author: Wan am aker, J.

text:
    Rogers v. The State of Ohio. Carmack v. The State of Ohio. Rogers et al. v. The State of Ohio. Rogers et al. v. The State of Ohio. Rogers et al. v. The State of Ohio. Carmack v. The State of Ohio. Rogers v. The State of Ohio. Rogers et al. v. The State of Ohio. Rogers et al. v. The State of Ohio. Rogers et al. v. The State of Ohio.

      Jurisdiction of subject-matter fixed by law — Jurisdiction of person fixed by consent of parties, etc. — Probate court prosecutions— Under Sections 13195 and 13225, General Code — Information must be filed under Section 13441, General Code — Liquor laws.

    1. Jurisdiction of the subject-matter is always fixed and determined by law, while jurisdiction of the person may be fixed and determined by consent of parties, failure to timely and properly object, and the like.
    2. In prosecutions begun in the probate court, under favor of Sections 13195 and 13225, General Code, information must be filed by the prosecuting attorney in accordance with Section 13441, General Code, before the probate court has jurisdiction to try such prosecutions.
    (Nos. 13787 to 13791 and Nos. 13856 to 13860
    Decided February 11, 1913.)
    Error to the Circuit Court of Wood county.
    Facts stated in opinion.

      Mr. Benjamin F. James, for plaintiffs in error.

      Mr. Chas. S. Hatfield, prosecuting attorney; Mr. W. B. Wheeler and Mr. J. A. White, for defendant in error.
   Wan am aker, J.

The first five of the foregoing criminal cases charge the “keeping of a place” where intoxicating liquors are sold, in violation of law, contrary to Section 13195, General Code. The last five of the foregoing criminal cases charge “selling intoxicating liquors contrary to Section 13225, General Code.”

These ten cases were tried, and judgment rendered in each of said cases against the defendants below, by the probate court of Wood county. The judgments were affirmed by the common pleas and circuit courts, and error is now prosecuted to the supreme court to reverse such judgments. Inasmuch as these ten cases all involve the same single question of jurisdiction, at the suggestion of counsel, they are submitted, considered, and decided together.

The prosecutions in each case were founded upon an affidavit charging in legal form an offense under the respective statutes.

No information predicated upon such affidavit was filed in any of the foregoing cases. Thereupon, the several defendants below, at various stages and in sundry ways, challenged the jurisdiction of the court to try said cases and render judgment therein, contending that the absence of any information was fatal to the jurisdiction of the probate court.

Did or did not the probate court have jurisdiction? That is the question.

The probate court is limited to such jurisdiction as the legislature has defined by statute. In criminal cases it is given jurisdiction in misdemeanors concurrent with the court of common pleas.

That limited jurisdiction applies not only to the subject-matter but likewise to the procedure prescribed by statute.

The general statute defining the procedure for misdemeanors prosecuted in the probate court, is Section 13441, General Code, which reads: “An indictment is not required in cases in which the probate court has criminal jurisdiction. The prosecuting attorney shall forthwith file an information in such court setting forth briefly in plain and ordinary language the charges against the accused and he shall he tried thereonSubsequent sections further define the general procedure all based upon an information in such court.

Manifestly, therefore, every statute defining a misdemeanor must follow the general procedure provided for in the general statutes pertaining to the probate court, unless there be special and particular provision made to the contrary.

If a criminal prosecution be commenced in the common pleas court, we would all understand it would have to proceed by the general method of indictment by a grand jury, unless it were otherwise specially provided; and, if there were to be a like prosecution begun in the probate court, we would understand that it would have to proceed by information of the prosecuting attorney, unless it were otherwise specially provided.

Section 13195, pursuant to which the first five cases were brought, does not provide for any special procedure; neither do any cognate sections of said 13195. The same is true of Section 13225, under which the last five cases were brought.

The State of Ohio’s contention that no information was needed to give the probate court jurisdiction, is based upon Sections 13244 and 13245, General Code, passed February 23, 1906. This law was generally known as the Woods search and seizure act, found in 98 O. L., 12.

Counsel for the state correctly observe that Sections 13244 and 13245, General Code, are the outgrowth of said Section 18.

The legislature wisely concluded that the very general and indefinite terms of Section 18, to-wit, “any local option laws,” should be made specific and definite, so they proceeded to name and number the sections that should be excepted from the general rule- of procedure in the common pleas and probate courts. For manifestly the statutes in question might apply as well to “wet territory” as to “dry territory,” and if they applied to “wet territory,” it would not be seriously claimed they were “local option laws.” Hence the legislature’s purpose in enacting 13245 of the General Code to make excepted sections definite and certain.

Again, the first five cases under Section 13195 charge the “keeping of a place” where intoxicating liquors are sold contrary to law, while old Section 18 of the Woods act, now Sections 13244 and 13245, General Code, refers to unlawful sales.

By no rule of construction can the latter be made to include the former, especially in a criminal statute.

Again, as to the last five cases brought under favor of Section 13225, General Code, it will be observed that the latter section was not enacted until two years after the Woods law. Certainly it would not be seriously claimed that in the absence of apt words to include acts of the legislature in futuro the act of 1906 attempts to put the.act of 1908 under the exceptions rather than under the general rule of procedure.

Section 13245 specially enumerates the sections of the General Code as to which an information shall not be necessary, to-wit, 13216, 13217, 13218, 13237, 13239, 13242. This section must be read in connection with 13244.

It will be at once noticed that neither Section 13195 nor Section 13225 is mentioned in Section 13245, as being excepted from the operation of the general statute.

It is elementary, in construing statutes defining crimes and criminal procedure, that they must be strictly construed, reasonably, of course, but still strictly. The criminal statutes of Ohio having specially excluded certain foregoing sections from the requirement of filing an information by the prosecuting attorney, it must be presumed that as to all other sections upon which criminal prosecutions in the probate court are founded, they still must follow the general rule.

This holding merely reaffirms the doctrine announced in the case of State of Ohio v. Lynch, from the circuit court of Delaware county, which was affirmed by this court without report, May 14, 1912, 86 Ohio St., 348.

Jurisdiction by a court is, of course, essential to a valid judgment by the same court, and it appearing that no information was filed, and, therefore, no jurisdiction was acquired, the judgments below must be reversed, at the costs of defendant in error, and said defendants are discharged.

Judgments reversed.

Shauck, C. J., Johnson, Newman and Wilkin, JJ., concur.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    State of Ohio v. Cox.

      Law conferring judicial authority upon a court — Sections 13682, 13683 and 13684, General Code — Appellate jurisdiction of supreme court in criminal cases — Motion to quash indictment charging perjury — Constitutional privilege of witness — Section 10 of Article I of constitution — Administration of oath to witness —Section 12842, General Code — Question of waiver of privilege of witness — Offenses against public justice.

