author: Crew, J.

text:
    The State of Ohio v. Hanlon.

      Pishing in Lake Erie — Section 6968-2, Revised Statutes — (93 O. L,, 303)- — Requirement of license and payment of fee therefor — Not in violation of 14th amendment of U. S. Constitution — Nor Section 26, Article 2, Ohio Constitution — Constitutional law.

    Section 6968-2, Revised Statutes, as amended April 26, 1898 (93 O. L., 303), in -so far as it enacts that every person, firm or corporation desiring to engage in fishing in the waters of Lake Erie and the estuaries and bays thereof within this state shall make application to the commissioners of fish and game and obtain a license or authority so tó do, and for such license or authority shall pay the fee therein specified, is a valid enactment, and is neither in violation of the fourteenth amendment to the Constitution of the United States, nor repugnant to Section 26, Article 2, Constitution of the State of Ohio.
    (No. 10489
    Decided October 22, 1907.)
    Error to the Circuit Court of Ottawa County.
    Under favor of the provisions of an act of the general assembly of the state of Ohio, passed May 10, 1902, (95 O. L., 498-500) entitled: “An act to authorize claimants for damages and rebate of license fees under an act passed April 26, 1898 (93 O. L., 303-307) entitled: ‘An act for the further and better protection of fish and game,’ to sue. the state of Ohio,” the defendant in error, Louisa Hanlon, brought suit in the court of common pleas of Ottawa county to recover from plaintiff in error the sum' of seventy dollars, theretofore paid by her, as license fees, to the president of the commissioners of fish and game of the state of Ohio, in accordance with the provisions and requirements of Section 6968-2, Revised Statutes, as amended April 26, 1898. To the petition filed by said Louisa LIanion in the court of common pleas, the defendant, the state of Ohio, demurred, alleging as ground of demurrer, that “said petition does not state facts sufficient to warrant the relief prayed for.” Upon consideration, this demurrer was overruled by the court of common pleas, and defendant not desiring to plead further in said cause, judgment was thereupon rendered by said court in favor of the plaintiff, Louisa Hanlon, and against the state of Ohio, for the sum of seventy dollars and the costs of suit, taxed at $15.46. This judgment was affirmed by the circuit court. From this judgment of affirmance the state of Ohio prosecutes error, and prays “that said judgment of the circuit court, and that of the court of common pleas, may be reversed, set aside and held for naught, and that it may be restored to all things it has lost by reason thereof.”

      Mr. Wade H. Ellis, attorney general, and Mr. J. M. Sheets, for plaintiff in error.
    The case of State v. French, 71 Ohio St., 189, involved the constitutionality of Section 6968-2, Revised Statutes, in so far as it authorized the destruction of fishing devices. That is, the question of the constitutionality of the license feature of the statute was not argued to the court and was not directly passed upoii. But in order to have rendered the judgment which the court did ■ render, it must, of necessity, have found Section 6968-2 to be constitutional in all respects, for we apprehend that, if the section was unconstitutional with reference to either the license feature or the feature authorizing the destruction of nets, the whole section would have to go. State, ex rel. v. Commissioners, 5 Ohio St., 497.
    The license feature of the act in question and the provisions authorizing the destruction of fishing devices for failure to pay the license, are inseparable. Hence, the French case is decisive of the case at bar.
    That the legislature has the power to exact a license fee for the privilege of fishing in the waters of Lake Erie can hardly be considered an open question. The ownership of fish and game, in so far as they are capable of ownership, is in the state. That being the case, the legislature has the constitutional right either to grant or to withhold from the people the privilege of hunting and fishing; or it may grant the privilege on such terms and conditions as it may prescribe. Roth v. State, 51 Ohio St., 209; Magner v. People, 97 Ill., 320; Express Co. v. People, 9 L. R. A., 138; State v. Rodman, 58 Minn., 393; Ex parte Simon Maier, 103 Cal., 476; Organ v. State, 56 Ark., 267; Tiedeman on Police Power, section 151; State v. Schuman, 78 Am. St., 754, 36 Ore., 16; Phelps v. Racey, 60 N. Y. 10; Geer v. Connecticut, 161 U. S., 519; State v. Lewis, 134 Ind., 250; Rea et al. v. Hampton et al., 101 N. Car., 51, 9 Am. St., 21; Osborn v. Judge, 114 Mich., 655; Phipps v. State, 85 Am. Dec., 654; State v. Mrozinski et al., 59 Minn., 465.
    It is thus seen that the regulation of the catching of fish is a subject exclusively within the control of the legislature, and that courts will not review its action to determine whether “regulations operate in any respect unjustly or oppressively,” but will leave those questions to be determined by succeeding legislatures. (Phelps v. Racy, supra.)

    Judge Hull held the act in question to be unconstitutional on the erroneous assumption that “the right of public fishery in the waters of the Great Lakes, is one of the time honored, and we might say, almost sacred rights of the people.” Yensen v. State, 7 N. P. 18.

      Mr. George A. True, for defendant in error.
    The act of April 26th, 1898 (93 O. L., 303), Section 6968; Revised Statutes, is unconstitutional being a violation of and in conflict with the fourteenth amendment to the constitution of the United States, and a violation of and in conflict with, the constitution of the state of Ohio.
    1. Because it denies to defendant in error the equal protection of the laws.
    2. Because it deprives defendant in error of his liberty and the equal protection of the laws guaranteed by the constitution of the United States and by Section 1 of the bill of rights of the constitution of Ohio.
    3. Because it violates Section 26 of Article II of the constitution of Ohio, which provides that all laws of a general nature shall have a uniform operation throughout the state.
    4. Said act is unreasonable and unjust and unjustly and unlawfully discriminates between persons engaged in the same' occupation.
    5. Said act tends to create a monopoly and is for the benefit of a class of persons, and imposes unequal burdens upon persons engaged in the same occupation. Yensen v. State, 7 N. P., 18.
    The word “liberty,” as used in the first section of the bill of rights does not mean a mere freedom from physical restraint or state of slavery, but is deemed to embrace the right of man to be free in the enjoyment of the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. People v. Marx, 99 N. Y., 377, 52 Am. Rep., 34; Bertholf v. O’Reilly, 74 N. Y., 509, 30 Am. Rep., 323; In re Jacobs, 98 N. Y., 98, 50 Am. Rep. 636; Palmer & Crawford v. Tingle, 55 Ohio St., 441.
    The liberty of pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a citizen, of which he can not be deprived, without invading his right to liberty, within the meaning of the constitution. Landing Co. v. Landing & Slaughter House Co., III U. S., 746; Bertholf v. O’Reilly, 74 N. Y., 509, 30 Am. Rep., 323.
    In order to prohibit the prosecution of a trade altogether, the injury to the public which furnishes the justification for such a law must proceed from the inherent character of the business. But if .the business is not inherently harmful the prosecution of it cannot rightfully be prohibited to one who will conduct the business in a proper and circumspect manner. Such a one would be “deprived of his liberty” without due process of law. Tiedeman Police Powers, 290.
    It is on the ground of their inherently harmful and dangerous character that the keeping of gaming tables or the selling of intoxicating liquor, or other things of a demoralizing nature, may be absolutely prohibited. Mugler v. Kansas, 123 U. S., 623; State v. Joyner, 81 N. Car., 534.
    The act is unjust and unreasonable and unlawfully discriminates between fishermen engaged in the business of fishing in the same waters and in the same locality, and is, therefore, unconstitutional. State v. Gardner, 58 Ohio St., 599; Flatau v. City of Mansfield, 14 C. C., 595; Sipe v. Murphy, 49 Ohio St., 536; City of Newark v. Flatau, 53 Ohio St., 660; Palmer & Crawford v. Tingle, 55 Ohio St., 423; State v. Moore, 22 L. R. A., 472.
    The exercise of the police power of the state must be reasonable. Marmet v. State, 45 Ohio St., 63; Sipe v. Murphy, 49 Ohio St., 536.
    Said act tends to create a monopoly, is prohibitory, in restraint of trade, and against public policy. Glaser v. Cincinnati, 31 Bull., 243; Brooks v. Mangan et al., 86 Mich., 576; Ferris Wheel Co. v. Chicago, 27 Chicago Legal News, 399.
    An ordinance purporting on its face to be for the levying and collection of a license tax, but which is a clear and palpable attempt to destroy and prohibit legitimate and commendable business, is invalid and can not be enforced. Lyons v. Cooper, 39 Kan., 324.
    It belongs to the court to say what are reasonable regulations. State v. Orange, 50 N. J. L., 389; Gum Co. et al. v. Laylin, Secretary, etc., 66 Ohio St., 578.
    So a statute imposing a license tax of $25 per quarter on every laundry business, other than steam, and $15 per quarter upon steam laundries, imposes a greater burden upon one kind of laundry business than upon the other, and thereby denies equal protection of the laws. In re Yot Sang, 75 Fed. Rep., 983; Am. An. Dig., 1897, 988.
    The law in question violates the 14th amendment to the constitution of the United States because it denies to the plaintiff in error the equal protection of the laws. The inhibition of the amendment that no state shall deprive any person within its jurisdiction of the equal protection of the laws, was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. Mining & Milling Co. v. Pennsylvania, 125 U. S., 180; Yick Wo. v. Hopkins, 118 U. S., 367.
    State licenses must be tmiform and must not discriminate in favor of one class and against another. Warren Borough v. Geer, 117 Pa. St., 207; St. Louis v. Spiegel, 90 Mo., 587; Am. & Eng. Ency. Law, Vol. 13, 520.
    Said act is clearly in conflict with Section 26, Article II, of the constitution of Ohio. State, ex rel., v. Davis et al., 55 Ohio St., 20; State v. Gardner, 58 Ohio St., 610.
    A statute prohibiting aliens, etc., from fishing in the waters of a state violates the 14th amendment to the constitution of the United States. In re Ah Chong, 2 Fed. Rep., 733; 19 Cyc., 1007 (note).
    The right of a citizen to the equal protection of the law, can not be trampled under foot under the disguise of police regulations. State v. Walsh, 35 L. R. A., 231.
    A statute licensing the occupation of fishing must apply to all persons equally and must not discriminate. “A state statute regulating fishing rights, which is confined in its operation to certain specified waters, if it applies to all persons equally, is not a violation of the constitutional provision that no state shall make any law which shall deny to any person the equal protection of the laws.” Am. & Eng. Ency. Law, Vol. 13, 597; State v. Higgins, 51 S. Car., 51; Bittenhaus v. Johnston et al., 92 Wis., 588, 32 L. R. A., 380; State v. Owen, 4 Ohio Dec., 163; Commonwealth v. Drain et al., 99 Ky., 162.
   Crew, J.

