author: Minshall, J.

text:
    Railroad Co. v. O’Harra.

      Eminent Domain — Right of landowner to compensation for soil of an adjacent highway, taken by a railroad company — May compel company to condemn and pay for — Sections 32S3 and 6448, Revised Statutes, construed — Limitation, of actions thereunder — Proceedings^ in Probate Court — Right of Jury Trial, etc.

    1. The owner of the soil of a highway, taken by a railroad company for its roadway, under an agreement between the company and the commissioners of the county as to the terms and manner of its use, as provided in § 3283, Revised Statutes, is entitled to compensation for its appropriation, and may compel the company under the provisions of § 6448, Revised Statutes, to condemn and pay for the same; and such right is not barred by the lapse of less than twenty-one years from the time of such occupation by the company: The limitation of two years contained in § 3283, applies only to incidental injuries to property on and adjacent to the roadway, occasioned by the location and construction of the railroad, and does not include the remedy for injuries to, or the taking of, the land itself.
    2. In a proceeding in the probate court , under § 6448, Revised Statutes, by a landowner to compel a railroad company to condemn and pay for land of his, which it has taken and appropriated to its own use, either pai’ty is, on demand, entitled to trial by jury on an issue of fact as to the ownership of the land. But where no demand is made, the question may be heard and determined by the court.
    3. In such proceeding the jurisdiction of the probate court is not defeated by a denial of the title of the plaintiff; and the court may on the demand of either party, proceed and empanel a jury for the trial of the issue, in any of the appropriate modes provided by statute for the empaneling of juries in the court of common pleas.
    (Decided May 23, 1891.)

      Eeeob to the Circuit Court of Mahoning county.
    The facts are stated in the opinion.

      Sine Clark, for plaintiff in error.
    I, It is alleged and admitted by the demurrer:
    That it was necessary in the location of its main line of road for the plaintiff in error to occupy the part of the public road in question: That the county commissioners were the public officers having charge thereof: That the plaintiff and the county commissioners, prior to entry thereon, agreed upon the manner, terms and conditions upon which the same was to be used and occupied: And that said part of said highway was and is actually occupied in the manner provided by said contract. And yet this action was not commenced within two, four, six or even ten years after the completion of said line of railway, under and in accordance with said contract.
    Here is every requirement of the statute filled, not in substance merely, but to the very letter also. And this the three lower courts have held did not constitute a defense to to the plaintiff’s claim. Railroad Company v. Mowatt, 35 Ohio St. 284; Terry v. Anderson, 95 U. S. 628; Cooley on Constitutional Limitations, 448 et, seq., 5th ed.
    II. The court erred in overruling the motion of defendant to dismiss the proceeding on the ground that, upon the issues raised by the answer, the defendants were entitled a trial by jury, and the probate court had not constitutional power to determine the same. The probate court, in eminent domain proceedings, is a court of special and strictly limited jurisdiction. Railroad Company v. Marshall, 11 Ohio St. 497; approved in principle, 45 Ohio St. 145.
    The proceeding was one in which the plaintiff could recover a judgment for money only — he could not recover the land. Platt v. Penn'a Co., 43 Ohio St. 229; Goodin v. Canal Co. et al., 18 Ohio St. 169. And such case, whatever form the pleadings may assume, or whatever the character of claim made, or of the proceeding in which it is made, is triable only to a jury. Revised Statutes, 5130; Alsdorf v.
      Reid, 45 Ohio St. 653; Gunsaullus, Adm'r, v. Pettit, Adm'r, 46 Ohio St. 27.
    The defendant, by denial of title, denied the legal capacity of the plaintiff to institute such a proceeding — because it can be commenced only by the owner of land. Revised Statutes, 6448. And this question of legal capacity to sue when the judgment asked is for money, has been twice decided by this court to be triable to a jury. Presb. Soc. Gallipolis v. Smithers et al., 12 Ohio St. 248; Drea v. Carrington, 32 Ohio St. 595.
    The probate court had jurisdiction in such a proceeding as this instituted by the plaintiff, only when the plaintiff was owner of the land. Revised Statutes, 6448. When that ownership was denied, the right of the defendant to the trial by jury, of the issue thus made, at once arose, and the jurisdiction of the probate court under the above authorities was not sufficiently broad to determine the question, and proceed to a determination of the cause.
    The only alternative to the position that this is a proceeding in which a money judgment was sought, is that it was a question of title to specific real property, Railroad Co. v. Robbins, 35 Ohio St. 531, and this has always, to be sure, in Ohio, been one for trial to a jury only. Revised Statutes, 5130. And it is a right which the legislature is not competent to abridge by authorizing the probate judge to determine such a question. Gunsaullus, Adm'r, v. Pettit, Adm'r, 46 Ohio St. 27, and 45 Ohio St. 653, supra. This, with the guarantee of the 5th section of the 1st article of the Constitution of Ohio, “ The trial by jury shall be inviolate,” meaning, as determined in Willyard v. Hamilton, 7 Ohio 2, pt. 111, and Work v. State, 2 Ohio St. 296, that trial by jury as it existed at common law is the irrevocable right of every citizen of Ohio, “ a claim to which should be ever listened to with attention and' earnestness,” seems to us puts the right of the defendant to trial by jury in this case beyond question, and that the denial of it is not only error — it is a denial of justice.
    III. It may not be improper, however, to consider the claim made by the defendant in error in the lower courts, and on which these courts rested their decisions, viz.: That the trial and decision of the question of title was not necessary to the trial of the case had in the court below. This for the reason that Revised Statutes, 6442, provided that, when in trial of such a case there are diverse or conflicting claims, legal or equitable, to the real estate, or any interest therein, the jury or court shall not pass upon the case, in the proceedings for appropriation, but such claims shall be reserved for adjudication to the court of common pleas. , *
    A moment’s consideration of the statutes would seem sufficient to dispose of this position. Revised Statutes, section 6442, clearly does not provide for reserving the question of title when the controversy as to ownership is between the appropriating company and defendants, but extends only to cases where the appropriating company confessedly not being owner, there is a controversy amongst the persons by it acknowledged to be owners as to their respective interest in the lands. This controversy involves, necessarily, a question of title, which can be settled only by a jury or a court of equity, and, therefore, recognizing the principle for which we contend, the question is reserved to a court with competent constitutional powers to determine the same.
    The reasons for the construction we claim for the statute are as follows: Revised Statutes, 6448, prescribes the character of petition that must be filed in such a case. The allegations shall be (and in this are) 1. Ownership of land; 2. Use and occupation by the company; and 3. That the company has no legal or equitable right to the land.

      S. L. Qlarlce and W. S. Anderson, for defendant in error.
    I. The Lawrence Railroad Company does not claim any ownership, except by breath of counsel; does not allege this contract was in writing; does not allege that this contract was prior to the building of its road; does not allege that the terms and conditions of the so-called contract, were ever complied with; does not allege that the contract was complied with; does not allege that the contract had been assented to at a regular or special session of the county commissioners and entered in the minutes of their proceedings, something that is essential to the validity of every contract entered into by the county commissioners (Revised Statutes, sec. 878); does not allege that the county commissioners were the owners of said highway, or had any unusual authority over said highway; and does not allege any power or authority in the county commissioners to contract with reference to plaintiff’s land.
    County commissioners have only statutory powers. 10 Ohio St. 515, 520, 521. Their powers are strictly construed. 11 Ohio St. 188, 190 ; cited 21 Ohio St. 43 ; Commissioners v. Railroad Co., 45 Ohio St. 401, 403. The case of this same railroad company, The Lawrence Railroad Co. v. Sarah Williams, 35 Ohio St. 168, seems to settle the law in Ohio, that the owners of the fee in the highway may compel such appropriation, and the plaintiff’s interest in the highway is private property within the meaning of the constitution. These new uses of the street in the absence of any agreement with the adjacent landowner, or of an appropriation of the right to so use the street by a proceeding for that purpose, could not become complete until the same had been so used for the period of 21 years. Railroad Co. v. Hambleton, 40 Ohio St. 496, 502; Tootle v. Clifton, 22 Ohio St. 247-253; Valley Railway Co. v. Franz, 43 Ohio St. 623-625.

