author: Shauck, J.

text:
    The Furnace Run Saw Mill & Lumber Co. et al. v. The Heller Bros. Company.

      Instrument by debtor and his creditors — Authorizing trustee to carry on business for debtor — Empowers trustee to bind creditors on contracts, when — P'-’-ol proof may not contradict terms of instrument, when.

    1. An instrument executed by an embarrassed debtor and his creditors for the purpose of placing his business in the hands of one named as trustee for the purpose of carrying on the business, and completing the debtor’s unfinished contracts, authorizes the person so named as trustee to bind the creditors for such purchases as he may make in carrying on the business and completing the contracts.
    2. The authority so conferred may not be contradicted by proof of a contemporaneous agreement that the creditors should not be so liable, it not being incorporated in the instrument, nor communicated to one who extends credit in reliance upon the authority with which it clothes the trustee or agent.
    (No. 11740
    Decided May 9, 1911.)
    Error to the Circuit Court of Mahoning county.
    In January, 1905, H. O. Briggs, who was .engaged in the lumber business at Youngstown, became financially embarrassed when he entered into an arrangement with the plaintiffs in error, who were his creditors, to place his business in their charge with the' view to so conducting the business and managing his assets as to discharge his obligations with the proceeds thereof. To carry that arrangement into effect they executed a contract in writing as follows:
    “Whereas, H. O. Briggs, of the city of Youngstown, Ohio, is engaged in the 'lumber business of said city, and temporarily unable to meet his obligations as they become due;
    “Whereas, the said H. O. Briggs and all the-creditors of said H. O. Briggs desire to enter into an agreement temporarily deferring payment of all obligations now due or to become due; and
    “Whereas, it is the desire of all concerned to put a trustee in charge of said lumber business, the said trustee to be selected by the creditors, authorize said trustee to continue said lumber business, and to distribute the proceeds therefrom to all creditors in proportion to the amount due them in accordance with the agreement hereinafter entered into,

      “Now

    “Witness this article of agreement made and entered into this day' by and between the said H. O. Briggs and (the plaintiffs, in error).
    “In consideration of the presents and stipulations hereinafter set forth and especially in consideration of granting further time for the payment of bills now due and to become due, the said H. O. Briggs hereby agrees to place his business, including lumber yard, plant and all fixtures connected therewith, including books of accounts and credits of every character, at the disposal of his said creditors with a view to realizing sufficient money to pay off all his said indebtedness and until all his creditors have been fully paid.
    •“And in consideration of the presents moving from said H. O. Briggs’ creditors hereby agree to place in charge of said lumber plant a competent and practical man, to be known as a trustee for all concerned, whose duty it shall be to take charge of said lumber business, complete all outstanding contracts, pay all necessary running expenses of said business, and at the end of each thirty (30) days render a statement to each and every creditor of the financial condition of said concern, and make payment on all outstanding bills in proportion to the amount thereof at the end of each thirty (30) days.
    “That all moneys received by said trustee shall be deposited in the Dollars Savings & Trust Company bank of Youngstown, Ohio, in the names of said trustee as trustee.
    “That said trustee shall give surety bond, conditioned that he faithfully perform the duties herein set forth in the sum of ten thousand ($10,-000.00) dollars.
    “Further agreed that the said J. P. Huxley shall act as trustee with duties incumbent as herein-.before set forth:
    “That the compensation of said trustee shall be two per cent, on all moneys received.
    “And it is further agreed by and between the parties hereto that said trustee shall employ the said H. O. Briggs as general manager of said business, and that he shall receive as compensation for said services one hundred ($100.00) dollars per month.
    “And it is further agreed by and between the parties hereto, that this agreement shall continue until said creditors hereinbefore named shall be fully paid, or the majority of creditors in interest, as to the amount due, owing at a regular meeting, of which all creditors shall have notice, shall decide to discontinue to have said trustee.
    “And it is further fully understood and agreed that no creditor of the said H. O. Briggs shall' institute or prosecute any legal proceedings of any kind or character against the said H. O. Briggs during the continuance of this agreement.

      “It is fully understood by and between the parties hereto that this agreement obligates all the parties hereto only when it is approved and signed by the creditors hereinbefore named.”
    Said J. P. Huxley entered upon the discharge of his duties as trustee under said arrangement, and in their prosecution in the months of March, April and May, 1905, in the purchase of materials contracted' the obligation, for whose enforcement the original suit was brought against those who had signed said contract. The answer of The Morris Hardware .Company is presented in the printed record as a type of the answers of all the defendants. It consists of two defenses, the first of which is for the most part admissions of the allegations of the petition, and a denial of the construction of the contract which would make the defendants liable to the plaintiff. It admits the execution of the contract as alleged, and that Huxley entered upon the discharge of his trust with a view to realizing funds for the payment of the creditors. It denies that the defendants authorized Huxley to make new. contracts or held him out as having such authority.
    For a second defense it is alleged that at the time of making said contract, and previous thereto, at conferences among the parties thereto it was agreed that the creditors were not and should not be liable upon any contracts which Huxley might make. The plaintiff replying denies that it had any notice of the alleged agreement set out in the second defense. In the court of common pleas there was a judgment in. favor of the original plaintiff for the value of the articles so purchased by Huxley, and in the circuit court that judgment was affirmed. -

      Mr. W. C. Carman; Mr. B. F. Wirt and Mr. F. K. Bowman, for plaintiff in error.
    No brief filed on behalf of defendant in error.
   Shauck, J.

The case permits the concession to the plaintiffs in error that the contract signed by them did not constitute them partners, and that it did not constitute Huxley and Briggs, or either of them, general agents with authority to bind the creditors beyond the scope of the purposes indicated by the contract. This concession includes all that can be claimed for most of the principles stated and the authorities cited in the brief of their counsel.

By their exceptions to the rulings of the trial judge with respect to the instructions which should be given and refused, and with respect to the evidence which should be admitted or excluded they have laid the foundations for two propositions, one or the other of which it is incumbent upon them to maintain. One of these is that the contract which they signed did not authorize Huxley or Briggs, or either of them,. to contract obligations in the conduct of the business which might be asserted against them. That proposition regards only those terms of the contract which contemplated that the assets of Briggs were to pass into the control of the trustee to be by him converted into money to be applied to the discharge of his indebtedness to the several creditors who executed the contract. But it wholly excludes from consideration the stipulation that the trustee should “take charge of the said lumber business, complete all outstanding contracts and pay all necessary running expenses of said business.” It was in furtherance of the purpose thus expressly defined and authorized that Huxley contracted the obligation upon which the plaintiff counted in the original petition.

A proposition suggested by the exceptions taken upon the trial by the plaintiffs in error, and urged in the brief of their counsel, is, that if the terms of their written contract, considered alone, should be deemed sufficient to create the suggested liability for purchases made in the conduct of the business, the written terms should be treated as modified by the contemporaneous parol understanding that the signers of the contract should not be so bound. This is said to be so because the rule that written contracts cannot be varied by parol obtains only between the parties to the instrument. Although Huxley was denominated a trustee he was in the relation called in question here the agent of the plaintiffs in error for the conduct of the business, and the written contract was his letter of authority. It was in his possession for the purpose of obtaining credit, and it was so used by him in this instance. Certainly the plaintiffs in error are estopped to assert a limitation upon the written authority with which they clothed their agent by proof of a parol understanding neither carried into the instrument nor- communicated to one who relied upon it.

Judgment affirmed..

Spear, C. J., Davis, Price, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The State of Ohio v. Vause.

      Indictment under Sections 2966-7, 2966-37, and 2950, Revised Statutes — Charging judge of elections with looking at ballot of voter — And disclosing how ballot was marked — Such indictment charges offense under Section 2966-46, Revised Statutes.

    When an indictment drawn under favor of Sections 2966-7, 2966-37 and 2950, Revised Statutes, charges in substance that the defendant, being the duly appointed and qualified presiding judge at an election, received a ballot offered by an elector, properly folded, to be by him deposited in the ballot box; and ' thereupon the defendant unlawfully, fraudulently, knowingly and wilfully unfolded said ballot and looked at the same and saw for what persons said elector had voted, and thereupon disclosed to certain persons how and in what manner and for whom said elector had marked his ballot and voted, such indictment charges an offense which is punishable as prescribed in Section 2966-46, Revised Statutes.
    (No. 12781
    Decided May 9, 1911.)
    Exceptions to the Common Pleas Court of Ross county.
    The facts are stated in the opinion.

      Mr. Peter J. Blosser, prosecuting attorney, for the exceptions.
    Complete secrecy is the foundation of our system of voting by ballot. 15 Cyc., 289; McCrary on Elections (4 ed.), Sec. 488; Cooley’s Const. Lim. (7 ed.), 911; Williams v. Barker, 4 N. P., N. S., 599; Sections 2950, 2966-7, 2966-37, 2966-45, 2966-46, Revised Statutes.
    The defendant is guilty of a violation of Section 7058, Revised Statutes.