Whether the facts stated in the petition of Louisa Hanlon show her entitled to the relief therein prayed for and furnish sufficient warrant for the judgments rendered by the courts below, depends, in the present case, solely upon the constitutionality of certain provisions of Section 6968-2, Revised Statutes, as amended April 26, 1898 (93 O. L., 304). These provisions so far as they are pertinent to, or involved in, the present inquiry, are as follows:

“No person, firm or corporation shall engage in the catching of fish for profit with nets in the waters of Lake Erie and the estuaries and bays thereof within this state, without complying with the provisions of this section. Every person, firm or corporation desiring to engage in fishing as above mentioned, shall make application to the commissioners of fish and game and obtain a license or authority so to do; and for such license or authority shall pay the following fee; For each tugboat or boat propelled by steam engaged in fishing with gill-net, the sum of forty dollars.; for each sail boat engaged in fishing with gill-nets, the sum of five dollars; for each pound-net, fykenet, or trap-net used in fishing, the sum of three dollars; for all other nets, or seines used in fishing, except gill-nets fished from boats which have been licensed as hereinabove provided, the sum of two dollars.”

If the foregoing provisions of Section 6968-2, requiring the payment of license fees as therein stipulated, by persons who for profit engage in the catching of fish with nets, in the waters of Lake Erie, or the estuaries and bays thereof within this state are constitutional and valid, then admittedly, the petition of Louisa Hanlon in this case was and is wholly insufficient, states no cause of action in her favor, and the demurrer thereto by the State of Ohio should have been sustained by the court of common pleas, and her petition should have been dismissed. The constitutionality of said statute is here challenged, and its validity denied by counsel for defendant in error, upon the grounds: 1. That it denies to defendant in error the equal protection of the laws. 2. That it violates the uniformity clause of Section 26 of Article II, constitution of the state of Ohio. 3. That it unjustly and unlawfully discriminates between persons engaged in the same occupation, and tends to create a monopoly. Is the statute in question, for either of the foregoing reasons, unconstitutional? The right of the state, in the exercise of its police power, to regulate and control the taking of fish in all the public waters within its jurisdiction, is a right so universally recognized and so uniformly affirmed, by both text-writers and courts, that it may not now be questioned. The ownership of fish and game, so far as they are capable of ownership, until reduced to actual possession, is in the state, and their protection and preservation by the state has always been regarded and treated as within the proper domain of .its police power, and the validity of laws limiting the season within which game may be killed, and prescribing the terms and conditions upon which, and the time and manner in which fish may be taken or caught in public waters within the territorial limits of the state have been repeatedly and almost uniformly upheld by the courts. In Magner v. People, 97 Ill., 333, it is said: “The ownership being in the people of the State — the repository of the sovereign authority — and no individual having any property rights to be affected, it necessarily results that the legislature, as the representative of the people of the State, may withhold or grant to individuals the right to hunt and kill game, or qualify and restrict it, as, in the opinion of its members, will best subserve the public welfare.

“Stated in other language, to hunt and kill game, is a boon or privilege granted, either expressly or impliedly, by the sovereign authority — not a right inhering in each individual; and, consequently, nothing is taken away from the individual when he is denied the privilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state, and hence, by implication, it is the duty of the legislature to enact such laws as will best preserve the subject of the trust and secure its beneficial use, in the future, to the people of the State. But in any view, the question of individual enjoyment is one of public policy, and not of private right.”

Tiedeman, in his valuable work on State and Federal Control of Persons and Property, Vol. 2, Sec. 151, says: “Where the prohibition was limited to the killing of game and the catching of fish in the public lands and streams of the state, no possible question could arise as to the constitutionality of the regulation, for the reason that no one’s rights of property could be violated in such case. The right to hunt or fish in such case is at best only a. privilege, which the state may grant or withhold at its pleasure.” Within the principles above announced it is obvious that in the enactment of police regulations for the protection and preservation of fish and game, there is reposed in the legislature a very large discretion, and courts will not assume to interfere with the exercise of such discretion unless, in the particular case, it be made to clearly appear that the act assailed does not reasonably tend to accomplish the object for which it was passed. In the present case the section under review is one of the sections of an act entitled: “An act for the further and better protection of fish and game.” If the true purpose and object of this act is expressed in its title, as would seem apparent from a consideration of the other provisions of said section, one of which is: “All fees required to be paid hereunder shall be paid to the president of the commissioners of fish and game, and by him paid into the state treasury to the credit of a fund, which is hereby appropriated, for the purpose of propagating, protecting' and preserving the fish in the waters of Lake Erie,” then, certainly, the imposition, for such purpose, of a license fee upon all persons who engage in the business of fishing with nets in the waters of Lake Erie, is a proper exercise of legislative power. And it being matter of public and common knowledge, that reasons may and do exist, for imposing terms, conditions and restrictions upon persons engaged in fishing with nets in the waters of Lake Erie, that do not apply to or exist, as to other waters of the state, such enactment would be a valid law, and not in conflict with Section 26 of Article II, of the state constitution. While it may be true, in a sense, that the right to fish is a common or general right, yet it is equally true that laws regulating the exercise of this right, must of very necessity be local rather than general in their character, and hence they may, and should be, adapted to the various needs of different localities and waters. Phelps v. Racey, 60 N. Y., 10; Bittenhaus v. Johnston et al., 92 Wis., 588; Rea et al. v. Hampton et al., 101 N. Car., 51; Geer v. Connecticut, 161 U. S., 519; Morgan v. Commonwealth, 98 Va., 812; Osborn v. Charlevoix Circuit Judge, 114 Mich., 655; Ex Parte Frits, 86 Miss., 210; Hughes v. State, 87 Md., 298; Organ v. State, 56 Ark., 267; State v. Mrozinki, 59 Minn., 465.

The contention of defendant in error, that this statute is unconstitutional because it denies to her the equal protection of the laws, and unjustly and .unlawfully discriminates between persons engaged in the same occupation, would seem, in part at least, to be answered by the statute itself, the language of which is: “No person, firm or corporation shall engage in the catching of fish for profit with nets in the waters of Lake Erie * * * without complying with the provisions of this section. Every such person, firm or corporation desiring to engage in fishing as above mentioned shall make application to the commissioners of fish and game and obtain a license or authority so to do.” It will be observed that the foregoing provisions are general in character, and alike applicable to all persons who would engage in fishing in the waters of Lake Erie and the estuaries and bays thereof, in the mode or manner prescribed in said section. The prohibition of the act is not confined to any particular class, but all persons are denied the right to fish with nets for profit, except such as have previously obtained a license or authority so to do. By the provisions of said act the following license fees are required to be paid: “For each tug boat or boats propelled by steam engaged in fishing with gill-net, the sum of forty dollars; for each sail boat engaged in fishing with gill-nets, the sum of five dollars; for each pound-net, fykenet, or trap-net used in fishing, the sum of three dollars; for all other nets or seines used in fishing, except gill-nets fished from boats which have been licensed as hereinabove provided, the sum of two dollars each.” It is the contention of counsel for defendant in error, that the license fees as thus levied are unequal, unjust and oppressive, and as instancing their inequality counsel in argument quotes from the opinion of Hull, J., in Yensen v. State, 7 Nisi Pruis, 18; where it is said:

“Under this act, if four hundred or five hundred gill-nets were used from a single steam boat, a license fee of forty dollars would be imposed, and if twenty gill nets were used by a man of limited means in fishing from row boats, the same license fee would be imposed; and for one hundred gill-nets fished from row boats, the man who had not the means to purchase a steam boat, would be compelled to pay two hundred dollars, while the man or company who had the means to purchase a steam boat for fishing the same number of nets would pay the fee of forty dollars. These are unequal burdens, imposed upón men engaged in the same lawful occupation, upon the same waters and in the same locality, and the act is therefore unconstitutional.” The fallacy of this argument is, that it ignores, or denies that the license fee exacted is, and may rightfully be, measured and determined by the character of boat from which gill-net fishing is to be done,. and assumes that the constitutionality of the act should be determined solely ■ from a consideration of whether or not all fishermen are able to avail themselves of its provisions. In other words, the argument would seem to be, that although under the provisions of said act, all within the same class, and employing the same agencies, are taxed alike, and no privilege is accorded one citizen that is denied another who may be within the same class or condition; yet, because all fishermen can not purchase or procure tug boats propelled by steam, from which to fish with gill-nets, that the latter are therefore unlawfully discriminated against. Such conclusion, we think, by no means follows. As said by Spear, J., in Marmet v. State, 45 Ohio St., 69: “Absolute equality as to burdens, whether applied to taxes or other subjects of legislation, it is not to be expected in our laws. The wisdom of man has not yet devised a system of equalizing burdens so perfect in its application and so thorough in its enforcement as to leave no room for adverse comment or criticism.” While we may not certainly know just what considerations induced the legislature to adopt the classification it did in fixing these license fees, it is enough that for the purpose of protecting and preserving the fish in the waters of Lake Erie, its estuaries and bays, sufficient reason for such classification may, and in the judgment of the legislature did, exist. In Hayes v. Missouri, 120 U. S., 71, Mr. Justice Field says: “The Fourteenth Amendment to the Constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. As we said in Barbier v. Connolly, speaking of the Fourteenth Amendment: 'Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated,. is not within the amendment.’ 113 U. S., 27, 32.”