      Lawrence Railroad Co. v. Commissioners, 35 Ohio St. 1, also throws light upon the second and third defenses of The Lawrence Railroad Co., to which demurrer was sustained, as to the alleged contract with the county commissioners, and the action of the city of Youngstown thereunder, and also the finding of the jury that there was no such agreement; also (p. 30) that the statute of limitations does not apply in such a case.
    But it is claimed that the answer of The Lawrence Railroad Co. states a defense to the plaintiff’s claim perfect under Revised Statutes, sec. 3283. . What has sec. 3283 got to do with the plaintiff’s lawsuit ? And even if see. 3283 governed, the agreement must be such an one as the public officers and authorities could make, and made according to law. This section provides for the recovery of damages for injury done to property where the property itself is not taken, and is not applicable where there is a taking of property within the meaning of the constitution. It has reference entirely to a civil action brought in the court of common pleas, just as in the Mowatt case, referred to, 35 Ohio St. 284. In the Mo-watt case there was no taking of property ; it was an incidental injury, and of course was governed by sec. 3283. State v. Railway Company, 37 Ohio St. 157-170.
    II. This action was brought under sec. 6448 of the Revised Statutes under the notice given, the railroad company had the right, under the statute, to proceed, under chapter 7, to appropriate this land, and under sec. 6419 can publish notice and bring in any one having an interest in the property. . It does not claim the land so occupied or used had been appropriated and paid for, which is the material fact in the notice and the proceedings. The material facts in the petition would be the fact of such use or occupation by the corporation, and that it had no right, legal or equitable, thereto. It would seem that, under sec. 6448, the question of title did not properly arise. The question for the railroad company to determine, is has it appropriated and paid for the land specified in the notice, and described in the petition ? If it has not, then the .land must be owned by some person, and nowhere does it appear in this record that either of said railroad companies claims to own said land; if the railroad companies were in doubt as to the ownership, they had a right to commence their proceedings- and bring in any person who might have an interest in the land. Revised Statutes, sec. 6418, 6419.
    After the proceedings are commenced, as provided for in Revised Statutes, sec. 6448, the proceedings should be conducted to final judgment, as provided in chapter 8 of Revised Statutes.
    Corporations are entirely under legislative control. Railway Company v. Schultz, 43 Ohio St. 270, 274; Railway v. Railway, 30 Ohio St. 614; Railway Co. v. Sharp, 38 Ohio St. 150, 152.

      The act giving probate courts jurisdiction as to appropriation of property, is constitutional under sec. 8, art. 4, of the constitution. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308; 30 Ohio St. 604, 616; 34 Ohio St. 114, 121; R. R. Co. v. Marshall, 11 Ohio St. 497.
    But does the constitutional right of the trial by jury in any .event apply to this class of cases? Why is not the statute, under which this action is brought, the mean adopted, or mode of proceeding to enforce legal rights ? If so, it is well settled in Ohio, that these are at all times within legislative control. Railroad Co. v. Commissioners, 31 Ohio St. 338; Rairdon v. Holden, 15 Ohio St. 207, 211; Green Township v. Campbell et al., 16 Ohio St. 11, 17; Seely v. Thomas, 31 Ohio St. 301; Bullock v. Dorn, 44 Ohio St. 420.
    This court, in Skerrett v. Presbyterian Society, 41 Ohio St. 606, on page 630, where this very question of the right of trial by jury in an appropriation matter is considered, says, that sections 6442, 6443 and 6444, do not grant any right to a trial by jury; and under these sections why would the parties not be more entitled to the right of a jury than any case that could be raised under sec. 6448 ? Under sec. 6448 this court also says, that the sections under consideration only preserved existing rights as to mode of trial. If the legislature can so preserve existing rights as to mode of trial under theste sections, why cannot it do the same under 6448? Is there any difference, except under 6448 it is a railroad corporation that is to be compelled to obey the constitution and the laws of the state, and under 6442, 6443 and 6444 the money representing the value of the land is in litigation, while in the case at bar, properly speaking, it is only preliminary questions that are to be tried by the court. Why does not that decision in principle settle the jury question in this case?
    But why does not Revised Statutes, sec. 6400 settle the entire matter ? Under this section the probate judge may, in his discretion, order any question to be tried by a jury, if demanded. The defendants were very careful not to demand a jury, and did not want a jury. It was a jury that they were particularly afraid of. If they had demanded a jury the probate judge could have then exercised his discretion, and even then matters within his discretion would only be reviewable where his discretion had been abused. 1 Ohio St. 286; 9 Ohio St. 397.
    The record must show that a jury was demanded and re.fused, or constitutional objection does not apply. Klonne v. Bradstreet, 2 Handy, 74, 77. Again, the constitution only gives the right of trial by jury where the right of trial by jury existed at common law. Hagany v. Cohnen et al., 29 Ohio St. 82, 84; Schroyer v. Richmond, 16 Ohio St. 455, 467.
   Minshall, J.

On May 20,1885, Patrick O’Harra, Jr., filed a petition in the Probate Court of Mahoning county, against The Lawrence Railroad Company, and its lessee, the Pennsylvania Company, to compel the company, under the provisions of section 6448, Revised Statutes, to appropriate its track upon lands claimed to be owned by the plaintiff, and particularly described in the petition.

To this petition three defenses were interposed by The Lawrence Railroad Company:

First. A denial that the plaintiff is the owner of the land.

Second. That its railroad track was constructed in the year 1867 in a regularly laid out and established highway that had been used by the public for more than forty years prior thereto; that prior to the building of its road, it entered into a contract with the commissioners of Mahoning county, whereby it was granted the right to construct its road in said highway; that said highway was occupied by it in accordance with the terms of the contract, and is the land claimed by the plaintiff. Wherefore the defendant claimed that the action, not having been commenced within two, four, six, or even ten years from the completion of its line of railway, is barred by the statute. Section 3283, Revised Statutes.

Third. That subsequent to the building of said railroad, to wit: in the year 1868, the city limits of the city of Youngstown were extended, so as to bring within said city the part of its railroad track concerning which the plaintiff makes complaint. That after such extension of its limits, the city of Youngstown ratified and adopted the contract made between the defendant and the commissioners of Mahoning county, and brought an action upon the same, in the year 1872, against the defendant, claiming damages for non compliance with some of the conditions of the contract. That at the January term of the Court of Common Pleas for Mahoning county, for the year 1873, judgment was duly entered in favor of this defendant, and against the city of Youngstown, which still stands unreversed and unmodified. Wherefore, the plaintiff should not recover, for the reason that his alleged cause of action did not accrue within two, four, six or even ten years from the entering of said judgment.

The court sustained a demurrer to the second and third defenses, which is assigned for error.

After the demurrer was sustained, The Lawrence Railroad Company filed an amendment to its first defense, intended to make the denial of the plaintiff’s title more definite; and then moved to dismiss the proceeding on the ground that the title of the plaintiff to the land being put in issue, the court was without jurisdiction to hear and determine the same, as it was entitled to a jury trial upon the issue, which, as claimed, could not be had in that court. This motion was overruled, which is also assigned for error.