      First: Section 2950 provides that when .the judge of election receives the ballot “he shall immediately put the ticket into the box without inspecting the names written or printed thereon.” The defendant “wilfully neglected such duty” by unfolding the ballot and inspecting the names thereon, and by not immediately putting the ticket into the box.

      Second: The oath prescribed by Section 2966-7, Revised Statutes, imposed a duty upon the defendant not to disclose how any elector.voted. It was the duty of the defendant not only not to inspect the elector’s ballot but also not to divulge for whom he had voted. After he had gained knowledge as to how. the elector marked his ballot, he “wilfully neglected his duty” to keep that knowledge secret.

      Third: In unfolding the elector’s ballot and divulging for whom he had marked his ballot the defendant was “guilty of corrupt conduct in the execution of his duty.” Johnson v. Southern Pacific, 196 U. S., 1; McInerney v. United States, 143 Fed. Rep., 729; Commonwealth v. Gale, 10 Bush (Ky.), 488; State v. Pinney, 13 O. Dec., 210; Barker v. State, 69 Ohio St., 74; State v. Haugh, 4 C. C., N. S., 81; Conrad v. State, 75 Ohio St., 52; United States v. Winn, 28 Fed. Cases, No. 16740.

      Mr. James I. Boulger, against the exceptions.
    We wish to call the attention of the court to the case of State v. Meyers, 56 Ohio St., 350, as to the intention and spirit of the law and its construction. Sutherland Stat. Const. (2 ed.), 520.

      The basis of the argument of counsel for the state seems to be that complete secrecy is the foundation of the Australian ballot system, and therefore if such secrecy is violated, the offender should be punished. This is unsound under the rule laid down in the foregoing case. It is so utterly obnoxious to the language of Chief Justice Marshall in United States v. Wiltberger, 5 Wheat., 76, that it is scarcely worth while to discuss such a theory. We frankly admit that it is the intention of the Australian ballot system to insure secrecy, although that is not its main object, but we most respectfully insist that no man shall be imprisoned merely because he has violated such secrecy, unless there is some statutory authority making such violation a crime.
    In addition to this, there is absolutely no penalty prescribed for the active violation of the duties imposed upon an election officer by Section 2950, Revised Statutes.
    It is also contended by plaintiff that Section 2966-7, Revised Statutes, affords some ground for the reversal of the court of common pleas in this action. This is the statute that prescribed the oath to be taken by election officials other than those serving in registration cities.
    The mere fact that the statute provides for such an oath as the one therein referred to, does no l affect the question here discussed. There is no penalty prescribed for- the violation of the oath, which is what is known as a promissory oath, and the breach of which does not involve the violator in a crime. The authorities agree that no officer can be punished for perjury by reason of non-failure to comply with the conditions of such oath. 2 Bouvier’s Dictionary, 529; 2 Bishop’s Crim. Law, Sec. 1026.
    The main contention, however, of the prosecuting attorney is that the indictment charges the defendant with a violation of Section 2966-46,-Revised Statutes.
    It will be noted, that this section provides for violation of a duty imposed “by this act.” Therefore it devolves upon us to examine the act as it was originally passed. This is true because if the duty which it is claimed that Mr. Va-use violated was not laid down in that act, there can be no crime upon his part.
    The expression “this act,” cannot be taken to include another act in pari materia. 2 Sutherland Stat. Const. (2 ed.), Sec. 522; Rex v. Trustees, 5 Ad. & E., 563; State v. Laning, 7 N. P., N. S., 281; Hall v. State, 20 Ohio, 7.

    How can it be contended that in all these sections there is a single, duty laid upon Mr. Vause which he neglected to perform? Nowhere in this act is it made an offense for the judge to divulge how a person, other than a blind,' illiterate or disabled voter voted, (the amendment thereof merely ■ eliminates assistance to those who are not physically disabled). There is no duty prescribed in such act for the judge to keep silent as to the manner in which any other elector voted.
    The indictment does not show the wilful neglect of any duty upon the part of the defendant. The word “neglect” means the omission to do something that should have been done.' It is negative rather than positive. It must be distinguished-from that which is intentional. It is not active, but passive. The charge in the indictment is the very, antithesis of neglect. It charges a positive act.. The claim is that Mr. Vause looked at a ticket to ascertain how a voter had voted. There is nothing, of “neglect” about this. State v. Norris et al., 111 N. Car., 652; Macon v. Shaw, 16 Ga., 172.
    Therefore, we do not think that it can be successfully argued that the taking of this oath enjoins any such duty, as is referred to in Section 7058, upon the judge of election. As we have said, the oath covers knowledge -gained in the performance of the official duties of the judge, while in the case at bar the indictment shows that the knowledge was not officially gained, but, on the contrary, was obtained by reason of the fact that the judge acted beyond and without his jurisdiction. In addition to this, while the taking of the oath probably imposed a moral obligation upon the judge, it did not place upon him a duty neglect of which is punishable by statute. Men are not to be punished for the violation of moral obligations, because the law is not dependent upon morality, but must be considered separate and apart therefrom. 1 Bishop’s Crim. Law, Secs. 211a, 239, 325; May’s Crim. Law, Sec. 4; Harris’ Crim. Law (3 ed.), 4, 64; Smith v. State, 12 Ohio St., 469; Mitchell v. State, 42 Ohio St., 383; State v. Mann, 2 Ore., 241; 12 Cyc., 142; Cook v. State, 59 N. E. Rep., 489; State v. Partlow, 91 N. Car., 550; Railroad Co. v. Commonwealth, 59 Am. St. Rep., 457; Tozer v. United States, 52 Fed. Rep., 917; Ex parte McNulty, 11 Am. St. Rep., 257; Augustine
      v. State, 96 Am. St. Rep., 772; Matthews v. Murphy, 63 S. W. Rep., 785; Ex parte Jackson, 45 Ark., 164; Czarra v. Board, 25 App. D. C., 443; Johnson v. State, 4 Tex. App., 63.
    In order to render the accused liable to punishment, not only must the act complained of infringe the spirit of the law, but it must have been contrary to the strict letter of the statute. 1 McClain on Crim. Law, Sec. 85; State v. Fabin, 4 N. P., N. S., 289; State v. Meyers, supra.

   Davis, J.

The defendant was indicted for misconduct as an officer of election. There were two counts in the indictment. The two counts were identical except as to the name of the voter and they charged that on November 3, 1908, at an election duly authorized and held in Liberty township in Ross county in this state, for the election of national, state and county officers, the defendant, James Yause, was one of the duly appointed, qualified and acting judges of said election, and was the presiding' judge thereof; that theretofore the defendant had been duly sworn by a person authorized to administer oaths, that he would faithfully discharge the duties of judge of election in said precinct, and that- if he gained knowledge as to how an elector voted at said election, he would not disclose the same; that then and there when the polls were open for the reception of votes as required by law, a duly qualified elector, duly entitled to vote in said precinct, offered to and did vote in said precinct and presented his ballot properly folded to the defendant, the presiding judge, to be by him deposited in the ballot box; that thereupon the defendant unlawfully, fraudulently, knowingly and wilfully unfolded said ballot and looked at the same and saw for whom and for what persons said elector had voted and thereupon disclosed to one Joseph Vause and other persons to the grand jurors unknown, how and in what manner and for whom said elector had marked his ballot and voted, contrary to the form of the statute, etc.

The defendant demurred .to the indictment on the ground that the facts contained in each of the counts thereof do not constitute an offense punishable by the laws of this state. The court of common pleas sustained the demurrer and discharged the defendant; and the case comes to this court on a bill of exceptions by the prosecuting attorney.

Two questions are presented by these exceptions. They are: 1. What is the duty of a judge of election so far as that duty is referable to the circumstances of this case? and 2. What is the penalty, if any, prescribed for violation of that duty?

The answer to the first question involves a consideration of Sections 2966-7, 2966-37 and 2950, Revised Statutes, as they were arranged and numbered when this indictment was returned. These sections of the statutes, as we think, clearly and without ambiguity disclose the mode of depositing a ballot by the elector, its reception by the presiding officer and the duty of the latter upon receiving the ballot. The elector shall fold his ballot so as to conceal the marks thereon and deliver the same, so folded, to the presiding election officer; and the latter shall upon receipt of the ballot, pronounce with an audible voice the name of the elector “and if no objection be madé as to the right of such elector to vote * * * He shall immediately put the ticket into, the box without inspecting the names written or ■printed thereon All of this is fully in accord with the policy of the original Australian ballot law (88 O. L., 449) as expressed -in its title, as follows: “An act to provide for the mode of conducting elections, to insure the secrecy of the ballot and prevent fraud and intimidation at the polls.” The provisions of Section 2966-37, Revised Statutes, are found in part in the act just now cited, and will be found verbatim in the act amendatory and supplementary thereto passed April 18, 1892. (89 O. L., 432, Sec. 22.)

