text:
    The Rayland Coal Company v. McFadden, Administrator.

      Wrongful aeath—Answer a general denial—Contributory negligence —Court must charge as to same, when—Issue of contributory negligence raised, when—Burden of proof and determination of issue.

    1. In an action of negligence where the answer of defendant contains a general denial and an averment that the "death of the deceased was caused wholly and solely through his own negligence and fault and without any fault whatever on the part of the defendant,” and evidence is introduce4 at the trial by each party in support of its claims, from which the jury might properly find that both defendant and deceased were negligent in such material matters as combined to produce the proximate cause of the injury, it is the duty of the court to instruct the jury as to the law governing the situation thus developed; and it is error for the court to charge the jury that contributory negligence is not in the case.
    2. In such case the issue of contributory negligence is not made by the pleadings but is raised by the evidence properly offered by the parties in support of their respective claims as made in the pleadings. The issue of contributory negligence thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings.
    (No. 13650
    Decided April 21, 1914.)
    Error to the Circuit Court of Jefferson county.
    This was a proceeding brought in the court of common pleas of Jefferson by the defendant in error to recover damages for the alleged wrongful death of Joseph R. Selman, deceased. The petition alleged the qualification of the administrator and the incorporation of the defendant; that the decedent, Selman, had been employed by the defendant as clerk; that on the 9th day of July, 1910, he was ordered by the superintendent of defendant to go with him to the railway station at Rayland to act as guard for the paymaster of said defendant while on his way to the office of the company; that the superintendent directed decedent to ride with him from the coal mine of the defendant to the railway station, in a buggy; that in the buggy the superintendent caused to be placed two loaded guns; that the buggy was drawn by a colt which was not well broken -and which was fractious; that when they arrived at the railway station the superintendent ordered the decedent to carry the guns from the buggy to a house near by, occupied by the decedent, and to remain until the paymaster arrived at the station; that when the paymaster arrived he was taken by the superintendent to the buggy where it was left standing; that the paymaster and superintendent entered the buggy in the same seat, which was the only seat in the buggy; that the superintendent ordered the decedent to bring the loaded guns from the house where they had been left, to place the same under the seat of the buggy, and directed thereafter that he was to follow immediately behind said buggy to act as guard to said paymaster; that one of said.guns, which was a repeating gun, was out of repair-and in a danger-, ous condition in that the hammer rested directly against the firing pin; that the said superintendent and the agents of said company well knew the dangerous condition of said gun; that said decedent was not familiar with firearms and not a judge sufficient to know of the dangerous condition of said gun; that while the decedent was placing one of said guns under the seat of said buggy, as directed by said superintendent, the fractious or unbroken colt, drawing said buggy and being driven by said superintendent, reared or plunged, thereby backing said buggy or the crossbar under said buggy against the hammer of said gun, which jarred against the hammer of said gun causing it to strike the firing pin of said gun, discharging the gun, and the contents entered the body of said decedent, causing almost instant death; that the death of decedent was caused by the defective and dangerous condition of the gun. and the negligence of the said superintendent and agents, having attached to said buggy a fractious or unbroken colt; “that the decedent in nowise contributed to the accident by any negligence on his part,” and prayed judgment against defendant.
    The first defense of defendant’s answer admitted the appointment and qualification of the administrator, the incorporation of the company, that the decedent was at the date of his death and for a long time prior thereto an employe of the defendant, and denied all the other allegations of the petition. A second defense alleged that the death of the said Joseph R. Selman was caused wholly and solely through his own negligence and fault and' without any fault whatsoever on the part of the defendant.
    The reply of the plaintiff denied the allegations of the answer, save and except such allegations as admit the truth of the plaintiff’s petition.

      At the conclusion of the plaintiff’s case the defendant demurred to the evidence arid moved the court to direct a verdict in its favor, which was overruled by the court. This motion was renewed at the close of all the testimony and likewise overruled, to which rulings defendant excepted. Judgment was entered on a verdict for plaintiff and this judgment was affirmed by the circuit court. From this judgment error is prosecuted here.

      Mr. P. P. Lezvis and Mr. Dio Rogers, for plaintiff in error.

      Mr. John H. McKee, for defendant in error.
   Johnson, J.

