author: Okey, J.

text:
    Work, Agent of the State of North Carolina, v. Corrington and another.
    1. If the governor of one state make a requisition on the governor of another state for the surrender of a fugitive from justice, and the case is-shown to be within the provisions of the constitution of the United States and the act of Congress on the subject, no discretion is vested in the latter governor, but it is his imperative duty to issue his warrant of extradition.
    2. If a warrant for the surrender of a fugitive from justice is obtained in a case in which it should not have been issued, the governor may revoke-it, whether issued by himself or his predecessor.
    3. Where such warrant has been revoked by the governor, no inquiry will be made, in a proceeding on habeas corpus on behalf of the alleged, fugitive, as to the grounds of such revocation, although, at the time of the revocation, the fugitive may have been in custody of the agent of the demanding state.

      Error to the Court of Common Pleas of Hamilton county.
    John R. Corrington was indicted in the Superior Court of Craven county, North Carolina, at the spring term,. 1876, for embezzling eighty-five dollars, on September 1,, 1875, the m'oneys of J. & J. Johnson, at the county aforesaid.
    Prank A. Ammons was also indicted at the same term,, for embezzling fifty-five dollars, moneys of the same firm,, on the same day, at the same county.
    On October 5, 1876, Curtis H. Brogden, governor of' North Carolina, made requisitions, in due form, upon R.. B. Hayes, governor of Ohio, for the rendition of Corrington and Ammons as fugitives from justice. The requisitions contained the statement that embezzlement is a crime' against the laws of North Carolina; and they were accompanied by copies of the indictments, and by affidavits-showing that the crimes were committed in North Carolina, and that the defendants had fled from that state to-escape justice, and taken refuge in Ohio.
    Governor Hayes issued his warrants, directed to the sheriff of "Warren county, for the arrest of Corrington and. Ammons, and their rendition, in pursuance of the act of 1875 (72 Ohio L. 79). That act is as follows:
    “An Act to regulate the practice of the delivery of fugitives from justice-when demanded hy another state or territory. Passed March 23, 1875.. (72 Ohio L. 79.)
    “ Section 1. Be it enacted, etc., That whenever the executive authority of any other state or territory of the-United States shall demand any person found in this state-as a fugitive from such state or territory, and shall moreover produce with such demand the copy of the indictment found, or affidavit made before a magistrate of the state or territory demanding, charging the person so demanded with having committed treason, felony, or other crime within such state or territory, duly certified as au~ thentic by the governor or chief magistrate of the state or -territory from whence the person so charged fled, it shall be the duty of the governor to issue an order or wammt to the sheriff' of the county in which such person so charged may be found, commanding him to forthwith arrest and bring such person before any judge of the supreme court, ■or any judge of the court of common pleas of this state in whose district or jurisdiction such person so charged may ‘be found, to be examined on said charge.
    “ Sec. 2. Upon the return of said order or warrant by •the sheriff with the person so charged in custody, it shall 'be the duty of the judge before whom the person so arrested is brought, and order or warrant is returned, to proveed to .hear and examine such charge, and upon the proof ■made in said examination by him adjudged sufficient, to ■commit such persou to the jail of the county in which said ■examination is so had, for a reasonable time, to be fixed by the judge, and thereupon to cause notice to be given to the ■executive authority making such demand, or to the duly .authorized agent of such executive authority appointed to receive the fugitive, and on payment of all costs such fugitive shall be delivered to the authorized agent of the state ■or territory demanding his surrender, to be thence removed "to the proper place for prosecution.
    “Sec. 3. If no such agent shall appear within such reasonable time so fixed by the judge, and pay all costs and receive the person so committed to be surrendered up to the state or territory demanding, it shall be the du.ty.of the sheriff to discharge the person so imprisoned.”
    On February 22, 1877, Corrington and Ammons, having been arrested by the sheriff of Warren county, were taken before Hon. A. W. Doan, one of the judges of the second judicial district, in Clinton county, who made inquiry pursuant to the above act. In the order in the case of Corrington, the proceedings above referred to are recited, and the judge finds that the person arrested is the identical Corrington mentioned in the indictment and the requisition, and that he is a fugitive from justice from North ■Carolina; and it was ordered that he should be confined in the jail of Clinton county for a period not exceeding •twenty days, and until Work, the person, designated by the governor of North Carolina as the agent of that state, .should come to the county of Clinton and demand the fugitive ; that upon such demand, within the period named, and the payment of costs, the keeper of the jail should •deliver the fugitive to Work; that the clerk should notify Work of the order of the court; and that upon failure to ■demand the fugitive within twenty days, he should be discharged.
    The proceedings in the case of Ammons were precisely • similar.
    On March 5, 1877, Corrington and Ammons were delivered to Work, in pursuance of the foregoing proceedings. On the same day a writ of habeas corpus was issued from the Court of Common Pleas of Hamilton county, requiring Work, who was sued as John Doe, to produce Corrington and Ammons before a judge of that court. To this writ, Work made separate return as to the defendants, setting forth at large the proceedings under which they were '¿held.
    On March 10,1877, Governor Thomas L. Young, successor of Governor Hayes, made and issued an order to supersede the warrants so issued by Governor Hayes. The order, omitting formalparts, was, in substance, as follows :
    On consideration, and adopting and following the rule prescribed in the joint resolution of the general assembly, adopted March 25,1870 (67 Ohio Jj. 171), as the proper interpretation of the constitution of the United States and -the laws in that behalf, the governor is of opinion that the warrants heretofore issued in this matter were unadvisedly issued, and that the same should be revoked, it appearing that the persons named (Corrington and Ammons) are still within the jurisdiction of the state. It is therefore ordered by the governor that each of said warrants, and the •order granting them, be and the same are hereby revoked and canceled.

      The resolution referred to in the order is as follows:
    “ Joint resolution, relative to the surrender of persons charged with treason, felony, or other crimes. (67 Ohio L. 171.)
    “ Whereas, The clause in the constitution of the United States, requiring the surrender of a person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, was intended to subserve only great public interests, and not to apply to trivial offenses, or to be made subservient to private interests, by being used to enforce the collection of debts, ór to-remove a citizen of any state into a foreign jurisdiction,, that he might there be served with civil process; and
    “ Whereas, Great abuses have recently been perpetrated in this regard against citizens of this state; and
    “ Whereas, By the practice of all the states, a discretion has been recognized as proper to be exercised by the executive authority of each state, both as to the cases in which a requisition shall be made for the surrender of an alleged fugitive, and as to those in which the demand shall be granted, and it is proper that this discretion should, as far as possible, be limited and defined; therefore,
    “ Resolved by the y General Assembly of the State of Ohio, That the executive authority of this state, in its action under said clause of the constitution of the United States, should, in the opinion of the general assembly, be governed by the following rule, both in making requisitions on other states, and in allowing requisitions made by other states on this state, namely: No requisition should be made or allowed for an alleged fugitive, unless the governor be clearly satisfied that the requisition is sought or made in good faith, for the punishment of an offense within the proper-meaning of the said clause of the constitution, and that it is not sought or made for the purpose of collecting any debt or pecuniary mulct, or for the purpose of removing the alleged fugitive to a foreign jurisdiction, with a view there to serve him with civil process.”
    On March 13, 1877, the case on habeas corpus was heard "before Hon. N. Longworth, one of the judges of the Court of Common Pleas of Hamilton county. The revocation of the warrants was offered in evidence. Work moved to ■quash the writ of habeas corpus, but the motion was overruled, and he excepted; and thereupon Judge Longworth held that Corrington and Ammons were illegally restrained of their liberty, and he discharged them from custody. Work now prosecutes a petition in error to reverse the judgment, and relies on the following errors:
    1. The returns of Work to the writ were sufficient in law.
    2. Governor Young had no power to revoke .the warrants issued by Governor Hayes.