We will consider in this connection the oath which is required to be administered to clerks and judges of elections (Section 2966-7, Revised Statutes), the last clause of which is as follows: “And I further solemnly swear that if, in the discharge of my official duties, I gain knowledge as to how any elector voted at said election I will not disclose the same.” It is contended for the defendant that this oath' imposes no obligation on the clerk or ■judge taking it, to keep secret the knowledge of how any elector voted if such knowledge was acquired by a violation of law; and that the oath applies only to knowledge acquired while in the performance of a duty imposed by law, for example, when a judge assists a blind or illiterate voter. Casuistry such as this seems to deserve a place beside the Devil’s quotations of Scripture, for it is remarkable as much for what it suppresses as for what it asserts. The assertion is: “Nowhere in this act is it made an offense for the judge to divulge how a person, other than a blind, illiterate or disabled voter voted. * * * There is no duty prescribed in such act for the judge to keep silent as to the manner in which any other elector voted.” But this reasoning suppresses and ignores the fact that the oath is just as obligatory on clerks of elections as upon judges, and that clerks of elections have nothing to do with blind, illiterate or disabled voters. Therefore the legislature, in prescribing the form of the oath, was not contemplating a limitation of its obligations to the duty of a judge to assist such voters. When we give effect to the expressed purpose of the act in which all of these provisions appeared originally or have been incorporated by amendment, namely, “to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” it would rather seem to be the legislative intent to impose both a legal and a moral duty, with solemn sanctions, to keep secret the knowledge of how an elector voted, however that knowledge may be acquired, during the time the officer is exercising the functions of his office, whether the knowledge be acquired legitimately or by accident or by violation of legal duty. Since the defendant insists upon the strict construction of the language of this statutory oath, it is proper to say that we do not violate precedent in our construction. In Barker v. State, 69 Ohio St., 68, Spear, J., said: “We are quite aware that the rule of law and of this court is that a statute defining an offense is not to be extended by construction to persons not within its descriptive terms, yet it is just as well settled that penal provisions are to be fairly construed according to the expressed legislative intent, and mere verbal nicety, or forced construction, is not to be resorted to in order to exonerate persons plainly within the terms of the statute.” _ And in Conrad v. State, 75 Ohio St., 52, it was held that the rule as to strict construction of penal statutes does not require the courts to go to the extent of defeating the purpose-of the statute by a severely technical application of the rule.

But is the contention of defendant correct, that there is no penalty prescribed for the violation of the duties so imposed by Section 2966-37, Revised. Statutes, and Section 2950, Revised Statutes ? The defendant calls to his aid the rule that a penal statute must be strictly construed and strenuously insists that the words “this act” in Section 2966-46, Revised Statutes, limit the operation of that section to the duties defined in the act in which it appears in its present form and that it cannot be applied to any others even though they may have become by amendment a part of the statute in which this penal section is found. This propqsition is not tenable. The penal Section 2966-46 in all of its essential features appears in the original ballot law already cited. (88 O. L., 449, Sec. 21.) It appears again, exactly as it was when the offense here charged was committed, in the act amendatory of and supplementary to the foregoing, also referred to above (89 O. L., 432). So that by the original enactment and by amendment, Sections 2966-7, 2966-37 and 2966-46, Revised Statutes, were blended into one consistent and harmonious whole.

Section 2950, Revised Statutes, first appears in 50 O. L., 311, and was carried along until April 23, 1904, when, along with the sections before mentioned, it became part of the revised laws of Ohio relating to conduct of elections, by act of that date: “To revise the laws of Ohio relating to the conduct of elections * * * and to amend, repeal and supplement certain laws and sections of the Revised Statutes of Ohio herein named.” (97 O. L., 185.) Therefore, the whole contention of defendant as to these sections falls before the settled rule that the whole statute after an amendment has the same effect as if re-enacted with the amendment. McKibben v. Lester, 9 Ohio St., 628; State, ex rel., v. Cincinnati, 52 Ohio St., 419; 36 Cyc., 1164-1165.

The demurrer to the indictment ought to have been overruled; and since we hold that the acts charged are punishable under Section 2966-46, Revised Statutes, it is unnecessary to review the case ■ with reference to Section 7058, Revised Statutes.

Exceptions sustained.

Spear, - C. J., Si-iaucic, Price, Jopinson and Donahue, JJ., concur.


author: Spear, C. J.

text:
    Pennsylvania Company v. O’Connell.

      Suit against railroad company — ■Under section 3376, Revised Statutes — To recover penalty for railroad's demand and receipt — ■ For greater sum for ticket than law allowed — Action must be brought in county — Where ticket was purchased — Section 5022, Revised Statutes.

    A suit against a railroad company to recover the penalty prescribed by section 3376, Revised Statutes, for demanding and receiving, in the sale of a ticket, a greater sum of money for the transportation of a passenger from the place of purchase to another point on the company’s road than the sum allowed by law, should, by force of section 5022, Revised Statutes, be brought in the county where the purchase of the ticket was had. The court of common pleas of the. county of the purchaser’s destination has no jurisdiction over such action.
    (No. 11731
    Decided May 9, 1911.)
    Error to the Circuit Court of Seneca- county.
    The action below was by' Dan. B. O’Connell, defendant in error, against the Pennsylvania Company, plaintiff in error, instituted January 26, 1906, in the court of common pleas of Seneca county, to recover one hundred and fifty dollars as penalty for an alleged overcharge in selling at Sandusky, Erie county, a ticket entitling the purchaser to ride upon a train -of the Company from Sandusky, Erie county, to Tiffin, in Seneca county, the Company at that time, May 4, 1905, operating a steam railway between the points named. The answer of the Company, admitting the corporate ■capacity, contained a general denial, and interposed other special defenses not important to be here repeated.

      The cause was tried to the court, a jury having been waived, and resulted in a judgment against the Company for one hundred and fifty dollars, interest and costs. This judgment was affirmed by the circuit court. Reversal of both judgments is asked by the plaintiff in error.

      Messrs. Marshall & Fraser and Messrs. Royer & Spikier, for plaintiff in error.

      Mr. Willis Bacon, for defendant in error.
   Spear, C. J.

Two questions are argued. One' relates to the jurisdiction of the court of common' pleas over the action; the other to whether or not there was an overcharge.

The plaintiff in error contends that the court of common pleas of Seneca had no jurisdiction be-' cause the cause of action arose in Erie county; the defendant in error contends that the cause arose at least in part in Seneca, and hence the court of that county had jurisdiction.

Section 3376 of the Revised Statutes, which affords the right of action in cases of this kind, among other things, provides that any company which demands or receives a greater sum of money for the transportation of passengers than the sum' allowed by law shall pay to the party aggrieved for every such overcharge a sum equal to double the amount of the overcharge, but in no case shall the amount be less than one hundred and fifty dollars to any bona fide claimant using the road of such company.

It is not doubted that this action is one for the recovery of a penalty. Such actions to recover penalties must, by force of section 5022, Revised Statutes, be brought in the county where the cause of action, or some .part thereof, arose.

We are of opinion that, upon the sale and delivery by a railroad ticket agent to the purchaser o..f a ticket entitling such purchaser to travel on the cars of the company between the points designated in the ticket, a contract evidenced by such ticket has been entered into between the company and such purchaser, good in the hands of any bona fide holder of it for transportation between the points named, and if such contract is in violation of law and involves a penalty in such sort as to entitle the purchaser to institute an action to recover such penalty, the cause of action, and the whole of it, arose then and there.

It is insisted, however, that unless the purchaser had ridden upon the ticket no cause of action could arise; that riding upon the ticket was a part of the contract necessary to be done, and such act of riding would necessarily bring a part of the offense and the act within the county of Seneca, and so the Seneca county court would have jurisdiction of such action. We do not give the words “bona fide claimant using the road of such company” any such extended meaning. A bona fide claimant “is one claiming in good faith;” using the road of such company implies an intention to use it; it does not imply a contract personally to use it. A railway ticket, if unlimited as to the person entitled to use it, and almost universally they are so unlimited, is good in the hands of any person who may present it on the cars of the company, and if bought in good faith and not for the mere purpose of speculation, or of obtaining evidence to support a contemplated lawsuit, is complete evidence of a contract, and the holder, whose right is not otherwise impugned, is not required to himself ride over the route in order to justify the bringing of an action. The requirement that the purchaser shall himself ride would destroy the transferability of the contract, and materially detract from its value in the hands of the purchaser.