Thereupon the court, no jury being demanded, proceeded to determine the preliminary questions, and found that the plaintiff is the owner of the land; that The Lawrence Railroad Company in 1867 located and constructed its road upon it; that in 1871 the Pennsylvania Company took possession of it under a lease, and has ever since continued to use and occupy it; that the land has never been appropriated, and that the plaintiff is entitled to compel the defendants to proceed and appropriate and pay for the land. To which exceptions were reserved. •

It then appears from the record, that without waiving the benefit of any exceptions to the previous rulings of the court, to which the defendants had reserved exceptions, it was expressly agreed by the parties, that the empaneling of a jury should be waived, and that the amount of compensation due the plaintiff for the appropriation of the land, should be considered the sum of $900, and should stand for the verdict of a jury, as fully as if a jury had been empaneled and returned a verdict for that amount.

A motion for a new trial was then made, overruled, and a bill of exceptions taken and made a part of the record, and judgment rendered for the plaintiff, which was affirmed on error in the court of common pleas, and, also, by the circuit court.

The following assignments of error are relied on, for a reversal of the judgment in each of the lower courts:

1. The court erred in sustaining the demurrer to the second and third defenses of The Lawrence Railroad Company.

2. The court erred in overruling the motion to dismiss the proceeding on the ground before stated.

3. The court erred in finding the plaintiff to be the owner of the land.

The ground of the first defense is that the proceeding to compel an appropriation of the land in question was barred under the provisions of section 3283, Revised Statutes-. This section incorporates the provisions of the act in force at the time the company took possession of the land, and, under which, it has continued to occupy the same as a roadway. 54 Ohio Laws, 133, § 12, When it is necessary in the location of any part of a railroad to occupy any public road or street, it authorizes the railroad company and the public authorities having control of such highway, to agree upon the manner, terms and conditions upon which the same may be done, with the proviso that the company “ shall be responsible for injury done thereby to private property lying upon or near to such ground, which may be recovered by civil action brought by the owner before the proper court, at any time within two years from the completion of such track.”

It is apparent from its terms, that this case does not come within the provisions of this statute. It is not a suit for injuries done to any property lying upon or near tbe roadwaj1-, and to which the statute only by its terms applies; it is a suit brought by one claiming to be the owner in fee-simple of the roadway itself, to compel the company to appropriate and pay for the land as provided in section 6448, Revised Statutes. The fact that the road was occupied by the company under an agreement with the commissioners of the county, as provided in section 3283, does not in any way affect the right of the owner in fee of the soil of the road to be compensated for the appropriation of his property. The distinction is properly stated in Railroad Co. v. Williams, 35 Ohio St. 168, 172, where it is said, “in such case, the rights of the public, and the rights of the owner, are- entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other.” Where, however, the highway is occupied by the company under an agreement with the public authorities having control of it, the owner may compel the institution of proceedings for its condemnation under section 6448, Revised Statutes. Railroad Co. v. Robbins, 35 Ohio St. 531; Railroad Co. v. Williams, supra. The remedy in such case is a substitute for an action to recover the possession, and we fail to perceive why it should be barred in any shorter period than an action for such purpose; particularly, as it would seem, that when a highway has been taken possession of by a railroad company under an agreement with the public authorities, a proceeding to compel condemnation is the only remedy of the landowner. Railroad Co. v. Robbins, supra.

It would have been entirely competent for the legislature to have limited the right of a landowner to two years, in which to compel a condemnation of his property in a case like this; and it would also have been an easy matter to have done so, if such had been the purpose; but, under a well settled rule of construction, the employment of language which does not include the landowner, excludes any such purpose as to him on the part of the legislature.

The ground on which the third defense is based, seems far fetched. How the landowner could be affected by the result of a suit between the Railroad Company and the city of Youngstown, and to which the landowner was not a party, is not readily perceived. The court did not, therefore, err in sustaining the demurrer to each of these defenses.

As to the jurisdiction of the court: The claim here made is, that, where the company denies the title of the landowner, the court is without power to determine the issue, and must dismiss the proceeding, on the ground that an issue of fact as to title can only be determined bjr a jury, if demanded by either party, which, as claimed, cannot be had in the probate court.

It is quite clear a probate court may be clothed with such jurisdiction bj1- the legislature. It is declared by the constitution to be a court of record; that it shall have jurisdiction in various matters peculiar to a probate court, and finally, “ such other jurisdiction in any county or counties, as may be provided by law.” Sections 7 and 8, article 4, constitution. The last clause has been held to be enabling and not restricting ; and that what may be conferred on a probate court in one or more counties, may, by a general law, be conferred on it in all the counties of the state. Giesey v. Railroad Company, 4 Ohio St. 308-320. So that under the constitution the probate court has capacity for receiving jurisdiction quite as great as that of the coui’t of common pleas. It is not a court of general jurisdiction; but that is because such powers have not been conferred on it by statute as have been conferred on the common pleas. So that the question here is, not what capacity has been given the probate courts of the state by the constitution, but what jurisdiction has been conferred on them in the several counties of the state, by the legislature.

Section 6448, Revised Statutes, provides, in substance, that when any incorporated company of this state, clothed with the power of eminent domain, is occupying the land of any person, that has not been condemned, or is not held under an agreement with the owner, the owner may, by filing a petition in the probate court, compel the company to condemn and pay for the land. There can be no question but that the legislature intended by this section to clothe the probate court with power to hear and determine all questions connected with the proceeding — the title of the claimant to the land, as well as the compensation to be paid for its use. It could not have been the intention of the legislature that the jurisdiction of the court to hear and determine the matter, should be made to depend upon the kind of answer the company might make, irrespective of its truth. If that were so, it would amount to an anomaly in procedure, for the power to hear and determine is of the essence of all jurisdiction.

But if, in the trial of the case, an issue of fact may arise that can only be determined by a jury, should it be demanded by either party, then, in order that it may be said that the court has jurisdiction, it must appear that it is also clothed with power to empanel a jury to try the issue ; otherwise its jurisdiction is defective, and cannot be said to exist; and it would seem that there cannot be much doubt that such would be the right of either party, in a proceeding to compel the appropriation of land by a railroad company. The party instituting the proceeding must be the owner of the land, or of some interest in it. If this be denied, the issue to be tried would be the same as if a suit had been brought to recover the possession, in which either party is entitled to a jury upon any issue of fact arising in the case. The change in the remedy from a suit to recover the possession to a form of proceeding in which the value, instead of the land, is recovered, should not be held to deprive either party of the mode of trial to which he would have been entitled, if the suit had been to recover the possession, instead of the value of the land. Hence the question in the case seems narrowed to the inquiry, whether the probate court may, when the title of the landowner is denied by the company, empanel a jury to try the question of fact so made: For we cannot accept the suggestion, as a solution of the difficulty, that such issue may be reserved for trial in the common pleas, in analogy to the provisions contained in section 6442, Revised Statutes, where, in a proceeding commenced by the company, it may be done, if there are diverse and conflicting claims to the real estate sought to be appropriated.

No express provision on the subject is to be found in the procedure provided by statute for the probate court; indeed the special rules of procedure provided for this court, are quite limited, because, by section 6411, Revised Statutes, all the provisions of law governing civil proceedings in the court of common pleas, are made applicable to the probate court, where there is no special provision on the subject applicable to that court. Again it is provided in section 537, Revised Statutes, that the probate judge shall, in the exercise of the jurisdiction conferred on his court, have the same powers and be governed by the same regulations as are provided by law for the courts of common pleas, and, by section 539, it is made his duty to issue all process and notices, not contrary to law, “ necessary and proper to carry into effect the powers granted to him.”

