which the exercises are held; and the second objection here urged to the indictment by the plaintiff in error is, that it should, by proper averments, negative the existence of the matters contained in this proviso. This objection is not well taken. It is the well settled rule of criminal pleading, that it is not necessary, in an indictment, to negative the existence of facts to which an exception or proviso in a statute relates, unless the matter of the exception or proviso is descriptive of the offense, or qualifies the language creating it. Hirn v. State, 1 Ohio St. 15. Engaging in a prize fight in violation of section 6888, is a separate and distinct offense from that defined and punished by section 6890,, and while the proviso qualifies the previous clauses of the latter section,, it has no application to the former section.

Nor do we think the indictment lacks a direct averment that the accused engaged as principal in a prize fight. The averment that he engaged as principal, with ’ another,, in an unlawful and premeditated fight, commonly called a prize fight, for a prize and reward, is sufficient to apprize the accused of the nature of the accusation, in this respect. The indictment meets the requirements of the rules of criminal pleading, and appears to be drawn in accordance with the forms long in use, and approved by well known authors. Warren’s C.rim. Law, 241; Wilson’s Ohio Crim. Code, 3rd ed. 105; Maxwell’s Crim. Proceedure, 230.

On the trial, the state gave evidence tending to prove, that Douglas Nelson and Emil Rosser, two citizens of Nfel-sonville, about the 1st of February, 1891, made an arrangement with Seville, by which the latter agreed to engage in a fight at Nelsonville, at a future day to be named, with a person not exceeding a specified weight, to be chosen by them, for a prize of two hundred dollars to be paid to the winner. The arrangement with Seville, was communicated to Majesty, who at once agreed to engage in the fight against Seville, which, it was arranged, should take place at Nelsonville on the night of February 24, 1891. When the agreement was made with Seville, lie did not know the name of his adversary, nor did he learn it, until the day set for the fight. Soon after the details of the engagement were completed, Majesty, who resided in Toledo, went to Nelsonville with his trainer, and put himself in training for the conflict. While there, he wrote two letters to his friend Alfred Stephens, which were directed and mailed to him at Newark, Ohio, and which were received by Stephens in due course of mail. These letters were admitted in evidence against the objection of the defendant, and their admission, it is claimed, was error, for which the judgment should' be reversed. The letters are as follows:

“Nelsonville, O., Eeb’y 15, 1891. Friend Alfred. Would like to have you come to Nelsonville, O., where I am matched to fight Seville, of Columbus, for a purse of $200, to a finish, with 2 oz. gloves. You can call on Keere Bros, in the saloon business; they will be down here. Do not tell them who I am or that you know me, as I go under the name of A. B. Tracy. Our protection is good, as we have a license. Come if you possibly can. We fight on Feb. 24th in the evening, will see you all right. Am in-training here; if you come this way stop and see me. Yours truly, Arthur Majesty. Address A. B. Tracy.”
“Nelsonville, O., Feb’y 20th, 1891. Friend Alfred. The man I meet is Seville, of Columbus, and we fight at 120 pounds for a purse of $200.00, all to go to the winner. Nelson and Rosser of this place, are handling me. I don’t anticipate any trouble in disposing of him. John Hall, of Toledo, is with me. You have met him before. Tickets are $3.00 per head, but I will place you all right, but do not let those people of your town know of it. If you can, induce them to come and see the fight, it is to a finish with two ounce gloves in a large hall with a seating capacity of 800 on elevated seats around the ring, same as all first rate clubs. Yours truly, Arthur Alias A. B. Tracy.”

An agreement to engage in a prize fight, is a conspiracy to commit a crime; and the declarations of either of the parties, written or verbal, .with reference to the common object, or in furtherance of the criminal design, while in its prosecution, are competent evidence against the other, although the agreement was made through and by backers, or other representatives of the principals, and the latter were unknown to each other. The letters referred to, contain declarations of this character; their purpose being, to procure the presence of friends and others at the fight, and thus encourage, and contribute to the success of the unlawful enterprise. The court in its charge, carefully limited the effect of this evidence, by instructing the jury, that before it could affect the accused, the jury must find beyond a reasonable doubt, that when the letters were written, he and Majesty had entered into an agreement) either personally or through their agents, to engage in a prizefight, and that they were written while Majesty was engaged in preparations for the fight, and were in furtherance of it.

The defendant offered to prove in his defense, that there was an athletic club at Nelsonville, where the pugilistic contest was held, and that a license authorizing it, had been issued by the mayor of the village; and for that purpose, the articles of association of the club, and license of the mayor, were offered in evidence but excluded.