It is insisted that the term “or some part of it arose,” to be found in Section 5022, supra, implies that the cause of action for the penalty may be divided. Yes, where division is practicable and is required. But how can that apply to an action to recover this kind of a penalty? It is conceded that some part of the cause of action arose in Erie county. But it is urged that the riding in Seneca county in the cars of the defendant below would give to the court of that county jurisdiction because a part of the penalty was thereby and therein incurred. What part? The demanding and receiving which the statute penalizes all occurred in Erie county. In other words, if the cause be divisible, what portion of the sum recovered would belong to one part of the transaction and what to the other? If the purchase of the ticket and the ride on it in Seneca county should happen to be some months apart, and the plea of the limitation statute of one year should be interposed, good as against the first date though not as against the later date, it would be, if the cause of action be divisible, absolutely necessary to divide the penalty, allowing it in part and denying it in part; else the statute could have no application. Manifestly this would be wholly impracticable. Besides it would overturn that provision of the statute that “in no case shall the amount to be paid be less than one hundred and fifty dollars.” Obviously the cause of action is an entire cause, and is not divisible.

It seems clear that the contract of purchase (which involves demanding and receiving), was concluded when the ticket was sold and delivered at Sandusky; it was one contract, and its legal effect is to be determined by the condition of things between the parties at that time. The Company, by its agent, had demanded and had received, if in fact there was an overcharge, a greater sum of money than the sum allowed by law. It is this action, the demanding and receiving a sum greater than the sum allowed by law, which is penalized, and this incurring of the penalty is the result of such action by the Company at that time, and not at some future time, and depending upon some future event. We are not required to state, or to hold, in disposing of this case, just what is involved in the phrase of the statute “or some part thereof;” it is enough to know that the phrase is not applicable to the facts of this case.

Attention is called by counsel for defendant in error to some comment in the opinion in Railroad Co. v. Hollenberger, 76 Ohio St., 177, referring to the fact that no part of the road was located in the county in which the action was brought, which counsel conceives aids his contention. The observation referred to was introduced as an additional fact justifying the general conclusion, in disposing of the case, but is not the ground of it; hence it is without application to this case.

We therefore conclude that the court of common pleas of Seneca county was without jurisdiction in the case. This conclusion makes it unnecessary to pass upon the other question argued, and inasmuch as the members of the' court are not in entire accord respecting it, the question is not determined.

The judgments of the courts below will be reversed and judgment entered dismissing the petition.

Judgments reversed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    Crawford, Administrator, v. Zeigler et al.

      After expiration of eight months — Allowed by Section 6187, Revised Statutes — For filing exceptions — hidgment of probate court — In settlement of final account — Becomes conclusive and absolute.

    After the expiration of the eight months allowed by Section 6187, Revised Statutes, for filing exceptions when the account is settled in the absence of a'person interested and without actual notice to him, the judgment of a probate court settling the final account of an executor or an administrator becomes absolute and conclusive and can not be attacked except for fraud of the prevailing party.
    (No. 11942
    Decided May 31, 1911.)
    Error to the Circuit Court of Lawrence county.
    ■ On the second day of August, 1900, William H. Crawford was appointed by the probate court of Lawrence county, Ohio, administrator, with the will annexed, of the estate of Elizabeth Mueller, deceased, gave bond and entered upon his duties as such. In the process of the settlement of the estate he filed five several accounts, the last or final account being filed on November 15, 1904. In these separate accounts there was an additional allowance made to the administrator for extra services performed in the administration of the estate, and in several of the accounts there was an allowance made to him for counsel fees claimed by him to have been expended in the interest of said estate. On the 30th day of March, 1906, Wolfang H, W. Zeigler and others, beneficiaries under the will of Elizabeth Mueller, deceased, filed their petition in the common pleas court of Lawrence county, Ohio, against William H. Crawford, William H. Crawford, as administrator with the will annexed of the estate of Elizabeth Mueller, deceased, and certain other beneficiaries under the will of Elizabeth Mueller, deceased, who refused to join as plaintiffs. This petition contained five separate causes of action, each cause of action being founded upon the separate accounts respectively filed by said administrator asking that said accounts should -be opened up and the amounts allowed to said administrator for extra compensation and allowed him for ‘counsel fees be not allowed and he be ordered to account for the same and distribute the same to the legatees and next of kin of said decedent; averring that the allowance of the same had been procured by false and fraudulent representations, concealments and acts of said administrator; averring that said administrator gave no actual notice of the filing of either of said accounts, or the date of the hearing or allowance thereof, or either of them; that said plaintiffs had no knowledge that said fifth and final account had been allowed, confirmed or settled, or that distribution of said estate had been ordered by the probate court, and that' they had no such knowledge until eight months after the same was allowed; that plaintiffs did not have knowledge or notice of, or discover any of said acts or- frauds herein complained'of until mófe-than eight months after December 26,' 1904,'and-that neither, or any of said fraudulent representations, concealments and acts were presented to or passed upon- at such hearing, allowance, confirmation or settlement of said fifth and final account'. Said petition also averred that a large majority of these beneficiaries were, and are, residents of Germany and were represented in the United States by the Imperial German Consul located at Cincinnati, Ohio, and by attorneys appointed by said consul who resided at Cincinnati, Ohio; that said Crawford knew the residence and addresses of said plaintiffs and of their respective counsel and representatives.
    A demurrer to this petition was overruled. William H. Crawford, personally, and as administrator, filed his answer admitting his appointment as administrator with the will annexed of the estate of Elizabeth Mueller, deceased; that the defendants were represented by the Imperial German Consul located at Cincinnati, O., and by attorneys appointed by said consul, and that some of the plaintiffs and defendants were non-residents of Ohio; admitting the filing of each of said accounts and the allowance to him as a credit of the several items complained of in said petition and denying that he was guilty of any fraud or concealment, false representation or bad faith in any particular. Averring that plaintiffs had actual knowledge of the filing and settlement in the probate court of Lawrence county, Ohio, of each and all of said accounts and made no objections thereto, either at the time or within eight months thereafter, and that no exceptions were ever filed by said plaintiffs to any of said accounts, or either of them, and averring that the judgment of the probate court was a final judgment, binding and conclusive upon said plaintiffs.
    To this answer the plajntiff filed a denial as to the knowledge and notice of the filing in the probate court of the various accounts mentioned in the petition within eight months after the same were filed and settled; denying they had opportunity to file any objections or exceptions thereto within eight months thereafter and that the fraud was not discovered by them until after the expiration of eight months.
    Upon the issue so joined the common pleas court found for the defendant, dismissing plaintiff’s petition with costs. An appeal was taken to the circuit court of Lawrence county and that court found generally on the issues joined for the defendant except as to the allowance to said defendant in his third account of the sum of one thousand dollars for extra services, but did allow him one hundred dollars for such services, and ordered and directed that he account for the other nine hundred dollars, and error is prosecuted to this court to reverse that judgment of the circuit court. The plaintiffs below file a cross-petition in errof also seeking to reverse the judgment- of the circuit court. The circuit court upon request of all parties to the suit made a separate finding of facts, but these findings are of such length that it is not practical or necessary to copy them in full here. It is sufficient to say that these findings favor the contention of the plaintiff in error as to each cause of action, except as to the one item in the third account of one thousand dollars additional allowance for extraordinary services, which amount it finds to be excessive and reduces the same to one hundred dollars. The court also specifically finds that the items of charges in the first, second, fourth and fifth accounts were not excessive, and that the administrator was not guilty of any of- the fraud set out in the first, second, fourth and fifth causes of action. The court also finds that Crawford’s correspondence concerning said estate was full, direct, honest, fair and responsive to all inquiries on behalf of the heirs of said estate, and free from any deceit or concealment, and said correspondence was not false or fraudulent. In reference to the item'of one thousand dollar's allowed for extraor-dinary services the court finds as follows: “And we further find from the evidence adduced upon this trial as to the issue joined as to the one thousand dollars extra compensation or allowance to said Crawford, as such administrator, that said Crawford did perform extra services, which we find were of the value of one hundred dollars, and this court finds that the allowance of one thousand dollars, as such extra compensation to said Crawford, to be grossly excessive, fraudulent and out of proportion to the extra services we find said Crawford rendered as such administrator, to the amount of nine hundred dollars, and that said settlement of said third account as to said administrator’s extra allowance should be opened up and' the judgment of approval by said probate court set aside, and that said Crawford should he charged with nine hundred dollars in addition to the balance found in his hands as shown by said third account, and we find no other excessive charge or charges and no fraud or concealment. as is set out in-said third cause of action, or otherwise as to said third account.” “Eleven. The: court also further finds that on February 12, 1905,1 counsel for said heirs of said Elizabeth Mueller de-: ceased came from Cincinnati to Ironton, Ohio, and saw and examined all of said accounts at the probate office in Lawrence county, Ohio, and had actual notice of, and knew of the charges therein contained, which are now complained of, and that said plaintiffs and neither of them filed exceptions within eight months from the allowance and settlement of said fifth and final account.”