      H. M. Moos and J. M. Pattison, for plaintiff' in error:
    Const, of H. S. art. 4, § 2; Act of 1798, 1 U. S. Stat. at Large, 302 ; Rev. Stats. U. S. § 5278; 67 Ohio L. 171; 72 Ghio L. 79; Houston v. Moore, 5 Wheat. 1, 21, 22; Prigg v. Com. of Penn., 16 Peters, 541; Com. of Ky. v. Dennison, 24 Howard (U. S.), 66; Sturgis v. Crowningshield, 4 Wheat. 122, 193 ; Moore v. The People, 14 Howard (U. S.), 13 ; Ex parte Bushnell, 9 Ohio St. 77; Dwarris (by Potter) ■on Constr. of Stats. 364; 2 Story on the Const. 429. Erom these authorities, counsel for plaintiff in error ar.gued at length that the Ohio legislation, set forth in the .statement of the case, is in conflict with the above-mentioned section of the constitution of the United States, and therefore void; that the duty of the governor to issue the warrant of extradition, on the production of the requisition, is ministerial and imperative; that he is vested with no discretion whatever; that he has no power of revocation, especially after the fugitive is delivered to the agent •of the demanding state; that a governor can not revoke a warrant issued by his predecessor; and that the agent of North Carolina held the fugitives by ample authority, and the court below erred in discharging them.

      John Little, Attorney-General, for defendants in error :
    The power of revoking warrants is exercised in all the-states. Governor Chase, on full argument, held he had the* right, and exercised it. Governors are frequently imposed upon, and find it out after the warrants are issued. In one-case within my own knowledge, the governor of Missouri,, after a warrant had been issued by the governor of this-state, requested that the warrant be revoked, and it was-done. Governor Hayes kept track of twelve eases,-wherein he had issued warrants on charges of getting money by false pretenses, and in eleven the parties were not brought to trial at all, and in the twelfth there was an acquittal. They were prosecutions merely to collect debts. His investigations brought about the joint resolution of 1870, which was adopted at his instance. The President of the United States, under extradition treaties, exercises asimilarpower of revocation, as in the Lawrence case. The attorney-general commented on the constitutional provision, legislation, and authorities relied on or cited by counsel for-plaintiff in error; and he cited the opinion of Attorney-General Henry Stanbery to Governor Bebb, MS. Opinions,, vol. 1, p. 38. In that opinion, Mr. Stanbery said: “ I am aware of a practice ... to use these requisitions for individual purposes, and to coerce the payment of debts, by extending them to persons who have never been within the territorial jurisdiction of (the demanding'state) by a fiction of constructive presence and constructive flight from justice. In such eases, it is the duty, as I conceive, of the-executive upon whom the requisition is made, to refuse to* surrender the citizen.” He also cited the following additional authorities : Com. v. Tracey, 5 Met. 536; Robinson v. Flanders, 29 Ind. 10; Matter of Manchester, 5 Cal. 237; Com. v. Hall, 9 Gray, 262 ; State v. Buzine, 4 Harr. (Del.) 572; Nichols v. Cornelius, 7 Ind. 611; Ex parte Pfitzer, 28 Ind. 440; In re Clark, 9 Wend. 212; Matter of Voorhees, 32 N. J. (L.) 141; In re Troutman, 24 N. J. (L.) 634; Johnston v. Riley, 13 Ga. 97 ; Vallad v. Sheriff, 2 Mo. 26 ; Story on Const. §§ 326,438,441; Gibbons v. Ogden, 9 Wheat. 197;
      Ex parte Smith, 8 McLean, 121; In re Fetter, 23 N. J. 311 ; In re Greenough, 31 Vt. 279; 1 Am. L. Reg. 529.

      Hildebrant j- Bruner, also for defendants in error, cited r

      The State v. Sehlemm, 4 Harr. (Del.) 577; Hurd on Hah Cor. 641; Marey v. The State, 44 Texas, 64; Matter of Hughes, Phill. (N. C. L.) 57 ; S. & C. 681; Ex-parte Collier, 6 Ohio St. 55; Ex parte Shaw, 7 Ohio St. 91; Hueston v.. Moore, 12 Wend. 311; 5 Wheat. 1, 21; 14 Peters, 540.

       The Court is indebted to Mr. Amos Layman, executive clerk during the official term of Governor Allen, for a full abstract of the records in the executive department, showing the revocation of warrants of extradition by the governors of this state, from 1856 to the present time.

   Okey, J.

We agree with counsel for the plaintiff in error, that the question in this case is of general, and not merely local, importance. It involves the power of a governor to revolee a warrant of extradition of a fugitive from justice, issued on the requisition of a governor of another state. We are not aware that the question has been presented in the courts of the United States, or in the court of last resort of any state. That it is not free from difficulty is conceded.

The constitution of the United States provides, that “ a person charged, in any state, with treason, felony, or other crime, 'who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Art. 4, § 2.) To secure uniformity in practice under this provision, Congress, in 1793, passed an act (1 Statutes at Large, 302), which has been slightly changed in phraseology, and is as follows : “ Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from which the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which said person has fled, to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent, when he shall appear. If no such agent appears within six months of the time of the arrest, the prisoner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.” (U. S. Rev. Stat. § 5278.)

The history of the constitutional provision has been so well presented in Hurd on Hab. Cor. (2d ed.) 598-637; Com. of Ky. v. Dennison, 24 Howard (U. S.), 66; Brown’s case, 112 Mass. 409, and other authorities cited during the argument, that any re-statement of it is perhaps unnecessary. The provision was in the articles of confederation, in substantially the same form, and hence it has bean in force a century. It has received the careful consideration of the ablest lawyers in the country, and many questions arising under it may be regarded as settled. No member of this court doubts that when a case intended to be provided for is presented in regular form, the governor on whom the requisition is made has no discretion. It is clearly his duty to issue the warrant of extradition ; that duty, however, being one of imperfect obligation. The guilt or innocence of the accused can not be tried by him; and, where a crime is actually charged, formal defects as to the manner in which it is stated ought not to be regarded. Nor is it material whether the offense charged is punishable in the state upon which the demand is made; the question is, whether it is punishable as a crime in the demanding state. Com. of Ky. v. Dennison, supra ; Davis’ case, 122 Mass. 324.

But it is a mistake to say that, in determining whether & case contemplated in the provision is presented, the governor upon whom the demand is made is vested with no ■discretion. Under the articles of confederation it was essential that the demand be made on the governor, although this was not expressly so stated; “and it is plain that the mode of the demand and the official authority by and to whom it was addressed, under the confederation, must have been in the minds of the members of the convention when this article was introduced, and that in adopting the same words they manifestly intended to sanction the mode of proceeding practiced under the confederation ; that is, of demanding the fugitive from the executive authority, and making it his duty to cause him to be delivered up.” Com. of Ky. v. Dennison. And this duty is not •devolved merely on the person who may at the time be governor. “ In such cases the governor acts in his official ■character, and represents the sovereignty of the state.” Taylor v. Taintor, 16 Wallace, 366-370. Moreover, it is -unreasonable to suppose that the framers of the constitution did not foresee, when they vested this necessary but -dangerous power in the chief magistrate of a state, that occasion would arise, in the discharge of such duty, for the •exercise of judgment and discretion. In Taylor v. Taintor it is .stated that he is vested with discretion to withhold the warrant, where the fugitive is charged with the commission of crime in the state to which he has fled. Is his discretion limited to that instance ?