    1. A law that confers upon a court the authority to render a judgment or decree which shall be a judicial settlement of the question in controversy, is a law conferring judicial power.
    2. Sections 13682, 13683 and 13684, General Code, confer appellate jurisdiction upon the supreme court in criminal cases to the extent and for the purposes specified in these sections.
    3. A motion to quash an indictment charging perjury by a witness testifying before a grand jury, where the indictment does not show affirmatively upon its face that such witness was not advised by the grand jury of his constitutional right to refuse to testify in a matter affecting his own conduct, and that does not affirmatively show upon its face that such witness did not waive his constitutional privilege and voluntarily testify, presents no question of the invasion or denial of the constitutional right of the witness under Section 10 of Article I of the constitution.
    4. An oath, properly administered by a proper officer to a witness subpoenaed to appear before a grand jury is an oath authorized by law within the meaning of Section 12842, General Code, without reference to whether the witness later claims his constitutional privilege to refuse to testify concerning any inquiry touching his own conduct or waives this privilege and voluntarily testifies.
    (No. 13263
    Decided February 11, 1913.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Plamilton county.
    The grand jury of Plamilton county, at the January term of the common pleas court, 1911, returned an indictment for perjury against George B. Cox, which indictment reads as follows:
    “The Grand Jurors of the County of Hamilton, in the name and by the authority of the State of Ohio, upon their oaths present that at a separate session of the Court of Common Pleas of the First Judicial District of the State of Ohio .within and for the County of Hamilton, for the term of January in the year nineteen hundred and six, begun and holden in the City of Cincinnati, county and state aforesaid, on the first Monday, the first day. of January, in the year nineteen hundred and six, before the Honorable William Littleford, Judge of said Court, a grand jury for said County, for said term of said court, was then and there duly impaneled, sworn and charged, and then and there proceeded to inquire of offenses committed within the limits of the county aforesaid; that on or about said day and during said term Charles Weidner, Jr., was then and there the duly elected, qualified and acting Clerk of said Court of Common Pleas of said Hamilton County, and John Byrne was then and there a duly appointed, qualified and acting deputy of said Charles Weidner, Jr., Clerk of said Court of Common Pleas as aforesaid, that said Charles Weidner, Jr., as clerk as aforesaid and by John Byrne, his deputy as aforesaid, was then and there duly authorized and required by law to administer to each and every witness examined by said grand jury an oath truly to testify to such matters and things as might be inquired of before said grand jury; that on or about the 21st day of March in the year nineteen hundred and six George B. Cox was then and there subpoenaed to appear as a witness before the said grand jury, and was then and there duly sworn as such, according to law, truly to testify before said grand jury, by said Charles Weidner, Jr., Clerk of said Court, by John Byrne, deputy of said Charles Weidner, Jr., Clerk of said court as aforesaid, who then and there was duly empowered and authorized by law as such clerk and said deputy to administer said oath; that the said George B. Cox, so being duly sworn as aforesaid, did then and there appear before said grand jury in the grand jury room at the Court House in and for the County of Hamilton aforesaid, where said grand jury was then inquiring of offenses committed within the limits of .said county, and thereupon the said George B. Cox, being so duly sworn as aforesaid,- did then and there, to-wit, on the 21st day of March in the year nineteen hundred and six, before the grand jury aforesaid, at the County of Hamilton aforesaid, in a certain proceeding before the said grand jury and in a certain matter in relation to which an oath was authorized by law, that is to say, in the proceeding and matter wherein said grand jury was then and there inquiring of the unlawful deposit in banks within the County of Hamilton aforesaid of moneys received in payment of taxes by the then Treasurer of said Hamilton County and his predecessors in office, and the receipt of interest on such moneys so deposited, by said Treasurers as aforesaid and by other persons, and the aiding, abetting and procuring by other persons in said Hamilton County of said Treasurers as aforesaid to make the said unlawful deposits of the said moneys in said banks, and as to a matter material to the inquiry then being made therein by said grand jury, did wilfully and corruptly, upon his oath aforesaid, depose, swear and give evidence to the grand jury aforesaid, amongst other things, in substance and to the effect following, that is to say: that he, said George B. Cox, had never been consulted in regard to the fact that moneys -which had been paid to the Treasurers of Hamilton County as taxes were on deposit in The Cincinnati Trust Company, of which he was President, that he surmised that something of the kind. was going on but that he had nothing to do with it; that he only knew in a general way that for years the banks of Hamilton County had been receiving deposits from the Treasurers of Hamilton County and were paying interest thereon; that he did not receive, nor did any one for him receive, any portion of the interest paid by said banks upon moneys received in payment of taxes by and deposited with them by Tilden R. French; when Treasurer of Hamilton County; that he knew nothing about where the balance over and above the $15,000 which Tilden R. French got of the interest paid by said banks on said moneys deposited with them by said Tilden R. French, when treasurer as aforesaid, went; that he knew nothing about the deposit of county funds with said banks during the terms of Tilden R. French, Leo Schott, Rudolph K. Hynicka, and John FI. Gibson, as Treasurers of Hamilton County, and the payment thereon of interest by said banks and the collection by any of the said treasurers of said interest, or what said treasurers did or what arrangements they made in regard to deposits or interest; and that he, said George B. Cox, never received, either directly or indirectly, any part of the perquisites which said treasurers, that is to say, the treasurers of Hamilton County, got by way of interest or otherwise as a result of said deposits, that is to say, the deposits in the banks of Hamilton County by the Treasurers of Hamilton County, of said moneys, that is to say, moneys received in payment of taxes by said treasurers of Hamilton County; which said evidence so given to the said grand jury was wilfully false and corrupt, for in truth and in fact, he, said George B. Cox, had been consulted and well knew and took part in the arrangements made, in regard to the deposits of moneys, paid to Treasurers of Hamilton County as taxes, in The Cincinnati Trust Company, and the payment and receipt of interest thereon; and in truth and in fact he knew definitely and positively that for years the banks of Hamilton County had been receiving deposits from the Treasurers of Hamilton County and were paying interest thereon, a large part of which interest he then and there well knew he had theretofore knowingly received; and in truth and in fact he had received a large sum, to-wit, about $17,500.00, of the interest paid by the banks of Hamilton County on moneys received in payment of taxes by and deposited with them by Tilden R. French when Treasurer of Hamilton County; and in truth and in fact he had himself received the balance, to-wit, about $17,500.00 over and above the portion, to-wit, about $15,000.00, which Tilden R. French got of the interest paid by the banks of Hamilton County on said moneys deposited with them by said Tilden R. French, when treasurer, as aforesaid; and in truth and in fact he knew that Tilden R. French, Leo Schott, Rudolph K. Hynicka and John H. Gibson, when treasurers of Hamilton County had deposited county funds with the banks of Hamilton County and that said banks had paid interest thereon, and the arrangements whereby said treasurers had collected and to him turned over a large part and portion thereof; and in truth and in fact, as he then and there well knew, he had theretofore received a part of the perquisites, that is to say, a part of the interest, gratuities and compensation therefor paid by the said banks of Hamilton County on account of the said deposits by the treasurers of Hamilton County of the said moneys received in payment of taxes by the Treasurers of Hamilton County as aforesaid, that is to say, the said George B. Cox, had theretofore received a large sum, to-wit, about $48,500.00, 'from John H. Gibson, when treasurer of Hamilton County, and a large sum, to-wit, about $17,500.00, from Tilden R. French, when treasurer of Hamilton County, which said moneys were, as he, said George B. Cox, well knew, a part of the perquisites, that is to say, a part of the interest, gratuities and compensation theretofore paid by the said banks of Hamilton County to treasurers of Hamilton County, on account of the said deposits of the said moneys as aforesaid; which said matters so sworn and testified to before the said grand jury by the said George B. Cox were then and there material matters in the inquiry then being made by the said grand jury, and which said matters then so testified by said George B. Cox to be true, he, the said George B. Cox then and there knew to be false.
    “And so the grand jurors aforesaid, upon their oaths aforesaid, do say that the said George B. Cox on the 21st day of March, in the year nineteen hundred and six, at the County of Hamilton aforesaid, in manner and form aforesaid, did unlawfully commit wilful and corrupt perjury; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.
    “Henry T. Hunt,

      “Prosecuting Attorney,

      “Hamilton County, Ohio.”

    The defendant filed an amended motion to quash this indictment, which motion reads as follows:
    “Defendant moves the court to quash the indictment because of the following defects apparent upon the face of the record:
    “1. That the grand jury which reported the indictment against the defendant was not drawn, summoned or impaneled according to law.
    “2. That the indictment fails to aver a legal oath administered to said defendant.
    “3. The oath set forth in said indictment alleged to be administered to the defendant was not lawfully administered, or authorized by law, but was contrary to law.
    “4. The allegation as to the proceeding and matter pending before said grand jury is indefinite and misleading.
    “5. Said indictment fails to allege or describe any matter or proceeding properly cognizable by said grand jury concerning which the- said alleged false statements were made.
    “6. Said indictment charges in one count several separate and distinct alleged offenses, and is bad for duplicity.

      “7. That the averments in said indictment as to the form of the same and the manner in which said offense is charged, are so vague, indefinite, uncertain and misleading that the defendant is not properly informed of the charge against him, or what he shall meet at the trial, and can not prepare his defense.
    “8. Because said indictment does not charge an offense under the laws of Ohio.

      “9. Because it does not appear from said indictment that the alleged false testimony of the defendant was material to an inquiry within the lawful jurisdiction of said grand jury.
    “10. Because it appears by said indictment, that the investigation which the grand jury had under consideration at the time the defendant is alleged to have committed perjury, if it had under consideration any matter within its jurisdiction, was directed against this defendant; that it was a violation of his constitutional right to require him to attend before the grand, jury and take an oath; that said alleged oath was not lawfully administered; that no indictment for perjury can be predicated upon testimony so obtained; and that said indictment so obtained is invalid under Section 10 of Article I of the Constitution of Ohio, and Section 12842 of the General Code.
    “11. Other defects apparent upon the face of the record.”
    This motion was sustained by the common pleas court of Hamilton county, to which decision of the court the prosecuting attorney excepted, and, upon application, he was given leave to file a bill of exceptions in this court.
    At the time this bill of exceptions was presented, the filing of the same was resisted by a counsel who represented the defendant on the hearing of the motion to quash the indictment, upon the ground that the statute authorizing such proceeding is unconstitutional, for the reason that it imposes upon this court duties that are not in the exercise of judicial power. Leave was granted to file the bill of exceptions, the court, however, reserving that question for further consideration upon the final hearing of the exceptions.