      Mr. A. R. Johnson, for plaintiff in error.

      Mr. Julius L. Anderson and Messrs. Powell & Smiley, for defendants in error.
   Donahue, J.

The first question arising upon the record is the right of the plaintiffs below to maintain this suit. Section 8 of Article IV of the constitution of Ohio, provides that “The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians * * *i” Section 524, Revised Statutes (Section 10492, General Code), provides that probate courts shall have jurisdiction “to direct and control the conduct and settle the accounts of executors and administrators, and order the distribution of estates.” Section 6187, Revised Statutes (Section 10834, General Code), provides that “When an account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened, on his filing exceptions to the account at any time within eight months thereafter; and upon every settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein; excepting that any matter of dispute between two parties, which had been previously heard and determined by the court, shall not be again brought into question by either of the same parties without leave of the court. * * * ”

This fifth and final account of the administrator was filed on the 15th day of November, 1904, and was settled by the probate court on the 26th day of December, 1904. The eleventh finding of the circuit court is to the effect that counsel for defendants in error, who were plaintiffs below, came from Cincinnati to Ironton, Ohio, on the 12th day of February, 1905, and then saw and examined all of said accounts at the probate office in Lawrence county, Ohio, and then had actual notice of, and knew of the allowance of the items therein contained which are now complained of, and that said plaintiffs and neither of them filed exceptions within eight months of the settlement of said fifth and final account.

It is true that the cross-petition in this case seeks to reverse these findings for the reason that they are oot sustained by any evidence, but it clearly appears that this particular finding is fully sustained by the evidence, and that counsel for the plaintiffs below knew within a very short time after the settlement of the final account just what allowances had been made to the administrator for extra compensation and for counsel fees for services in behalf of said estate, and if these allowances seemed excessive to them, or to their clients, ample remedy was provided by Section 6187, conditioned-only that exceptions should be filed within eight months next after the settlement of said account, and upon the hearing of such exceptions all the former accounts could have been • opened up and corrected, but after the expiration of eight months, the judgment of the probate court settling said several accounts, and said final account, could only be attacked for fraud in procuring that judgment. Eichelberger v. Gross, 42 Ohio St., 549.

This court has many times declared that “the probate courts of Ohio are in the fullest sense courts of record; they belong to the class whose records import absolute verity, that are competent to decide their own jurisdiction, and to exercise it to final judgment, without setting forth the fact and evidence on which it is rendered.” Schroyer, Gdn., v. Richmond et al., 16 Ohio St., 455; Railroad Co. v. Village of Belle Centre, 48 Ohio St., 273; Railroad Co. v. O’Harra, 48 Ohio St., 343.

From the findings of the circuit court it appears that these plaintiffs and their counsel were fully advised that this judgment was entered against them, but instead of availing themselves of the method provided by the statute they did absolutely nothing until after the expiration of the eight months limited for the filing of exceptions as provided in Section 6187, Revised Statutes.

It is the policy of the law that all controversies should reach speedy determination. • The peace of society demands that the judgment of every court having jurisdiction of a cause should be a final adjudication of that cause unless it is reversed or vacated in the manner and by the methods provided therefor. The statutes limiting the time in which various actions may be brought, or limiting the time in which an appeal may be taken, or a prosecution in error instituted, may seem to work a hardship in some particular. case, but these laws are wholly beneficial to society at large and undoubtedly prevent the perpetration of many wrongs. When an individual is fully advised of his rights and fully advised that these rights have been im vaded or denied him, it becomes his duty to avail himself of the remedy the law affords within the time provided for such remedy. In this particular case .this estate was in process of settlement for many years. Each particular account was filed at the time the statute required it should be filed. These plaintiffs and their counsel are presumed to know that these accounts would be filed and it was their duty to give such attention to this business in which they had such a vital interest as would im form them in reference to the progress of the settlement of this estate. That they did not do so is their folly, and their misfortune.

The judgment of the probate court is just as conclusive and binding upon the parties as would be the judgment of any other court, and before the judgment of any court can be opened up and set aside, it must appear, first, that the court had not jurisdiction of the parties, to the action, or of the subject-matter of the suit, or, second, that the judgment was obtained by fraud of the prevailing party. It is urged by counsel for defendant in error that a practice has grown up in that county of allowing exorbitant fees to administrators and their counsel. If that be true, it is a deplorable condition of affairs, but the law' furnishes ample remedy for the correction of these abuses, • and the fact, if it is a fact, that these abuses do exist would not justify this court in disregarding the constitution or the law of the state. If the probate court is not the proper forum in which accounts of executors and administrators should be settled then the remedy lies in a change of the constitution and not in ignoring its provisions, therefore, unless fraud has been shown, the judgment of this probate court settling these several accounts must control.

The circuit court found upon the evidence squarely against' the contention of plaintiffs that the administrator was guilty of fraud, false pretenses and concealment, and we are not disposed to say that these findings are not sustained by evidence.

The circuit court does find that the allowance of one thousand dollars extra compensation was grossly excessive, fraudulent and out of proportion to the extra services the administrator rendered, but it does find that the administrator did render extra services and was entitled to extra compensation. The circuit court differed with the probate court only as to the amount that ought to have been allowed. There is no finding-that the administrator procured the probate court to make such an allowance through fraud or false représentations or collusion, but rather by reason of it being so grossly out of proportion to the services rendered that that fact of itself makes it fraudulent. It will be remembered that this is not an error proceeding or an appeal from the judgment of the probate court settling these accoüñts,' but is an action to open up the judgment, of the - probate court for fraud in procuring the same. The mere fact that the circuit court in this character of case disagrees with the probate court as to the amount that should have been allowed would not justify it in substituting its own judgment for that of the probate court. It must first find and determine that this judgment was procured by fraud before it is authorized to open up and set aside the judgment, and while» the fact that such allowance is grossly out of proportion to the value of the extra services rendered is some evidence of fraud, it does not necessarily show that the judgment was procured by fraud, or by collusion with the court. If the circuit court had found that no services were performed then there would be nothing upon which to predicate the judgment of the probate court making the allowance of one thousand dollars, and it would follow as a logical, as well as a legal, conclusion, that the judgment must have been fraudulently obtainéd, but having found that there' was a basis for the judgment of the probate court, and that court having by the constitution and the laws of this state jurisdiction to inquire .and determine the amount of extra comnensation to which the administrator is entitled, the judgment of the probate court imports, absolute verity and can only be avoided by proof of actual fraud in obtaining the same.

The fact that the circuit court has not found any fraud, but on the contrary found that there was no fraud disposes of anv questions that might be raised on the cross-petition. Having made such finding it should have entered a judgment dismissing plaintiffs’ petition at their costs. For its error in failing to do so the judgment of the circuit court opening up the* third account and reducing the allowance from one thousand dollars to one hundred dollars is reversed, set aside and held for naught, the cross-petition of defendants in error dismissed, and judgment for plaintiff in error on the facts found by the circuit court.

Judgment reversed.

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


author: Johnson, J.

text:
    Coblentz v. State of Ohio.

      Indictment under Section 7076, Revised Statutes — For procuring signature to bond or note — Must allege intent to defraud — And aver material facts — Evidence of transactions previous to trial admissible, when — Transactions subsequent to trial not admissible, when.

    1. An indictment under Section 7076, Revised Statute's, for procuring a signature to a bond, note, or other evidence of indebtedness, must allege that the signature was secured not only by false pretense but with intent to defraud, and must aver all of the material facts necessary to be proven in order to convict, with such reasonable certainty as to advise the defendant what he may expect to meet at the trial.
    2. On the trial under such an indictment evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible, but as to transactions occurring subsequent to that on which the indictment is based evidence is not admissible.
    (No. 12837
    Decided May 31, 1911.)
    Error to the Circuit Court of Miami county.

      At the October term, 1909, of the court of common pleas of Miami county, an indictment ■ was returned against William S. Coblentz, in which he was charged with the offense of unlawfully; and by false pretenses, procuring the signature of one Ira M. Albaugh,’ as maker, to a promissory note of the value of five thousand dollars. On the trial of the case. in common pleas at the close of the testimony offered by the state, the defendant moved the court to direct a verdict in his favor on the ground that no case had been made out by the state, and that the indictment did not charge a crime under the law. The court overruled this motion. The defendant was convicted and sentenced and this judgment was affirmed by the circuit court.’ Error is prosecuted here ’to reverse the judgments below. Other alleged errors are noticed in the opinion.