The articles, which bear the date of February 23, 1891, state, that “the undersigned citizens of Nelsonville intend to establish an athletic club for the purpose of training in wrestling, boxing and other athletic exercise;” they prescribe the terms of membership, and designate the officers to be chosen. The only evidence of the execution of the paper, was that of a witness who testified that he drew it up; but there was no proof of the signatures to it, or of any organization under the articles. The license offered in evidence, is dated February 23, 1891, and purports to grant permission to the Nelsonville Athletic Club to exhibit a glove contest “for one day only, February 24, 1891.” If the defendant bad been indicted for a violation of section 6890, the evidence offered would have been competent and material. But such a license, to a club of the kind mentioned, is no defense to an indictment under section 6888. If the defendant engaged in a prize fight, it was immaterial whether a license had been issued to an athletic club for that purpose, or for the purpose of giving a boxing exhibition, or not. If he did not, but simply engaged in a sparring or boxing exhibition, he must be acquitted, though no license was obtained. Neither the articles of the club, nor license of the mayor, was competent evidence tending to prove that what actually occurred constituted a sparring or boxing exhibition. At most, they tended to show, that the mayor only intended to license a boxing exhibition, and that the club was authorized to give such exhibition; neither of which facts was material, in determining whether what actually occurred, was, or was not, a prize fight.

The defendant called a witness who testified that he had been engaged in fifty-two prize fights and boxing matches altogether, and had spent six years in acquiring the art of boxing. He was then asked, by counsel for the defendant, to state what “are the rules that apply to a glove contest, and also' to a prize fight.” An objection to the question was sustained. The purpose of the question, as stated by counsel, was to prove that, by the rules governing prize fights, there is no limit as to the time of the rounds, the combatants are permitted to wrestle and throw each other, the fight is to a finish, the fight is without gloves, and spikes are worn in the shoes; while the rules governing-glove contests, require the parties to wear gloves, spikes in the shoes are not allowed, the contest ends at the conclusion of a specified round, and each round is limited in point of time, to three minutes. The witness further testified that he saw the combat between the defendant and Majesty, and was then asked by defendant’s counsel, whether it was conducted according to the rules of a glove contest, or those of a prize fight. This question was objected to, and the objection sustained. The counsel stated, they expected, the witness to answer that it was conducted according to the rules of a glove contest. Thereupon the witness was handed a couple of papers, one of which, he said, contained the Queens-bury Rules, and the other the Eondon Prize Ring Rules. These papers were then offered in evidence by defendant’s counsel, but they were held to be incompetent. These, several rulings of the court are assigned for error.

The question to be determined by the jury was, whether what took place between the defendant and Majesty, at the time and place charged in the indictment, was a prize fight. The witnesses for the state, and for the defense, testified in detail to what occurred on that occasion, and there was but little, if any, substantial conflict in the testimony. It showed, beyond any doubt, that the combatants met in the ring prepared for the purpose, in pursuance of the agreement previously made, and fought viciously to a finish. They fought seventeen rounds, and on the eighteenth, Majesty was knocked reeling to the ropes, and carried away in a dazed and unconscious condition, and in a few hours afterward died from the effect of the blows received. The post mortem examination disclosed, that his vital organs were in a healthy and sound condition. His scull was fractured by one of the blows, and an artery of the brain ruptured, which caused his death. His head, neck, one arm, and his body, showed the severity of the blows he had received. One eye was blacked, his nose cut, his mouth and lips bruised and swollen, and the physicians say, that his neck, arm, and body were black and blue from bruises produced by blows. Witnesses describe the blows struck him, as bitter blows; and yet, up to the last round, they say, Seville’s punishment was even greater than that administered to Majesty. When Majesty was carried, disabled and dying, from the scene of the conflict, the prize money was paid over to Seville, who departed by the first train.

The question for the jury to decide, was, whether this combat was a prize fight; not, what the Queensbury Rules, or any other rules called it, nor what name those accustomed to such combats, have given it. What was it in plain English? And this question of fact, under a proper instruction from the court as to what constitutes a prize fight, the jury was as competent to decide, as the most experienced boxer or prize fighter. ‘The question was not one of skill, or science, to be decided upon the opinions of those experienced in such practices, or by rules adopted for the government of associations of such persons; but one, within the comprehension of the common understanding, and the range of common knowledge, which the jury could decide, upon the facts proven, as well as a professional pugilist.

Some other questions are made in the record, but they are not of sufficient importance to call for a report.

We have carefully examined the whole record and find no error for which the judgment should be reversed.

Judgment affirmed.