      Mr. Henry T. Hunt, prosecuting attorney; Mr. Thomas L. Pogue, prosecuting attorney; Mr. Coleman Avery, assistant prosecuting attorney; Mr. William W. Prather, assistant prosecuting attorney; Mr. Timothy S. Plogan, attorney general, for the exceptions.
    The question presented should be decided by this court in order to determine the law to govern in a similar case.
    If it were true that the indictment showed on its face that the grand jury were investigating the acts of Cox to see if he had not aided and abetted the treasurers in making the illegal deposits, it does not show that he was compelled to testify, that he declined or refused to testify, or claimed his privilege of refusing to testify, and was, notwithstanding his protest, compelled to testify. Lindsey v. State, 69 Ohio St., 215; State v. Faulk

      ner, 175 Mo., 546, 75 S. W. Rep., 116; Mackin v. People, 115 Ill., 312; State v. Maxwell, 28 La. An., 361; State v. Turley, 153 Ind., 345; State v. Terry, 30 Mo., 368; State v. Lehman, 175 Mo., 619, 75 S. W. Rep., 139.
    In the case at bar, there is absolutely nothing to show that the oath averred in the indictment was not lawfully administered. The oath averred was the required legal oath according to Section 7199, Revised Statutes, now Section 13564, General Code. Hallech v. State, 11 Ohio, 400; Masterson v. State, 144 Ind., 240.
    It is not necessary to allege in what particular form defendant was sworn to testify. It is sufficient to allege that he was “duly sworn” provided the indictment states the circumstances under which the oath was required and the occasion on which it was made, so as to show that its violation was perjury. Tuttle v. People, 36 N. Y., 431; Burns v. People, 59 Barb., 531; Dodge v. State, 24 N. J. L., 456; State v. O’Hagan, 38 Ia., 504.
    The indictment does not allege that the grand jury were investigating any criminal acts of this defendant. They did not, nor were they seeking to, indict this defendant for any crime. There is nothing to indicate that this defendant did not voluntarily appear and give his testimony. It was not a case against him, and the testimony he gave certainly did not tend to incriminate him. After he was sworn, if he was afraid the testimony he would give might tend to incriminate him, he could have declined to answer. If he did not avail himself of his privilege he waived it and was. subject to the same rules and obligations as any other witness. And if he gave false testimony he was indictable for perjury. 2 McClain on Criminal Law, Sec. 865; 2 Bishop’s New Crim. Law, Sec. 1019; Mattingly v. State, 8 Tex. App., 345; People v. Gillette, 126 N. Y. App., 665; Montgomery v. State, 10 Ohio, 220; Ex parte Bushnell, 8 Ohio St., 600; 2 Chitty’s Crim. Law, 312.
    .The allegation as to the proceeding and matter pending before the grand jury is not indefinite and misleading. State v. Toney, 81 Ohio St., 130; State v. Groves, 80 Ohio St., 351; Stoughton & Hudson v. State, 2 Ohio St., 563; State v. Mulford, 12 Dec., 720; Reg. v. Jameson, 2 Q. B. (1896), 425; Mulcahy v. Reg., L. R., 3 H. L., 306.
    It is not necessary to set forth the facts constituting the crime under investigation by the grand jury. It is sufficient to allege generally what that investigation was. State v. Schill, 27 Ia., 263; Markham v. United States, 160 U. S., 319.
    The matter and proceeding in which the alleged false statements were made was properly cognizable by the grand jury. But if it was not that would be ground for a demurrer and not a motion to quash. Hale v. State, 58 Ohio St., 676; State v. Hutchinson, 55 Ohio St., 573.
    The indictment is not invalid under Section 10, Article I, Constitution of Ohio, and Section 12842, General Code.

      Section 10 of the constitution does not provide, either expressly or by implication, that a person can go forward, and, without objection, give false testimony in a criminal case, directly or indirectly concerning himself, with impunity. United States v. Kimball, 117 Fed. Rep., 156.
    If any doubt could have existed upon the question of the right of this court to hear and determine the exceptions herein, the local significance of the term “judicial power” has been fixed in Ohio by the uniform practice and decisions of this court extending over forty years, and, whatever it may mean in other states, or in the federal courts, in Ohio it certainly includes, and should be held to include, the performance of such functions as are prescribed by Sections 13681-2, -3, -4, General Code. Bank of United States v. Deveaux, 5 Cranch, 61; Cooley’s Constitutional Limitations (7 ed.), 137; 1 Sutherland Stat. Constr. (2 ed.), Sec. 11; Elliott’s Appellate Procedure, Sec. 269; State v. Budd, 65 Ohio St., 1.

      Mr. Lawrence Maxwell; Mr. Charles W. Baker; Messrs. Darby & Benedict and Mr. Joseph S. Gray don, against the exceptions.
    Defendant’s alleged testimony was procured in violation of the constitution. The oath was not “lawfully administered” or “authorized by law.”
    It is generally held that where a person is compelled to give evidence against himself, an indictment for the offense about which he testified will be set aside. State v. Gardiner, 88 Minn., 130; State v. Froiseth, 16 Minn., 296; In re Emery, 107 Mass., 172; People v. Haines, 1 N. Y. Supp., 55; Boyd v. United States, 116 U. S., 616; Counselman v. Hitchcock, 142 U. S., 547; People v. Gillette, 126 N. Y. App. Div., 665; United States v. Edgerton, 80 Fed. Rep., 374; United States v. Bell, 81 Fed. Rep., 830; Adams v. State, 129 Ga., 248, 58 S. E. Rep., 822, 17 L. R. A., N. S., 468.
    . The oath itself, administered under compulsion of the subpoena (Lindsey v. State, 69 Ohio St., 223; Hammond Lumber Co. v. Sailors' Union, 167 Fed. Rep., 809) is unauthorized by law, regardless of the question whether subsequent proceedings are waived or objected to; by the administration of the oath without more, the person under investigation is compelled to become •a witness against himself contrary to the constitution. His right not to be placed in the dilemma of accusing himself, or of remaining silent under suspicion, is then and there violated. Bram v. United States, 168 U. S., 532; Brown v. Walker, 161 U. S., 591.
    The indictment does not show that the grand jury were inquiring of any matter within their jurisdiction when the alleged testimony was given. State v. Meyers, 56 Ohio St., 350; Hale v. State, 58 Ohio St., 676; Mattingly v. State, 8 Tex. App., 345; Commonwealth v. Taylor, 96 Ky., 394, 29 S. W. Rep., 138; Gallegos v. State, 48 Tex. Crim., 58, 85 S. W. Rep., 1150; State v. Cunningham, 66 Ia., 94, 23 S. W. Rep., 280; Gardner v. State,
      80 Ark., 264, 97 S. W. Rep., 48; People v. Tillman, 118 N. Y. Supp., 442; Commonwealth v. Pickering, 8 Gratt., 628; Commonwealth v. Nailor, 29 Pa. Super. Ct., 275; Commonwealth v. White, 25 Pick., 452; People v. Tatum, 112 N. Y. Supp., 36; Pankey v. People, 2 Ill. (1 Scam.), 80; State v. Tanner, 9 O. L. R., 18.
    It appears affirmatively that the grand jury were inquiring into matter that was not within their lawful jurisdiction.
    The receipt of interest on public moneys illegally deposited is not an offense. State v. Pierson, 83 Ohio St., 241.
    It does not appear and is not alleged in the indictment that the alleged false testimony was material to any inquiry being made at the time within the lawful jurisdiction of the grand jury. Rex v. Dunstan, R. & M., 109; Reg. v. Tate, 12 Cox C. C., 7; Silver v. State, 17 Ohio, 365; Banks v. State, 78 Ala., 14; Rex v. Nicholl, 1 B. & Ad., 21; Reg. v. Goodfellow, Car. & M., 569; Reg. v. Cutts, 4 Cox C. C., 437; Reg. v. Bartholomew, 1 C. & K., 366; State v. Beard, 25 N. J. L., 384; Dilcher v. State, 39 Ohio St., 130.
    The assignments of perjury are indefinite and uncertain and. do not advise the accused what he may expect to meet on the trial. DuBrul v. State, 80 Ohio St., 52; Dillingham v. State, 5 Ohio St., 280; Lamberton v. State, 11 Ohio, 282; State v. Trisler, 49 Ohio St., 583; 30 Cyc., 1437; Lane v. State, 39 Ohio St., 312; United States v. Burns, 54 Fed. Rep., 351; Redmond v. State, 35 Ohio St., 81; Keller v. State, 51 Ind., 111; Barber v. People,
      17 Hun, 366; Reg. v. Stolady, 1 F. & F., 518; Ferguson v. Commonwealth, 8 Ky. L. Rep., 257, 1 S. W. Rep., 435; Burns v. People, 59 Barb., 544; Shackelford v. Commonwealth, 25 Ky. L. Rep., 1830, 79 S. W. Rep., 192; Harp v. State, 59 Ark., 113; Fudge v. State, 57 Fla., 7; 2 Archbold Crim. Pr. & Pl. (1880), 1733, n.; People v. Bradbury, 155 Cal., 808, 103 Pac. Rep., 215; United States v. Gooding, 12 Wheat., 460; United States v. Cruikshank, 92 U. S., 542; Hogue v. United States, 184 Fed. Rep., 245; Bridgeman v. United States, 140 Fed. Rep., 577.
    A single bad assignment vitiates the indictment. Fry v. State, 36 Tex. Crim., 582, 37 S. W. Rep., 741, 38 S. W. Rep., 168; McMurtry v. State, 38 Tex. Crim., 521, 43 S. W. Rep., 1010; 2 Archbold Crim. Pr. & Pl. (1880), 1731; Reg. v. Burraston, 4 Jur., 697; Rex v. Leefe, 2 Camp., 134; Hotter v. People, 150 Ill., 441; State v. Weil, 89 Ind., 286; 22 Cyc., 376.
   Donahue, J.