The judgment of the circuit court will he reversed and judgment entered for the plaintiff in error.

Sitauck, C. J., Price, Summers and Davis, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The State of Ohio v. Dickerson.

      Prosecution for murder — Proof of venue• — Need not be in express terms — Defendant may introduce evidence of character — To what extent — Cross-examination of character witnesses — Commission of prior crime may be proven to show motive, when— Evidence of trailing bloodhounds admissible, when — Criminal law.

    1. In the prosecution of a criminal case, it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a’ reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.
    2. A person on trial for homicide, as a part of his defense, may introduce evidence of competent witnesses, that prior to the date of the crime alleged in the indictment his character as a quiet and peaceable citizen was good, and he is not limited to proving what people may have said about him, as to his being or not being a quiet and peaceable person. Gandolfo v. The State, 11 Ohio St., 114, approved and followed.
    3. It is not competent for the state, in cross-examination of such witnesses as to the good character of the accused, to prove thereby, that prior to the commission of the alleged" crime, they had heard rumors or reports 'in the community where he resided, that he had committed certain other crimes of various character, and to permit such latitude in cross-examination of such witnesses is error.

      4. While it is not competent for the state, in making out its case in chief, to introduce evidence of other and prior crimes, for the purpose of supporting the charge made in the indictment, or of reflecting on the character of the accused, yet the commission of a prior crime may be shown for the purpose of furnishing a motive for the commission of the crime charged in the indictment, provided such prior crime is so related to the latter as to have a logical connection therewith, and reasonably to disclose a motive for its commission.
    5. In order to make competent evidence of the conduct of bloodhounds in trailing or following the tracks of one accused of crime, it is necessary that a preliminary foundation be laid therefor, by showing by some one or more having personal knowledge of the facts, that the particular dog so used had been trained and tested in trailing human beings, and by experience had been found reliable in such cases, and that the dog so trained and tested was, in the instance involved, laid on the trail,-whether it was visible or invisible, at a point where the circumstances tended to show that the guilty party had been, or upon a track which the circumstances indicated to have been made by him.
    (No. 10638
    Decided October 22, 1907.)
    Error to the Circuit Court of Coshocton County.
    The defendant in error was indicted by the grand jury of Coshocton County at the January term of the court of common pleas for the year 1906, for killing Katherine Hughes, a neighbor, and wife of Simon Hughes. The indictment contains three counts, to which the accused plead not guilty, and he was tried on the issue joined as to each count.
    The first count charges the killing through deliberate and premeditated malice; that he assaulted the deceased with a certain blunt instrument which he held with his two hands, and that he unlawfully, purposely and with deliberate and premeditated malice, did strike, beat and wound the said Katherine Hughes with said instrument, prostrating her thereby, and that 'with like malice and purpose, he then and there choked and suffocated the deceased by forcing her neck between two saplings, which were so close to each other that their pressure towards each other choked and strangled her. The methods of accomplishing the death are minutely described in this part of the indictment, which alleges that the crime was committed in Coshocton County, Ohio, on the 28th day of June, 1905.
    The second count charges the killing by same acts of violence, while the accused was perpetrating a rape on the said deceased. This crime, it is alleged, was committed on the 28th day of June, 1905, in said Coshocton County, State of Ohio.
    The third count charges the killing of Mrs. Hughes on the same day and in said county by means of the same instrumentalities, while the accused was engaged in an attempt to perpetrate a rape.
    The trial on these counts resulted in a verdict of guilty as charged in the third count of the indictment, and a sentence of death was pronounced by the trial court. A motion for new trial, containing many grounds, was overruled, and the case taken on error to the circuit court, which found error in the following particulars, as shown by the judgment entry:
    “This cause came on for hearing upon the petition in error, the transcript, bill of exceptions, and the original papers and pleadings from the court of common pleas of Coshocton County, Ohio, and was argued by counsel; on consideration whereof, the court find that error appears affirmatively upon the face of the record to the prejudice of the plaintiff in error, in this, in cross-examination of witnesses offered by the defendant, Dickerson, as to character; error in permitting witness, Trego, to testify as to what Mrs. Hughes told him; error in permitting witness, Elijah Thomas, to testify that Mrs. Hughes told him about Dickerson hiding in the bushes; and error in giving fifth and tenth requests of the state to the jury.
    “It is therefore considered by the court, that the judgment aforesaid be reversed and held for naught. And said cause is hereby remanded to said court of common pleas for such further action as is provided by law.” The following exceptions are noted in the entry:
    “To all of said findings, orders and judgments the defendant in error, by James Glenn, prosecuting attorney, excepts. And James Glenn, the prosecuting attorney representing the state, excepts.”
    “Also comes the plaintiff in error, Benjamin Dickerson, and excepts to the failure of the court in not passing on and in not sustaining each and .every of the errors assigned for the reversal of said judgment as the same are set forth in his petition in error in said circuit court; and in failing to find and to sustain other errors set forth in said petition in error, and other errors apparent in the record other than the errors specifically found and set forth in its finding, order and judgment of reversal of said cause.”
    The petition in error filed in the circuit court by Dickerson contained many assignments of error not mentioned in the said entry, some of which will be noticed in the opinion.
    The state prosecutes error to the judgment of the circuit court, and asks its reversal and the affirmance of 'the judgment of the court of common pleas. The important questions raised in the record are stated and discussed more fully in the opinion.