      Mr. Robert R. Kevin; Mr. W. A. Haines and Mr. A. C. McDonald, for plaintiff in error.
    A case almost directly similar to the one at bar with respect to the proper averment of the intent to defraud is that of Kennedy v. State, 34 Ohio St., 310.
    The procurement of Albaugh’s signature to this note was only an incident of the alleged transaction, there .being no allegation in the indictment anywhere that the signature was procured with intent to defraud.
    Other cases, tvhich are applicable as showing how the court differentiates between the two classes of offenses provided for under the first and second clauses of this' section, are Baker v. State,
      31 Ohio St., 314, and Tarbox v. State, 38 Ohio St., 581.
    . This absence of the allegation that the signature was procured with intent to defraud is not in any way cured by Section 2223, Revised Statutes (Section 13590, General Code),' as was thought by the circuit court in passing on this case. We cannot see that this, section has any application to the facts of the case at bar. Drake v. State, 19 Ohio St., 211.
    The court erred in admitting testimony of certain alleged similar transactions.
    A case that • is squarely on all fours with the case at bar, as to our second proposition, above stated, is that of State v. Letourneau, 24 R. I., 3.
    Evidence was admitted that within a week after a prisoner had made certain false representations,he made false representations of a similar nature to another, and on these second false representations he secured from this other party money. Reg v. Holt, 8 Cox Crim. Law Cases, 411; 3 Rice on Crim. Evidence, 207, 215; Shulman et al. v. State, 14 Hun., 516, 76 N. Y., 624.
    So in the case at bar, we claim that there are many things which might have permitted the defendant to have made certain statements to Dr. Pearson and others in June, which would throw no light upon his guilty knowledge or intent during the .month of March previous to the time when this indictment alleges these false representations were made.
    To the same effect also is Morgan v. State, 56 Neb., 696, where the court holds that the admission of such testimony was not competent at all.

      This testimony, it seems to us, was highly prejudicial to the defendant, as the court holds in' the case of Ferrer v. State, 2 Ohio St., 75. Jackson v. People, 126 Ill., 149.

      Mr. J. Guy O’Donnell, prosecuting attorney, and Messrs. E. H. & R. A. Kerr, for defendant in error.
    The sixth error relates to the admission of similar representations on the part of the plaintiff in error to other parties relative to the same class of transactions at or near the date of the representations set out in the indictment.
    Whenever scienter or guilty knowledge niust be * proved to sustain the charge the class of evidence complained of is competent.
    It is held by text-writers to be an. exception to the general rule, but competent whenever scienter or guilty knowledge must be proved. Gillett’s Indirect & Collateral Evidence, 76; People v. Sharp, 107 N. Y., 427, 14 N. E. Rep., 319, 1 Am. St. Rep., 851, which on examination we find to be a leading case on this subject; 1 Wharton’s Crim. Law, Secs. 631a, 633, 634, 649.
    The above principle is well settled in Ohio.
    The trial court in the trial of the case and also in overruling the motion for a new trial relied on Tarbox v. State, 38 Ohio St., 581, which thoroughly supports the decision of the court. This • was nót a new proposition at that time. It had ' previously been recognized in the following cases: Hess v. State, 5 Ohio, 5; Jackson v. State, 38 Ohio St., 585; Reed v. State, 15 Ohio, 217; Edwards v.
      Owen, 15 Ohio, 500; Shriedley v. State, 23 Ohio St., 130; Brown v. State, 26 Ohio St., 176; Bainbridge v. State, 30 Ohio St., 264; Lindsey v. State, 38 Ohio St., 507.
    Since the trial of this case, this exact proposition has been before and decided by this court and is reported in Boyd v. State, 81 Ohio St., 239, and is beyond question decisive of this objection in the petition in error.
    We further desire to call the court’s attention to. the fact that in Jackson v. State, 38 Ohio St., 585; Brown v. State, 26 Ohio St., 176, and Bainbridge v. State, 30 Ohio St., 264, the state was in each instance permitted to prove subsequent acts to show .intent.
   Johnson, J.

The indictment is founded on Section 7076, Revised Statutes, which relates to obtaining money, etc, by false pretenses. There are defined in the section three different offenses. First obtaining by any false pretense with intent to defraud, anything of value from another; second, procuring by any false pretense,. with intent to defraud, the signature of any person as maker, endorser, etc, of any bond, note, or other evidence of indebtedness, and third, selling, or offering to sell, any such instrument, knowing the signature to have been obtained by false pretenses. The indictment in this' case, it is conceded, was intended to describe an offense included in the second class. It alleges that said Coblentz, on the 7th of March, 1907, in said county of Miami and state of Ohio, then and there being, unlawfully did falselv pretend, with intent to defraud to one Ira M. Albaugh, that the Gem City Acetylene Generator Company, a corporation located with its principal place of business at Dayton, Ohio, was solvent and entirely out of debt and did not owe any man a dollar. And proceeding, alleges that he pretended that the company was doing an excellent business and making sufficient money to pay the expenses of the company and declare dividends of 20 per cent, on the capital stock; that it had paid 20 per .cent, dividends and then had on hands a sufficient surplus of net earnings to pay a 20 per cent, dividend, but that the money was needed in the business, and that he, Ira M. Albaugh, would receive his equal proportion thereof the same as if he had been a stockholder at the time the dividend was earned, and further, that he represented that he was selling stock of the company for the purpose of procuring funds to increase the output and then sets out the names of some of those to whom he pretended to have sold stock. And further, that every dollar that was paid on stock so sold by him had been, and would be, expended by the company in the increase of its business whereby the earnings could be greatly increased from those aforesaid, by which said false pretenses the said William S. Coblentz then and there did unlawfully procure the signature of the said Ira M. Albaugh, as maker, to a promissory note of the value of five thousand dollars, and then sets out a copy of the note. The indictment then proceeds to allege that in truth and fact said company was not solvent, and .was not out of debt,' but on the contrary its indebtedness was much in excess of its assets and a statement from the books of the company is set out in the indictment in support of this allegation. The indictment then proceeds to set out facts showing that the company was largely indebted to other parties, naming them, and that this indebtedness in the aggregate exceeded the available assets of the company, and alleges that it was not then doing an excellent business, or even a good business and had never made any money, and was then actually losing money, and that all of these facts were well known to William S. Coblentz at the time he made the statements heretofore referred to. The indictment contains a further allegation that the five thousand dollars paid by the said Ira M. Albaugh was not expended by the company in the increase of the company’s business, but alleges that it was paid part to Coblentz, and part on then existing indebtedness of the company, and concludes with the allegation that said William S. Coblentz at the time he so falsely pretended, as aforesaid, well knew the said false pretenses to be false, he being the general manager of the said company on said 7th of March, 1907, and had been for more than one year prior thereto.

When tested by well settled rules, does this instrument meet the requirements of a valid indicL ment ? A criminal charge should be preferred with such certainty and precision as will reasonably apprise the party charged of that which he may expect to meet and be required to answer, and so that the court and jury may know what they are to try, and the court may determine without unreasonable difficulty what evidence is admissible; also that the record to be made will be sufficiently definite to make it clear of what-the party has been put in jeopardy. Dillingham v. State, 5 Ohio St., 280; Du Brul v. State, 80 Ohio St., 52. And an indictment for procuring a signature to a promissory note by false pretenses, with intent to defraud, under Section 7076, should allege that the signature was secured not only by false pretenses, but with intent to defraud. Where a statute makes a certain intent an element of the offense, that intent must be averred directly, and specifically, in the indictment, by proper affirmative allegation. Drake v. State, 19 Ohio St., 211; Kennedy v. State, 34 Ohio St., 314-316; State v. Daniels, 90 Ia., 491; Marshall v. State, 31 Tex., 471; 19 Cyc., 436; 2 Wharton’s Criminal Law (10 ed.), Sec. 1226.

'First: It must be noted that this indictment contains no averment that there was any attempt to induce Albaugh to purchase stock in the company; there is no allegation in the indictment that Albaugh ever did purchase stock in the company. And although there is an averment that “the five thousand dollars paid, by Ira M. Albaugh was not expended by the company in the increase of the company’s business;” there is no direct allegation that he ever did pay five thousand dollars to the company or if he did whether or hot he paid it in payment of the note to which his name was signed and secured as alleged. There is no allegation that Albaugh was induced to sign the note on the understanding that he was to receive anything therefor. So that so-far as appears by the indictment nothing was held out tb Albaugh which he was to' receive in consideration of or ' as an inducement to his signing that note. It must be remembered that the charge is not that he obtained by false pretenses, with intent to defraud, five thousand dollars or any other thing of value from Albaugh, but that he procured the signature of Albaugh to a promissory note of the value of five thousand dollars.