It is insisted that the trial court erred in overruling the motion of the defendant, made at the close of the plaintiff’s testimony and renewed at the close of all the testimony, to direct a verdict in its favor. It was shown by the evidence that the superintendent of the defendant and deceased, on the morning of the accident, went to the railway station in a single buggy drawn by a colt belonging to the company, to meet the paymaster. On arriving at the station the superintendent directed the deceased to take two guns, which they had brought with them, into the home of the deceased, which was close to the station, and leave them in a safe place until the arrival of. the train. This was done. On the arrival of the train, deceased brought the guns from his house, holding one in each hand, and when he reached the buggy, in which the superintendent and paymaster were sitting, he said to the superintendent, “Miller, will you take your gun?” and Miller replied, ‘‘No, Joe, put it under the seat.” One of the guns was a Marlin repeating shotgun and the other was a rifle. While the deceased was pushing, the shotgun under the seat from behind, it was discharged- and he was killed. Two grounds of negligence were alleged in the petition. First, that the defendant furnished an unsafe and fractious colt, which was attached to the buggy and which became unruly, and, second, that the gun furnished to the decedent was defective, unsafe and in a dangerous condition, in that the hammer of the gun rested directly on the firing pin. So far as the colt is concerned the evidence does not show that his actions had much, if. anything, to do with the accident.

But there was very substantial evidence in support of the claim that the gun furnished by defendant to the decedent, and which he was directed to use and dispose of as stated, was defective; that it would stand at fullcock, but when off from fullcock the hammer would lie directly upon the firing pin and that the halfcock would not work. It is conceded that the gun was not produced in evidence and that it was in possession of the defendant company.

If the defendant had produced the gun in court and could have shown by testimony that it was in the same condition when so produced as it was at the time of the accident, it could then have been very easily demonstrated whether it was out of repair or defective as alleged. The gun itself and its condition could have been explained to the jury by experts, and the members of the jury could have inspected it and ascertained its condition. If its absence was regarded by the jury as a significant circumstance the defendant has no cause for complaint on that account.

There was evidence tending to show that when Selman put the gun into the buggy he held it with the muzzle pointing toward him and “shoved it right along on the triggers,” and also that he had some acquaintance with the gun and had the means of knowing its condition. On the other hand, there was evidence that his knowledge of guns was limited and that he had.not such knowledge as to appreciate the possibility of an accidental discharge of such a gun as this, and it was not shown that he had actual knowledge of any defect in this gun if there was such defect.

The determination of all of these issues of fact was a matter entirely for the jury in the light of the evidence, under proper instructions of the court. It is clear that the trial court did not err in overruling the motions of the defendant to direct a verdict in its favor.

A serious question, however, is presented by the charge of the court to the jury.

As already stated, the answer of the defendant contained a general denial of any negligence oh its part, and in the second defense alleged that the death of Selman was caused wholly and solely through his own negligence and fault and without any fault whatsoever on the part of defendant.

Evidence was introduced by both parties on the issue as to negligence of the defendant.

Evidence was also introduced by both parties on the- issue as to whether the death of decedent was caused by his own negligence and fault.

• Each contended to the last that its claim as to these issues was sustained by the preponderance of the evidence.

The court in its charge, after stating the issues made by the pleadings and the general rules that should govern them in the consideration of the issues and in weighing the evidence, said to the jury: “Contributory negligence is not in this case.' It is not plead. It is not claimed. If the- defendant through its negligence brought about the death of this man, plaintiff is entitled to a verdict. If the man’s death came about through his own want of ordinary care, through his own act solely, then the defendant is entitled to your verdict.” Taken together, this was a plain direction that the only negligence of the deceased, which would relieve defendant from liability for negligence on its part, was such an act of negligence by deceased that was the sole cause of his death. It charged out of the case the entire question of contributory negligence and ignored all negligence of the deceased unless it was found to be the only cause of death.

When the jury came to consider all of the evidence it might logically have found that the defendant had been negligent in the furnishing of a defective gun, but that Mr. Selman had himself been careless and negligent in the handling of it, as described by the witnesses, and that these negligent acts concurring had each contributed and together combined to cause the accident. The jury should have been instructed as to the law that should govern them in such event.

The trial court appears to have entertained the view that, as the answer had not pleaded contributory negligence on the part of Mr. Selman, no such issue was in the case and no charge concerning it was necessary or proper, notwithstanding the state of the proof, which had been properly developed on the trial.

. It is insisted by counsel that this course was correctly adopted by the court in view of some decisions by this court which are referred to. It is urged that while the exact situation in this case is not covered by those cases there is sufficient to indicate the correctness of the rule as given to the jury.

The frequency with which the question is presented justifies a review of the cases referred to. There are four, of them, and we think it clear that they are in entire harmony.

In Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, the petition stated the facts on which plaintiff based his action and averred that plaintiff was free from fault. The answer was simply and only a general denial.