      Mr. Joseph L. McDowell, prosecuting attorney; Mr. James Glenn and Mr. T. H. Wheeler, for plaintiff in error.
    Counsel for the state understand the character defendant was entitled to prove to be the reputation that he bore, and the estimation in which he was held in the community in. which he lived prior 'to the commission of the crime, Giffin v. State, 14 Ohio St., 63; and that character includes disposition, Gandolfo v. State, 11 Ohio St., 114; but that the opinion as to his disposition must be formed from the sources common to those acquainted with him. McDermott v. State, 13 Ohio St., 332; Craig v. State, 5 Ohio St., 607; Cowan v. Kinney, 33 Ohio St., 422; Bucklin v. State, 20 Ohio, 18.
    A man’s moral character, as the term is used in philosophy, or common parlance, is never in issue in a criminal case, Walker v. State, 1 N. E. Rep., 856; only the trait of character is involved. In homicide, his character for peace and quiet, or the reverse.
    Where the character of a person for truth is in issue, only the reputation of the person can be elicited. If the witness' testifies to his own personal knowledge of the person’s character for truth, his testimony should be excluded. Cowan v. Kinney, 33 Ohio St., 422; citing with approval, Bucklin v. State, 20 Ohio, 18; and French v. Millard, 2 Ohio St., 44.
    After the defendant has put his character in evidence, the state may show his bad reputation with reference to his same trait of character. Griffin v. State, 14 Ohio St., 55; People v. McKane, 38 N. E., 950; Hamilton v. State, 34 Ohio St., 82; State v. Hull, 26 Atl., 191; Elliott on Evidence, Sec. 168, and numerous other cases there cited.
    The case of Hayes v. Smith, 62 Ohio St., 161, cited by accused’s counsel as Hayes v. State, in no way supports the claim for the reasons following: First, no man’s character was in issue; second, no man’s reputation was inquired about.
    That general character includes reputation can not be gainsaid if we have any regard for the usage of the language. And the courts have held that the character a defendant is entitled to prove includes his reputation as well as his general disposition. Gandolfo v. State, 11 Ohio St., 114.
    In Bucklin v. State, 20 Ohio, 18, and Burns v. State, 75 Ohio St., 407, the court treated reputation as synonymous with general character, and expressly dissented from and overruled the cases of Wilson v. Runyon and Seely v. Blair, Wright, 653 and 683. Bucklin v. State is cited with approval in French v. Millard, 2 Ohio St., 44; Craig v. State, 5 Ohio St., 605; Bell v. Rinner, 16 Ohio St., 45; Cowan v. Kinney, 33 Ohio St., 422.
    It. is competent upon cross-examination to ascertain from the witnesses their means of knowing the person’s general reputation; the origin and character of all reports prejudicial to him; the extent to which those reports have prevailed; the time when, and the persons from whom, the witnesses have heard them; and', in short, everything which reflects upon the nature and general prevalence of the reputation imputed to him. McDermott v. State, 13 Ohio St., 332; Gleason v. Williams, Tap., 142. That what people say, as well as the fact that they have said nothing, is relevant. Gandolfo v. State, 11 Ohio St., 114.
    What people say of one is competent on cross-examination, where the character is claimed to be bad, and why not where the character is claimed to be good?
    Counsel for the state felt very sanguine on their claim that they had a right to show that the deceased had made charges against the accused, not only to the justice, but to other persons in the community, which were of a nature to arouse the hatred and the revenge of the accused, which tended to bring the accused into disrepute among his neighbors; and that these reports were carried to the accused, who was exercised about them and desired to prosecute her, or to scare her. We believed that these facts tended to show the relations existing between them, and tended to furnish a motive for the crime. While they would not furnish a sufficieñt motive to induce a righteous man to commit a crime, they would furnish a motive for a man fit for arson, rape, and murder. Nothing furnishes a motive for a righteous man; such crimes are not committed by good men, but by men with perverted minds. To a perverted mind these charges would, no doubt, furnish an adequate motive for the crime charged.
    Counsel for the state relied upon the following authorities, but the court held against them. Williams v. State, 69 Ga., 11; State v. Palmer, 20 Atl., 6; Roberts v. Commonwealth, 10 Ky. L. R., 433; Martin v. State, 17 C. C., 424; Kunde v. State, 22 Tex. App., 65, and many others,
    There is a long line of. decisions to the effect that evidence of the relations and feelings existing between the accused and deceased is admissible. State v. Palmer, 20 Atl., 6; Simon v. People, 36 N. E. Rep., 1019; Garlitz v. State, 18 Atl., 39; Commonwealth v. Holmes, 32 N. E. Rep., 6; Pettit v. State, 34 N. E. Rep., 1118; People v. Parmelee, 70 N. W. Rep., 577; People v. Banham, 55 N. E. Rep., 11; Commonwealth v. Krause, 44 Atl., 454; Underhill on Evidence, 418.
    The dogs in this case ran Dickerson’s trail and ran it truly, if ever a hound trailed a fox. Testimony was offered to show they ran a trail and its course. If Dickerson left a circuitous trail from the scene of the crime to his home, it is a circumstance bearing upon his guilt, which we submit no one will gainsay. Commonwealth v. Crossmire, 27 Atl., 40; Murphy v. People, 63 N. Y., 590; Walker v. State, 32 Am. Rep., 595; Stokes v.
      State, 30 Am. Rep., 72; Johnson v. State, 35 Atl. 787; State v. Ward, 17 Atl., 484; State v. Beaudet, 4 Atl., 237.
    While there is perhaps no reported case decided by this court, in which this question has been raised, yet it has been the universal holding of the inferior courts of this state, that such evidence is competent. Our circuit court, Judge Voorhees announcing the opinion for the court, held in the case of Baum v. State, such evidence to be competent. The eighth circuit held it competent in this case. The fact that a shepherd dog ran a trail from the scene of a crime to his master was held competent in an early case.
    The Ohio cases are found in State v. Brooks, 1 O. D.. Rep., 407; State v. Hall, 3 N. P., 125; Baum v. State, 27 C. C., 569; decided by the circuit court of Stark county, Judge Vorhees rendering the opinion for the court; and the eighth circuit, the Cleveland circuit, Judges Marvin, Wench and Henry, held it competent in this case. It was also admitted in the case of State v. Houck, Knox county, unreported. See for foreign cases, Pedigo v. Commonwealth, 44 S. W. Rep., 143; Davis v. State, 35 Southern, 76; Hodge v. State, 13 Southern, 385; Simpson v. State, 20 Southern, 572.
    We have not replied to the claim of counsel that the bloodhound testimony is unconstitutional, because we believe the argument is unconstitutional. Summons v. State, 5 Ohio St., 325.
    While it is clear that proof of one crime can not be received for the purpose of showing the commission of another, yet relevant testimony is not excluded because it tends to prove or does prove that another crime was committed.
    It is competent in all cases to prove a motive for the crime. The motive is the inducement, or that which tempts the mind to indulge the criminal act. State v. Nevin, 23 Bull., 411, unreported; People v. Fitzgerald, 50 N. E. Rep., 846; People v. Bennett, 49 N. Y., 137; People v. Owens, 148 N. Y. 648, 43 N. E. Rep., 71; State v. Palmer, 20 Atl., 6; Stephen’s Evidence, 27.
    Evidence of other crimes may be received to show motive. Knight et al. v. State, 54 Ohio St, 379; State v. Nevin, 23 Bull., 411, unreported; Moore v. U. S., 150 U. S., 57; Crum et al. v. State, 47 N. E. Rep., 833; People v. Shea, 41 N. E. Rep., 505, and a long line of decisions to the same effect.
    While one can not be convicted of one crime because he committed another; neither should he be acquitted of one because he committed the other.
    If Dickerson burned the Hughes home and the deceased knew it or was the witness necessary to bring him.to justice, would it not furnish a strong-motive for the murder and would not the burning of the house show malice in the accused if he was the guilty party? And was the state not entitled to prove these facts? State v. Nevin, 23 Bull., 411, we think, is directly in point.
    This testimony was offered in support of the first count in the indictment and the jury found against the state in effect on that subject. We therefore submit that this could not have been prejudicial.

      Mr. R. M. Voorhees; Mr. J. C. Adams and Mr. J. C. Daugherty, for defendant in error.
    The doctrine is fundamental in our law that the venue must be proven as laid. Knight et al. v. State, 54 Ohio St., 365; Harlan v. State, 33 N. E. Rep., 1102.
    This court has never passed upon this question of dog testimony, but the Supreme Court of Nebraska, in Brott v. State, 97 N. W., 593, absolutely repudiated the doctrine of dog testimony.
    The supreme courts of but two states in the Union have dignified this class of testimony, to-wit, Alabama and Kentucky. Hodge v. State, 98 Ala., 10; Pedigo v. Commonwealth, 103 Kan., 41. A dissenting opinion was rendered in the Kentucky case by Justice Guffy, to which we respectfully call the attention of the court.
    No proper foundation was laid for its introduction, as it was not shown that the dogs were given the scent at an initial point where the persons who committed the crime was clearly shown to have been. Hodge v. State, 39 Am. St., 17; State v. Hall, 3 N. P., 125.
    The rule is fundamental that proof of one crime can not be offered to aid in proving the commission of another crime in no way connected. The rule in Ohio is stated in the case of Goble v. State, 31 Ohio St., 100.
    This doctrine was again reiterated in the case of Knight et al. v. State, 54 Ohio St., 365; Greenleaf on Evidence, Vol. 1, Sec. 52. This doctrine has been steadfastly adhered to by our supreme court in the following cases: Barton
      v. State, 18 Ohio, 221; Farrer v. State, 2 Ohio St., 54; Brown v. State, 26 Ohio St., 176; Hamilton v. State, 34 Ohio St., 82; Wroe v. State, 20 Ohio St., 460; Griffin v. State, 14 Ohio St., 55; Rose v. State, 13 C. C, 342.
    Other authorities outside of the state of Ohio, to which attention is invited, are as follows: Farris v. People, 129 Ill., 521; s. c., reported in 4 L. R. A., 582; People v. Molineaux, 168 N. Y., 264; 62 L. R. A., 244; People v. Fitzgerald, 156 N. Y., 253; People v. McKane, 143 N. Y., 455; People v. Driscoll, 107 N. Y., 425; Wharton Crim. Evidence, 9th Ed., 48; Farris v. People, 21 N. E. Rep., 821; Bishop v. People, 62 N. E. Rep., 785; Janzen v. People, 42 N. E. Rep., 863; Parkinson v. People, 25 N. E. Rep., 764.
    Counsel have discussed at some length the nature of character testimony. They assert, “Whether or not character is good or bad is an opinion.” That it is' an opinion as to quality is self-evident.
    The object of testimony is not to introduce as evidence the opinion of the impeaching witness as to the truthfulness of the witness against whom he testifies, but to enable the jury to ascertain the true character of his reputation for truth. Hillis v. Wylie, 26 Ohio St., 574.
    In all such cases the fact to be ascertained by the inquiry is the public estimation for truth in which the witness proposed to be impeached is held. Craig v. State, 5 Ohio St., 606; Cowan v. Kinney, 33 Ohio St., 442.
    If the question what the man is, was intended to go further than such evidence of a negative description, and require from the witness his opinion formed from sources not common to those acquainted with him and having no reference to general character as shown by his ordinary course and conduct, we do not think the rule has ever been carried so far. Gandolfo v. State, 11 Ohio St., 114.
    The defendant placed his “general character” for peace and quietude in issue, but we insist that the state could not by cross-examination broaden the issue from “general character” to “general reputation.”
    The following authorities are to the effect that witnesses who have testified to good character can not be asked on cross-examination, if they had not heard of specific charges of misconduct. Wharton Crim. Evidence, 61 and 637; 6 Wharton’s Evidence, 649; Aiken v. People, 183 Ill., 215; 55 N. E. Rep., 695; Jones v. State, 118 Ind., 39; 14 Cent. Dig. Crim. Law, 845.
    The following cases point with much force to the conclusion that the rule in Ohio is, that evidence of specific charges of misconduct, is not admissible. Griffin v. State, 14 Ohio St., 55; Hamilton v. State, 34 Ohio St., 82; Barton v. State, 18 Ohio, 221; Fisher v. Patterson, 14 Ohio, 418; Wroe v. State, 20 Ohio St., 460; Bowers v. State, 29 Ohio St., 542; McCombs v. State, 8 Ohio St., 643 ; Gleason v. Williams, Tap., 174.
    We are of the opinion that if the state had a right to draw these specific acts out on cross-examination, that the defendant should have been permitted to explain them and show that they were circulated for the purpose of injuring his reputation. People v. Elliott, 57 N. E. Rep., 103; Olive v. State, 11 Neb., 1; Stape v. People, 85 N. Y., 390; Underhill on Crim. Evidence, Section 82; Abbott’s Crim. Trial Brief, 270.
    A general objection to the charge as a whole is, that it is in the abstract, dealing with generalities, and failing to deal with the facts of the case as claimed by the parties. This is a fault that will sometimes warrant a reversal. Such a charge as in this case is condemned in the following cases. Railway Co. v. Ritter, 67 Ohio St., 53; Coal Co. v. Estievenard, 53 Ohio St., 43; Railroad Co. v. Picksley, 24 Ohio St., 654; Railway Co. v. Moreland, 12 Cir. Dec., 604; Parmelee, Admr., v. Adolph, 28 Ohio St., 10.
    What the deceased told the witness, her father, about seeing Dickerson hid in the brier patch down by the fence when she was down there was only hearsay; it was not claimed that Dickerson hea'rd what she told her father, or that the witness saw Dickerson. Her declaration as to Dickerson’s presence at that time and place was not of the res gestae, hence, incompetent. Montago v. People, 30 N. E. Rep., 337; 1 Greenleaf on Evidence, Section 108; Weyrich v. People, 89 Ill., 89; People v. Carkhuff, 24 Cal., 640; Cheek v. State, 35 Ind., 492; Montgomery v. State, 80 Ind., 338; State v. Pomeroy, 25 Kan., 349.
   Price, J.