The first question for consideration is raised by the objection to the filing of a bill of exceptions in this court by the prosecuting attorney of Hamilton county. At the time leave was granted to file this bill of exceptions, that question was reserved for the further consideration of the court upon final hearing.

Section 13681, General Code, provides that the prosecuting attorney or attorney general may except to a decision of the trial court and may present a bill of exceptions thereto, which the court shall sign, and which shall be made a part of the record. Section 13682, General Code, provides that the prosecuting attorney or attorney general may present such hill of exceptions to the supreme court and apply for permission to file it with the clerk thereof for the decision of such court upon the points presented therein, and also provides for notice to the judge who presided at the trial. And the same section further provides that if the bill of exceptions is permitted to be filed in the supreme court, the trial judge shall appoint some competent attorney to argue the case against the attorney general or prosecuting attorney. Section 13683, General Code, provides that the ■supreme court, if of the opinion that the question presented should be decided, shall allow the bill of exceptions to be filed and render a decision thereon. Section 13684, General Code, reads as follows: “The judgment of the court in the case in which the bill was taken shall not be reversed nor affected; but the decision of the supreme court shall determine the law to govern in a similar case.” The language of these sections is clear and unambiguous. If the legislation is constitutional it is the end of this controversy. It is claimed, however, that this bill of exceptions filed in this court presents no justiciable controversy within the authority of the court acting within the limitation of the constitution under which it was created. Section 1 of Article IY, of the Constitution of Ohio, provides that: “The judicial power of the state is vested in a supreme court, circuit courts, courts of common pleas, courts of probate, justices of the peace, and such other courts inferior to the supreme court, as the general assembly-may from time to time establish.” Section 2 of Article IV of the Constitution of Ohio, provides that the supreme court shall have original jurisdiction in quo warranto, mandamus, habeas corpus, and procedendo, and such appellate jurisdiction as may be provided by law. The objection is urged that in such a proceeding as this the supreme court has neither original nor appellate jurisdiction; that these statutes confer upon this court no authority to make or enter a judgment in this cause binding upon any party to the suit and that its opinion upon the legal questions presented cannot affect the final determination of this particular cause and at most is merely advisory. The law authorizing a prosecuting attorney to file a bill of exceptions in this court was originally enacted by the general assembly of this state on the 16th day of April, 1867, and, except for the amendment allowing the attorney general the same right as the prosecuting attorney to take exceptions in criminal cases, it is substantially the same to-day as originally enacted. Since that time, this court has recognized this law as valid and has permitted the filing of such bills of exceptions whenever it was of opinion that the question so presented should be determined. Until the objection made to the filing of this bill of exceptions, it does not appear by any reported case that the constitutionality of this law has ever been challenged. While that fact should be considered, it is by no means controlling in this case.

The claim made by counsel resisting the motion of the prosecuting attorney for leave to file this bill of exceptions, that neither the legislative nor executive branch of our state government can assign to the judicial branch any duties other than those that are properly judicial to be performed in a judicial manner, is undoubtedly correct. But this is no new doctrine. On the contrary, it is the settled law of this state. The authorities cited by counsel fully sustain this proposition, but that is the full extent to which these authorities go. The question still remains whether this principle is applicable to the case at bar. That is to say, whether it is a mere moot question presented by this bill of exceptions: whether the judgment sought is simply. advisory or is really dispositive of the question presented. A mere glance at the statute under which this proceeding is brought is sufficient to. show that the proceeding not only has purpose but that the judgment of the court disposes of the question presented. This proceeding is in no way related to a proceeding brought in this court by the legislative or executive branches of the government, the sole purpose of which is to obtain advice or direction of the court with reference to pending legislation or other matters upon which any officer of the state may seek to be advised. In such a case the judgment of this court could be of no effect whatever. It would be binding upon no one, not even the officers asking for the adjudication. But in a case like this, the question is determined, the law is. declared, and the lower courts are bound by the rule of judicial subordination to apply the law so found and determined by this court.

This proceeding presents the question of the correctness of the judgment of the trial court in a criminal case properly pending in that court. It is a question arising in the progress of the proceedings and trial before said court. It is not a matter of mere private right, but a question of a public nature, and the legislature has conferred upon this court appellate jurisdiction to review the proceedings of the trial court and to finally determine and adjudicate the question of law passed upon by that court in that case.

It is said that this court, in the case of State v. Granville, 45 Ohio St., page 264, held that it had neither original nor appellate jurisdiction. We do not so read that authority. That was a case of exceptions by the prosecuting attorney to the judgment of the trial court. A bill of exceptions was filed by the prosecuting attorney in this court. The exceptions were sustained. The prosecuting attorney asked that if the exceptions should be sustained that the cause be remanded for further proceedings upon the indictment. The court held that it had no power to do that, but had, “only such appellate jurisdiction as is conferred by law, and no such jurisdiction, as that invoked, has been conferred on this court in criminal proceedings.” It, therefore, clearly appears, that this court held in that case, not only that it had jurisdiction to the extent named in the statute, but that it exercised that jurisdiction.

Our attention is called to the definition of judicial power given by Mr. Justice Miller in his work on the constitution, which definition is as follows: “Judicial power is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” With this definition we have no quarrel except that it contains more than is necessary to define judicial power. Ordinarily, and in ordinary cases, the definition is entirely correct. It is evident, however, that it entirely leaves out of consideration ex parte proceedings. An ex parte proceeding is defined to be: “A proceeding at the instance and for the benefit of one party only and without notice to or contestation by any person adversely interested.” 18 Cj^c., 1500; Black’s Law Dictionary; English’s Law Dictionary. The first half of the definition given by Mr. Justice Miller, if taken alone, would be more nearly accurate. That is to say: “Judicial power is the power of a court to decide and pronounce judgment.” In the case of Rhode Island v. Massachusetts, 12 Pet., 657, Mr. Justice Baldwin, delivering the opinion of the court, said: “If the law confers the power to render a judgment or decree then the court has jurisdiction.”

The proceeding contemplated by the sections of the General Code now under consideration does confer power to render a judgment or decree, and while it is not a judgment of reversal or of affirmance, it is a judgment determining the law of the case that is binding upon all lower courts and upon all litigants until overruled by the supreme court itself. In the case of State v. Baughman, 38 Ohio St., 455, Johnson, J., in delivering the opinion of the court, said: “To be a judicial settlement, the question decided must arise in a judicial proceeding, properly before a court of competent jurisdiction.”

The proceedings herein are regular, and conform to the statute, and the judgment of the court is a judicial settlement of the question submitted.

In determining whether the question presented by this bill of exceptions is a mere moot'question or not, regard must be had to whether it is a question of a public character or of private concern only. The supreme court of the United States, in the case of the United States v. Trans-Missouri Freight Assn., 166 U. S., 290, while conceding the correctness of the doctrine that the court would decide only actual controversies, and where something had occurred pending an appeal which would render it impossible to grant an effectual relief, that the appeal would be dismissed, as later held in the cases of Jones v. Montague, 194 U. S., 147, and Richardson v. McChesney, 218 U. S., 487, also declared that where the question is one of a public character, it would retain the case for final disposition of the controversy involved. The object of that suit was to obtain the judgment of the court on the legality of an agreement between railroads, which agreement was alleged to be in violation of the Sherman law. Pending an appeal, the defendants voluntarily dissolved the agreement and then sought to have the case dismissed upon the theory that there •was no longer any purpose in the litigation because the thing sought to be accomplished by the judgment of the court had already been accomplished by the action of the parties themselves. In response to that contention, the court said: “Private parties may settle their controversies at any time, and rights which a plaintiff may have had at the time of the commencement of the action may terminate before judgment is obtained, or while the case is on appeal, and in any such case the court, being informed of the facts, will proceed no further in the action. Plere, however, there has been no extinguishment of the rights (whatever they are) of the public, the enforcement of which the government has endeavored to procure by the judgment of a court under the provisions of the act of congress above cited. The defendants cannot foreclose those rights nor prevent the assertion thereof by the government. * * * That question [referring to the legality of the contract between the defendants] the government has the right to bring before the court and obtain its judgment thereon.”