Courts have discharged the fugitive on habeas corpus, notwithstanding he was in custody under the warrant of ■extradition, where the offense charged was not a crime, or not punishable by indictment in the demanding state, or was-not triable there as of right by a jury ; where the accused had never been, in person, within the demanding state; or where the papers upon which the application was made were forgeries, or plainly insufficient in matter of sub■stance. The People v. Brady, 56 N. Y. 182. If the courts may rightly discharge in such cases, it is manifest the governor may, for the same causes, withhold his warrant; and if he may withhold his warrant, it seems reasonable that he-should have the power to revoke it on the same grounds. Why should he not have such power ? More than one hundred and fifty judges in this state have the unquestioned authority to discharge where the proceeding is plainly invalid by reason of defects in matter of substance; and I am unable to see why the governor, w7ho grants and issues-the process, should have less power over it. The tribunal, which has exclusive jurisdiction to grant and issue process, has, ordinarily, the power to quash or supersede it, when the fact that it is invalid, or was improperly obtained, is-made to appear; and there is no reason for holding that this process is an exception to the rule.

We are further to inquire whether the discretion and power of the governor are limited to cases in which defects-of the character above mentioned are found to exist. And it seems to me they are not. The provision was inserted in the articles of confederation, and subsequently in the-constitution, to subserve public, and not private purposes. The object was to secure the punishment of public offenders, and not to enforce the payment of private claims,, whether well or ill founded. To employ this extraordinary process for public purposes tends to secure peace and good order; but to prostitute it to the advancement of private-ends is to bring it into great disfavor. True, the theory is-that the demanding state will hold the offender for trial, even though he be brought into the state fraudulently, or forcibly, and without process; but experience shows that where the end sought is private, the accused is rarely brought to trial. No satisfactory reason is perceived why a governor should issue or obey a requisition where he is satisfied that the sole object of the party complaining is to enforce the payment of a private claim for money. Such an abuse of process is equivalent to a fraudulent use of it. Nor is the governor’s power in such case limited to a refusal to act. Judgments the most solemn may be-impeached for fraud. Service of process in any civil matter, obtained by fraudulent contrivance or means, will be set aside on motion, whatever the process may be. Pardons obtained by fraud are held to be void. Eor reasons equally strong, a governor from whom such warrant is obtained for the advancement of private ends, fails to discharge his duty if he neglects to revoke the process on discovering the fraud. No doubt the framers of the constitution intended to invest him with that power ; and the reason for its exercise, in a case of that sort, is far greater than where the defect, however great, is in the requisition or other documents. Still, where money has been embezzled, or obtained by false pretenses, the offender is not likely to be brought to justice unless the injured party prosecutes;. and steps to obtain a restoration of the money are not 'incompatible with measures to secure the conviction of the-fugitive. The duty of the governor, in cases of that class, is, therefore, one of great delicacy ; and all that I have said as to his authority in refusing to issue or obey a requisition,, or in revoking a warrant, has relation to cases where thei-e is no real intention to prosecute criminally, if the money-demand is satisfied.

There is, as we have seen, no decision of the courts of the United States, or the court of last resort in any state, of the question under consideration. In the absence of such decision, we are warranted, by reason and authority, in looking to the practical construction which the constitutional provision has received in the executive department. We find that men who have occupied the highest positions in the state and federal governments have expressed, strong opinions on the subject. Attorn ey-Gen eral Henry Stanbery, in an opinion to Governor Bebb, referred to by counsel for defendants in error, insists that a govern or may,, under some circumstances, withhold the warrant. In an opinion of the chief executive of Maine (Governor Pair-child), in 6 Am. Jurist, 223, he said : There is “ no question, in my mind, as to the power to recall the warrant: which has been issued in this case.” In the matter of Adams, 7 Law Reporter, 386, it appears that Governor Thomas W. Bartley revoked the warrant which he had issued for one ■charged with obtaining money by false pretenses. On July 6, 1857, Governor Salmon P. Chase revoked a warrant he had issued on the requisition of the governor of Illinois ; and this was done, it appears, after full argument by learned counsel. In one case, Governor John Brough ■stated on the record, as a reason for the revocation, that •“ soon after the issuing of the warrant, information was ■received that this requisition had been obtained for an ulterior object.” In another case, Governor J. B. Cox, in revoking a warrant, says it was done “ on affidavits showing that the complainant'in the case is unworthy of belief, and that the affidavits on which the requisition was issued were made under an assumed name.” Without multiplying instances, it appears from the abstract of the records in the executive department, and the case in 7 Law Reporter, ■386, that Governors Thomas W. Bartley, S. P. Chase, John Brough, J. D. Cox, R. B. Hayes, William Allen, and ’Thomas L. Young, each, in one form or another, revoked a warrant of extradition, and some of them exercised that .authority repeatedly; and it is well known that other governors of this and other states have often exercised, the same power.

If we should hold that the governor has no power of revocation where the objection only goes to the sufficiency o± the papers, in matter of form, or the motives of the party ■complaining, the same result would follow. We have seen in Taylor v. Taintor, supra, that the governor has the authority to withhold the warrant where the fugitive is in •custody, charged with the commission of crime in the state where he has taken refuge ; it can not be doubted that he should also withhold it where it is made to appear that the requisition is a forgery; nor can any serious question be made, if, in either of these cases, the warrant has inadvertently been issued, about his right to revoke the process. As the governor had power to revoke them for some causes, the court below properly held that no inquiry could be made on habeas corpus as to the particular ground upon which these warrants were revoked. Indeed, while the-courts will discharge a fugitive on habeas corpus, where the-proceedings in his case are void, neither the general nor-state government will. otherwise interfere with the Governor in the discharge of his duty, or failure to discharge it, in cases of this sort. Com. of Ky. v. Dennison; Taylor v. Taintor; State of Mississippi v. Johnson, 4 Wall. 475 High on Ex. Rem. § 120. The State ex rel. v. Chase, 5 Ohio St. 528, in no way militates against these authorities, for the doctrine was fully recognized in that case, that where the governor is vested with a discretion, his action can not be controlled by mandamus. In any view, therefore, the-court below properly discharged the prisoners from custody.

An objection has been made, that while it might be very proper to revoke a warrant before the fugitive is delivered to the agent of the demanding state, yet that when such delivery is actually made, the power of the governor is at an end, and the general government, and the state in which the crime was committed, have acquired rights which can not be taken away. In one case, when Governor Allen exercised the power of revocation, the fugitive was in custody of the agent of the demanding state, though he was-still within our territorial limits, and he was discharged. How it was in this respect in the other cases I have referred to,-does not appear. As we have seen, “the governor acts in his official capacity, and represents the sovereignty'of the state,” and “ if he refuse, there is no means-of compulsion.” Taylor v. Taintor. Exclusive jurisdiction over the subject is vested in him. Taney, C. J., in Com. of Ky. v. Dennison, says, “Jffiere is no power delegated to the general government, either through the judicial department, or any other department, to use coercive-means.” He says, furthermore, that “ such a power would place every state under the control and dominion of the-general government, even in the administration of its internal concerns and reserved rights.” A fortiori, the demanding state can use no coercive power. “In the event of refusal, the state making the demand must submit.. "There is no alternative.” Taylor v. Taintor. If the executive of the demanding state had the authority, through his agent, to remove the fugitive from the state of refuge, in opposition to the will of its executive, he would have the right to send an army to enforce the authority, and no •one is bold enough to claim that this may be done. The fact is, the warrant of extradition is, in substance, a consent to remove the alleged criminal beyond our territorial limits, and there can be no removal without a valid warrant. Botts v. Williams, 17 B. Mon. 687. An independent-.government does not hesitate to arrest the removal of a fugitive at any time before he is taken beyond the nation’s territorial limits, if it be discovered the case is not clearly •within the extradition treaty. In re Windsor, 6 B. & S. (118 E. C. L.), 522; 3 Whart. (C. L.), § 2973. The governor of a state has precisely the same power, if he discovers that the requisition is a forgery, or that the case is one not intended to be provided for in the constitutional provision ; and if he exercises the power cautiously, and only in the cases to which I have referred, or in othei’s of a like character, much may be done to prevent the abuse, without impairing the efficiency of extradition proceedings.