It is distinctly pointed out by the court that contributory negligence was not charged by the answer and that such issue was not raised by the evidence. The entire incident as pleaded by plaintiff was denied by the general denial. The court say: “The element of contributory negligence could not, in the nature of things, become a feature of an event which did not occur at all. From this it follows that there was no issue in the pleadings respecting contributory negligence. Nor was such issue raised by the evidence."

It was therefore held to be error for the court to introduce the element of contributory negligence in its charge to the jury and give instructions thereon.

In Cincinnati Traction Co. v. Stephens, Admr., 75 Ohio St., 171, there was substantially the same situation of pleading and proof as in the Forrest case, supra. The court say: “Excepting the allegation of corporate capacity and proprietorship •md the allegation that the deceased sustained injuries which caused her death on the date alleged, the defendant denied each and every allegation contained in the plaintiffs petition. There was, therefore, no issue of contributory negligence in the pleadings; and in a careful reading of the evidence in the bill of exceptions we have not been able to discover any attempt on the part of the defendant to prove contributory negligence.”

The defense in that case on the trial, was apparently conducted on the theory that the death of deceased was caused by an accident, pure and simple.

It was held to be error in that case for the court to charge at length on the subject of contributory negligence, and that the burden was on defendant to establish it.

The defendant had rested its case on an entirely different claim of fact and law.

In Glass v. The Wm. Heffron Co., 86 Ohio St., 70, there was not simply a general denial, as in the two cases above referred to, but the answer contained, first, a general denial, and, second, a denial that defendant was negligent, followed by an averment that it was by plaintiff’s own fault and negligence that he was injured. There was testimony tending to support the claims of the ‘parties as to both issues. The court charged the jury that ‘‘the burden of proving contributory negligence of the plaintiff is upon the defendant.” It was held by this court that this answer did not raise the issue of contributory negligence, but that it was more than a denial that plaintiff was without fault. “It is an 'averment that the plaintiff’s own negligence was the sole cause of his injury.”

It was further held that in such case, where there is evidence which fairly tends to prove that the defendant was guilty of negligence and also that plaintiff was negligent, it is proper for the court to instruct the jury that if they should find that the defendant was negligent and that stich negligence was 1 he-proximate cause of the injury, and if they should further find that plaintiff was guilty of some negligence, they should then determine whether plaintiff’s negligence was such as combined with defendant’s negligence contributed proximately to the injury; and that it is not prejudicial to defendant, nor erroneous, to instruct the jury that the burden of proving contributory negligence of plaintiff is'on the defendant.'

In Behm v. The C., D. & T. Traction Co., 86 Ohio St., 209, the petition alleged actionable acts of negligence by the defendant. The answer contained a general denial of negligence by defendant, and it further averred that whatever injuries plaintiff received were caused by his own negligence. This was denied in the reply. Evidence was introduced at the trial in support of the claims of each party. The court, after charging the law generally applicable, stated to the jury: “The other issue of fact for your determination is as to whether or nol he himself [plaintiff], by his own acts (the alleged negligence which defendant sets up), contributed to the injury he received.”

The court further charged: “If you find both that the company was negligent, that the negligence was the proximate cause, but if you find also .that the plaintiff by his own negligence contributed to the injuries he received, then, too, you should find in favor of this defendant.”

It was contended that the court erred in the charge so given because there was no issue of contributory negligence in the pleadings.

This court held that because of the state of the ■ pleadings and the evidence on the trial, the charge was proper.

The distinction between the first two and the latter two cases, above referred to, is obvious and substantial.

In each of the former there was neither allegation charging negligence of the plaintiff nor evidence tending to prove such negligence. In the latter there was both allegation and evidence, and this is true as to the case at bar. In the case at bar the court not only did not charge the rules th^t should control the jury, as to contributory negligence, but told them positively that it was not in the case. On the principles upon which the two cases referred to were decided this was error. There was not that impartial submission of the cause which the law requires.

An averment of contributory negligence necessarily implies some negligence on the part of defendant, and there is no arbitrary rule which requires a defendant to elect at his peril, whether or not to plead contributory negligence, if he honestly feels that he has not been negligent at all.

When the evidence on the trial develops a situation in which it is disclosed that the claims of neither of the parties as stated in their pleadings as to proximate cause have been sustained, but that both have been negligent in such essential matters as combined to be the proximate cause of the injury, then it is the duty of the court to instruct the jury as to the law touching the situation so developed. The term to be applied to such combined and concurring acts of the parties is not important or material. The essential thing is that the jury must not be allowed to gain an erroneous conception of the law governing such a situation. And they should surely not be instructed to disregard such a posture when it appears. A defendant may plead as many consistent defenses as he honestly believes he has. He may plead a general denial and aver that if it should develop on the trial that there had been negligence on his part, the plaintiff had by his own negligent conduct contributed to the proximate cause of the injury.