In the case of Boise City Irrigation & Land Co. v. Clark, 131 Fed. Rep., 415, the legality of a municipal ordinance fixing a water rate was attacked. Pending the litigation, the term fixed by the ordinance expired. The court refused to dismiss the case because of that fact, but on the contrary held that the questions there involved were of such a public character as to demand judicial determination for the guidance of the municipal body when again called upon to act in the matter.

The case of Southern Pacific Terminal Co. v. Interstate Commerce Commission et al., 219 U. S., 498, was brought to enjoin an order of the Interstate Commerce Commission. Pending an appeal, the time named in the order expired. A motion was filed to dismiss the action because the question involved had become moot. But the court overruled that motion and held: “The case is not moot where interests of a public character are asserted by the government under conditions that may be immediately repeated, merely because the particular order involved has expired.”

The question presented by the bill of exceptions filed in this court is an important question of a public character. The judgment of this court is a judicial settlement of that question. We are not concerned with the reasons that moved the general assembly of the state to withhold from this court the right to reverse the judgment of the trial court and remand the cause for further proceedings. As to all preliminary questions arising upon the indictment and prior to the impaneling of a jury, there would not seem to be any sufficient reason why authority is withheld from this court to enter a judgment of reversal when in its opinion the judgment of the trial court was erroneous, but with the effect of the judgment-of this court we have nothing to do. The only question for our consideration is whether the general assembly has conferred appellate jurisdiction on this court in such cases for any judicial purpose whatever, and, if it has done so, then the extent or effect of its judgment is of little importance. This court is perhaps more concerned with the correct determination of the question presented by the objections to the filing of this bill of exceptions than is any party to the suit in the trial court. The time of this court should not be taken to the prejudice of its legitimate duties in the doing of vain and useless things, but the disposition of questions of this character does not appear to this court to be a vain and useless thing. On the contrary, it is a judicial settlement of a question of a public character of grave importance to the people of the state, and whether it has or has not any effect upon the future prosecution of the defendant for the crime sought to be charged in the indictment, is in no wise important.

It is insisted, however, that it is unfair not only to the defendant in the cause in the trial court in which these exceptions were taken, but also to future defendants whose rights are heard and determined in this manner without any right of representation by them. It is sufficient to say in reply to this objection that no one citizen is interested more than another in the establishment of legal principles or the declaration of legal rights. True, it must certainly happen in the due course of events, that some citizens will be more affected thereby than others, yet that is no reason why they in particular should be heard previous to the enactment of a law or the judicial construction of it. This court in every litigation that comes before it, declares some principles of law that affect the citizens of this state generally as well as the parties to the litigation. It must also be remembered that when any citizen is particularly affected by a former adjudication of this court in a cause in which he was not a party, he is entitled to present to this court, in a suit in which he is a proper party, reasons why it should overrule . its former decision upon that question. For these reasons, we are of the opinion that the general assembly of this state has by Sections 13681, 13682, 13683 and 13684, General Code, conferred appellate jurisdiction upon this court in the matter provided for therein, notwithstanding it has limited the- effect of its judgment, and that the question now presented by this bill of exceptions is not a moot question.

This bill of exceptions filed in this court challenges the correctness of the judgment of the trial court in sustaining- the amended motion to quash the indictment. This amended motion contained several grounds upon which the court was asked to quash the indictment, but the motion was sustained upon the tenth ground only. Preliminary to the discussion of this decision of the court, it is important to determine whether the motion should have been sustained for any other of the reasons contained therein. For, if the judgment of the court in quashing the indictment was right for any of the reasons presented by the motion to quash, it would not be important whether the reason given by the court was the right one, if the judgment on the whole record is correct. We have, therefore, carefully examined all of the questions presented by this amended motion to quash, and we have reached the conclusion that the court did not err in overruling the motion as to all the other grounds contained therein.

The tenth ground ox the motion, and the one sustained by the trial court, reads as follows:

“Because it appears by said indictment that the investigation which the grand jury had under consideration, at the time the defendant is alleged to have committed perjury, if it had under consideration any matter within its jurisdiction, was directed against this defendant; that it was a violation of his constitutional right to require him to attend before a grand jury and take an oath; that said alleged oath was not lawfully administered; that no indictment for perjury can be predicated upon the testimony so obtained, and that said indictment, so obtained, is invalid under Section 10 of Article I the Constitution of Ohio, and Section 12842 of the General Code.”

Section 10 of Article I provides, among other things, “nor shall any person be compelled, in any criminal case, to be a witness against himself.” Section 12842, General Code, is the section defining perjury, and reads as follows:

“Whoever, either orally or in writing, on oath lawfully administered, wilfully and corruptly states a falsehood as to a material matter in a proceeding before a court, tribunal or officer created by law, or in a matter in relation to which an oath is authorized by law, is guilty of perjury and shall be imprisoned in the penitentiary not less than three years nor more than ten years.”

This motion to quash is filed under the authority of Section 13621, which provides that, “A motion to quash may be made where there is a defect apparent upon the face of the record, including defects in the form of the indictment or in the manner in which an offense is charged.”

A careful analysis of this indictment, against which the motion to quash is directed, clearly shows that this motion does not present the question sought to be raised by the tenth ground thereof. This indictment charges, in substance, that, at the January term, 1906, of the Hamilton county common pleas court, a grand jury was duly impaneled, sworn and charged, and proceeded to inquire of crimes and offenses committed within the county of Hamilton; that this grand jury was “then and there inquiring of the unlawful deposit in banks within the county of Hamilton of moneys received by county treasurers in payment of taxes, ■ and the receipt of interest on such moneys so deposited by the then treasurer and his predecessors in office, and the aiding, abetting and procuring of the then county treasurer and his predecessors in office to make such deposit of money in said banks”; that George B. Cox was subpoenaed to appear before said grand jury as a witness, and that an oath was duly administered to him, according to law, by • the deputy clerk of the common pleas court of that county, and then alleges, in detail, the testimony given by such witness; that the said testimony was false; that the witness knew it was false, etc.

It is apparent, at a glance, that this indictment does not, on its face, show that the investigation was directed against the witness, George B. Cox. True, in this indictment it does allege that George B. Cox had guilty knowledge of the transaction under investigation, and that he had aided and abetted therein and participated in the profits arising therefrom, but it nowhere appears in this indictment that the grand jury, before which he appeared as a witness, had any knowledge whatever that he was connected with the transaction it was then investigating. That this later grand jury may have discovered that fact and now charge it in this indictment, in no way tends to show that the first grand jury had such knowledge, or that it was investigating the conduct of the witness himself. The fact that the witness was called before the grand jury presupposes, of course, that he was believed to have knowledge of these transactions, but it does not necessarily imply he participated in them, or that his conduct, in relation thereto, had been, in any sense, criminal; nor would it justify the presumption that the grand jury making this inquiry acted in bad faith, with the intent and purpose of depriving this witness of his constitutional rights by compelling him to be a witness against himself. So far as appears by this indictment, this witness was brought before the grand jury as any other citizen might have been required to appear and testify before it. If it were the duty of a grand jury, before subpoenaing a witness to appear before it, to determine to a certainty whether such witness had any guilty knowledge of the transaction under inquiry, we would never get anywhere in the prosecution of crime. The legal presumption is that this witness was not guilty of any offense whatever. So far as appears in this indictment, no charge had been made against him. It was not a case wherein the witness had been charged with a crime by an affidavit filed before an examining magistrate, and required to give bond for his appearance before the court of common pleas. In fact, so far as the averments of this indictment are concerned, it does not appear that either that grand jury or the prosecuting attorney of the county then had any knowledge whatever that this witness was connected, in. any way, with the transaction. Upon a motion to quash an indictment, a court is not authorized to inquire beyond what appears on the face of the record, including defects in the form of the indictment or the manner in which the offense is charged. If it were a fact that that grand jury had such knowledge, and that fact is important, the only way it could be shown would be by a plea in abatement. But suppose it be admitted that the indictment now before us does show, upon its face, that that grand jury then knew, or believed, that the witness was guilty of a crime in connection with the transaction then under investigation by it, that fact alone would not be sufficient -to present the question sought to be made by this tenth ground of the motion to quash. Still the record would present no question of the invasion by the grand jury of the constitutional rights of the witness. Some authorities have been called to our attention by counsel appointed by the judge of the common pleas court to argue these exceptions, to the effect that where the court and grand jury are investigating a crime, the person whose conduct is being investigated ought not to be subpoenaed or sworn, and that an oath so administered is not an oath authorized by law, but the great majority of the authorities they have cited, is to the effect that such witness should not be required to testify without knowing or being informed that his own conduct was the subject under consideration. This indictment does not show, upon its face, that the witness was not fully informed of the transaction under investigation. In fact, he must have known by the nature of the inquiries directed to him, in response to which his testimony was given. In fact, there is nothing in this indictment to negative the fact that he was not fully advised by that grand jury of his privileg to refuse to testify, and nothing appears on the face of this record to show that he did not waive his constitutional privilege and testify voluntarily. The presumption obtains that the proceedings of that grand jury were regular; that it did the things that ought to be done, so that if the contention of counsel as to the law is correct, then the presumption is, in the absence of proof to the contrary, that all these things were done, and the only way that it could now be made to appear to any court that they were not done, would be by a plea in abatement. Whatever may be the law in other states, the law of this state, on this subject, is fully settled. The question is no longer an open one in Ohio, so that authorities from other states cannot aid us in applying the established law of this state to the question sought to be made in this case.