The record made in this case is very voluminous, only a small part thereof being printed, and its examination is attended with corresponding labor, in order to present the various subjects of complaint by the parties. In oral argument and in briefs cotinsel have aided us in eliminating the immaterial and non-essential matters put in controversy in the trial court, and our aim now is, to settle the substantial questions found in the record, the proper disposition of which will answer all the purposes of this review.

As in all cases, where several weeks have been consumed in the trial of an important case, irregularities, inaccuracies in rulings of the court, and even slight errors of judgment committed during a heated contest can be found, but if they have been cured by the court in later rulings, or if they are innocent of any controlling influence on the main issue, they should not be seriously regarded by a reviewing court. And so with the record before us.

The circuit court found but few errors in the record, and has stated them, and we must assume from the entry that they declined to reverse the judgment of the court of common pleas for any others assigned in that court. The state urges that the circuit court erred in finding error as it states on the record, and that its judgment should be reversed and that of the common pleas affirmed and enforced. On the other hand, Dickerson urges that the circuit court should have found error in a number of other particulars, and that if it' was mistaken as to the grounds sustained, there are many other grounds of reversal upon which the judgment may be predicated. These grounds, the defendant in error has pointed out to us, and they will be considered in their proper order.

We will first notice the grounds of reversal found by the circuit court. It concluded that the trial court erred in permitting witness Trego to testify as to what Mrs. Hughes (the deceased) told him. An examination of the evidence of Mr. Trego shows that for some time before the homicide he was a justice of the peace in that township, and that Dickerson went to the residence of Trego and inquired if Mrs. Hughes had been to see him, the justice, “for law.” Trego informed him that he was not at home when she was there, and Dickerson remarked: “You need not give her law on what she was after.” Mr. Trego did not testify to any conversation with Mrs. Hughes; for he had none, being from home when she called. We surmise that Dickerson had heard in some way that Mrs. Hughes would consult Justice Trego about his conduct towards her; or, that she had consulted him on the subject. Hence, the visit of Dickerson to ascertain what she had done. We see no impropriety in permitting the justice to tell of this visit and what Dickerson said while there. This was but an item of evidence which might be considered with other conduct and statements of the accused relating to any trouble or hostile feeling between them.

Again, the circuit court held that the common pleas erred in “permitting Elijah Thomas to testify that Mrs. Hughes told him about Dickerson hiding in the bushes.” The residence of' Mrs. Hughes was not far from that of Dickerson and his family, and Mr. Thomas was the father of Mrs. Hughes and lived with her and her husband. It is intimated' that some time prior to the homicide, Dickerson had annoyed Mrs. Hughes with improper solicitations, or attentions, which were resented by her. On the occasion referred to, the witness, Elijah Thomas, in answer to an inquiry, stated what Mrs. Hughes said about seeing Dickerson hiding in the bushes near the Hughes residence. But, as we read the record, the court promptly and distinctly ruled that part of the answer from the jury and gave mandatory instruction that such evidence must not be considered. On page 66 of the portion of record printed, the trial court said to witness Thomas: “What Kate (Mrs. Hughes) told you is stricken out, and also that 'Dickerson was down hid in the brier patch’; that is struck out — what the witness said about that, and the jury will disregard those statements that I have struck out.” The court intervened soon as practicable to prevent the incompetent answer being made, and after it was made, promptly exercised the right to strike it from the consideration of the jury. These two particular instances of alleged incompetent testimony are not well grounded and were not sufficient to justify the reversing judgment.

The lower court also found error in the latitude allowed the state in the cross-examination of defendant’s character witnesses. Many witnesses were examined and cross-examined on this subject, and a large part of the vast record is taken up with the questions and answers. We can only select some fair samples from the record. which will be sufficient to show the general field of controversy.

G. F. McConnel, perhaps the first character witness called by the accused, testified to an acquaintance with Dickerson of twenty-five years; that he had frequently met him, sometimes in public gatherings and places. Objections to several questions propounded to this witness were sustained, because of either the form of the question or a lack of sufficient knowledge to answer as to character of the accused. Efforts to qualify witness were pursued, and finally the following question was permitted and answered:

Q. “During the last fifteen years and prior to June 28, 1905, have you been at places, gatherings, or in company with Benjamin Dickerson, or not?” Objection overruled and exception. A. “I have.”
Q. “From your own knowledge of Benjamin Dickerson, gained by means of associating and seeing him, as you have answered in your former answers, what, so far as your knowledge, is his general character prior to June 28, 1905, for peace and quietness?” A. “Well, it is good.”
Q. “Good as men in general?” A. “Yes, sir, I believe it is.”

The witness -was then taken on cross-examination as to the extent of the acquaintance, and the state asked witness about certain reports in the neighborhood concerning evil things that the defendant had done. Here is an instance:

Q. “You know A. L. Reed?” A. “Yes, sir.”
Q. “You heard that he gave away a bird dog to keep Ben from stealing the dog, did you not, prior to June 28th?” A. “I have no knowledge of ever hearing of it, of Al. Reed giving a dog to keep him from stealing it.”
Q. “You heard prior to June 28, 1905, that Ben Dickerson and his brother Josh were accused of killing some sheep and injuring some sheep of John Dickerson about twenty years ago, didn’t you?” A. “No, sir.”'
Q. “Didn’t you hear that Ben and Josh were both blamed with that prior to June 28th, and arrested, brought into town?” A. “No, sir.”
Q. “Did you hear that — did you ever hear prior to June 28 that Ben was accused along with his brother Josh, or accused along by himself, of putting arsenic or strychnine in a crock of milk and that when it was churned by John Dickerson and given to some hogs that it killed several hogs when they gave them the buttermilk?” A. “No, sir.”

These inquiries were followed up by others'of like nature, and all were objected to by the accused, and the court allowed them to go on as before. The witness was'also interrogated about hearing of the defendant injuring a sawmill of Frank Hardesty, or throwing away some of its tools. Other witnesses for defendant, who gave him a good character, were asked about reports of the misdeeds of defendant above referred to, and neighborhood rumors about Dickerson’s conduct. Some of these witnesses had heard of the suggested rumors of misconduct, and they were plied with questions as to whether they took them into consideration in making their answers to the general good character of the defendant for peace and quietness, and whether .such rumors would affect their testimony concerning his character. These rumors mentioned by counsel for the state were of various kinds and did not embrace in most instances the trait of character involved in a trial for homicide. We have not space for more extended quotation from the several cross-examinations of the so-called character witnesses.

It will be observed that the defense did not introduce. evidence of his general reputation for peace and a quiet disposition, and counsel for the state seems to think that that was the .only proper course of inquiry, and seeks to justify the cross-examinations by applying them to the course of inquiry which the defense should have adopted, namely, to establish general reputation.

This brings up the question: may the accused, under a charge of homicide, introduce evidence of his good character as to the trait involved in the charge ?

There is no doubt that counsel and even courts have sometimes forgetfully treated character and reputation as synonymous, and a want of a clear knowledge or recollection of the difference' between the two often leads to mistake in applying correct rules to regulate the admission of evidence of one or the other. Character of a person is that which he really is, rather than what he is reputed to be, and we think the accused is not confined to his reputation for a certain trait of character involved in the charge, but may, by those most intimate with him during a course of years, spread before the jury his real self, touching the quality of conduct involved in the issue. Such familiar and intimate acquaintance may enable his neighbors to read him as they would a familiar book.

If we look to the text-books we see the right of introducing proof of good character recognized. See Section 25, third volume of Greenleaf on Evidence. There it is said: “Upon the admissibility of evidence of character, whether of the prisoner or of the party on whom the crime is alleged to have been committed, there has been some fluctuation of opinion. Evidence of the prisoner’s good character was formerly held to be admissible, in favor-em vitae, in all cases of treason and felony; but this reason is now no longer given, the true question being, whether the character is in issue. T can not, in principle,’ said Mr. Justice Patterson, ‘make any distinction between evidence of facts and evidence of character. The latter is equally laid before the jury as the former, as being relevant to the question of guilty or not guilty. The object of laying it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged,’ ” etc.

See also Section 3039, Elliott on Evidence, where it is said: “It is the general rule that the defendant’s good character or reputation for peace and quiet is admissible in his favor. But the evidence must be confined, in general, to the trait involved in the crime charged,” etc. Also Section 2721 from the same authority. Further citations to text-books is not necessary, for this court has long ago considered and passed upon the question. In Gandolfo v. The State, 11 Ohio St. 114, we have the following as' the third section of the syllabus:

“A defendant who, by the nature of the issue, is entitled to give evidence of his character for peace and quietness, is not limited to proving what people may have said of him, as to his being or not being a quiet and peaceable man, but is entitled to inquire as to his character from those acquainted with him, and they are authorized to speak from his general peaceable and quiet conduct, and from not having known or heard anything to the contrary.” See also Griffin v. The State, 14 Ohio St., 55, 56.