It is urged that as defendant did not request the court to instruct the jury on the question of contributory negligence it cannot be heard to object now. Counsel undoubtedly owe a duty to the trial court, and may by their conduct, or expressly, waive objection to the omission of the court to charge on a question involved in the case. Whether there has been such waiver must manifestly depend on the circumstances of each case. But there was no such waiver here. The court expressly charged on the subj'ect of contributory negligence, and stated that it was not in the case. This was a definite and explicit statement of the court’s views, and counsel for defendant might well assume that a request would be useless. There are other assignments of error. We have considered them all, but do not find them to be so substantial as to have required a reversal of the judgment of the common pleas court.

On account of the error in the charge the judgments below will be reversed and the cause re-' manded to the court of common pleas for further proceedings.

Judgment reversed.

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

Wanamaker, J., dissents.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio v. Baltimore.

      Criminal law—Indictment for rafe with consent—Defendant may be convicted of attempting to commit rape, when—Sections 12414 and 12415, General Code—Error to refuse to charge conviction of attempt, when.

    1. Where an indictment charges the offense of rape with consent under Section 12414, General Code, the defendant may under such an indictment be convicted of an attempt to commit the-offense under Section 12415, General Code.
    2. In such case it is error for the court to refuse to charge that if the evidence fails to show that the defendant is guilty of the . completed offense under Section 12414 the defendant may be convicted of an attempt to commit the offense.
    (No. 14424
    Decided April 21, 1914.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.
    The facts-are stated in the opinion.

      Mr. Thomas L. Pogue, prosecuting attorney, and Mr. Simon Ross, Jr., assistant prosecuting attorney, for the exceptions.

      Mr. A. Lee Beaty, against the exceptions.
   By the Court.

The grand jury, at the January term, 1913, of the common pleas court of Hamilton county returned an indictment against the defendant in error as follows:

“The grand jurors of the county of Hamilton under and by the authority of the State of Ohio upon their oaths do present that Felix Baltimore, on the second day of February in the year 1913, with force and arms at the county of Hamilton and state of Ohio aforesaid being then and there a male person of the age of eighteen years and upward, did unlawfully and knowingly carnally know and abuse one V. T. with her consent, she, the said V. T. then and there being a female person under the age of sixteen years, to-wit, of the age of fifteen years, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”

Defendant in error entered a plea of not guilty and the case was tried to a jury.

The state requested the court to give to the jury the following instruction: “If you find from the. evidence that the prosecutrix, Y. T., was a female under the age of sixteen years and that the defendant, Felix Baltimore, though he did not have intercourse with the prosecutrix, attempted to have such intercourse with the prosecutrix with her consent, then you may find him not guilty of rape with consent, but guilty of an attempt to commit rape with consent.” The court refused this request, and an exception was taken by the state. There was a verdict of acquittal. Upon application of the prosecuting attorney permission to file a bill of exceptions here was granted.

The only question presented by the bill of exceptions for our decision is whether the court erred in its refusal to give to the jury the instruction requested by the state.

Defendant in error was indicted under Section 12414, General Code: “Whoever, being eighteen years of age, carnally knows and abuses a female person under the age of sixteen years with her consent shall be imprisoned in the penitentiary not less’ than one year nor more than twenty years, or six months in the county jail or workhouse. The court is aúthorized to hear testimony in mitigation or aggravation of such sentence.”

Section 12415, General Code, is as follows: “Whoever attempts to carnally know and abuse a female person under sixteen years of age, with her consent, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.”

Section 13692, General Code, provides: “Upon an indictment, the jury may find the defendant not guilty of the offense charged but guilty of an attempt to commit it, if such attempt is an offense at law.”

Under Section 12415 an attempt to commit the offense defined by said Section 12414 is an offense, and the jury, under the provisions of Section 13692, if the evidence justifies it, may, upon an indictment under Section 12414, find the defendant guilty of the offense defined by said Section 12415. The state was, therefore, entitled to have the courts give the instruction which it requested, and the court erred in its refusal.

The indictment here charging defendant in error with the crime of rape with consent under Section 12414 is sufficient to cover the charge of an attemptéd rape with consent under Section 12415, and it was unnecessary to set out in the indictment a second count charging an attempt to commit the of^nSe‘ Exceptions sustained.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    The State of Ohio v. Delbert Hayslip. The State of Ohio v. Ownie Hayslip.