In the case of Lindsey v. State, 69 Ohio St., 215, this court held that a plea in abatement that did not show that the witness refused to take an , oath, or that he claimed his privilege to refuse to testify, is bad on a general demurrer. Spear, J., in writing the opinion of this court in that case, said: “But the plea does not state that he refused to take the oath, nor in what manner, nor by what means, he was required, against his will, to take an oath; nor does it allege that the defendant, when before the grand jury, claimed his privilege, or refused to answer any question, or in any manner objected to appearing as a witness and to testifying. There is no law that could compel a witness to testify to matters which would incriminate himself, or to punish him for refusing. • If he did not object how could there be compulsion? For all of any statement of fact which appears he took the oath voluntarily and testified voluntarily.”

If this is a correct statement of the law, and we think it is, then it would appear that further discussion of this case is unnecessary. If a plea in abatement, upon which evidence can be heard, must contain these averments in order to resist a demurrer thereto, how is it possible to say that any question of the invasion of the constitutional rights of a defendant in a criminal case is raised by a motion to quash an indictment, which indictment does not affirmatively show upon its face that the grand jury did not advise the witness of his privilege to refuse to testify, or that he did not voluntarily waive his privilege? It is claimed, however, that the mere issuing of a subpoena for a witness shows compulsory process, and, therefore, an invasion of the defendant's constitutional rights. A subpoena was issued in the case of. Lindsey v. State, supra, and that fact was also considered by this court in its opinion, as follows:

“Where the privilege to refuse exists and the witness testifies without objection, the natural inference is that he testifies voluntarily. Indeed, the only feature which, according to the facts stated, is shown to have been involuntary, was the appearance in obedience to the subpoena. That would, in and of itself, be regarded as compulsory process.” And. again on page 225: “We think it quite unnecessary to consider further the much discussed question of the constitutional right and privilege of the citizen arising under Section 10 of the Bill of Rights. No case is made on the facts calling for such discussion.”

The contention is made, however, that there is a further difference between the case of Lindsey v. State and the case at bar. In the Lindsey .case, the plea in abatement was directed against the indictment returned by the grand jury, before which Lindsey was subpoenaed to appear and testify, and, in this case, the motion to quash is directed against an indictment for perjury returned by a subsequent grand jury, predicated upon testimony of the defendant before a former grand jury, and that, therefore, the oath administered to the witness was unauthorized by law, and no charge of perjury can be predicated upon it. With this contention we cannot agree. The privilege conferred upon a citizen of this state, by Section 10 of Article I of our constitution, is a personal privilege, and he may waive this privilege if he desires to do so. The principle announced in the case of Lindsey v. State is predicated -upon this theory and no other. Merely being compelled to appear in pursuance of a subpoena and to be sworn is no violation of this constitutional privilege. This is all preliminary to his testifying and is not prohibited by the constitution, and it is only after the administration of the oath that the witness can assert his privilege, for it can only be asserted under the sanction of an oath. We are still in full accord with the former statement of this court in the Lindsey case, that: “We are not commending the practice of subpoenaing persons suspected of crime as witnesses before a grand jury which has been summoned to inquire respecting that crime; indeed, we do not hesitate to characterize it as improper practice. But the question is, what effect that mere fact ought to have in a test of an indictment otherwise regular and valid.” Our Bill of Rights does not extend the privilege to anyone from being subpoenaed and sworn in a criminal case, but it does provide that no person shall be compelled, in any case, to be a witness against himself. This privilege he •may waive, if he desires to do so, and the time for the assertion of his right, or the waiving of it, is after he has been sworn and not before. Suppose it should now appear that this witness expressly waived this privilege and testified voluntarily, and the presumption, in the absence of any showing to the contrary, is that •he did so. Counsel would not likely make the contention that the oath administered to him, before he waived this privilege and voluntarily testified, was unauthorized by law. And yet this oath was either authorized or unauthorized by law, at the time it was administered. Whatever happened subsequent to that neither makes it lawful nor unlawful. If it is. lawful in the case where the witness, subsequent to the administration of the oath, waives his constitutional privilege and voluntarily testifies, it is equally lawful in all other cases. What the remedy of the witness might be in case, after he was sworn he refused to testify, but was compelled, in some way, to testify, we need not now consider. We know of no way by which he could be compelled to testify, and we never expect to be presented with a case where a witness was compelled to testify, after claiming his privilege. When that condition of affairs shall appear, it will be time enough for the court to act, but this much is certain, the court will in some lawful way fully protect the citizen in the assertion of his constitutional rights. From all that appears upon the face of this record the contention of counsel appointed by the judge of the common pleas court to argue these exceptions, reduced to its last analysis, is this, that a witness subpoenaed and sworn to testify before a grand jury then investigating crimes and offenses committed within its jurisdiction, not claiming his constitutional right not to be compelled to testify against himself, or expressly waiving the same, testifies falsely; and thereby prevents an indictment being returned against himself for the crime-which is the subject of the inquiry before the grand jury, and having so accomplished his purpose by false and perjured testimony, is immune from prosecution by the state for the perjury so committed, because he was brought into court by compulsory process. This contention is not tenable. It is neither sound in law nor morals. Such construction of this provision of our constitution would manifest altogether a too tender care and solicitude by the state for the protection of the criminally disposed. No such construction is necessary for the protection of the innocent, and the guilty are not entitled to have it so construed.

Exceptions sustained.

Johnson, Wan am aker, Newman and Wilkin, JJ., concur.


author: Johnson, J.

text:
    Moon, Administrator, et al. v. Stewart et al.

      Doubtful clauses in a will — Will be interpreted — Not entirely by general rules, etc. — But reasonably by the court in the particular case, when.

    1. Where there are doubtful clauses in a will the court, in determining the meaning that the testator intended they should have, will not be controlled entirely by general rules, or by judicial decisions in cases apparently similar, but will interpret them reasonably in the particular case.
    2. M. executed, in compliance with the statute as to execution of wills, an instrument (which by its terms she declared to be her will) in which she appointed an executor, “after my death to settle up all property both personal and real,” the second item being, “I hereby make my two granddaughters, L. S. and E. B., each equal heirs with my own children.”

      Held: The instrument is dispositive and devised to the two granddaughters named, each an equal share with the children of testatrix, in her estate.
    (No. 13620
    Decided February 11, 1913.)
    Error to Circuit Court of Greene county.
    This was a proceeding brought in the court of common pleas of Greene county by Charles H. Moon, as administrator with the will annexed of Clara Moon, deceased, praying the direction of the court in regard to the construction of the last will and testament of Clara Moon, deceased. The defendants, Lulu Stewart and Ella Break-field, in their answer to the petition, set forth that, by the last will and testament of Clara Moon, the testatrix disposed of her whole property, and that they were each to share equally with her own children in the distribution of her estate, both personal and real, and, further, that, under item second of said will, they each are now vested with an undivided one-seventh of said estate.
    The court of common pleas construed the will to the effect that, under item second of said will, Lulu Stewart and Ella Breakfield, defendants, took no interest whatever in the property of the said decedent, because the court found that there was no disposition of the property to them in the will.
    On appeal to the circuit court of Greene county, that court decreed that, under the second item of said will, the defendants, Lulu Stewart and Ella Breakfield, each took an equal interest with the other children of said decedent in her estate, and entered a specific decree dividing the estate between the several devisees referred to in the will. The following is a copy of the will:
    “I, Clara Moon, of Bowersville, Greene county, Ohio, being of sound mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made.