It seems from the nature and form of the questions propounded by the defendant to his character witnesses, that he followed the light of the above case, and the trial court should have recognized it much earlier in the progress of the trial.

But the cross-examinations were conducted as if these witnesses had been testifying to the general reputation of the accused, and they were asked concerning alleged rumors and reports in the community about this and that misconduct, or criminal act of the accused. This course of procedure was strenuously objected to at every step. Then what followed? The state having thrust these rumored offenses into the cross-examination to the extent of page after page, the accused or his counsel thought it necessary to refute the insinuations, and he was called to the stand and interrogated as to the truth or falsity of all of these various rumors. Thus was the record expanded with immaterial and incompetent testimony, which could only tend to cloud the real issue and confuse the jury. The circuit-court correctly held against such lines of cross-examination, and that the error in this regard was ground of reversal.

It is urged by defendant in error that the circuit court should have found further grounds of reversal in addition to those stated in the entry, and he had his exceptions to not so finding entered of record. As one of.the additional grounds, it is said there was no proof of the venue of the crime, and what is claimed to be the only evidence on the subject is copied in one of the briefs for defendant in error. In answer to direct questions, the coronet: testified for the state that he found the dead body in a certain township and that the township is in Coshocton county. But he was not asked to state, nor did he say that Coshocton county is in the state of Ohio. We are not disposed to encourage the lax method of establishing the venue adopted in this case, but from the evidence set out and the main facts as to location and description contained in other parts of the record, we think the point is not well taken. It clearly appears from all the evidence that the criminal transaction occurred in the state of Ohio. The venue need not be proved in express terms, where the evidence is such in the state’s case, that no other inference can be reasonably drawn by the jury. Tinney v. State, 111 Ala., 74.

Another complaint of the trial court relates to the admission of evidence that about two weeks before the death of Mrs. Hughes, the house in which she was residing was burned, and that evidence was admitted tending to prove that it was set on fire by Dickerson. The fire occurred in the forenoon when all the family were absent. Mrs. Hughes had gone with one of her children to the house or spring of a neighbor to get water. Her father was in sight of the house and so, perhaps, was Mrs. Hughes. Their attention was called to the fact that their house was on fire. Dickerson was not seen' at or about the house, but one or more testified to seeing him coming from that direction, and looking back as he crossed a fence. The fact was also introduced that he did not go to the fire after its discovery and assist in trying to save the building and its contents, as did other neighbors. On the evidence in the record it would be difficult to convict Dickerson of the incendiary act, but the court admitted it on the theory, it is supposed, that the fire might have furnished a motive for committing the homicide.

The house did not belong to Mrs. Hughes, but belonged to her father, Elijah Thomas, although occupied by both families; and the question is, should the state be permitted to introduce the evidence tending to prove the arson on the issue joined on either count of the indictment? It is argued that the evidence was competent under the first count wherein it is charged thé killing was done with a blunt instrument and other violent means, and that the acts which produced death were accompanied with deliberate and premeditated malice and purpose to kill. It is not seriously claimed that such evidence was competent under the second or third counts, inasmuch as the killing is alleged to have occurred while perpetrating or attempting to perpetrate a rape. Was the evidence competent under the first count? If not, it could not be under either of the others. To justify its admission to show or reflect on the question of motive, it has been intimated that Dickerson knew that Mrs. Hughes saw him set the fire, or, that he was near by when it was discovered; or, that he in some way heard that she saw him in close proximity to the fire, and that in either case it became an object for him to destroy her evidence by destroying her. We find nothing in the record to establish by competent evidence, that Dickerson knew that Mrs. Hughes saw him in guilty connection with the firing of the house. Whatever evidence there is relates as forcibly to Thomas and several others who saw as much as she did, and there appears no good reason why the motive to suppress or destroy testimony should apply to her more particularly than to the others who knew fully as much. On a retrial, the state may be able to clear up this situation, but it is not satisfactory to us, as the record now stands.

The state can not give evidence to prove other crimes in support of the charge in the indictment, nor in chief, as reflecting on the character of the prisoner. In Barton v. The State, 18 Ohio, 221, it is held, that on the trial of one for larceny, it is error to admit evidence for the purpose of proving that just before the defendant committed the act for which he is being tried, he committed another larceny. The reasons for the holding have some weight on the question here.

To the same effect is Coble v. The State, 31 Ohio St., 100. True, the former assaults introduced in the last case had not been made upon the person who was the victim of the .assault under investigation; but they were claimed to be crimes of like character, but the court held their proof was inadmissible.

There are some offenses in which scienter or g'uilty knowledge may be material, such as passing forged paper or counterfeit money. In such case it is competent, for the purpose of proving guilty knowledge to show, that the person had in his possession other spurious money or paper, or had recently passed similar spurious money. In such case the former acts are pertinent to guilty knowledge, and are of the same class. But here the burning of the house and the killing of Mrs. Hughes are crimes not of the same class or category, and until a better preliminary foundation is furnished than appears in this record — one that connects the murder with the burning of the house as its motive — the evidence of the latter should not be admitted. There should be some logical connection between the two crimes.

But it is said that the jury did not convict on the first count, and therefore the evidence was not regarded by the jury as material, and the prisonr was not prejudiced. It is true the verdict of guilty was rendered on the third count, which is a charge of killing by certain acts of violence while attempting to perpetrate a rape. Nevertheless, the evidence was admitted generally, and the court in passing on its competency did not restrict its application to the first count, nor did he limit it in any instruction during the trial, or in the charge to the jury. It was admitted and remained in the case until the last.

The admission of this evidence on the foundation laid in this record was error for which the judgment might have been reversed.

It is further claimed that the judgment should have been reversed because of the admission of what counsel denominate “bloodhound testimony.” The day after the body of deceased was found, a Mr. Woodward brought from Dayton, Ohio, to the scene of the crime two dogs, and they were taken to the two saplings between which the neck of the deceased had been found compressed, and given a scent from them, and their conduct is described in. relation thereto; and then they were given the scent of a limb or branch that had been by some one broken from one of these saplings, as evidenced by fitting it to the stub from which it had been broken. The dog, or dogs, were to some extent controlled by Mr. Woodward ■ by means of a leash attached to the collar or harness on the dog. Immediately after the scent of the branch the dog started on his course, which was of a devious character, and finally went to the house of Dickerson, entered and went to a room’ upstairs. He was not at home, but was not far away. The conduct of the dogs from the giving of the scent to the entrance of the Dickerson home was submitted to the jury on his trial. It was admitted over his objection, and the very important question is made that the evidence was not competent. The history and experience of these animals is given by Mr. Woodward, who operated them on this occasion, and their conduct and acts are described by him and Mr. Wilson, who claimed to have been present. They are contradicted in material respects by a Mr. Daugherty, who also claimed to have been present on the course.

This class of evidence is somewhat new to the courts, and but few cases involving it have reached courts of last resort. It enters this court now for the first time. Other courts of final resort disagree upon the question, and we are obliged to settle it according to the best light of reason and authority at our command.

The instance is not one of a dog -testifying, but it is his .actions and conduct when given the start of a track, or more specially — the trail of a human being who, at a recent date was at the beginning of the trail, or as claimed here, was at the scene of the crime. It seems true, that the day before these dogs arrived, very many people, young and old, had trodden upon and over this scene, and some had experimented, with the pressure of the two saplings by placing their own necks where, as supposed, the neck of Mrs. Hughes had been found. This fact goes to the weight of such evidence rather than its competency, if it be otherwise competent.

Counsel for Dickerson not only urge that such evidence is not competent and violates constitutional guarantees in favor of one accused of crime; but also, if that point is not well taken, that a sufficient foundation or qualification had not been shown to make the conduct of the dogs admissible. As to the constitutional question, it is sufficient to say that the dogs were not zvitnesses whom the accused had a right to confront at the trial, in any different sense than the tracks of a man accused may be described as to form, size, or any other characteristic by which he may be identified. It is like the use of a yardstick in measuring goods. The witness is he who uses the stick to make the measure and it is a mere instrumentality. So runs the theory of the state.

The older text-books furnish us no light on this subject, for the reason that this class of evidence is of modern origin. In Section 1253 of Elliott on Evidence we have the views of the author stated as follows: “Although the subject does not fall strictly within the province of this chapter, yet the question of the admissibility of evidence of the actions of bloodhounds in following the track of a supposed criminal is not entirely foreign to the general subject under consideration, and this seems a convenient place in which to treat it. There is no certainty in such evidence. It is really the dog. that is the witness, and the evidence would seem to be hearsay in this view, ánd one court has vigorously maintained, in a very recent case, Brott v. State, [97 N. W. Rep. (Neb.), 593], that suqh evidence is not admissible. But other courts have agreed that it is admissible under, and only under, substantially the following conditions: Even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be shown by preliminary evidence that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings; and it must also appear that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicate to have been made by him.” Citing Pedigo v. Commonwealth, 103 Ky., 41; Davis v. State, 35 So. (Fla), 76; Hodge v. State, 98 Ala., 10; State v. Hall, 1 Ohio Dec., 147; Simpson v. State, 111 Ala., 610.