      Critninal law—No common-law writs or pleas—Coram nobis and coram vobis.

    (Nos. 14426 and 14427
    Decided April 21, 1914.)
    Error to the Court of Appeals of Adams county.

      Mr. F. A. Shiveley, prosecuting attorney; Messrs. Stephenson & Mahaffey; Mr. Timothy S. Hogan, attorney general, and Mr. Clarence D. Laylin, special counsel, for plaintiffs in error.

      Mr. James C. Nicholson and Mr. George W. Pet-tit, for defendants in error.
   By the Court.

We find that in Ohio the common-law writs and pleas are designated and defined by statute just as crimes are designated and defined by statute. The writs of coram nobis and co-ram vobis, which are invoked in behalf of the defendants in error, are no part of the criminal jurisprudence of the state of Ohio.

The judgment of the court of appeals is reversed and that of the court of common pleas affirmed.

Judgment reversed.

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


text:
    The State, ex rel. The Coshocton Humane Society, v. Ashman, Probate Judge.

      Humane society—Organization and powers—Probate judge may determine qualifications or necessity for agent thereof—Sections 1Q0Ú2 to 10084, General Code,

    Under the provisions of Chapter V, Title IX, Div. VI, of the Gen- ■ eral Code, providing for the organization and powers of humane societies, a probate judge, when called upon to approve the appointment of an agent for such society, has discretion to determine not only whether the person named is a proper person for the discharge of such duties, but also whether there is such necessity for the appointment as would justify the pay-, ment of the expense out of the public treasury.
    (No. 14473
    Decided April 21, 1914.)
    Error to the Court of Appeals of Coshocton county.

      Mr. C. R. Bell, for plaintiff in error.

      Mr. George D. Klein, prosecuting attorney, for defendant in error.
   By the Court.

The Humane Society filed in the court of common pleas of Coshocton county, a petition for a writ of mandamus to compel the dev fendant as probate judge of Coshocton county to approve the appointment of one W. T. Knight as its agent for the purpose of prosecuting persons guilty of acts of cruelty to animals and children and to otherwise represent the society as provided by the laws of the state of Ohio.

The petition alleges that there was a vacancy in such agenev by reason of the corporation having discharged its former agent, and that it thereupon duly appointed said Knight to the vacant place and asked the defendant as probate judge to approve of the appointment.

The petition further alleges that said Knight was a fit and proper person to appoint and act as such agent, he being experienced in a similar kind of work and otherwise qualified to fill the position.

The petition further alleges that the defendant did not object to the qualifications of Knight, but based his refusal upon other grounds. A demurrer to the petition was sustained in the court of common pleas and the petition was dismissed. The case was then taken on an appeal to the court of appeals where the same judgment was entered.

The theory presented for the reversal of the judgment is that the probate judge is without authority to refuse to approve if the person appointed is competent for the discharge of the duties of the place. The statutes relating to the subject comprise Sections 10062 to 10084, General Code, inclusive. They authorize the society to make appointments of agents without the approval of the probate judge, or any other officer, and the approval if given accomplishes but one purpose, possibly two. It does authorize the payment of the agent’s compensation out of the funds of the county and possibly it adds to the agent’s authority in making arrests. But the fact that the absence of the approval of the probate judge protects the county from the payment of salary or compensation to the agent must, we think, be regarded as vesting in the probate judge a discretion to determine whether, in view of all conditions existing, there is a public neccssity for such appointment. No language of the statute restricts his discretion to a consideration of the fitness of the person whom the society names as agent, and the effect of his approval would not authorize us to infer such limitation.

Judgment affirmed.

Nichols, C. J., Sliauck, Johnson, Donahue, and Wilkin, JJ.-, concur.

Wanamaker, J., dissents.


author: Donai-iue, J.

text:
    The State of Ohio v. Morrow.

      Constitutional law—Criminal case is pending in common pleas court, when—Prosecuting attorney cannot comment on failure of accused to testify, when—Section 13661, General Code— Section 10, Article I, Constitution.