Further objection is made that Governor Young had no authority to revoke a warrant issued by Governor Hayes. But we have seen that the governor acts in his official capacity.” The warrant is not process of the person holding the office of governor, but a warrant issued by an officer. We all agree that Governor Young had the .same power to revoke a warrant issued by his predecessor, that he had to revoke one issued by himself.

Much has been said as to the constitutionality of the legislation set forth in the statement of this case. There is legislation on the general subject in nearly or quite all the states. Reference to much of it, and the decisions relating to it, will be found in 18 Albany L. J. 166. The view taken of this case renders it unnecessary for us to-express any definite opinion on the subject.

If it is true that the views here expressed are in conflict -with, some general expressions in Com. v. Dennison, it is «equally certain that nothing in this opinion will be found in opposition to anything decided in that case. Expressions in-that case can not he reconciled with some things said in Taylor v. Taintor, and yet the decisions are in harmony. Questions of conflict between cases are determined not merely by differences of that sort, but by first ascertaining what may fairly be regarded as decided in each •case.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Burke v. The State of Ohio.
    T. Where the charge is burglary by breaking into the car of a railroad company, designated by its corporate name, but the indictment contains no averment that the company was incorporated, the accused can not avail himself of the defect, if defect it be, in view of the code of criminal procedure. (66 Ohio L. 301, sec. 90; 14 Ohio L. 334.)
    '2. If it be alleged that a burglary was committed in the car of a railroad company, the corporate character of the company is sufficiently shown by proof that it was, at the time of the burglary, a corporation defacto.

    Error to the Court of Common Pleas of Hamilton ■county.
    William Burke was convicted in the Court of Common Pleas of Hamilton county, at the January term, 1876, on an indictment in which he was charged with burglarly by breaking “ into a certain railroad car of the Pittsburg, Cincinnati .and St. Louis Railroad Company,” on the night of November 23, 1875. There was no allegation in the indictment that the company was a corporation. Evidence having-been given tending to show that, at the time of the alleged burglary, the company was incorporated, the counsel for Burke asked the court to charge the jury, that if they .found that fact established by the evidence, there must be ■,a verdict of not guilty. The court refusing so to charge, 'Burke, by his counsel, excepted. And at the request of the prosecuting attorney, the court charged the jury as follows: “ It is not necessary for the state to prove the articles of association or charter of the Pittsburg, Cincinnati and St. Louis Railway Company, but it is sufficient to prove by reputation that there was, at the time when the crime is alleged to have been committed, a corporation known by that name, operating such road, and carrying goods, stock, and passengers for hire in its cars running along said company’s road. A defacto existence of the corporation is only necessary to be shown.” To which instruction Burke, by his counsel, excepted.
    The defendant was convicted and sentenced to the penitentiary. The errors relied on for the reversal of the judgment are the charge refused and charge given.

      Blackburn &j Shay, for plaintiff in error.
    It was necesssary to aver in the indictment the corporate character of the railroad company. Cohen v. The People, 5 Parker’s O. C. 330; Wallace v. The People, 63 Ill. 451; 2 Wharton’s C. L. § 1828; 2 Russell on Cr. 100.

      Isaiah Pillars, attorney-general, and C. W. Baker, prosecuting attorney, for the state:
    1. The allegation of ownership was unnecessary. 69 Ohio L. 10; 74 Ohio L. 248; Ducher v. The State, 18 Ohio, 308. 2. The defect, if any existed, as to the incorporation of the company, was not available to the defendant below. Criminal Code of Procedure, § 90, 66 v. 301; 74 v. 334. 3. Under the former practice the allegation was unnecessary. Rex v. Patrick, 1 Leach, 263; 2 East’s P. C. 22, 87; 2 Russ, on Cr. 99; 3 Chitty’s C. L. 949; 1 Roscoe’s Cr. Ev. 319, 586; 1 Bishop’s Cr. Pro. 682; Com. v. Dedham, 16 Mass. 141; Com. v. Phillipbury, 10 Mass. 78; State v. Waters, 3 Brevard, 507; Smith v. State, 28 Ind. 321.
   Okey, J.

That it would have been essential, previous to the passage of the code of criminal procedure, to have alleged, in an indictment for an offense like this, that the company was incorporated, is a proposition sustained by the authorities cited by counsel for the plaintiff in error,, and by others. People v. Schwartz, 32 Cal. 160; State v. Mead, 27 Vt. 722; Jones v. The State, 5 Sneed, 346. And see Roscoe’s Cr. Ev. (7th Am. ed.) 662; Reg. v. West, 1 A. & E. (N. S.), 826; Rey. v. Frankland, Leigh & Cave’s C. C. 276. But, as applied to corporations like this, the opposite-view seems to be quite as well supported. In addition to-the authorities cited by counsel representing the state, the-following are referred to. Fisher v. The State, 40 N. J. (L.), 169 (1878) ; The State v. Van Hart, 2 Harrison, 327; Lithgow v. Com., 2 Va. Cas. 297; People v. McCloskey, 5 Parker’s C. C. 57; Ib. 334; 2 Wharton’s Cr. L. 1489; 1 Wharton’sEv. §§ 294, 317; 11 Ohio, 280; 1 Ohio Railroad Com. Rep. 337-349. It is unnecessary to determine in this conflict of cases — apparently irreconcilable — precisely what the rule-was under the former practice.

A great' advance has been made in the laws relating to-crimes, punishments, and criminal procedure. The fact is-unquestioned that there was a time when felonies, which at common law -were few in number, embraced, by parliamentary enactments, more than two hundred offenses;, when-acts were punishable with death, which, if committed in this state, at this day, would not be-punishable at all;, when one charged with felony was not permitted to have a, copy of, or even to examine the indictment, to call witnesses in his defense, or to have the assistance of counsel;. when no instance could be found in which a jury, in a criminal ease, had failed to render a verdict on the same day it was impaneled; when jurors were fined for refusing to return a verdict of guilty; when the ordinary course was to sentence-as soon as a verdict of guilty was rendered, and cause the accused to be executed on the following morning. It is not strange that in such.a state of the criminal law, humane judges, infavorem vitce, would determine cases upon technicalities which at this day would be regarded as frivolous. But all this is changed. Now, the tendency is, on the one hand» to disregard that which is merely formal and technical; on the other, to preserve, in every stage of the case, all matters of substance, and afford the accused a trial as full, fair, and impartial as can reasonably be desired, with the presumption of innocence effectual for his protection, until his guilt is proved beyond reasonable doubt.

In harmony with this reformation is our code of criminal ■procedure, which is to be construed not strictly in all its parts, but according to its manifest spirit. It contains this provision: “No indictment shall be deemed invalid, nor ¡shall the trial, judgment, or other proceedings be stayed, .arrested, or in any manner affected,” for any “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” 66 v. .801, sec. 90; 74 v. 334. In holding that by force of it, this .defect, if it be a defect, is one of which Burke could not avail himself, we think a proper construction is given to •the statute.

There was no error in the charge of the court, that the ■corporate character of the party injured might be proved by reputation, and that it was only necessary to show a corporation de facto. Calkins v. The State, 18 Ohio St. 336, and cases there cited.