Now, various methods are provided by statute for empaneling juries in the court of common pleas. Thus the parties may under section 5185 have a struck jury, and under section 5168 special juries may be empaneled by the court. We see no reason why either of these methods for obtaining a jury might not be adopted, under the provisions above referred to, for the purpose of obtaining a jury, if necessary, in any proceeding in the probate court, where there is no special provision applicable to the case. In such case any order which it would be necessary for the common pleas to make in the empaneling of a struck jury or a special jury, may be made by the probate court, because necessary to carry into effect the powers granted it in the trial of an issue on which the parties are entitled to a jury.

The power of the probate judge to empanel a jury, irrespective of special provisions, is recognized in section 6400, Revised Statutes. He is there given a discretion in any civil matter to order the question to be tried by a jury. The conferring of the discretion implies power in the judge to empanel a jury: and, if he may empanel a jury where he has a discretion, he may, by adopting the same method, empanel it where the rights of the parties make it his duty to do so. This provision accentuates, as we think, the construction placed on the sections above referred to; for it can hardly be supposed that the legislature would have conferred a power of this kind, without making some provision for its exercise; and no special provision was made for empaneling a jury, for the reason, doubtless, that, in its view, ample provision therefor was to be found in the provisions for the common pleas, made applicable, as above shown, to the probate court.

The court then did not err in refusing to dismiss the proceeding on the denial of the plaintiff’s title; and, as no jury was demanded, it did not err in proceeding to hear and determine the question of the plaintiff’s title. This it could do where no jury was demanded. Trial by jury cannot be said to be denied where it is not demanded.

It is also claimed that the court erred in finding the plaintiff to be the owner of the land. This is a question of fact, and it is sufficient to say here that there was evidence of a very satisfactory nature tending to support the claim.

Judgment affirmed.


source: Caselaw Access Project

author: Bbadbtjry, J. Minshall, J.

license: Public Domain

text:
    Feuchter v. Keyl et al.

      Wills — Probate of — Refusal to admit to probate, not conclusive against persons having no notice — Such persons may repropound such will— When executor named in will not a representative of the beneficiaries therein— When notice to him not notice to them.

    1. A new remedy provided by statute for an existing right, where it neither denies an existing remedy nor is incompatible with its continued existence, should be regarded as cumulative, and the person seeking redress may adopt and pursue either remedy at his option.
    2. Where admission of a will to probate has been refused by the probate court, persons having no notice of the proceedings and refusal until too late to perfect an appeal to the court of common pleas from the order of refusal, are not concluded thereby, but may repropouud the will notwithstanding the former order of refusal has not been vacated.
    3. One named in a will as its executor, who does not accept the trust, is not the representative of the beneficiaries named therein, and, therefore, a notice to him of proceedings to px-obate the will should not be, by construction, extended to them.
    (Decided May 19, 1891.)
    Error to the Circuit Court of Summit county.
    These proceedings originated in the Probate Court of Summit county, in October, 1885, by the filing of a paper called a petition, in the following words and figures:
    “ To the Honorable C. R. Grant, Judge of the Probate Court in and for Summit county, Ohio.
    Your petitioners, Catherine Keyl and Elizabeth Dietrich, the children and heirs at law of Anna Kath Shook, nee Feuehter, a sister of the said John Feuchter, deceased, George Feuchter, Katherina Walser, Heinrich Feuchter and Christine Feuchter, the children and heirs at law of George Michael Feuchter, a brother of the said John Feuchter, deceased, respectively represent to your honor that by the terms of the last will and testament of John Feuchter, deceased, they are the devisees and legatees of all the said estate of the said John Feuchter, deceased, except the sum of one dollar, given thereby to one Henry Feuchter; that all of your petitioners are residents of Germany, in Europe, and, at the date of the death of said John Feuchter, the filing of said will in this court when proof was attempted to be taken of the execution and acknowledgment of said last will and testament, and judgment was attempted to be entered in this court, refusing to admit said will and testament to probate as the last will and testament of the said John Feuchter, deceased, were resident of and personally present in Germany, in Europe, and not within the county of Summit, or state of Ohio ; that although the place of residence of your petitioners was named in said will, and was well known to Henry Feuehter, the heir at law of all the estate of the said John Feuchter, deceased. Should said John Feuchter finally prove to have died intestate your petitioners, who are the parties interested in sustaining said will and in procuring it to be admitted to probate, had, at the time said last will and testament was offered for probate, no information, notice, or knowledge whatever of the existence of said last will and testament, or of the time fixed for hearing proof concerning the execution and acknowledgment of said last will and testament; that no personal service was had, or attempted to be had, upon petitioners, or either of them ; that no service by publication was had, or attempted to be had, upon them or either of them, and that no information or knowledge of the existence of said will, said hearing, or the pretended judgment which was entered in this court, refusing to admit said will to probate, on the 30th day of April, A. D. 1885, came to any of the petitioners until long after the expiration of ten days from the entry of said pretended judgment; and your petitioners further represent that neither the executor named in said will, nor any interested party offered said will for probate, and no party interested in sustaining said will was notified of the time fixed for said hearing, or present at said hearing; and that the only party present at said hearing was said heir at law, who was then and there represented by counsel.
    Your petitioners now bring said will into court, and present it herewith for the purpose of having it probated according to law.
    Your petitioners further say that said will was duly executed and attested by the said John Feuchter,'deceased; that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint.
    Wherefore, your petitioners pray that the pretended judgment heretofore, to wit; on said 30th day of April, A. D. 1885, entered by the court in its journal, refusing to admit said will to probate as the last will and testament of the said John Feuchter, deceased, may be vacated, set aside and held for naught; that a day may be appointed by the court to take proof concerning the execution and acknowledgmént of said will; that due and legal notice of the date of said hearing, and of the prayer of this petition may be served on all parties in interest, and especially on Henry Feuchter, the heir at law of John Feuchter, deceased, and on the executor named in said will, and said will may be admitted to probate as the last will and testament of the said John Feuchter, deceased, and letters testamentary granted and issued thereon.”
    This petition, upon the motion of the plaintiff in error, was dismissed by the probate court. The defendant in error appealed to the court of common pleas, where, upon motion of the plaintiff in error, the appeal was likewise dismissed. The defendants in error then carried the case to the circuit court on error, which latter court reversed the judgment of dismissal, and remanded the cause to the court of common pleas, to be further proceeded with according to law. "Whereupon the plaintiff in error instituted proceedings in error in this court to reverse the judgment of the circuit court and affirm that of the court of common pleas.