    A case is pending in the common pleas court, within the meaning of the general schedule to the amendments of 1912 to the constitution of Ohio, when there is filed in that court a transcript of the criminal docket of the examining magistrate by whom the accused has been committed to the jail of the county, or recognized to appear before that court to answer the charge in the affidavit filed with such magistrate.
    (No. 14327
    Decided April 30, 1914.)
    Error to the Court of Appeals of Morrow county.
    On the 12th day of December, 1912, John C. Morrow was arrested upon a warrant issued by Hon. B. M. Griffis, a justice of the peace of Morrow county, upon an affidavit charging him with murder; in the first degree. Upon the preliminary hearing before the magistrate, it appearing that there was probable cause to believe the accused guilty and the offense charged not being a bailable offense, the defendant was committed to the jail of Morrow county, and on the 17th day of December, 1912, the magistrate filed a transcript of the proceedings had before him with the clerk of the common pleas court of Morrow county, and the clerk of that court thereupon entered the case upon the appearance docket of the court, with the date of filing such transcript, in accordance with Section 13529, General Code.
    At the February term, 1913, of the common pleas court of that county, the grand jury returned into court an indictment charging John C. Morrow with murder in the first degree, being the same offense with which he was charged in the affidavit filed with the justice of peace. The accused was tried upon this indictment and was found guilty of murder in the second degree. A motion for a new trial was overruled and defendant sentenced. The court of appeals reversed this judgment of the common pleas court, assigning as its reason for such reversal that the trial court erred to the prejudice of the plaintiff in error in giving in charge to the jury the following instruction, to-wit:
    “The failure of the defendant to take the stand in his own behalf is a circumstance which you may take into consideration in connection with all the evidence and circumstances of the case, to determine if he is guilty of the crime charged. But if upon a consideration of all the evidence find circumstances of the case, including that of his failure to testify, you entertain reasonable doubt of defendant’s guilt, then the mere fact that he failed to testify should not operate to the prejudice of the defendant.”
    This proceeding in error' is now prosecuted in this court to reverse the judgment of the court of appeals.

      Mr. Benjamin Olds, prosecuting attorney, and Mr. J. C. Williamson, for plaintiff in error.
    ilfr. J. W. Barry and Mr. T. B. Mateer, for defendant in error.
   Donai-iue, J.

At the date of the filing of the transcript from the magistrate’s court in the court of common pleas, to-wit, December 17, 1912, Section 10 of Article I of the Constitution of Ohio provided, among other things, as follows: “Nor shall any person be compelled, in any criminal case, to be a witness against himself.”

Section 13661, General Code, which was then in full force and effect, provided that “On the trial of indictments, complaints, and other proceedings against a person charged with an offense, such person at his own request shall be a competent witness. The neglect or refusal of such person to testify shall not create a presumption against him, nor shall reference be made to, nor comment made upon such neglect or refusal.”

The amendment to the constitution, which went into effect January 1, 1913, substantially changed 1Un mnstilTitional provision in this respect by providing in the amendment to Section 10, Article I, among other things, the following: “No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel.”

It follows, therefore, that if this amendment to the constitution applies to this case, the trial court did not err in instructing the jury that “The failure of the defendant to take the stand in his own behalf is a circumstance which you may take into consideration in connection with all the evidence and circumstances of the case, to determine whether he is guilty of the crime charged. But if upon a consideration of all the evidence and circumstances of the case, including that of his failure to testify, you entertain a reasonable doubt of defendant’s guilt, then the mere fact that he failed to testify should not operate to the prejudice of the defendant.”

It is contended on behalf of the defendant in error that the general schedule to these amendments to the constitution takes this case out of the operation of these amendments, notwithstanding the same went into effect on the 1st day of January, 1913, and before the indictment was returned by the grand jury. This schedule provides, among other things, that “All laws then in force, not inconsistent therewith shall continue in force until amended or repealed; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Any provision of the amendments passed and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail.”

The provisions of Section 13661, General Code, are undoubtedly in direct conflict with the provisions of Section 10, Article I of the Constitution, as amended, and under the rule stated in the case of Cass v. Dillon, 2 Ohio St., 607, as well as the provisions of the schedule itself, this statute must be held to be repealed by implication, but notwithstanding that fact the general schedule provides in no uncertain terms that all cases pending in the courts on the 1st day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Therefore, as to the cases pending upon that day this section must be given full force and effect

The important question presented by this record is whether or not this case was pending on the 1st day of January, 1913. If it was pending on that date, then Section 13661 applies, and the charge of the trial court was erroneous. If this case was not pending on the 1st day of January, 1913, then this section of the statutes has no application and the provision of the amended constitution con • trols. This question is practically settled in the case of Hartnett v. State, 42 Ohio St., 568. In that case this court held: “When a person is arrested and duly committed for a crime, for which he is thereafter indicted, the prosecution for that crime is pending within the meaning of Rev. Stats., Section 79, as soon as he is arrested and committed.”