As was said by the court in Tarbox v. The State, 38 Ohio St., 583, “the provision of the section concerning the procuring of a signature was intended to cover an entirely different class of offenses; a good illustration of which would be the case of one who should present to another, with a request that he should sign it, a paper falsely represented to be a certificate of character, a subscription paper, or the like, whereas the paper is, in reality, a promissory note or check, or bill of sale.” Now, there is no allegation in this indictment that the note to which Albaugh’s signature was procured was not what it had been represented to him to be. The inference here is that the signature to .the note was an incident of, and not the end in fact sought, or to which the pretense related. There is no allegation whatever that the defendant, or the company, ever received anything of value on account of the note, or that they ever promised to Albaugh that they would give him anything of value in return for it, or that Albaugii expected to receive anything of value in return for his signature to the note. The important matter is that the false pretense or false representations .as to the business and the financial condition of the company are not shown by the indictment to have had any connection with the giving of the note. ' No consideration for it is stated. So far as any direct averment is concerned the note may have been given for a loan. It is only from indirect averments that one may infer that it was given for stock. Second: It will be observed that the allegation in the indictment as to the procuring of the note is as follows: “by which said false pretenses the said William S. Coblentz then and there did unlawfully procure the signature of the said Ira M. Albaugh as maker, to a promissory note of the value of $5,000.00 which said promissory note was in the words and figures following.”

There is no allegation that the signature was procured with intent to defraud. The intent to defraud is specifically made an essential element in the crime by the statute, and under the authorities above given it is necessary that the indictment should aver that the signature was procured with intent to defraud. It is true that in the first part of the instrument there is a general averment that the defendant did unlawfully and falsely pretend with intent to defraud to one Ira M. Albaugh, etc., but as already shown there is no connection between those allegations, and the allegations later on in the indictment as to the procuring of the signature of Albaugh.

In Drake v. State, 19 Ohio St., 211, the rule is stated as follows: “An intent to prejudice, damage or defraud is an essential ingredient in the crime of forgery, and an indictment for that crime must therefore charge such an intent directly and specifically, and a mere statement of such an intent in the conclusion of such an indictment by way of deduction or inference from' the' facts previously found is not sufficient.” And also in Commonwealth v. Dun, 110 Mass., 64.

It is insisted by counsel for the state that Tarbox v. State, 38 Ohio St., 581, supports their con1 tention as to the sufficiency of this indictment. The charge in that case was obtaining a check by false pretenses.

The court held that a check was a thing of value within the meaning of the first clause of Section 7076, and that the indictment could be properly laid under that clause. But the court points out that in that section there are three distinct classes of crime, described, and that under Section 6794, Revised Statutes, “anything of value” shall include “a check or bond given for payment of money.” The court then state that the clause “concerning the procuring of a signature was intended to cover an entirely different class of offenses.”

In this case the averment is that it was the signature that was secured.

In Kennedy v. State, 34 Ohio St., 310, which was a case where B,' a county auditor, fraudulently issued an order on the county treasurer in favor of A, and received payment thereof on the false pretense that he was authorized by A, to do so, while in fact as he well knew A had no claim against the county, the court after a full examination and discussion of the averments of the indictment say at page 316: “If the indictment had contained the averment that Kennedy by means of false pretenses obtained the check from House with intent to defraud it would have been sufficient, but it contained no such averment.”

We feel forced to the conclusion, that this indictment does • not state the nature and cause of the accusation against defendant so as to directly and specifically advise him of what he must prepare to meet.

It does not meet the requirements of well-settled rules or secure to him the constitutional safeguard of the right to demand the nature and cause of the charge against him.

It is contended by plaintiff in error that the trial court erred in the admission of testimony as to similar transactions and statements by defendant to others. Some of these statements and transactions occurred before and some subsequent to the time the alleged false representations were made to Albaugh, to-wit: March, 1907. The trial court admitted the testimony on .the ground as stated in the charge; that the law of this state permits evidence of similar transactions to go to the jury for the sole purpose of throwing what light they may on the intent and knowledge of the party making the representations.

We think this is correct as to those transactions which occurred prior to the one in question.

In Tarbox v. State, 38 Ohio St., 584, the court say: “The decisions are uniform to the effect that where scienter .is an element of the crime charged previous offenses necessarily involving such guilty lcnowledge are admissible.”

As to those transactions which occur subsequent to the one in question, the weight of authority and of reason is against the admissibility of the testimony. Any other rule would widen the scope of the inquiry beyond bounds within which defendant could fully prepare his defense. State v. Letourneau, 24 R. I., 3; Shulman v. State, 76 N. Y., 624; Jackson v. People, 126 Ill., 149.

There are some other assignments or error, but we do not find it necessary to consider them in this opinion.

The judgments below will be reversed and defendant discharged.

Judgments reversed.

Davis, Price and Donahue, JJ., concur.


author: Price, J.

text:
    Kilbourne v. The State of Ohio.

      Part of an act passed May g, igo8 — Protecting railway property— Providing whoever buys, etc. — Or has' in possession any articles — Removed from railway cars — May be imprisoned — Is constitutionally invalid.

    That part of an act entitled: “An act to protect railway property and guard against personal injuries,” passed May 9, 1908 (99 O. L., 465), which provides that, “whoever buys, receives, or unlawfully has in his possession any of the aforesaid articles (referring to journal brasses, nuts, bolts, et cet., removed from railway cars, et cet.), shall upon conviction thereof be imprisoned * * *” is constitutionally invalid.
    (No. 12832
    Decided May 31, 1911.)
    Error to the Circuit Court of Franklin county.
    At the September term of the court of common pleas Franklin county for the year 1909, the grand jury presented an indictment against the plaintiff in error charging, “that A. W. Kilbourne, late of said county, on or about the twenty-sixth day of July, in tlie year of bur Lord one thousand nine hundred and nine, within the county of Franklin aforesaid, unlawfully did buy certain journal brasses necessary in the use and operation of certain railroad cars, which said journal brasses had been theretofore unlawfully and without proper authority removed from said certain railroad cars, which said railroad cars and brasses were then and there the property of The Hocking Valley Railroad Company, a corporation, and which said removal of said journal brasses from- said certain railroad cars might have endangered life, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Ohio.”
    The accused was taken into custody to answer said indictment, which was first done by filing a demurrer to the indictment, one ground of which is that the statute alleged to have been violated is unconstitutional; and on the further ground that such statute is in conflict with -Sections 6856 and 6858, Revised Statutes.
    The demurrer was overruled, a plea of not guilty entered, and the case tried to a jury, resulting in a verdict of guilty in the following words: “We, the jury in this case, find the defendant A. W. Kilbourne, guilty .of unlawfully buying certain journal brasses as he stands charged in the indictment with recommendation of mercy.
    “A. L. Henderson,

      “Foreman.”

      A motion for new trial was overruled and the accused sentenced to pay the costs of prosecution and be imprisoned in the Columbus workhouse and kept at hard labor for the term of ninety days.

      On error, this judgment was affirmed by the circuit court.
    Error is prosecuted here to reverse both judgments.

      Messrs. Badger & Ulrey and Mr. M. B. Earn-hart, for plaintiff in error.

      Mr. Edward C. Turner, prosecuting attorney, and Mr. H. S. Ballard, for defendant in error.
   Price, J.

Numerous errors were assigned in the circuit court, and the same have been brought to this court by the petition in error. Prominent in the list is the declaration that the statute under which Kilbourne was indicted, tried and convicted is invalid. Its constitutionality was challenged by the demurrer to the indictment which the trial court overruled, and this ruling was complained of in the circuit court, and is forcibly assailed in this court.

If this statute is invalid, the indictment falls with it, as will .all the subsequent proceedings— the verdict and the sentence pronounced thereon. Therefore, we first address our attention to this very important question, leaving the other errors assigned to abide the result of our investigation. ,

The law in question was passed on May 9, 1908, and is found in 99 O. L., 464-5, and in Section 12561 of the General Code.

The entire section is: “Whoever, without authority, unlawfully removes from any railway track, over which locomotives or cars are operated, or from any locomotive, motor, or car, the bond-wires, nuts, bolts, angle bars, spikes, attachments, fastenings, switch stands, locks, feed wires, trolley wires, or other appurtenances, or any part or attachment thereof, or any bonds, nuts, bolts, wires, fastenings .journal brasses, journal packing or parts thereto attached or belonging which are necessary in the use or operation of said railway tracks, locomotives, motors or cars, and the removal of which may endanger life, or whoever buys, receives, or unlawfully has in his possession any of the aforesaid articles, shall upon conviction thereof be imprisoned in the penitentiary not more than five years or less than one year, or not more than six months in the county jail or workhouse at the discretion of the court, which is hereby authorized to hear testimony in mitigation or aggravation of sentence.”

In the revision as found in the General Code, the language of the penalty is transposed and the authority to hear testimony in mitigation or aggravation is omitted.

The indictment on which Kilbourne was tried charges, that “On or about the twenty-sixth day of July, in the year of our Lord one thousand nine hundred and nine, within the county of Franklin aforesaid, unlawfully did buy certain journal brasses necessary in the use and operation of certain railroad cars, which said journal brasses had been theretofore unlawfully and without proper authority removed from said certain railroad cars, which said railroad cars and brasses were then and there the property of the Hocking Valley Railroad Company, a corporation, and which said removal of said journal brasses from said certain railroad cars might have endangered life, contrary to the statute,” etc.