      JT. D. Tibiáis, for plaintiff in error.
    I. As to the judgment of April 30, no notice of an intention to appeal was filed within ten days, nor was a certified copy of the order of the probate court filed before the next term of the court of common pleas, as required by secs. 5934 and 5. Nor was a bond given within twenty days after the making of the order. Sec. 6408. The judgment of October 1 was not one refusing to admit the will to probate. The order from which an appeal was attempted to be taken, was not appealable under any provision of the statute. Sec. 6407.
    II. The record shows that the probate court did not even consider it in the light of an application to probate the will, only the motion to dismiss or strike off was heard, considered or determined. It was only the question whether the probate court had power to vacate such former order.
    The record shows that the probate court simply heard the motion, sustained it and dismissed the petition for want of power to hear it, for want of jurisdiction.
    There certainly can be no doubt that the purpose was to file the petition under secs. 5354, 59, 5360 and 5365, Revised Statutes. Of course on this hearing, and in this contention, we cannot determine the question whether the probate court erred in granting the motion and dismissing the petition; that can only be raised on petition in error to the probate court. But the parties saw fit to appeal.
    It would only need the citation of the case of Johnson's Executors v. Johnson et al., 26 Ohio St. 357, to show that the probate court had absolutely no legal power to vacate its former order, hence did not err in dismissing the then plaintiff’s petition. See also Styner's Case, 33 Ohio St. 491.
    What then was there to appeal from; only an order refusing to entertain and dismissing an application to vacate a former order rejecting and refusing to probate a certain paper as a will. I maintain that no appeal lies from such an order. It is in no sense a refusal to admit a will to probate under secs. 5934 and 5. The order rejecting the will was made April 30, four and one half months before the attempt to appeal was made. No testimony was heard or offered on the last hearing; at most only an application to fix a time to take testimony, in case the former order was vacated; there was no refusal by the court to pass upon the validity of the will.
    The appeal provided for, is from an order rejecting the will. There can be no rejection except on hearing evidence, reducing it to writing, filing and adjudicating upon it, adversely to the validity of the will. The probate court on the 1st of October made no holding or decision on the probate of the will, had no hearing on that subject matter, was not asked to take any testimony, at that time, or made any-ruling concerning the will; all this appears very clearly from the record. Under similar statutes, it has been held that appeals do not lie. Henly v. Hastings, 3 Cal. 341; People etc., ex rel. Green, 43 Cal. 225; Blum v. Bowerstone, 50 Cal. 293; In re Estate of Smith, 51 Cal. 563; Eureka, etc. R. R. Co. v. McGrath, 74 Cal. 49; Aultman Miller & Co. v. Seiberling Co., assignee, 31 Ohio St. 201; Brigel v. Starbuck, 34 Ohio St. 280.
    III. In this contention, it is also sought to raise the question, and review the action of the probate court, as to the sufficiency of the notice on which the court heard the testimony and rejected the will on April 30. But in no event can that question be raised here, or could it have been in the common pleas court on the motion to dismiss the appeal. It was an adjudication made under a statute of this state, and the order remained in full force, unreversed and not appealed from. If the court erred or had no jurisdiction of the parties for want of notice, error alone would be the remedy. Lessee of Swazey Heirs, 8 Ohio, 19; Morningstar v. Selby, 15 Ohio, 364; Taylor, Assignee, v. Fitch et al., 12 Ohio St. 169; Frazier v. Williams et al., 24 Ohio St. 625.
    IY. The effort, if made here, to show that the application of September 14 was a repropounding of the will for probate, is not only disposed of by the record, but the change in the statutes on that subject, since the decisions in the cases of Chapman's Will, 6 Ohio, 148; Hunter's Will, 6 Ohio 499 and Lessee of Swazey's Heirs, 8 Ohio 5, clearly settles the question, that no repropounding of a will can now be had under our present statutes. Chase Stat., vol. 2, pp. 930,1305-7 and vol. 3, 1785-7. Another mode of redress was provided by the statute, namely, a contest in another proceeding.
    It is not perfectly apparent that the probate is binding because a remedy by contest is provided, and a refusal to probate is not final, because no means of redress are provided, and for that reason the legislature provided the means in the way of an appeal to the common pleas, when under section 5935. Can it be successfully claimed that both these remedies are open to parties desiring the probate of a will? Suppose the common pleas rejects the will, can it be again propounded in the probate court ? Why not, if a refusal to probate is not final. To avoid all this delay and uncertainty, and to have the action of the probate court in case of refusing, or admitting' to, probate, equally final and binding, the legislature provided the remedy in each case, one by contest before a jury, the other an appeal to, and hearing by, the common pleas court, and these modes are exclusive and intended to be so.

      This view was fully sustained by the holding of courts under similar statutes. Langkton v. Atkins, 1 Pick. 549; Inhabitants Dublin v. Chadbourn, 16 Mass. 433; Tompkins v. Tompkins, 1 Story R. 552; Bailey v. Bailey, 8 Ohio 339, Poplin v. Hanks, 8 N. H. 124.

      Charles Baird and Edwin E. Voris, for defendants in error.
    Plaintiff in error in his brief either misconceives or misstates the nature of the proceedings in the probate court.
    Our petition was not for the vacation of a former order under sections 5354, 5359, 5360 and 5365 of the statutes. No grounds are stated in the petition which would bring it within the provisions of those sections. We claimed that the order of April 30, 1885, was a nullity, and that we had a right to offer the will for probate as if no such order had ever been made. It was perhaps not necessary to file a petition. All that was really necessary was to go before the court with the will and ask to have it probated; but we wished to get upon the records of the probate court, at the same time that we offered the will for probate, the facts which show that the order of April 30, 1885, was a nullity. To this end we set up in the petition that the order of April 30, 1885, was entered by the probate court without notice of any kind, either actual or constructive, to the defendants in error, or any of them, and that no one interested in having the will proven was notified or appeared in court to sustain the will. Our application was for the probate of the will; and the will itself, as the petition shows, and as the fact is, was offered for probate with the application.
    The appeal taken by us from the probate court was not an appeal from an order refusing to vacate a former order, but an appeal, under sec. 5934 of the statutes, from the refusal to admit the will to probate; and all the authorities cited in the brief of plaintiff in error upon the question as to whether the right of appeal lies from an order refusing to vacate a former order have no application whatever to this case.
    The repropounding of a will, as was done in this case, is no new thing. Prior to the passage of what is now section 5934 of the statutes, it was the recognized law of Ohio that “ an application to prove a will, though rejected, may be made again upon fuller proof. The rejection extinguishes no right, and binds nobody, for there are no proper parties before the court to be concluded.” Chapman's Will, 6 Ohio, 149; Hunter's Will, 6 Ohio, 499 at 502; Swazey v. Blackman, 8 Ohio, 5 at 19.
    Sec. 5934 has perhaps changed the law of Ohio to this extent, that all interested in having a will probated, who were before the court either by proper notice or voluntary appearance at the time of the refusal of the probate court to admit it to probate, are bound by such refusal, unless they appear as provided by the section. But this section certainly does not change the law as to those interested in having the will admitted to probate, but who have no knowledge or notice of the proceeding until more than ten days after the refusal to admit the will to probate. As to such, the rejection extinguishes no rights. The provisions of the Revised Statutes bearing upon the questions involved are found in the following sections: 5917, 5933, 5920, 5921, 5926 and 5934.
    The persons interested in having the'will admitted to probate shall have notice in some manner of the time when the will is to be offered for probate, and an- opportunity to be heard in favor of sustaining the will. Peoria & Rock Island Railway Co. v. Warren, 61 Ill. 52; Atlanta & H. L. R. R. Co. v. Conis, 51 Me. 36; Central Turnpike Co., 7 Pickering 13; Warren Hinckley et al., Petitioners, 15 Pick. 447; Porter v. County Commissioners of Norfolk, 13 Metc. 479; Dickey v. Tennison, 27 Mo. 373; State v. Mayor, 24 N. J. Law 662; Chosen Freeholders v. The State, 24 N. J. Law 718; Vantilbury v. Shann, 24 N. J. Law 740; Chase v. Hathaway, 14 Mass. 222; Windsor v. McVer, 93 U. S. 274; Woodruff v. Taylor, 20 Vt. 65; Bradstreet v. Neptune Ins. Co., 3 Sumn. 607; Booneville v. Omrod, 26 Mo. 193; Corliss v. Corliss, 8 Vt. 373, at 389; Earle v. McVeigh, 91 U. S. 503.
   Bbadbtjry, J.