We will give attention to the cases which recognize the class of evidence under consideration. The case of Pedigo v. Commonwealth, 103 Ky., 41, was decided in 1898 by a divided court, one of the seven judges composing the court dissenting in a very vigorous opinion. The majority of the court sanctioned the admissibility of testimony as to trailing by bloodhounds, but circumscribed its admissibility so that its use may be very limited. The proposition is that, “testimony as to trailing by bloodhounds of one charged with crime may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the crime, when it is shown by some one having personal knowledge of the fact that the dog in question is of pure blood and of a stock characterized by acuteness of scent and power of discrimination, is itself possessed of these qualities and has been trained or tested in their exercise in the tracking of human beings, and that the dog so trained and tested was laid on the trail, whether visible or not, concerning which testimony has been admitted, at the point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicate to have been made by him.” The court, on page 50, after stating the above rule, said: “When not so indicated the trial court should exclude the entire testimony in that regard from the jury.” The case sets out' the evidence upon which the commonwealth relied to show that the accused had been at the scene of the crime and at the point where the dog was given the scent, and the reasons why this species of dog is selected to trail a man, are fully stated in the majority opinion in that case, and we will not repeat them here.

The case quoted from followed the reasoning of Hodge v. State, 98 Ala., 11, except that the preliminary qualification of the dog in the latter case is somewhat less stringent. The court states the rule of qualification as follows: “When a dog trained to follow human tracks is, a short time after the commission of a homicide, put upon the trail of a person suspected of the crime, and follows it to the house of the defendant, this fact may be given in evidence, along with the evidence of several witnesses that .the tracks found at the scene of the homicide, were followed and identified along the precise route traced by the dog up to the house of the defendant, where he was shown to have been that night after the killing, as a circumstance, along with all the other evidence, tending to connect the defendant with the crime.” The court says in the opinion the evidence showed that the dog thus trained was within a very short time after the homicide put upon the tracks of the person toward whom all the circumstances strongly pointed as the guilty agent, and that the dog, as if following these tracks or trailing, went to the house of the defendant.

In the year 1903 this question was before the supreme court of Florida in Davis v. The State, 35 Southern Reporter, 76. The third paragraph of the syllabus, which was prepared by the court, reads: “Testimony as to the action of dogs in following the trail of a supposed criminal from the scene of a crime is admissible in evidence, provided such preliminary proof be given of the qualities and training of the‘dogs as to show that reliance may reasonably be placed upon their accuracy in following the trail of a human being.” In the opinion-of the court, by Cockrell, J., it is said, “there should first be testimony from some person who has personal knowledge of the fact that the dog used has an acuteness of scent and power of discrimination which have been tested in the tracking of human beings. The intelligence, training and purity of breed, are all proper matters for consideration in determining the admissibility of such evidence, as is also the behavior of the dog in following the track pointed out. In the record before us there is no proof of the breed of the dogs, and while there is proof that they had been trained for six months, there is no proof that they were trained in the tracking of human beings. It is questionable whether this is sufficient.”

But as the case had to be reversed on other grounds, the admission of the evidence referred to was not made a ground of reversal.

In 1904 a similar question was before the court of criminal appeals of Texas, in the case of Parker v. The State, 46 Texas Crim. Reports, 461. The rule there laid down is differently worded, but not much different in substance. It is: “Where the track assumed to be that of the murderer, and which the circumstances in evidence tend to show was his track, was pointed out to a dog of the hound species, who was trained in trailing tracks of human beings, and the dog trailed this track from where it was pointed out to him to the residence of the defendant, some mile and a half, and the course of his pursuit of the track was followed by witnesses who testified in the case, and showed that the dog followed this track which they saw upon the ground and described, such character of testimony was held to be admissible.” The facts entering into the preliminary proof in the latter case vary from those appearing in either of the former cases, but the court was passing on the sufficiency of the preliminary proof in that case, rather than endeavoring to formulate a general rule. It is argued that there are -cases holding a contrary doctrine, namely, State v. Moore, 129 N. C., 494; McClurg v. Brenton, 123 Ia., 368; and Brott v. State, 97 N. W. Rep. (Neb.), 593. But an examination of two of those cases, and particularly the facts upon which they rest, dispels the claimed antagonism. In State v. Moore, supra, the third branch of the syllabus is, that “the evidence in this case of the trailing by a bloodhound should not have been admitted.” But what was the evidence in this case? The conduct of the dog itself showed that his trailing was unreliable and that he did not possess the live and acute instinct so necessary to reliably trail human beings. After reviewing the evidence upon the character of the dog and his conduct, the court sums up on page 502, as follows: “In this case there is no evidence to connect the circumstance of the baying of the two defendants, or either of them, with the .making of the tracks at the time the larceny was committed; nor is there any evidence that the dog scented any that were made by either of the defendants; nor is there any way to ascertain that fact. The evidence failing to become a circumstance to connect the defendants with the crime, * * * there was error in admitting it.” It seems clear that the court so ruled because • the defective preliminary proof of qualification of the dog and his conduct on the trail and at its close, lead to the opinion that the evidence of the trailing should not have been admitted.

McClurg v. Brenton, supra, is a case where an action was commenced to recover damages for an unlawful search of plaintiff’s premises. The search was made without warrant, for the discovery of alleged stolen property, but by an officer of the law. The court say in branch three of the syllabus: “Evidence in an action for wrongful search as to conduct of hounds used to track the thief is only admissible on the question of malice, in mitigation of damages.” And in the fourth clause it is said: “In an action for an unlawful search aided by the use of hounds, evidence as to the breeding and training of the dogs, letters endorsing their usefulness and stories concerning their ability, are inadmissible.” Why? The court says on page 371-2: “The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its spurce, will supply the place of such warrant. At the closed door of the home, be it palace or hovel, even bloodhounds must wait till the law, by authoritative process, bids it open. * * *” In another part of the opinion it is said: “But in an action for an unlawful search, it is no defense whatever to say that plaintiff was a thief, or did in fact have stolen property on the premises. The fact may be admitted but the right of action remains.” It is quite easy to see why the court held against the evidence offered.

Brott v. State, supra, as we read the case, is against the 'admission of the conduct of 'bloodhounds, • and perhaps under any circumstances. According to the opinion in that case, the court, as then constituted, had no faith.in such evidence and regarded its admission as dangerous to the rights of an accused party. It must be admitted that some reasons advanced for the conclusion reached are forcible and calculated to excite great caution, if not entire distrust, although they are couched in language of unsparing sarcasm. But we think that from a comparison of the views expressed by the different courts from whom we have quoted there may be deduced a rule which, until shown untrustworthy, may be followed in cases where this class of evidence is offered. It is apparent that before the acts and conduct of the dog. can be. shown, a proper preliminary foundation must be laid, and to establish such foundation it must be shown that the particular dog used was trained and tested in tracking human beings, and by experience had been found reliable in such cases; that the dog so trained was laid on the trail, whether it was visible or invisible, at a point where the circumstances tended clearly to show that the guilty party had been, or upon a track which the circumstances indicated to have been made by him. In addition to this the reliability of the dog must be proved by a person or persons having personal knowledge thereof. This foundation may be strengthened by proof of pedigree, .purity of blood, or the exalted standing of his breed in the performance of such peculiar work.

The charge of the court upon this subject seems to have been full and fair, and is not seriously complained of.

After all, it is the human testimony that makes the trailing done by the animal competent, and its actions are described by human testimony, just as it would describe the operations of a piece of intricate machinery. When the above foundation, or one similar in effect and efficiency is laid, the acts of the animal may be described. But the court, when such evidence is admitted, should explain its purpose and limitations to the jury, in order that they may not be unduly impressed thereby.

There was some evidence in this case as to the training of the dog and of his acuteness, and tending to prove that Dickerson had been seen in the bushes close to where the body was found; of tracks leading from the scene which were followed by witnesses contemporaneously with the trailing by the dog. We do not think it necessary or proper to comment upon its sufficiency now, but content ourselves with submitting the best rule we can formulate, which should govern when the case .is retried.

The circuit court was of the opinion that requests 5 and 10 made by the state and given to the jury should not have been given. If the objection to them consists in their being mere abstract propositions of law, it may be well taken, for such is their character; but giving one or more abstract propositions is not always error. The balance of the charge may cure the fault.

The court was less fortunate in the use of language we find in the general charge on page 438 of the printed part of the recor.d.

“In a civilized state like this, it is absolutely essential to the preservation of social order that the law should be enforced, and especially in cases where acts of violence have been done. The laws must be obeyed, violators of the law must be punished; and you as jurors would be faithless to your trust if you should return a verdict of acquittal in this case when the facts demand a conviction of the prisoner.
“It is equally important that innocence should not be punished. You were impanneled, not for vengeance, but to subserve the ends of public justice; and you would be disloyal to your obligations if you should find the prisoner guilty when the evidence required his acquittal.”

The wording of these statements may have been a mere inadvertence, but coming from the court so near the close of the charge, it is more than probable that they had a prejudicial influence.

Other errors in the record have been pressed, but we do not regard them as material.

The judgment of the circuit court is

Affirmed.

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


author: Shauck, C. J.

text:
    Younce et al. v. Flory.

      Equity will not reform a will, when — Book charging advancements to children — Parol evidence as to same, not admissible, when.