Judgment affirmed.


text:
    Hamilton v. The State of Ohio.
    1. In an indictment for burglary by breaking into the office of a railroad company, there was no allegation that the company was incorporated. Held, that this is not’ a sufficient ground for sustaining a motion to quash. Burke v. The State, ante, 79, followed.
    :2. Where a convict, who has been in the penitentiary two years, is taken therefrom to testify as a witness, and does so testify, it is competent for the adverse party to prove that his reputation for truth and veracity was bad, at the time of and previous to his conviction, at the place where he then resided.
    ;3. In order to justify the reversal of a judgment on the ground that the court below refused to permit certain evidence to be given, it is incumhent on the party complaining to show affirmatively that he was entitled to offer such evidence for some purpose stated in or manifest from the record.
    4. On the trial of a criminal case, it is error to permit the state to prove hy cross-examination of a witness called hy the defendant, that the accused stands indicted for other offenses.
    Error to the Court of Common Pleas of Greene county.
    John Hamilton, Jr., was indicted in the Court of Common Pleas of Greene county, convicted, and sentenced to the -penitentiary, at the January term, 1878, for burglary. The offense, it is alleged, was committed by breaking into the office of the Pittsburg, Cincinnati and St. Louis Railway Company, in the night of October 28, 1874. There was no allegation in the indictment to show whether the injured party was a corporation or a partnership. A motion was filed by the defendant below to quash the indictment for that defect, but it was overruled, and his counsel excepted.
    The principal witness for the state was David Murphy. He was convicted of robbery in Greene county, and sentenced to the penitentiary in November, 1875, for the term ■of eight years, and was brought to Xenia, from the penitentiary, to testify in this case. After the state rested, the defendant called Dr. J. L. Steinberger, who testified that he resided at Yellow Springs, in Greene county, and was .acquainted with Murphy at the time of his conviction, and that he (Murphy) then resided at Yellow Springs. Counsel for defendant then inquired of the witness whether he had the means of knowing Murphy’s reputation for truth and veracity while he resided there. But counsel for the state objected, on the ground that Murphy had then been confined in the penitentiary at Columbus for two years and four months, and hence there could be no reputation as to his truth and veracity at Yellow Springs. The court sustained the objection, and the defendant below excepted. There is no .statement in the record that Hamilton expected to prove by the witness that he was acquainted with the reputation of Murphy in any respect, nor does the record disclose, in any form, an offer by Hamilton to prove that Murphy’s reputation for truth and veracity was or had been bad.
    The record contains all the evidence, as appears from a statement in the bill of exceptions. No evidence was offered by Hamilton as to his character. Erank Hafner was called and testified as a witness for the defendant below. The record contains the following as to his testimony :• “ On cross-examination, the state, by ,the prosecuting attorney, asked the witness if he did not stand indicted in this court in several other cases for burglary and larceny,. jointly with the defendant, and for shooting at with intent to kill, etc. To which question the defendant, by his counsel, objected; but the court overruled said objection, and permitted said question to be answered, and the same was answered by the witness in the affirmative. To which action of the court, in overruling said objection, and permitting the testimony to go to the jury, the defendant, by his counsel, excepted.”

      Little § Shearer, for plaintiff in error:
    1. The indictment was fatally defective for want of an averment that the injured party was a corporation. Ducher v. The State, 18 Ohio, 318; Afele v. Wright, 17 Ohio St. 242, commented on.
    2. The court erred in excluding evidence of Murphy’s reputation for truth and veracity. Sleeper v. Van Middlesworth, 4 Denio, 431; Rathburn v. Ross, 46 Barbour, 127; People v. Abbott, 19 Wendell, 192; Com. v. Billings, 97 Mass. 405; Parkhurst v. Ketchum, 6 Allen, 406; Keator v. The People, 32 Mich. 484; Home v. Stabler, 17 Ill. 453; Graham, v. Chrystal, 2 Keyes, 21.
    3. The court erred in permitting Hafner to testify that. Hamilton stood indicted for other crimes.

      Isaiah Pillars, attorney-gen eral, and Horace Sabin, prosecuting attorney, for the state.
   Okey, J.

1. Burke’s ease, ante, 79, is decisive as to the .■sufficiency of the indictment. There the objection that the indictment contained no averment of the incorporation of the injured party, was not taken, as in this case, by motion to quash, but the decision was placed on grounds which require us to sustain such an indictment, in whatever form •that objection may be made.

2. If the court entertained the opinion that the testimony of Steinberger, as to the truth and veracity of Murphy, was incompetent for the reason that Murphy had then been confined in the penitentiary for more than two years, "that opinion was erroneous. Possibly some objection might have been made to the weight of the evidence, as it related to a period more than two years before the witness was called to testify. But there is a general principle that when a condition of things is once shown to exist, it is presumed to continue until the contrary is shown; and that principle would seem to be peculiarly applicable in this case. It is claimed that Hamilton proposed to show Murphy’s reputation for truth and veracity down to the time he was sent to the penitentiary for a robbery, and that he was still a convict. In that penal institution, where silence is enforced, it is difficult to see .how that reputation could materially change. To be sure, penitentiaries are erected with a twofold object — first, to protect .■society; and, secondly, to reform criminals; and confinement is, furthermore, punishment to the convict. But it is painful truth that the second object is; in many cases, .never attained. While confinement in the penitentiary does not necessarily affect the convict’s reputation for truth —as, for instance, where the conviction is for manslaughter —there is certainly no presumption that a man who, at the time of his conviction for a robbery, has a tarnished reputation for truth, improves in that particular during his confinement. On the contrary, the former state of things is presumed to continue; and we see no reason why it was not ¡competent, in this case, to show what Murphy’s reputation was, in that particular, prior to his conviction.

"We are of opinion, however, that the objection to this; ruling is not presented in snch form as to be available to-Hamilton. There is no statement in the record that he proposed or expected to prove that the reputation of Murphy for truth and veracity was bad. We may believe that such was his object, but that is not sufficient. The rule on the subject was thus strongly but correctly stated by Gholson, J., in Gandolfo v. The State, 11 Ohio St. 114-116: “ It is incumbent on those who insist upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them. The Philadelphia and Trenton Railroad Co. v. Stimpson, 14 Peters, 448-460; Bain v. W. & F. Junction R. Co., 3 H. L. Cas. 1—16.” It does not clearly appear that Hamilton was injured by the ruling.

3. In permitting the counsel for the state to cross-examine-the witness Hafner, for the purpose of eliciting the fact that indictments were pending against him, there would have been no error, if the inquiry had been limited to that fact. Wroe v. The State, 20 Ohio St. 460. But the inquiry was not so confined. The question was, whether the witness was not indicted for burglary and larceny jointly with the defendant. The defendant might have offered evidence as to his general character, but he did not do so. Until lie-offers such evidence, the prosecution is not permitted, to offer testimony on that subject. Griffin v. Ihe State, 14 Ohio St. 55-63. A fortiori, the state, under such circumstances, can not' offer evidence of particular facts for the-purpose of affecting character. Barton v. The State, 18 Ohio, 221; Reg. v. Rowton, Leigh & Cave, C. C. 520; s. c., 10 Cox C. C. 25. And the better opinion is that the state-can not prove particular facts, for such purpose, even in-rebuttal. 1 Wharton’s Or. L., § 637; 1 Wharton’s Ev.,.. § 49. For error of the court in permitting evidence that other indictments were pending against Hamilton, the-judgment will be reversed, and the cause remanded to the. court below for a new trial.

Judgm.ent reversed.


author: Boynton, J.

text:
    Whipp et al. v. The State.
    In a prosecution of a wife for an assault upon her husband, he is a competent witness for the state.
    Error to the Court of Common Pleas of Medina county.
    The plaintiffs, Rachel H. Whipp and Lonsdale P. Spensley, were jointly indicted and tried for a felonious assault upon Robert Whipp, the husband of said Rachel, “ with intent him, the said Robert, to kill and murder.” The record shows that said Robert Whipp was permitted, against the objection of both the plaintiffs, to testify to the circumstances of the alleged assault. The plaintiff's were convicted and sentenced to the penitentiary.
    The ruling permitting the husband to testify against his wife is the principal ei’ror assigned. Other exceptions were taken at the trial not material to be noticed here.