The only question presented to this court by the record in this cause, is whether the defendants in error had a right to carry to the court of common pleas by an appeal, the proceedings begun by them in the probate court. That right depends upon (1) whether that proceeding is to be construed as an offer to repropound the will of John Feuchter, and (2) were they bound by the order of April 30, 1885, of the probate court, refusing to admit it to probate. The plaintiff in error, without denying the general right of every person interested in the probate of a will, to appeal from an order refusing to admit it to probate, contends that the proceeding begun by the defendants in error was n.ot properly an offer to repropound the will, but was, when correctly construed, a proceeding to set aside the former order of the probate court, and that the order of the probate court dismissing the petition, was one refusing to set aside that former order, and not one refusing to admit the will to probate, and, therefore, did not fall within section 5934, Revised Statutes, which authorizes an appeal from an order of a probate court refusing to probate a will. Plaintiff in error further claims, that the order of the probate court, made April 30, 1885, refusing to probate the will, not having been appealed from, is binding on all parties claiming under the instrument, and precludes them from again presenting it for probate. If the plaintiff’s contention, in either respect, is correct, he should prevail. We will consider first the character of the order of the probate court, made April 30,1885, refusing to admit the will to probate, and the circumstances under which it was made.

The first step taken that led to the making of that order was a notice by a postal card, mailed Thursday, April 23, 1885, to the person named in the will as executor, that it would be offered for probate on the following Saturday (April 25). He appeared at the hour named, and after hearing the will read, left the court before any testimony was taken, and has not since appeared, accepted the trust, or taken any apparent interest in the matter. No attempt was made to give any other notice, and, in fact, the defendants in error, though the only beneficial devisees under the will, had no knowledge that it was to be offered for probate, or of its rejection, until the time prescribed by statute, within which an appeal could be taken, had elapsed.

It is a fundamental principle of all rational systems of jurisprudence that one having no notice, either actual or constructive, of a judicial proceeding, should not be concluded by it. The principle is forcibly stated by Justice Field in Windsor v. McVeigh, 93 U. S. 274. “Wherever one is assailed in his person or property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal,” Id. 277. It is said that notice to the individual, who had been named in the will as the executor thereof, was by relation notice to all the devisees therein. It is no doubt true that an executor, after he has accepted the trust and entered upon its execution, is in many respects the representative not only of the estate, but of all persons interested therein. This principle, however, cannot reasonably be extended to a case, like the one before us, where the person named as executor repudiates the trust, and never in the slightest degree enters upon its execution. He is in all essential respects a stranger to the parties, and not their representative.

The rights of the defendants in error, however, do not depend solely upon this universal principle. By the law of Ohio, as declared by this court at an early day, the refusal to propound a will is not conclusive of the right to propound it, but, instead, it may be offered again for probate at the pleasure of any one interested therein. In the Matter of Chapman’s Will, 6 Ohio 149; Hunter’s Will, Id. 502; Swazey v. Blackman, 8 Ohio, 5-19. In 6 Ohio, 149, Lane, J., says: “An application to prove a will, though rejected, may be made again, upon fuller proof. The rejection extinguishes no right, and binds nobody, for there are no proper parties before the court to be concluded.” In Hunter’s Case, 6 Ohio, 502, Weight, J., uses the folio wipg language: “ The application to make probate of a will is not included in the definition either of an action or suit. It belongs neither to the common law nor equity jurisdiction conferred upon the court of common pleas, but appertains to the ecclesiastical jurisdiction of the English courts, which is specially conferred upon our courts of common pleas as courts of probate. The proceedings to make probate of a will are ex parte, not adversary. No process is required to notify any whose interests are to be affected. No one is necessarily before the court, other than the party applying to prove the will. No judgment is given. The order of probate is not conclusive upon the subject of it, for the statute law expressly provides a way in accordance with the common usages of chancery to contest and vacate the probate, if allowed. If rejected, another application may be made, and probate established on new and better proof.”

G-kimke, J., in 8 Ohio, 19, says: “ When a will of real property is offered for probate, in Ohio, a sentence of some kind is pronounced upon it; the proof is declared to be sufficient or insufficient; in the one case it is accepted, in the other rejected. If it is rejected, it may still be repropounded for probate.”

It is contended, however, on behalf of the plaintiff in error, that whatever the rule in this state may formerly have been respecting the right to repropound a will after it has been rejected, the right no longer exists; that the right of appeal provided by statute since the cases in 6 Ohio and 8 Ohio, supra, were decided, supersedes and renders unnecessary the right to repropound a will in the probate court after its rejection there. It is true that, at the time those cases were decided, there was no right of appeal from a refusal to admit a will to probate, and that subsequently such right was provided by statute, and is now embodied in the revision of 1878, section 5934, Revised Statutes: “In case of the refusal to admit a will to probate, any person aggrieved thereby may appeal from such decision to the next term of the court of common pleas, by filing notice of his intention to appeal .within ten days.”

The policy of this state from an early period in its legal history has favored the probating of wills. The present statutes, as well as those that preceded them for fifty years, or more, regulating the practice on this subject, have not authorized one opposed to probating a will to support his contention by evidence; to secure this right he has constantly been driven to an independent action, and, since the adoption of the constitution of 1851, to a new tribunal, while the fullest hearing is and has been accorded to those seeking to propound the will. Before the organization of the probate court under the constitution of 1851, no appeal from an order rejecting a will was provided, for none was needed. The court of common pleas had jurisdiction of the subject, one of whose members, by a well established custom, was usually learned in the law, and if a will was offered for probate in the absence of such member, the right to repropound it when he was present gave reasonable assurance that the legal sufficiency of the evidence introduced for that purpose, would be determined by a competent tribunal.

When the probate courts were organized under the constitution of 1851, and jurisdiction of the probate of wills conferred upon them, this important question 'was left to the determination of a single judge, who neither by the statutes of the state, nor by any established custom was required to be a lawyer, and thus the gravest and most valuable interests might be finally determined by one wholly unlearned in the law, if no means were provided to review his action. At this juncture an appeal from a refusal to probate a will was first provided. It was a new remedy to enforce an existing right, and neither in the language selected by the legislature in giving the remedy, nor in the circumstances that attended its adoption, is there any indication of a purpose to make it exclusive. The new remedy is consistent with the continued existence of the old one. They are concurrent remedies to enforce the same right; and the rule is that a new remedy provided by statute does not destroy or take away the old one if the two are compatible. Darling et al. v. Peck et al., 15 Ohio 65; Com’s v. Orr et al., 16 Ohio St. 522; Carter v. Jennings, 24 Ohio St. 182; Black v. Hill, 29 Ohio St. 86. In Darling et al. v. Peck et al., 15 Ohio, 71, the court say: “ Where a statute gives a new remedy without impairing or denying one already known to the law, the rule is, to consider it as cumulative, allowing either the new or the old remedy to be pursued at the option of the party seeking redress.”

The question whether the proceeding begun in the probate court by the defendants in error is to be regarded as an offer to propound the will of John Feuchter, remains to be considered.

. The paper, called a petition, filed by the defendants in error, sets forth the circumstances attending the former rejection of the will by the probate court, and asks that the order of rejection be vacated. It is not material to inquire into the motives of the defendants in error’ in pursuing this course; they may have believed the former order of rejection could be successfully pleaded in bar of their application if not vacated, or they may have been actuated by considerations of extreme caution. In any event, it was not necessary, for the former rejection, as held herein, did not bind them. It is manifest, however, on the face of the application that the object of the defendants in error was to probate the will; the vacating of the former order was ancillary to it, merely. They say in express terms: “Your petitioners now bring said will into court and present it herewith for the purpose of having it probated according to law,” and they pray that “said will may be admitted to probate.” Upon a fair construction this must be held to be an offer to repropound the will.