It follows that if a prosecution for crime is a case within the meaning of the general schedule to the amendments to the constitution then this case was pending on the 1st day of January, 1913. A prosecution for crime is adversary in its nature and comes within the legal definition of the word “case.”

Chief Justice Marshall, while a member of congress, in a debate in relation to the case of Jonathan Robbins, 5 Wheat. (Appendix 17), defines case in this language: “There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.”

“A case is in one sense, ‘A question contested before a court of justice.’ ” Southwick v. Southwick, 49 N. Y., 510.

“A case is a suit in law or equity, instituted according to the regular course of judicial proceedings.” Pacific Steam Whaling Co. v. United States. 187 U. S., 447.

“ ‘Case’ is defined to be a question contested before a court of justice in an action or suit at law or in equity.” Buell v. Dodge, 63 Cal., 553. Kundolf v. Thalheimer, 12 N. Y. (2 Kern), 593.

The prosecution was instituted according to the regular course of proceedings, and the filing of the transcript from the docket of the justice of the peace in the common pleas court vested that court with jurisdiction to hear and determine all questions arising therein, independent of whether an indictment was returned or otherwise* The return of an indictment is but an incident in the progress of the prosecution. The prosecution is commenced in the common pleas court by filing the transcript from the magistrate’s court.

Of course, this is only one way in which prosecutions for crime may be commenced. The accused may be arrested and discharged by the examining magistrate, yet the grand jury would have the right to inquire into the offense, or where there has been neither an arrest nor a commitment, the grand jury may call witnesses before it and inquire into the probable guilt of the accused, the same as if he had been recognized to the common pleas court or committed to the jail of the county to await the action of the grand jury, and in either case, where no transcript is filed, the prosecution would not be deemed commenced until the return of the indictment into the court.

The question as to whether this prosecution was a case pending in the common pleas court is fully answered by the language of Section 13529, General Code, which section requires the clerk of the court, when the transcript or recognizance is received by him, to enter the case upon the appearance docket of the court with the date of filing such transcript or recognizance. This statute does not call it a proceeding or a prosecution, but designates it a case when the transcript is filed with the clerk of the court. The framers of the amendments and schedule to the constitution must be presumed to have known the statutory law of this state, and, therefore, when they used the word case, they are presumed to have known that the statutes of this state designated a criminal prosecution as a case upon the filing of the transcript from the examining magistrate with the clerk of the court of common pleas. Other sections of the statutes are in line with this construction. Section 13554, General Code, requires the clerk before the'first day of each term of court at which a grand jury is summoned to appear, to make a list of the names of persons appearing, by the returns of the magistrate, to have been committed or bailed during the vacation of the court. All further proceedings in the action must be had in the court in which the transcript of the examining magistrate is filed. Where the accused fails to appear the recognizance Í3 forfeited and entry of such forfeiture placed upon the journal. Section 13576, General Code, provides that if a person held in jail for an indictable offense is not indicted at the term of court at which he is held to answer, he shall be discharged, unless he was committed on such charge after the discharge of the regular grand jury for such term, in which case the court may discharge him, order another grand jury or require him to enter into a recognizance for his appearance before the court to answer the charge at the next term thereof. A person shall not be discharged if it appear to the court that a witness for the state has been enticed, kept away or detained or kept from attending court by sickness or unavoidable accident.

It therefore appears from these statutes that the common pleas court acquires jurisdiction of the action for all further purposes in the case immediately upon the filing of the transcript from the magistrate’s court, and this jurisdiction is not dependent upon the return of an indictment into the court, for where an indictment is not returned the court has jurisdiction to discharge the prisoner or to require him to enter into a recognizance for his appearance before the court at the next term thereof.

This prosecution was commenced in the common pleas court on the 17th day of December, 1912, and was a case pending in that court on the 1st day of January, 1913. By the provision of the general schedule the accused should have been tried in the same manner and by the same procedure as was authorized by law at the time of the commencement of the action.

The further question sought to be made by the state upon its cross-petition filed in the court of appeals is not before this court, the state having secured a judgment of conviction in the trial court, the error complained of was not prejudicial to it, and it could not prosecute error therefrom. The court of appeals properly refused to consider the question upon the state’s cross-petition in error.

Judgment affirmed.

Nichols, G J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    The State of Ohio v. Vancak.

      Criminal law—Homicide—Distinction between murder and manslaughter—Interpretation of Section 12404, General Code— Self-defense—Section 13675, General Code—Trial—Charge to jury.

    (No. 14417
    Decided April 30, 1914.)
    Error to the Court of Appeals of Summit county.