      H. McKinney, for plaintiff in error:
    We maintain that husband and wife are not competent witnesses for or against each other in criminal prosecutions. King v. Cliviger, 2 Term, 268; 2 Kent’s Com. 178 (5th ed.); Sedgwick, v. Watkins, 1 Vesey, Jr. 49; Thompson v. Trevanion, Skinner, 402; Bently v. Cook, 3 Douglass, 422; 1 Greenl. Ev. § 334; Com v. Easland, 1 Mass. 15 ; People v. Bill, 10 Johns. 95; Fitch v. Hill, 11 Mass. 287; Bothews v. Galindo, 4 Bing. 610; 3 Carr & Payne, 238; People v. Colburn, 1 Wheel. Cas. 479 ; 1 Starkie on Ev. 706: 1 Hale’s Pl. of the Cr. 301; 2 Russell on Crimes, 548, 549; 1 Phillips on Ev. 77; Steen v. The State, 20 Ohio St. 333.
    It is claimed this ease comes within one of the exceptions ; that it was an offense against the person of the husband, and that a necessity existed, requiring a relaxation of the rule. And in support of this exception, counsel for the state mainly rely on the case of Lord Audley. 1 State Trials, 387.

      To this we answer: 1st. The authority in this ease has been repeatedly denied to be law by the highest authorities. See Grigg’s ease, 1 Gibbs’ Ev. 120-126; State Trials, 62.

      Isaiah Pillars, attorney-general; James Pillars; John McSweeney; J. T. Graves, prosecuting attorney, and Bostwiek $ Barnard, for the state :

      We admit, that, as a general rule, a husband or wife ■can not testify in a criminal case for or against each other, but we claim that there is an exception to .the rule when the criminal offense consists of personal violence by the husband or wife, the one against the other. In such ease, the husband or wife is competent to testify. 1 Greenl. Ev. §§ 336, 343; 2 Bishop on Or. L. §§ 69, 649; 1 Wharton’s Cr. L. § 769; State v. Neil, 6 Ala. 685; 1 East’s Pleas of the Crown, 455, § 5; 1 Best on Ev. § 176; 1 Phill. on Ev. 80 (10th ed.); Taylor on Ev. § 1000 ; Lord Audley’s case, 4 State Trials, 402; State v. Mussey, 1 Busbee, 123; 5 Cranch, 35; 9 Carr & Payne, 669; Russell on Crimes, 606; Bull N. P. 287; Rex v. Wasson, 1 Crawf. & Dix, 197; 2 Bishop on Cr. Pro. § 649; 4 U. S. Dig. 724, § 69; 4 Cranch, 658; 4 Allen (Mass.), 491; People v. Fitzpatrick, 5 Parker (N. Y.), 26; 17 Abbott’s Pr. 19; 50 Barb. 147; 9 Barb 580.
   Boynton, J.

At common law, the general rule is well settled, that husband and wife are incompetent to testify for or against each other, either in civil or criminal cases. And while the rule has been largely modified in civil cases, and the incompetency to a great extent removed, in criminal cases it still prevails. Steen v. The State, 20 Ohio St. 333. But at an early date, an exception, said to arise from necessity, was declared to exist in cases of personal injury to the wife inflicted by the husband. The first reported case, in which the point was adjudicated, was that of Lord Audley, decided in 1631. He was accused of aiding and assisting another in the commission of a rape upon his wife ; and upon the trial the question of the wife’s competency to give evidence against him was submitted to the judges, who unanimously resolved, that, being the party upon whom the •crime was committed, she was a competent witness.

Excepting a few cases at nisi prius, where the wife’s testimony was rejected (Rex v. Griggs, 1 L. Raym, 1), the exception has uniformly prevailed, and is now as firmly established as the rule itself. Rex v. Azire, 1 Stra. 633, was ■■a case of a simple assault by the husband upon the wife, and her testimony was admitted. Where the husband was indicted for shooting at his wife, she was held a competent witness. Roscoe’s Cr. Ev. 125. In Rex v. Jagger, 1 East P. C. 455, the husband was tried and convicted of an attempt to poison his wife, and she being admitted as a witness .against him, the twelve judges, upon a point reserved, held that her evidence was properly received. Rex v. Wasson, 1 Crawf. & Dix, 197, was a similar case, and decided the .same way. (

In Woodcock's case, 1 Leach C. C. 500, and in Rex v. John, 1 East P. C. 357, the dying declarations of the wife were received against her husband, upon the principle there asserted, that had she. survived, she would have been competent to establish the violence that resulted in death.

The same principle prevails in cases where the wife is called by the h asband. In Murphy v. Commonwealth, 4 Allen, 491,-it was held, that on an indictment against the husband, for an assault upon the wife, she is a competent witness for him, to disprove the assault. See also Rex v. Sergeant, R. & M. 352 ; State v. Neil, 6 Ala. 685.

But it is said that if the rule permitting the wife to testify in these exceptional cases, is admitted at all, it is restricted and confined to cases where there are no other witnesses to the transaction in which the wife was injured. This limitation, although adopted in one or two of the •earlier cases, has long since been rejected. In Bentley v. Cooke, 3 Doug. 422, it was said by Lord Mansfield, that the ■“ necessity which calls for this exception is not a general •necessity, as where no other witness can be had, but a particular necessity, as where, for instance, the wife would otherwise be exposed without remedy to personal injury.”’ And in Reeve v. Wood, 5 Best & Smith, 864, Crompton, J., giving a wider foundation to the exception, and a more-satisfactory reason for its existence, said: “ The exception to the general rule, excluding the wife as a witness against her husband, arose partly from the mischief which would have followed from her exclusion, partly from necessity, and partly from the consideration that she was in reality the prosecuting party.” The principle upon which either of these eases asserts the competency of the wife in prosecutions for an injury to her person, committed by the husband, renders the presence or absence of third persons, at the time of the assault, entirely immaterial.

It remains to inquire whether the same principle or rule obtains where the husband sustains a personal injury through the unlawful conduct of the wife. "We have not been referred to any case directly deciding the point. The elementary writers are fully agreed that the husband is equally competent to testify, where he is the party injured through th& personal violence or misbehavior of the wife. In Best on Evidence, 271, it is said: “ "Where one of the married parties used, or threatened, personal violence to the other,, the law would not allow the supposed unity of person in the husband and wife to supercede the more important principle that the state is bound to protect the lives and limbs of its citizens. Thus, in an indictment for an assault and battery on the wife, or vice versa, the injured party is a competent witness.”

In 1 Arch. Cr. Pr. & PI. 472, the author says : “ A wife can not be examined as a witness for or against her husband, or a husband as a witness for or against his wife, except in case of a personal injury committed by the one upon tie other, in which case, from necessity, the one'may be a witness against the other.” Mr. East, in 1 East P. C. 455, closes a discussion of the exception to the general rule, by saying : I conceive it to be now settled, that in all eases-of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other.” 1 Whar. Or. L. § 767; 1 Greenlf. Ey. § 343 ; 2 Bish. Cr. Prae. § 69; and Stephen’s Dig. of Evidence, art. 108, are to the same effect.

We are of the opinion that the exception stated prevails-where either the husband or wife is on trial for a personal injury inflicted on the other, and that the party injured is-a competent witness against the other.

In Steen v. The State, supra, the court declared the general rule. It was not a case of bodily injury to the wife. The question of the existence of an exception to the rule,, excluding the wife from testifying against her husband, was not considered or decided. The remaining exceptions to-the ruling of the court below do not present any question, the decision of which it is important to report. It is sufficient to say that, in our judgment, no error was committed at the trial.