He was not charged with having removed the journal brasses from the cars, or with removing any article specified in this statute, from any track, locomotive, or other railroad property. His offense, if any, consists in buying journal brasses which had been unlawfully and without proper authority therefore removed by some one else.

Knowledge, or even suspicion, on the part of the buyer, that such brasses, nuts, bolts, et cetera, had been unlawfully removed from cars or other railroad property described in the statute, is not made a condition or element of the crime. In this respect, the clause or part of the section on which the prosecution is founded differs ' from the preceding provision, for the latter aims its prohibition against the principal actor — the one who without authority unlawfully removes from a railway track, and other species of railway property mentioned, any of the articles therein named.

The one who so removes has knowledge of what and from what he removes. The act of removal necessarily implies that he knows what he. is removing, and he is charged with knowledge of the relation which such articles bear to the railway property from which they are taken. Hence we assume that one who, without authority, removes any of the specified articles’from railroad'cars or other named railroad property, is possessed of both knowledge and intent, and therefore no constitutional objection can be made to that part of the section.

But here, in the latter paragraph, is the fate of one who buys or receives, or has in his possession any ■ of such removed articles. The buying, receiving or. having in possession is made a crime, although the buyer, receiver or possessor has no knowledge or information that said article- or articles had been removed from any railway car, or other railway property. Knowledge is not made an ingredient of the offense as defined by this branch of the statute, and knowledge on the part 'of the accused.is not charged in the indictment.

Many of the articles named in the act are of common use — articles of common merchandise, .such as nuts, bolts, angle bars, spikes, attachments, fastenings. The others are not so common, and, as their names indicate are intended for railroad purposes, and yet their names do not make them contraband, for when worn out, or no longer fit or desired for railroad purposes, they are for sale and become legitimate subject of traffic. The trade in old or second-hand iron, and material of this and other classes, has grown to large proportions, and the dealer — the buyer of such cast-off wares, — should not be condemned by mere presumption, if he unwittingly purchases an article named in the statute, where he has no knowledge or information that it had been removed from some railroad car or other railway property. We understand that even journal brasses are not limited in use to railroad cars, but are in use in many manufacturing establishments of the country. Therefore the sight of journal brasses in the hands of a party could not of itself be evidence that they had been removed from railway cars or other railway property. It is not claimed that there are any special marks or impressions on any of these goods to indicate or designate any particular former ownership.

Section 6856, Revised Statutes, defines the crime of larceny, and Section 6858 provides- that “Whoever buys, receives or conceals anything of value which has been stolen, taken by robbers, embezzled * * * knowing the same to have been stolen, taken by robbers, embezzled * * * shall be deemed guilty of larceny * * * ”

In framing the act under consideration, the legislature omits the word “knowing” and provides nothing in its place, enabling the state to convict without showing that the accused had knowledge of the, character of property he was buying. One may be innocent of a criminal intent' in buying articles named in the statute, and may have dealt with them in the usual course of trade, and yet be convicted if it turn out that they had been aj: some time by some person removed from a locomotive, motor, car, or other designated railway property.

•As early as Birncy v. The State, 8 Ohio Rep., 230, guilty knowledge was held to be a necessary ingredient of crime. It is true that that case arose • from the violation of a statute prohibiting' the harboring or secreting a slave. There were several-counts in the indictment, which we need not specialize further than to say that the statute forming the basis of prosecution provided that “if any person shall harbor secrete any black' or -mulatto' person, the property of another, the person' so of-r fending shall, on conviction thereof, be fined imanyl sum,” etc. It is observed that scienter is not made part of the statutory description, and that fact was important in determining the case.

On page 238, Wood, J., speaking for the court, says: “There is no averment that the plaintiff in error knew the facts alleged, that Matilda was a slave, and the property of L. Larkin, or of any other person; and such is not the legal inference in a state whose constitution declares that all are born free and equal * * *. On the contrary, the presumption is in favor of freedom. The scienter, or knowledge of the plaintiff in error, of this material fact, was an ingredient necessary to constitute his guilt. This knowledge should have been averred in the indictment, and proved on the trial, for without such knowledge, theo act, charged as a crime was innocent in its character. We know of no case where positive action is held criminal, unless the intention accompanies the act either expressly or necessarily inferred from the act itself. It is true that the statute upon which the Indictment is founded omits the scienter, and the indictment avers all the facts enumerated in the statute. But this is not sufficient; it can not be assumed that an act, which, independent of positive enactment, involves no moral wrong, nay an act that in many cases would be highly praiseworthy, • should be made grievously criminal when performed in total unconsciousness of the facts that infect it with crime * *

We think this early pronouncement by this court is yet sound law and states a rule pertinent to the present controversy, and is as applicable to the business habits and rights of our citizens to-day 'a.s to the right of a citizen under the fugitive slave statute. The case has been approvingly noticed in Miller et al. v. The State, 3 Ohio St., 476, under our present constitution, and the principle distinctly reannounced in Farrell v. The State, 32 Ohio St., 456. The same legal light can be traced through many later cases decided by this court, which we need not cite.

- If it is said that the buyer should, before buying or receiving, make inquiry as to where or how the articles were obtained, we might be at a loss to tell of whom and1' where the inquiry should be made. It is not probable that the thief or party who removed the articles would inform the buyer that the property was stolen, but on the contrary would make such statement or give such account as would allay suspicion and indicate that the property had been honestly acquired. Had the buyer gone through the course of this precaution, and acted on the information thus given as to the history of the articles offered for sale, and believing the statement of the seller, purchased them, it would be no defense under this branch of the statute. Want of knowledge of the truth, however honestly and actively sought, furnishes no excuse, and the purchaser in good faith stands no better before this law than the thief himself. Why this drastic .legislation? And as to a certain class of property ?

Counsel .for the state answer in the language of the circuit court, where it is said, “the object of this statute is to break up any market for such commodity so removed from cars, and I might say here that is one of the strong.points that no doubt influenced the supreme court and the circuit court in upholding the same question 'as made under the pure food laws — that is the question of knowledge.If there was no market value for any such com-modify, then' it would reduce to a minimum the temptation and desire on the part of any parties' to unlawfully remove any such material from rail'-road cars.”

But such statement does not satisfy the question we have here. Doubtless it is true that these-species of railroad property are the frequent subjects of unlawful depredations, and that the thefts and removals have become a crying evil. It may be also that similar depredations are committed in the homes and other buildings owned by our citizens, from which, night and 'day, prowlers remove and sell valuable gas and water pipes and other valuable plumbing. When - such articles are once removed, the thief will, if he -can, find a market for the illegal wares. To break up the market for ? gas and water pipe, should the legislature make |i_án innocent buyer a criminal?

'WEaF disposition do railway companies themselves make of their wornout journal brasses, bolts, nuts, etc., when no longer safe and fit for use? Dó they bury them out'of sight? In the exercise of economy, they may seek and help create á market for such -wares, and to destroy all market for such articles as are included in the list, is an undertaking that may tax the ability- of even the legislature.

The plaintiff in error may be rather a free buyer of second-hand iron, and what is called junk, and on occasions may have purchased without due care for the rights of others, but when we look into the record in this case, it is seen that he never saw the journal brasses in question. They were, by some one, placed in barrels, taken to the railroad freight house in Columbus and billed to a firm in Cleveland. One, Brown by name, obtained a bill of lading for the goods and they were shipped to the Cleveland concern. In the afternoon of the day, this party appeared at the office of plaintiff in error and presented the bill of lading and offered to sell the goods it' represented. The plaintiff in error was not present at the time and the negotiations were with his bookkeeper. The evidence may be in conflict, but it tends to show that the bookkeeper declined to buy the goods, but consented to take the bill of lading and sell the same on commission. At all events, nothing was paid for the goods. After the party had left, plaintiff in error returned to the office and was informed by the bookkeeper of what had transpired. In the meantime, the officers of the law got trace of the shipment and overtook it at Cleveland and arrest followed for Kilbourne in this case. There is nothing in the record to show that either the bookkeeper or Kilbourne ever saw these journal brasses. They never were in their possession except by token of the bill of lading. On inquiry by the bookkeeper as to nature of the goods, they were described as goods not proscribed by the statute in question.

While we are not passing on the merit or weight of the evidence in the record, the above facts serve to illustrate what might be the dealings of and what might befall a perfectly honest man under similar circumstances. We do not believe the legislature has constitutional authority to enact such legislation as the clause of the section upon which the indictment is predicated and therefore hold it invalid.

This' conclusion renders consideration of' other questions in the record unnecessary.

The judgments of the lower courts are reversed, the demurrer to the indictment sustained, and the plaintiff in error discharged.

Reversed. '

Davis, Shauck, Johnson and Donahue, JJ., concur.