      “First. I order and direct my executors as soon after my death as possible to pay off and discharge all debts and liabilities that may exist against me at the time of my decease.

      “Second. I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children.

      “Third. I hereby nominate and appoint Frank Stewart as the executor of my estate after my death and to settle up all property, both personal and real.
    “In witness whereof I have hereunto subscribed my name this twenty-seventh day of June, A. D. 1911.
    “Clara Moon.
    “The above and foregoing instrument was at the date therefore signed, sealed, published and declared, by the said Clara Moon, as and for her last will and testament in presence of us, who at her request and in her presence, and in the presence of each other have subscribed our names as witnesses.
    “Gertrude Gorham, residing at Jamestown, Ohio.
    “Rose O’Day, residing at Bowersville, Ohio.
    “Acknowledged before me and signed and sealed in my presence this twenty-seventh day of June, A. D. 1911.
    “L. S. O’Day.

      "Justice of the peace in and for Greene county, Ohio”

    This proceeding is brought to reverse the judgment of the circuit court.

      Mr. Marcus Shoup, for plaintiffs in error.
    We submit that there is absolutely nothing of a testamentary character in the will here involved other than to name an executor. Page on Wills, Secs. 2, 45, 46, 48; Coffman v. Coffman, 85 Va., 459.

      We claim that item two of this will is not testamentary, if measured by any of the above principles of law. It attempts to designate heirs— this is not testamentary. If the thing here attempted to be done is to prevail then the testatrix repeals Section 8598, General Code. 1 Rockel’s Probate Prac., Sec. 1013; Section 10503, General Code.
    A will is an instrument by which a person makes a disposition of property to take effect after death. 1 Jarman on Wills (6 ed.), *18; Crane v. Doty’s Exrs., 1 Ohio St., 282; Baker v. Baker, 51 Ohio St., 222; Redfield on Wills, Sec. 2; 29 Am. & Eng. Ency. Law (1 ed.), 124.
    The statute of descent operates upon all intestate property, and the course which it indicates can be changed only by testamentary disposition. Mathews v. Krisher, 59 Ohio St., 562; Crane v. Doty’s Exrs., supra; Bane v. Wick, 14 Ohio St., 508.
    It is a rule of law that the heir is not to be disinherited without an express devise. There must appear in the will an actual gift to some other definite object or person. Gibson v. McNeely, 11 Ohio St., 152; 2 Jarman on Wills (2 ed.), *741; 1 Jarman on Wills (2 ed.), *465; Bane v. Wick, supra.

    No matter what was the intention or purpose of testator it must be disregarded in the absence of disposition. Crane v. Doty’s Exrs., supra; In re Williamson’s Will, 5 N. P., 1, 6 Dec., 505; 1 Jarman on Wills (6 ed.), *267.

      To allow an intestate to control the course of descent by an executory contract would be to allow him to set aside the laws of the state. Needles v. Needles, 7 Ohio St., 445.
    No matter how apparent be the intention of the testator, the heir at law inherits unless the estate is given to someone else. Gano v. Fisk, 43 Ohio St., 469; Carter v. Reddish, 32 Ohio St., 12; Reinhard v. Reinhard, 15 Dec., 741; Remsen on Wills, 343, 344, 346; Miller v. Gilbert et al., 144 N. Y., 68; Colton v. Colton, 127 U. S., 310.
    Statutory provisions and not the intention of the testator govern in determining the validity or legality of a will. Mader v. Apple, 18 Dec., 801; Sears v. Sears, 77 Ohio St., 104; Burke et al. v. Lee et al., 76 Va., 386; Townsend’s Exrs. v. Townsend, 25 Ohio St., 477; McKelvey v. McKelvey, 43 Ohio St., 217; Page on Wills, 972.
    Could the claim be successfully made that this would be dispositive or that such an instrument would be entitled to probate? Coon v. DeMoore, 25 C. C., 776.
    We can find from this instrument that she intended to make these defendants in error her heirs, but we cannot find that Clara Moon ever intended, or did, as a matter of fact, dispose of any of her property by the instrument. Mathews v. Kricher, 59 Ohio St., 562; Wilkins v. Allen, 18 How., 385; Walker v. Parker, 13 Pet., 166; Pendleton v. Larrabee, 62 Conn., 393; Bill v. Payne, 62 Conn., 140; Downing v. Bain, 24 Ga., 372; Wilder v. Holland, 102 Ga., 44; Andrews v.
      Harron, 59 Kans., 771; Howard v. Am. Peace Soc., 49 Me., 288; Mullarky v. Sullivan, 136 N. Y., 227; McIntyre v. Ramsey, 23 Pa. St., 317; Stewart’s Estate, 147 Pa. St., 383; Hoover’s Lessee v. Gregory, 10 Yerg. (Tenn.), 444; Wootton v. Redd’s Exr., 12 Gratt., 196; Page on Wills, Sec. 467; Barnitz’s Lessee v. Casey, 7 Cranch, 456; 1 Rolle Abr., 626; Couden v. Clerke, Hob., 30; Clerk v. Smith, 1 Salk., 242; Allen v. Heber, 1 Black. W., 22; Davis v. Davis, Exr., 62 Ohio St., 411; Geery v. Skelding, 62 Conn., 499; Fahnestock’s Estate, 147 Pa. St., 327.
    If Clara Moon made no will we submit that this court cannot make one for her disposing of her property, but must permit the heir at law to take the property as provided by statute in all cases of intestacy. Wright v. Hicks, 12 Ga., 155, 56 Am. Dec., 451; Denn v. Gaskin, 2 Cowp., 657; Schauber v. Jackson, 2 Wend., 13; McIntire et al. v. Cross et al., 3 Ind., 444; Blackman, Exr., v. Gordon, 2 Richardson’s Eq., 43, 44 Am. Dec., 241; Boisseau v. Aldridges, 5 Leigh, 222, 27 Am. Dec., 590; Brush v. Ware, 15 Pet., 93.
    The intention to be sought for is not that which existed in the mind of the testator but that which is expressed in the language of the will. Young’s Estate, 123 Cal., 337; Abercrombie’s Exr. v. Abercrombie’s Heirs, 27 Ala., 489; Arthur v. Arthur, 10 Barb., 9; Caldwell v. Caldwell, 7 Bush (Ky.), 515; Given v. Hilton, 95 U. S., 591; Cleghorn v. Scott, 86 Ga., 496; Collins v. Collins, 126 Ind., 559; Damon v. Bibber, 135 Mass., 458; State v. Holmes, 115 Mich., 456; Leigh v. Savidge’s Exr.,
      14 N. J. Eq., 124; Booth v. Baptist Church, 126 N. Y., 215; Lessee of Smith v. Jones, 4 Ohio, 115; Gilpin v. Williams, 17 Ohio St., 396; Colston v. Bishop, 1 O. C. D., 257, 1 C. C., 460; Alexander v. Mendenhall, 1 Dec., 655, 32 W. L. B., 173; Martin’s Estate, 185 Pa. St., 51; In re Walkerly, 108 Cal., 659; Sturgis v. Work, 122 Ind., 134; Burke v. Lee, supra.

    If an intent of the testator is doubtful, and two constructions are applicable thereto, that construction should be adopted which casts the property where the law would cast it if no will had been executed. Kilgore v. Kilgore, 127 Ind., 276; Long’s Estate, 228 Pa. St., 600; Cross v. Cross, 23 Wash., 676.

      Mr. William S. Hozvard, for defendants in error.
    Our contention is that under the second item of this will, Lulu Stewart and Ella Breakfield each take an equal share of the estate of Clara Moon, deceased, with her children, after the payment' of debts and costs of administration. Page on Wills, Secs. 43, 44, 45, 49, 58.
    There can be no possible question but what this is a will. It has been executed with all the formalities that the law requires, and has been admitted to probate.
    We submit that the finding of the circuit court was right and that any finding which would have deprived Helen Moon and Ernest Moon from any participation in the estate of Clara Moon, deceased, would have been error, as they take their parent’s share under the statute. Section 10581, General Code.
    This section of the Code has been construed by the supreme court in Shumaker v. Pearson et al., 67 Ohio St., 330; Woolley et al. v. Paxson et al., 46 Ohio St., 307.
    It is claimed that the instrument lacks dis-positive words, and, therefore, does not give anything. Our claim is that it is only a question of arriving at the intention of the testatrix as gathered from the language she has chosen to express her intention, and then there is nothing for the court to do but to carry the same into effect. Smith v. Bell, 6 Pet., 68; King v. Beck, 15 Ohio, 561; Gates v. Pond, 5 C. D., 297; Jones v. Lloyd, 33 Ohio St., 572; Stevenson v. Evans et al., 10 Ohio St., 311; Townsend’s Exrs. v. Townsend et al., 25 Ohio St., 477; Woodruff v. Woodruff, 13-23 O. C. C., 408; Carter v. Reddish, 32 Ohio St., 1; Bane v. Wick, 19 Ohio, 335.
    There is only one case in Ohio similar to the one at bar, and that is the case of In re Williamson’s Will, 8 Dec., 47. It is true that the question before the court in this case was one of admitting the will to probate, but the reasoning of the court is clear that if the matter had been before the court on a question of construction of the will what disposition would have been made of' it. Colton v. Colton, 127 U. S., 309; 2 Blackstone’s Comm., 499.