Judgment affirmed.


author: White, C. J.

text:
    Duttenhofer v. The State.
    Where the accused in a criminal trial becomes a witness in his own behalf, he can not be compelled, on cross-examination, to disclose the confidential communications between himself and his attorney; nor can such disclosures be required of the attorney without the consent of the accused. It is the privilege of the accused to have such communications-protected from compulsory disclosure, and the privilege is not waived by his becoming a witness.
    Error to the Court of Common Pleas of Meigs county.
    The plaintiff in error was indicted for forgery. The alleged forgery consisted in the addition of the words “ with interest at eight per cent.” to certain promissory notes, which had been given to plaintiff in error.
    On the trial the plaintiff in error was examined as a witness on his own behalf, but, in his examination in chief,, gave no evidence touching communications passing between him and his attorney. On cross-examination by the state, he was required, against his objection, to disclose communications, both written and oral, which he had made to his attorney concerning the matter in controversy. His attorney, S. Dana Horton, was called as a witness on the part of the state, and was required, against his objection and that of his' client, the accused, to produce certain letters he had received from the accused concerning the matter in ■dispute. These letter’s were received by Mr. Plorton in his relation as attorney of the accused. The letters were put in evidence by the state.- The attorney was also required to give in evidence certain oral communications made to him by his client, touching the matters at issue.
    The trial resulted in the conviction of the accused; and ■sentence was pronounced on the verdict.
    One of the errors assigned is, that the court erred in requiring the accused and his attorney to give in evidence the communications made by the former to the latter, con■cerning the matters in controversy.

      Grosvenor § Vorhes, with whom was John Cartwright and JS. D. Horton, for plaintiff' in error.
    By the common law, all communications made by a party to his attorney, and all written admissions of his, confided to an attorney, are privileged, and the party can not be ■compelled to admit them, nor an attorney to disclose them. This rule of the law is very ancient, very sacred, and universally admitted and approved. The enlightened judgment of the bench and bar never complained of it, always enforced it, and jealously guarded it. Wharton on Evidence, 576, and cases there cited ; Ibid, 479 ; Montgomery v. Pickering, 116 Mass. 229 ; Barker v. Kuhn, 38 Iowa, 395.
    The code of civil procedure, section 314, disqualifies Hor.ton, the attorney, but the 315th section provides that, “ if a person offers himself as a witness, that is to be deemed a •consent to the examination also of an attorney, clergyman, or priest, on the same subject, within the meaning of the last two subdivisions of the preceding section.”

      The legislature, in enacting section 313 of the code, made parties competent, but considered that that fact, and the additional fact that parties might avail themselves of the right, and go upon the stand and testify, did not alone operate to make it legal to examine the attorney of such party, and hence, section 315, above cited.
    This view of the matter is very fully sustained by the Supreme Court of Indiana, in divers cases. Bigler v. Reyher, 33 Ind. 112 ; Bowers v. Briggs, 20 Ind. 139; Borum, v. Fouts, 15 Ind. 50; Jenkinson v. The State, 5 Blackf. 465; Maas v. Block, 7 Ind. 202.
    The mere offering of one’s self as a witness in a, civil action did not make his attorney a competent witness to dispute him, or to give evidence of professional secrets; it took a statute to make it operate as a waiver. Hence, if no such statute can be found applying to criminal evidence and criminal actions, the privilege remains.
    There is no section or enactment in this criminal code corresponding in words, or tenor and effect, to section 315 of the code of civil procedure. It was deemed necessary to place such an enactment in the civil code, else the act of testifying would not have been deemed a waiver. It was not deemed proper to put such an enactment in the criminal code, for the reason that it was not intended that the act of testifying should so operate as a waiver of the priv-, ilege of the attorney.
    Then we have this result:
    1. The right to compel an attorney to testify to communications made to him by his client, as such, in a civil case, is held by the supreme court to come of section 315, and it is fair to argue that without that section, no waiver would have been held to have been made.
    2. This section does not apply to, or operate upon, criminal actions, and evidence in criminal cases.
    3. There being no such statute in the criminal code, the defendant goes upon the stand, waiving nothing he had by law before.

      The claim we make is:
    When a party defendant in a criminal action avails himself of a privilege given by statute to testify, and goes ■upon the stand and gives evidence, even to a single fact, he thereby opens the door to being compelled to answer cross-interrogatories touching all matters pertinent to the issue being tried. Beyond this no court has ever gone. Beyond this no court ought to go.
    It follows that the state, in order to make out its reply in chief, had no right to call Duttenhofer, and force him to testify to original and substantial evidence in chief against ■himself,

      Isaiah Pillars, attorney-general; Ira Graham, prosecutiug attorney; Russell &; Russell, and Johns S. Giles, for defendant in error.
   White, C. J.

The only question we find it necessary to •consider in this case is, whether the court erred in requiring the accused and his attorney to disclose the communications made by the former to the latter in the relation of ■client and attorney.

It is laid down as a general rule of jurisprudence, that “ where an attorney is employed by a client professionally, to transact professional business, all the communications that pass between the client and the attorney in the course .and for the purpose of that business are privileged communications, and that the privilege is the privilege of the ■client and not of the attorney.” Herring v. Clobery, 1 Phill. 91 ; Pearse v. Pearse, 1 DeGex & Smale, 25.

The privilege applies to the communication; and it is immaterial whether the client is or is not a party to the .action in which the question arises, or whether the disclosure is sought from the client or his legal adviser. Wharton’s Ev. § 588; Stephens Ev. art. 115.

By section 814 of the code of civil procedure, an attorney is declared incompetent to testify concerning any ■communication made to him by his client, in that relation, or his advice thereon, without his client’s consent.

Section 315, however, provides, that, if a person offer himself as a witness, that is to be deemed a consent to the examination also of the attorney, on the same subject.

The code of criminal procedure contains no such provision ; and the question is, whether the accused, by offering himself as a witness in his own behalf in a criminal prosecution, waives the protection which would otherwise be extended to the privileged communications passing between him and his attorney.

We think no such waiver ought to be implied. In several of the states, in the absence of a statutory provision corresponding to section 315 of our code of civil procedure, it has been ruled that a party, by becoming a witness on his own behalf, does not waive the privilege.

In Bigler v. Reyker, it was held by the Supreme Court of Indiana, that a party, having given evidence in chief in his own behalf, can not, on cross-examination, be compelled to divulge statements made by him when consulting, as a client, an attorney at law; and that such communications are privileged and protected from inquiry, when the client is a witness, as well as when the attorney is a witness. 43 Ind. 112. To the same effect is the decision in Barker v. Kuhn, 38 Iowa, 395 ; Hemenway v. Smith, 28 Vt. 701; and Bobo v. Bryson, 21 Ark. 387.

The contrary was held in Massachusetts, iu the case of Inhabitants of Woburn v. Henshaw, 101 Mass. 200. It was there said : “ The objection that the defendant was wrongfully compelled to undergo a cross-examination as to what he said to his counsel, can not be sustained. The policy of the law will not allow the counsel himself to make disclosures of confidential communications ’from his client; but if the -client sees fit to be a witness, he makes himself liable to full cross-examination like any other witness.”

But we apprehend that other witnesses than the party ■could not, on cross-examination, be compelled to disclose confidential communications made to their legal adviser, either for the purpose of impeachment or otherwise. Nor do we see the propriety of not allowing the attorney to make the disclosures without thé consent of his client, and yet compelling the client himself to make them.

In our opinion, the weight of authority, and the better reason are against the ruling of the court below.

Judgment reversed and cause remanded for a new trial.


author: McIlvaine, J.

text:
    Ruffner v. The Cincinnati, Hamilton, and Dayton Railroad Company.
    “Where a railroad company is authorized to propel its trains and operate its road by the use of steam locomotives, no inference of negligence arises from the mere fact that an injury to adjacent property was caused by sparks emitted from such locomotives.
    Motion for leave to file a petition in error to the District Court of Hamilton county.
    The original action -was brought by plaintiff in error, against defendant in error, for injury to plaintiff’s cattle from a passing train on defendant’s road. Shortly before the alleged injury, dry grass in or near the line of defendant’s road was ignited by a spark from a passing locomotive, and the fire was communicated to, and destroyed a. fence inclosing the field where the plaintiff’s cattle were in pasture, whereby the cattle wandered upon the defendant’s track and were injured by a subsequent train, without any negligence, however, in the management of the train, as was admitted upon the trial below.
    The defendant is a railroad corporation under the laws of this state, and is authorized by law to operate its road by the use of steam locomotives, etc.
    In the court of common pleas judgment was rendered in favor of the defendant, which was affirmed in the district court.