So of the order of .the court from which the appeal was taken; it was made upon a motion to dismiss the petition, and was in terms a dismissal thereof; it did not contain a word about rejecting the will or refusing its admission to probate. In matters of practice, however, affecting the remedy, courts disregarding the mere forms of entries, should look to the substance of what has been done. The defendants in error had in the probate court a will which they were offering to propound; the proper practice was to hear the evidence, and either reject or admit it to probate. An order is made upon a motion that defeats the proceedings. This order is, in effect, a refusal to probate the will, and should be so regarded, though clothed in language that does not declare this result in express terms.

Judgment affirmed.

Minshall, J.

(dissenting). The giving of the right to appeal in a certain time from the rejection of a will offered for probate, would seem a very useless provision, if, as held, the will may be again propounded at any time thereafter, from which an appeal may then be taken if again rejected. The object of the statute giving the appeal was not, as I think, merely to add a new remedy, but to obviate the mischief under the former practice, by making the action of the court refusing the probate of the will, a finality, unless appealed from in the time limited — the former practice having resulted from the fact, that there was no appeal from the rejection of a will when offered for probate.

It is true that parties without actual notice may thereby be concluded; but they are only such as may derive title under the will, and not otherwise, as the heirs of the testator, if residents of the state, must have notice, and also the executor named in the will.

The right to make a will is derived from statute, it does not exist at common law. And I do not perceive how those who derive their claims from a statute, can be heard to complain of what is given them by statute, or of the terms upon which the statutory right is given. Moreover, the beneficiaries of the will are, as I think, represented bjr the executor in such matters; and, for such reason, the statute requires notice to him; and such notice is all they can require. The construction given the statute leaves the controversy as to a rejected will, open for an indefinite time, and must suspend or embarrass the settlement of the estates of deceased persons.


author: Speak, J. Minshall, J.

text:
    Morgan v. The State.

      Criminal law — Practice—Separate trials of joint defendants — Issue under plea of not guilty — Evidence—Reasonable doubt — Charge of the court— Duty of the court in summing up the evidence.

    1. A statement in a motion for a new trial in a criminal case that “ the court erred in refusing to admit testimony to go to the jury which was offered by the defendant,” is a sufficient statement to bring to the notice of a reviewing court the question whether or not error intervened in refusing to permit the defendant to cross-examine the state’s witnesses.
    2. Where one of several defendants jointly indicted for a felony is tried separately, and the prosecuting witness testifies in chief that the offense was committed by several persons acting together, and testifies to the identity of the defendant upon trial, it is propel-, in cross-examination, for the defense to inquire as to the identity of the other participants, and it is error for the court to refuse to permit such cross-examination.
    3. The plea of not guilty in a criminal case puts in issue all facts material to be proven by the state, as well those relating wholly to the corpus delicti as those relating to the connection of the accused with the offense. The issue thus made is to be tried by the jury and not by the court, and where the defendant has not, by his testimony, or otherwise, admitted the claim of the state as to the body of the crime, it is error for the court to recite to the jury the substance of the state’s evidence giving the details of the circumstances surrounding the commission of the alleged offense, and instruct them that those facts are shown by the uneontradicted evidence in the case.

      i. An instruction to a jury that a reasonable doubt “ is a doubt that you, as jurors, can give a reason for,” is inaccurate and misleading, and the fault is not cured by prefacing the statement with the instruction that “by a reasonable doubt is meant not a captious or whimsical doubt.”
    5. In the trial of a jury case the judge is not required to sum up the evidence. It is not improper to do so providing it is fairly done, and all the material evidence on both sides fairly presented. But it is improper and erroneous for the judge to single out isolated parts of the testimony and instruct as to the law arising on the facts which such testimony tends to prove, or to give undue prominence to some portions of the testimony, and entirely pass over other portions equally important, or give the same but slight attention.
    (Decided May 23, 1891.)
    Error to the Circuit Court of Hancock county.
    At the January term, 1890, of the Court of Common Pleas of Hancock county, the plaintiff in error was jointly indicted with nine others, for the crime of robbery charged to have been committed February 7, 1889, by forcibly taking from the person of one Wesley Oman one hundred and fifty dollars. Being arraigned, the defendants pleaded not guilty. At the March term, 1890, the plaintiff in error was tried separately. The state’s evidence tended to show that the crime was committed in the evening of February 7, at the residence of one Joshua Oman, by seven armed men, disguised by masks, who broke into the house and terrorized the inmates consisting, at the time, of five men, one woman, three boys (two half grown and one small one), in all nine persons. The defendant’s evidence tended to establish an alibi, and good character. The jury returned a verdict of guilty. A motion for a new trial was overruled and sentence pronounced. This judgment was affirmed by the circuit court. To reverse these judgments this proceeding in error is brought.

      Jason Blackford, for plaintiff in error.

      Jas. A. Bope, Prosecuting Attorney, and A. Zugschwert, for defendant in error.
   Speak, J.

The errors complained of relate principally to the refusal of the court to allow full cross-examination of the state’s witnesses, and to the charge of the court to the jury.

I. As to the cross-examination. Benjamin Tremaine, called by the state, testified in chief that he was acquainted with Morgan ; that while the robbers were in the house the evening of the robbery one of the men stood near the lamp, and while there his mask dropped down, and he (witness) recognized him, and knew him to be Morgan. In answer to a question put by prisoner’s counsel the witness testified that he knew three of the robbers. The counsel then asked what three he knew. To this the state objected. The court sustained the objection and refused to permit the witness to answer. Similar questions were asked of other witnesses for the state who had testified that they recognized Morgan. Like objections were sustained, the court holding that “ the witness should give the name of the family who were present, but that he should not mention the names of the other robbers he may have recognized.”

It is difficult to perceive any valid ground for the refusal to allow the questions put in cross-examination to be answered. The charge against Morgan was that he, with others, committed the robbery. The theory of the state’s case was that the crime was the joint act of several. To maintain this theory the state gave evidence of the presence of several persons, and of their acts and declarations. These acts and declarations constituted the thing done — the robbery. The right of cross-examination extends in all cases to all matters connected with the res gestae. Wharton’s Evidence, sec. 529; Martin v. Elden, 32 Ohio St. 282. It was; perhaps, not incumbent on the state to prove identification of any of the alleged robbers save Morgan, but it was the right of the defendant to know, in detail, not only what was done, but, so far as cross-examination would elicit it, who did it, as well as who were present at the time. The effect of the proof of the identification of Morgan might have been materially impaired by statements of the witnesses as to the identification of others, but whatever the probable result, the defense had the right to make the effort. Such cross-examination would have been a test of the accuracy, truthfulness and credibility of the witnesses as to their testimony generally, and especially as bearing upon their identification of Morgan.

The ruling is sought to be justified on the ground that the identity of those persons other than Morgan was immaterial, and that the inquiry as to their identity would have unduly prolonged the trial, and led to a trial, in the Morgan case, of the guilt of the others who might have been identified. We have already commented on the materiality of the attempted cross-examination. As to the other objection it is sufficient answer to say that the right of a party to a fair cross-examination is not to be determined by considerations of convenience, nor is that right to be curtailed because such cross-examination, and pertinent evidence following it, might have tended to show that persons other than the one on trial, charged in the same indictment, are or are not guilty. And no reason is perceived why the defense would not have had the right to endeavor further to discredit the testimony of the witnesses for the state by offering proof contradictory of their statements as to the presence and participation of persons other than Morgan at the Oman house that evening.

It is urged that the question is not before this court because the objection is not made in the motion for a new trial. One ground stated in the motion is “ that the court erred in the refusal to admit testimony to go to the jury which was offered by the defendant.” This assignment is quite general, but we think that, giving to it that liberal construction Which courts give to language in aid of justice in criminal cases, it should be held sufficient. The offer was to elicit evidence from the state’s witnesses. The court excluded it, and exception was duly entered. Had the counsel stated what he expected to prove, no one, we presume, would doubt that the assignment in the motion would be broad enough to cover it. We cannot see that, in principle, the case is any different by reason of the fact that no such statement was made, for in cross-examination it is not incumbent on the counsel to disclose what he expeots to prove. Martin v. Elden, supra.