      Where there are no express words of donation, the intention follows by implication. Shaw & Campbell v. Hoard et al., 18 Ohio St., 233.
    Reference to a person as heir has been held to create a devise by implication to that person. Tilly v. Collyer, 3 Keb., 589; 1 Jarman on Wills (6 ed.), 529.
    The circuit court in disposing of this case decided that the will is dispositive and that the manifest intention of the testatrix is to make her two grandchildren equal heirs with her own children in the distribution of the estate, and cited the following cases: In re Williamson’s Will, 8 Dec., 47, 6 N. P., 79; Brenchley v. Lynn, 2 Rob. Ecc. Rep., 441; Bayley v. Bailey, 5 Cush., 245; Townsend’s Exrs. v. Townsend, 25 Ohio St., 477.
   Johnson, J.

It is urged with much impressiveness by counsel for plaintiff in error that the instrument in question makes no attempt to dispose of the property of testatrix, and does not contain a devise to anyone; that it is not a “will;” and that the testatrix died intestate as to all of her property.

It is contended that even if it be conceded that she intended to make a disposition of her property, the language used does not accomplish her purpose, however laudable.

It may be safely remarked that in the report of cases involving the construction of wills it is no longer necessary or profitable to discuss the various general rules which control the inquiry. They are well established, simple, and familiar. Rules for construing- wills are less rigid than those for construing- other instruments. Where a will bears the earmarks, as in this case, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning. It is very rare that any two wills present precisely the same question, and, therefore, in construing doubtful clauses the court will ascertain the intention of the testator, as the language of such clauses may reasonably be interpreted in the particular case. It has been well said that cases on wills may well guide as to general rules of construction, but unless a case be directly in point in its essential circumstances and data, it should have little weight with the court.

As to the will in controversy here, it will be noted that there is no contention that the instrument was not executed in full compliance with the statute as to tlie execution of wills, nor that the testatrix has attempted to do anything, or make any disposition of her property which controverts any provision of law.

The briefs of counsel disclose various statements as to the requisites of a will. In Colton v. Colton, 127 U. S., 309, the supreme court of the United States adopted Blackstone’s definition, which declares a will to be “the legal declaration of a man’s intention which he wills to be performed after his death.” There is in that definítion no specific mention of a devolution of property.

However, it may be conceded that if the paper in question here does not dispose of property it is not a “will,” and whether it does or not is really the sole question made in the case.

Before the defendants in error can be entitled to an interest in the estate of the testatrix,, it must appear from the whole writing that she intended to, and did, by it, give to them an interest which is definite and ascertainable from the will itself. Taking it as a whole, it is impossible to read it without, in the first place, observing a clear intention on the part of Mrs. Moon to dispose of her estate after her death to the persons referred to; in short, to make her will. She so declares in the opening, and she declared to the witnesses when she signed it that it was her last will and testament. While the designation of an instrument does not of itself determine its legal character, it is entitled to weight in ascertaining the meaning in which parties to it, use particular words contained in it.

In the first item she directs her executors to pay off and discharge all debts and liabilities that may exist against her estate at her death, and in the third item she appoints an executor “to settle up all property, both personal and real.” In the second item, which has given rise to the contention between the parties in this case, she provides, “I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children.” It is contended by plaintiff in error that in that clause there is no provision that anyone shall take any interest in the estate of the testatrix and that it is not dispositive, and, further, that it cannot be regarded as a provision making the two granddaughters heirs, for the reason that the only method provided by which one can make another his heir is that prescribed in Section 8598, General Code, whereby proceedings in the probate court may be had looking to that end.

While we might be disposed to agree with counsel that a person cannot be made an heir at law except in the manner prescribed in that section, we do not regard that as the question made here. The testatrix manifestly did not use the word “heirs” in any technical sense, and in the interpretation of that word such a meaning should be given it as the testatrix evidently intended it should have, as disclosed by the whole instrument. The rule is familiar, but is succinctly stated in Jones v. Lloyd, 33 Ohio St., 572, where it is held that “the term ‘heirs/ when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator, as ascertained by a due consideration of all the provisions of the will.”

It is apparent from the reading of this clause in connection with the balance of the paper that the testatrix used the word “heirs” with the object and intention to include the person referred to among her devisees, and she evidently used the word “heirs” in the sense of “devisees.” The lady was not attempting to designate her two granddaughters, as persons who would take under the statutes of descent, and, therefore, as “heirs at law,” but she was designating them as persons who would take under the paper she was then executing, and which she was then declaring to be her will.

Attention should be given to the language in the third item which provides for the appointment of an “executor of my estate after my death to settle up all property, both personal and real.” Not only to settle up debts but all property. It is inconceivable that she used the words “to settle up” in any other sense than “to divide up” all property, both personal and real, between the persons indicated in item two, after payment of debts. Giving to the words, in these two different items, the meanings above indicated, which course we think is clearly enjoined by salutary rules for the construction of such instruments, and by principles of justice, it is apparent that the writing is dispositive.

In Metcalf v. Framingham Parish et al., 128 Mass., 370-374, Gray, Chief Justice, remarks: “Where the reading of the whole will produces the conviction that the testator must necessarily have intended an interest to have been given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mold the language of the testator as to carry into effect, as far as possible, the intention which it is of the opinion that he has in the whole will sufficiently declared.”

In Bayley v. Bailey, 5 Cush., 258, there was an instrument in question which was in the following terms: “It is my wish that the will that I made be destroyed, and my estate settled according to law.”

In reference to the contention that the paper was not testamentary, and, therefore, not a will, Chief Justice Shaw said: “If the first clause in the writing stood alone, ‘it is my wish, that the will I made shall be destroyed/ there would be some force in this argument; but the other clause we think is more decisive, ‘that my estate be settled according to law.’ ” “It was a present declaration — ‘it is my wish now;’ and it was made by one, whose declaration of purpose, in the form required by law, was conclusive. It looked to the event of his death, to take its effect, and'to have its operation.”

So, here, the appointment of the executor “to settle up all property, both personal and real,” was a definitive declaration that Mrs. Moon, looking to the event of her death, desired her executor to divide up the estate between the persons indicated in the second item.

In Brenchley v. Lynn, 2 Rob. Ecc., 441, 468, it is said: “If a man by will declares he dies intestate, and that his property shall go as in case of intestacy, such paper does not constitute an intestacy but a bequest of the property personae designatae — designated by the statute, as it might be by any other description. The property in the present instance goes not in virtue of the statute, but in virtue of the will.”

Nor do we think that the cases of Crane v. Doty’s Exrs., 1 Ohio St., 282, and Bane v. Wick, 14 Ohio St., 508, which are much relied upon by counsel, are in, conflict with the view we have taken. In the will in Crane v. Doty, there was no residuary clause, and after the payment of the debts and specific bequests there remained real and personal property not expressly disposed of by the will. There was a bequest to one of the testator’s daughters in which it was stated: “It is my will she shall have $200.00 more and her note, for that she has already had, and no more of my estate.” The court held that a testator cannot by words of exclusion used in his will disinherit one of his lawful heirs in respect to property not disposed of by his will, and that such words cannot be used to control the course of descent so as to carry the property to other heirs.

The same principle was applied in Bane v. Wick, in which it is declared that as to the devised property he is a testator and as to that not so disposed of, an intestate. This principle has been applied in many other cases.

It will be observed that the question disposed of in those cases related to property which it was admitted had not been disposed of by terms of the will.

The question here is whether the instrument in question disposed of any property at all, it being necessarily conceded that if the instrument is dis-positive, the entire estate of the testatrix passed.

We think the decree of the circuit court which provided, specifically, for the disposition of the estate of Mrs. Moon to the persons named in the decree was correct and in keeping with the will of the testatrix, and it will be affirmed.

Judgment affirmed.

Shauck, C. J., Donahue, Wanamaker, Newman and Wilkin, JJ., concur.