      On the application for leave to file a petition in error, several errors were alleged; but, upon the refusal of the application, the case was set down for report upon a single point, which is stated in the opinion.

      Stimmel ‡ Davis, for the motion.

      Matthews, Ramsey <$• Matthews, contra.
   McIlvaine, J.

The sole question submitted to me for report is this: Does an inference of negligence arise from, the mere fact that an injury results from a fire caused by' sparks from a passing locomotive, in the use of a chartered railroad company, which is authorized by law to propel its-trains and operate its road by the use of -steam locomotives ?

This question must be answered in the negative. The-emission of sparks from such locomotives results from the-mere use, and is as natural as it is common ; therefore, it-can not be presumed, either as matter of law or matter of fact, that the escape of sparks is caused by carelessness or negligence in the use.

We make no inquiry now, as to what facts or circumstances would prove negligence on the part of a railroad, company, where a fire is communicated to adjacent property from its locomotives. It is enough here to say, that-where a liability for an injury of this kind is sought to be enforced, some fact or circumstance of negligence must be-alleged and proved. It is not enough to show that the-injury was caused by sparks escaping from a passing engine, without more. A party is not answerable in damages-for the reasonable exercise of a right. A liability arises-only when it is shown that the right was exercised negligently, unskillfully, or maliciously.

The doctrine here announced is sustained by the following cases: Railroad Co. v. Yeiser, 8 Penn. St. 366; Turnpike Co. v. Railroad, Co., 54 Penn. St. 345; Burroughs v. Railroad Co., 15 Conn. 124; Road v. Railroad Co., 18 Barb. 80;. Sheldon v. Railroad Co., 14 N. Y. 218; Railroad Co. v. Woodruff, 4 Md. 242; Smith v. Railroad Co., 37 Miss. 287. See, also, Wharton on Law of Negligence, §§ 869 and 870, and numerous other cases there cited.

Motion overruled.


author: McIlvaike, J.

text:
    Close v. Cooper.
    'Where a wounding with a knife is sought to be justified on the ground of self-defense against a prior assault, and the circumstances do not show any reasonable apprehension of loss of life, or of great bodily harm, it is error for.the court, after having charged the jury that a person assaulted may use all the force necessary to repel the assault, to refuse to charge, in substance, that, if the resistance were disproportionate to the assault, or excessive, the defendant would be liable.
    Motion for leave to file a petition in error to the District 'Court of Sandusky county.
    The original action was brought by the plaintiff in error .against defendant in error, to recover damages for an assault and battery. The defendant answered that the alleged assault and battery was committed in self-defense. In the •court of common pleas, the verdict and judgment were rendered for the defendant.
    On the trial, the testimony offered tended, among other things, to prove that the defendant went upon a train of ■cars, on the Lake Shore and Michigan Southern Railway -Company, at Toledo, Ohio, to take passage via Lindsay to Monroeville; that, before reaching Lindsay, the defendant, “because he could not obtain a seat in the cars, refused to ■deliver his ticket to the conductor, or pay his fare. At Lindsay, where the train stopped, the conductor, with the .■assistance of other employes of the company, among whom was the plaintiff, undertook to eject the defendant from tthe car. The defendant insisted, and, in the scuffle which •ensued, the defendant inflicted an injury with a knife, which be held in his hand, upon the plaintiff, which constituted the cause of action stated in the petition.
    The court instructed the jury as follows: “ The railroad •company was bound to furnish for passengers suitable •coaches and conveyance, and such conveniences as are usually and ordinarily provided. The defendant had a right to ■occupy a seat; but if he entered the cars at Toledo, and found no place to sit, he could either refuse to go on that train, and bring his action for the refusal and neglect of the company to provide him a seat, or he might go on the train; but if he did go, knowing he could get no seat, he had no right to refuse to give up his ticket, nor demand money back for the distance he stood up. Under such circumstances, the company’s agent, the conductor, would have the right to demand Cooper’s ticket, and, if he refused to give it up, could rightfully eject him from the train. The regulation read to you is a reasonable one, and if the •conductor demanded Cooper’s -ticket, and he refused to give it, the conductor had a right to eject him, and to use •all force reasonably necessary for that purpose; and had a right to call such assistants as he chose, and had the right to call the plaintiff' to assist him; and if plaintiff was assisting, and using no more force than reasonably necessary, the defendant had no right to resist him. If Cooper did resist, and inflicted injury upon Close, he is liable, unless you find that this point, Lindsay, was a regular station, and the train had stopped there because it was a regular station, and that Cooper had offered his ticket to the conductor before they attempted to put him off. If he did offer or tender his ticket before they attempted to eject him, and you find this was a regular station, the defendant could lawfully resist the attempt to eject him, and use all necessary force to repel them, and the law will not measure very accurately' the amount of force necessary for his protection.”
    Thereupon the plaintiff' specially requested the court, among other things, to charge the jury as follows: “The jury will inquire whether the force used by Cooper in repelling the attempt to eject him was suitable and proper under the circumstances; if not, then the defendant is liable in this action.” Which the court refused, and the plaintiff excepted, and also excepted to the charge as given, in respect to the amount of force which the defendant might have lawfully used in resisting the attempt to eject him.
    On petition in error the district court affirmed the judgment below.

      Lemm.on, Finch § Lemmon, for the motion,
    claimed that the charge given, and the refusal to charge as requested, violated fundamental rules and principles as to resistance; that the force used by Cooper should not have been disproportionate orexcesive, in view of the danger impending* Brown v. Gordon, 1 Gray, 182; 2 Greenl. on Ev., § 95. And see 2 Arch. Cr. Pl. 224-227; Floyd v. Slate, 36 Ca. 91. Scribner v. Beach, 4 Denio, 448; 2 Met. 23; 1 Ohio St. 66 ;. 3 Ohio St. 167; 7 Blackf. 74; 5 Gray, 475; 2 Arch, on Torts, 693.

      Bartlett § Finefrock, contra.
   McIlvaike, J.

The instruction requested, or its equivalent, should have been given to the jury. The instructions given were defective and insufficient, as they do not contain the proper limitation upon the right to use force to-repel an assualt.- It is not enough for a defendant, in order to justify an assault and battery, to show that he was acting in self-defense; but he must also show that no more force was used by him than the exigency reasonably demanded. The doctrine is well stated by Bigelow, J., in Brown v. Gordon, 1 Gray, 182: “If he (the defendant) was guilty of an unreasonable and disproportionate degree of violence toward the person of another, he is liable for the excess, although he was acting in self-defense. In such cases, the question is not merely whether the defendant was the assaulted party, and so had a right to repel force by force; but also as to the degree of the beating, and its proportion to the assault of tbe plaintiff. The instructions required the jury in this case, merely to find the fact that the assault complained of was defensive, whereas they should have been instructed to consider and determine whether it was disproportionate to the assault relied on for justification,” etc.

In the case before us, the defendant, without any reasonable grounds for apprehending danger to life, or great bodily harm, as the testimony tends to show, inflicted a wound ■with a dangerous weapon. Whether accidentally or purposely, it is true, was a matter of contention; but, to say the least, it was a case in which the jury, under proper instructions, should have been required to find whether or not the resistance, under the circumstances, was in excess of ■the right of self-defense.

Motion granted, judgment of the district court and of the common pleas reversed, and cause remanded for a new trial.