    From the familiar rule that a court of equity will not reform a will, it results that when a testator clearly expresses the intention that his property shall pass to his children equally, subject to charges against them in his book of advancements, parol evidence is not competent to show that an advancement charged by him in such book was not made.
    (No. 9904
    Decided October 22, 1907.)
    Error to the Circuit Court of Miami County.
    The parties to the suit are the exécutors of the last will of Larkin Younce, deceased, and his children and legatees. Mrs. Flory, the defendant in error, brought suit against the plaintiffs in error in the court of common pleas praying for a construction of said will and especially for the cancellation of an item of $2,850 charged against her in a book of advancements explicitly referred to in said will. Fler petition alleges the due execution of the will and its admission to probate. It exhibits a copy of said will, of which the fourth item is material to the case. That item is as follows :
    “Item 4. I will to each of my children an equal share in my estate subject to the charges against them in my book of advancements, and to the following provisions as to my son John.”
    The petition further alleges that no advancement had been made to her by her father and that he, in consequence of feebleness resulting from age, had regarded certain real property belonging to his first wife, who was the plaintiff’s mother, as a part of his estate, and that a deed of his life estate therein which he had many years before made to Mrs. Flory’s husband at her request, was an advancement, and that in consequence of such mistake she had been charged with the item which she now seeks to have cancelled. A demurrer to the petition was overruled, and upon a denial of these allegations the court upon the evidence made the following finding:
    “And thereupon the court, after hearing the evidence, argument of counsel and due consideration does find, adjudge and decree that it was the true intention of said decedent, Larkin Younce, to secure an equal distribution of his estate among his children as indicated by the terms and conditions of said will. And the court does find from the evidence adduced, that said plaintiff, Millie Flory, never in fact received said sum of $2,850 or any part thereof, charged to her as an advancement. And that to charge the said Millie Flory the said'sum of $2,850 as an advancement would work an unequal distribution of the estate of Larkin Younce, deceased, and would be contrary to the true intention and conslaruction of his said will.”
    It thereupon adjudged that the executors should in the distribution of the estate of Larkin Younce disregard said charge in his book of advancements and pay to Mrs. Flory her full share of said estate as though said charge had not been made against her. This judgment was affirmed by the circuit court.

      Mr. A. F. Broomhall and Mr. W. S. Kessler, for plaintiffs in error.
    Where, in his book of advancements, a testator charged one of his children with $2,850 without actually making the advancement; and it appeared from the language of the will that it was the intention of the testator that the charge should stand and the child's share be modified accordingly; such charge has the same effect as if the will had provided that that particular child should receive $2,850 less than the other children. The courts can not disturb the charge in the book of advancements merely because the money had not actually been advanced. The intention of the testator must control. Painter v. Painter, 18 Ohio, 247; Musselman’s Estate, 5 Watts (Pa.), 9; Hoak v. Hoak, 5 Watts, 80; Thornton on Gifts and Advancements, Section 599.
    The petition in this case was filed upon exactly the same theory as the Painter case, viz.: that the testator was enfeebled in mind and made a mistake when he charged the $2,850.
    The remedy of the defendant in error in the case at bar would have been to set aside the will, if the allegations of her petition are true.
    If a will declares what shall be considered an advancement, then no evidence is admissible to in fact show that it was not. If the will is clear, then no resort can be had to parol or other evidence to determine what is or is not an advancement; for that is fixed by the will, and is to be determined solely by a construction of its terms. Thornton on Gifts and Advancements, Section 599.

      Mr. J. A. Davy, for defendant in error.
    The issue in this case is not upon the devise, .but upon the subject of it. The authenticity of the book and the amount and validity of the charges found in it are open to controversy between the executors and devisee; .and the authenticity of the book, and the charges therein can be ascertained and settled by extrinsic evidences, adducible by the said executor or the said devisees.
    In tendering such evidences absolutely nothing is offered in explanation of the will or in addition to it; but in perfect harmony with the will; because the will itself, and the known and expressed intention of the testator was first above all things, that an equal distribution of his estate be had.
    The following authorities are submitted supporting the above proposition: Musselman’s Estate, 5 Watts (Pa.), g; Hoak v. Hook, 5 Watts, 80.
    In the case at bar the book was not probated as a part of the will; presumably it was expected by the testator that his executors would receive proof.
    First, as to what book was referred to; whether it was the book of Larkin Younce or not.
    Second, whether or not the amount charged therein had been received by his several heirs, or if they had been received, whether or not they had been paid back. And any and all other testimony throwing light upon the same for the purpose of securing his intent, namely, the equal distribution of his estate. Woerner on Advancements, Sections 1222, 1223; Rockel Complete Ohio Probate Practice, Vol. 1, Sections 930, 931, 932, 933, 934; Thornton on Advancements, Sections 592, 593, and the large number of authorities cited in Thornton and in notes on pages 582 and 583; Painter v. Painter, 18 Ohio, 247.
   Shauck, C. J.

If the cause were for determination here upon the effect of the evidence to establish an advancement to Mrs. Flory without regard to the provisions of the will, we might reach the same conclusion that was reached in the court below. But that the defendant in error was not entitled to the relief awarded her becomes apparent when the real character of her suit is considered. It was not a suit to set aside the will of Larkin Younce because of testamentary incapacity, for that is not the prayer of the petition, and the validity of the will is conceded. Nor is it a suit by persons occupying a trust position for the direction of a court of equity respecting their duties under an instrument of doubtful meaning, for the will exhibited is entirely free from ambiguity and no doubt as to its meaning is alleged. In substance, Mrs. Flory’s suit was for the reformation of her father’s will because of an alleged mistake affecting the provision in her favor by charging her with the second item entered in his book of advancements. The testator’s book of advancements was regularly kept and unmistakably identified. The item in question was charged against her therein by his express .direction and in his presence, and by the clear terms of the fourth item of the will the devises to all of his children were made subject to the charges against them in the book of advancements. The diminution of the gift to Mrs. Flory by the amount of the item charged would not have been more certain if the provision in her favor had been “I give to my daughter Millie an equal share of my estate with my other children but subject to an advancement of $2,850 which I have made to her.” In the judgment under review and in the argument here offered in its support there is a manifest denial of the effect of a clearly expressed testamentary intention. Whether the item in question would properly be regarded as an advancement if Larkin Younce had died intestate is quite apart from the question presented. The clear expression of the testator’s intention that the item charged shall be treated as an advancement is conclusive with respect to that question. It is sufficient that when engaged in the exercise of- his unquestioned power to dispose of his property as he desired, he chose to treat this item as an advancement and to devise to her an equal share of his 'estate diminished by that amount. The case is within the elementary rule that although courts of equity will hear such parol evidence as may aid them in construing a will, they will in no case reform a will. These views are in accordance with Painter v. Painter et al., 18 Ohio, 247, where-the general subject is treated at length. Judgments of the circuit and common pleas courts reversed and judgment for the plaintiffs in error.

Reversed.

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


author: By the Court.

text:
    The State of Ohio v. Teal.

      Abandonment of child by parent — Prosecution under Section 3140-2, Revised Statutes — State need not prove demand on father, vahen.

    In a prosecution under Section 3140-2, Revised Statutes, against a father for failure to support his child, he being able to do so, it is not necessary for the state to prove that a demand was - made upon the father for the performance of the duty enjoined by the statute.
    (No. 10677
    Decided October 22, 1907.)
    Exception to the decision of the Court of Common Pleas of Perry County.

      In the court of common pleas Teal was placed on trial upon an indictment charging that “being the father of-, an illegitimate child under the age of sixteen years, to-wit, the age of nine months, then and there living in said county, did then and there during Che term of the life of said child neglect and refuse to provide it with the necessary and proper home, care, food and clothing, she not being an inmate of a county or district children’s home, and the said Teal being able by means of his personal service, labor and earning's to provide said child with the necessary and proper care,” etc. The state offered evidence proving all the facts charged in the indictment, but not showing that any demand for such support had been made upon Teal, and at the conclusion of the state’s evidence counsel for the defendant moved the court to direct the jury to return a verdict for the defendant “for the reason that no proof whatever had been adduced or offered by the state, showing or tending to show that any demand for support had ever been made upon the defendant.” This motion was sustained by the court and the jury following that direction returned a verdict for the defendant. To the instruction so given, the prosecuting attorney excepted and brings the case here under the statute for the settlement of law for the government of future cases.

      Mr. Tom 0. Crossan, prosecuting attorney, and Mr. T. D. Price, for plaintiff in error,
    cited and commented upon the following authorities: Ogg v. State, Ohio St., 59; Bowen v. State, 56 Ohio St., 235; State v. Veres, 75 Ohio St., 138; Section 3110, Revised Statutes.

      Mr. T. M.' Potter, for defendant in error,
    cited and commented upon the following authorities: Bowen v. State, 56 Ohio St., 235; State v. Stouffer, 65 Ohio St., 47.
   By the Court.

The indictment is under Section 3140-2, Revised Statutes, whose pertinent provisions are that “the father of a legitimate or illegitimate child under sixteen years of age living in this state, who, being able, shall neglect or refuse to provide such child with necessary and proper home, care, food and clothing, etc., shall upon conviction be deemed guilty of a felony and punished by imprisonment in the penitentiary for not more than three years or less than one year or in a county jail,” etc. It is to be observed that the statute does not by any term which it employs require that a demand shall be made upon the father for the performance of the duty enjoined by the statute. Nor, if effect is given to all the terms of the statute, does it appear that such demand is,required by implication. The view of the subject taken by the court of common pleas seems plainly to exclude from consideration one of the terms of the statute, the provision being that the guilt attaches to one who “shall neglect or refuse to provide,” etc. If the offense consisted alone in refusing to make the required provision, it might very well be said that a demand is required by implication since there could not be a refusal without a demand. But the terms of the statute are alternative, and mere neglect to which a demand is not necessary is as plainly an omission of the required duty as is a refusal.

It is true that in The State v. Stouffer, 65 Ohio St., 47, it was stated in the syllabus that the refusal or neglect of the father after demand to furnish the child with proper support, he being able to do so, renders him amenable to the provisions of the statute; but the question here presented was not presented or considered in that case, for in that case it affirmatively appeared that a demand for such support of the child had been made upon the father by its mother, and naturally the statement of the law was limited to the requirements of the case. That case is, therefore, no authority whatever for the instruction given by the court of common pleas in the present case, and the instruction seems plainly to have excluded from consideration one term of the statute.

The exception is sustained.

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