We are also of opinion that the cross-examination of the prosecuting witness in regard to an attempt to procure a confession from Morgan, and the employment of Frey for that purpose, should have been permitted. The conduct of a prosecuting witness looking to the discovery of the criminal after the commission of the alleged offense, is always a proper subject of inquiry by the defense. Such inquiry often throws light upon the state of mind and animus of the prosecutor, and serves to test his standing as a witness and the value of his testimony in chief, and the good faith of the prosecution. Within reasonable limits it should be permitted.

2. As to the charge to the jury. Of the many exceptions to the charge, some, we think, are well taken, and while the court might not feel compelled to reverse the judgment of conviction on the charge alone, yet as the case will go back for a new trial, it may be worth while to briefly call attention to some of the objectionable features.

We suppose it to be a settled rule that all facts in issue must be determined by the jury. A party on trial may directly admit facts necessary to the state’s case, and when that is done such facts may be regarded as undisputed. But where a defendant disclaims knowledge as to the truth or falsity of facts essential to the case of the state, it does not follow that they are admitted, or that they are undisputed, because the effect of the plea of not guilty is to put in issue all facts not distinctly admitted. Though no witness has denied the particular facts, yet the plea of not guilty is, in legal contemplation, a denial of them.

The court, in the charge, said to the jury “ that the uncontradicted evidence in the case shows that on February 7, 1889, at the county of Hancock, one Joshua Oman was a farmer living on his farm in Eagle township; that there resided with him at that time Henry Oman and John Oman, his two sons, who were bachelors; also his son, Wesley Oman, with his wife and two little children; also a young man named Benjamin Tremaine. On the evening of said 7th day of February, 1889, Joshua Oman, with his family of children, sons and grandchildren, were sitting around their fireside in the peace and quiet of their country home, when suddenly, without warning, seven men with masks on their faces, a revolver in one hand, and a club in the other, broke in upon that quiet, seized and bound each and all of them, placed revolvers at their heads, with threats demanded their money; searched and ransacked bureaus, trunks, and all places where it was thought money might be concealed. John Oman, who sprang for the gun, was fired at. One of them stood by Wesley Oman with drawn revolver at his head, while others searched his pockets, and took therefrom the' sum of one hundred and fifty dollars. So far the evidence is uncontradicted.”

It is altogether probable that the jury in this case would have agreed with the judge, without direction, that the facts stated by him were conclusively shown. Yet the defense had introduced testimony tending to show contradictory statements on the part of some of the state’s witnesses, especially as to the identity of the participants, which, to a greater or less degree, tended to weaken the force of all their statements, and it was the right of the defendant to endeavor, by all legitimate argument, as well as by cross-examination, to create a doubt in the minds of the jurors, and it was the province of the jury, and the jury alone, to determine whether or not a crime had been committed, and if it had been, the time of it and the manner of it, as well as who were the perpetrators.

It is insisted that the charge in this particular is sustained by the holding of this court affirming the judgment below in the recent case of Whiting v. The State, ante 220. We think not. In that case the judge, in commenting on an admission made by a witness for the state in open court, before the jury, remarked in the charge that the witness “ admits her complicity in the crime.” The expression may not have been an entirely happy one, but the court submitted the witness’ entire statement to the jury with the instruction “ that such evidence should be cautiously received and closely scrutinized.” There is no parallel in the two cases.

It is urged as error that in defining the term “reasonable doubt” the court said to the jury: “By ‘reasonable doubt’ is meant not a captious or whimsical doubt, but a doubt that you as a juror can give a reason for.” This objection does not impress us as of the highest consequence. Yet, as the point is made, we take occasion to say that the last clause of this instruction appears to be inaccurate. What kind of a reason is meant? Would a poor reason answer, or must the reason be a strong one ? Who is to judge ? The definition fails to enlighten, and further explanation would seem to be needed to relieve the test of indefiniteness. .The expression is, also, calculated to mislead. To whom is the reason tobe given? The juror himself ? The charge does not say so. And jurors are not required to assign to others reasons in support of their verdict. The correctness of this definition is doubted in People v. Stubennoll, 62 Mich. 329, and in Rhodes v. State, (Indiana,) 27 N. E. Rep. 866, and held erroneous in Cowan v. State, 22 Neb. 519, and in Carr v. State, 23 Neb. 749. It is not easy to define, in a few words, what a reasonable doubt is, and, in some jurisdictions, it is deemed good practice not to attempt any explanation. In this state it is common to define the term. When it is attempted, the explanation should be an accurate one. Perhaps no more satisfactory definition is to be found than that given by Chief Justice Shaw, in the Webster Case: “It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” The definition given by Birchard, J., in Clark v. The State, 12 Ohio, 483, is also well established as a safe one, and its sufficiency is not impaired by its age. It is safe to follow established precedents.

A further objection to the charge is, that, in summing up, the court gave undue prominence to certain portions of the evidence on the part of the state, and gave little or no attention to evidence contra on the part of the defendant. Many of the objections argued seem trivial. Some, however, we think are substantial, but space forbids a detailed examination of the charge in these particulars. We assume it to be the law, that, while it is not, in this state, the duty of the trial judge to sum up the evidence to the juiy, yet it is not improper to do so providing it is fairly done, and all the material evidence on both sides is fairly presented. The judge should not single out isolated parts of the testimony, and instruct as to the law arising on the facts which such testimony tends to prove, nor give undue prominence to certain portions of it, and especially ought he not to review with emphasis only those facts which have a tendency to establish one side of the case. When one single fact is selected and strongly commented on, the tendency is to distort its importance in the estimation of the jury, and to concentrate attention too intently upon it, to the undervaluing of the rest of the evidence. Thompson on Charging the Jury, p. Ill, and cases cited.

An examination of the charge indicates that this wholesome rule was, through inadvertence it is presumed, not fully observed in the trial of this case. A suggestion of the rule by this court is doubtless all that is necessary to secure a full observance of it at another trial.

If the state’s witnesses truthfully told the occurrences of February 7, at the Oman homestead, a highhanded outrage was committed; one calculated to cause much excitement and just indignation in the community, which would naturally be shared, to a greater or less extent, by the jury, as the incidents were related from the witness stand. In such cases a special duty devolves upon the trial court to conduct the trial in such manner that the excitement and indignation shall not work injustice to the defendant, and deprive him of a right the constitution and the laws guarantee him, viz.: a fair trial. And where, from the record, it is apparent to a reviewing court that the case has been so conducted that a fair trial has not been had, it becomes the duty of that court to reverse the judgment.

Judgment reversed.

Minshall, J.

(dissenting.) I do not concur in the criticisms on the charge of the court. It is not exactly Addisonian in style, nor does it make any pretensions of that kind. It is, however, about as perspicuous as most charges that come before us, and as free from any apparent purpose to unduly influence the jury in the performance of its duty. And, in particular, I disagree with the criticism on what the court said in defining a reasonable doubt. How any doubt can be a reasonable one, for which no reason can be given by the juror, I am unable to see. Therefore, I cannot see in what way the court erred in saying, it must be a doubt for which a reason can be given. It is asked, who shall determine? I answer: The juror for himself. It is a matter between himself and his conscience. And if, in his own conscience, he can give no reason for a doubt started in his mind, he should treat it as an unreasonable one. I do not dissent from the judgment of reversal.