      Mr. H. F. Castle and Mr. C. P. Kennedy, for plaintiff in error.

      Mr. H. M. Hagelbarger; Mr. J. A. Kohler and Mr. Samuel Friedman, for defendant in error.
   By the Court.

The defendant in error was charged by indictment with murder in the first degree. Upon the trial of the accused on this indictment he admitted that he struck the blow that killed Joe Selichman, but claimed that the blow was struck in self-defense. Counsel for the accused, in open court, when called upon under the provisions of Section 13675, General Code, to state his defense, stated, among other things, the following:

“But in some way or other he (Vancak) hit him or struck him with the tool he used to work with, and unfortunately he hit him in such a place on the skull that it was broken and he died. * * * Well, he hit him in that way with a hammer after he had been attacked by the deceased. * * * I think that the testimony will show that under all the circumstances what this man did was in self-defense, and that he used only such force as he thought necessary after this man made an attack upon him.”

The jury returned a verdict finding the accused guilty of manslaughter. rK motion for new trial was overruled, and the defendant sentenced to the penitentiary for a term of years. A proceeding in error was prosecuted in the court of appeals to reverse this judgment of the common pleas court, and that court reversed this judgment for the following reasons, as appears by its journal entry:

“The court erred in charging the jury as follows:

“It is admitted in this case that on the 28th day of November, A. D. 1912, at the county of Summit and state of Ohio, the' accused, Michael Vancak, struck the deceased, Joseph Selichman, then and there a living person, a blow on the head with a certain hammer. It is further admitted that said Joseph Selichman died as a result of said blow. The accused, however, denies that he intended to kill the said Joseph Selichman, and he further claims that he struck said blow in self-defense.

“That Michael Vancak, as a result of these admissions on his part, is guilty of manslaughter, as charged in the indictment, unless you find that he was acting in self-defense.

“If you do not find the accused guilty of murder in the first degree, as herein defined, beyond a reasonable doubt, and you find that he has not established the claim of self-defense by a preponderance of the evidence, then you should return a verdict of manslaughter. * * *

“As I have heretofore charged, the burden on the part of the state of proving, beyond a reasonable doubt, the guilt of the accused, is limited to murder in the first degree and murder in the second degree. If the accused has failed to prove, by a preponderance of the evidence, his claim of self-defense, he is guilty of manslaughter.”

It appears from the bill of exceptions filed in this case that the defendant not only did not except- to the statements in the charge as to the admissions made by him but expressly disclaimed, any. exceptions in that behalf. This appears on page 558 of the bill of exceptions in the following language: “Defendant excepts to the charge as a whole, except the statement as to what the admissions were; we don’t except to that.” This is an affirmative declaration upon the part of the defendant that the court properly interpreted the admissions made by him, and properly stated these admissions to the jury, and it is no longer necessary to look to the opening statement of counsel .to determine whether or not this charge is correct in this particular, for the reason that counsel for the accused then and there acknowledged that it was correct and they did not except to the charge in that particular. If the court had made a mistake in this behalf then was the time to challenge its attention to that mistake, so that an opportunity to make a correction would have been afforded before the case was finally submitted to the jury. There being, therefore, no question presented in this record as to the correctness of the charge to the jury in reference to the admissions made by the accused, the only question that is presented is the correctness of the remaining paragaphs of the charge that are predicated upon these admissions.

Manslaughter is defined in Section 1204, General Code, in the following language: “Whoever unlawfully kills another except in the manner described in the next four preceding sections, is guilty of manslaughter.” The four preceding sections referred to in Section 12404 relate to murder in the first degree and murder in the second degree.

Unless the act of the accused in striking Selichman was unlawful, he would not be guilty of assault and battery if the blow had not caused death. If the act was unlawful and the blow caused the death of Selichman, then the accused would be guilty of some degree of homicide, and not guilty of assault and battery only; that is to say, if the act was unlawful and resulted in death the accused must be guilty of manslaughter, and may be guilty of murder in the first degree or second degree. If from the evidence the jury should find that the accused was not guilty of murder in the first degree or guilty of murder in the second degree, the only remaining consideration for the jury is whether the accused is guilty or not guilty of manslaughter. Having admitted that he struck the blow that killed Selichman, then it was for the jury to determine whether that act was lawful or unlawful. If it was lawful, the accused was guilty of no crime and should have been acquitted. If it was unlawful and resulted in the death of Selichman, he was guilty of manslaughter. The accused, while he admitted that he struck the blow that killed Selichman, sought to justify his act upon the plea of self-defense. This was the issue presented to the jury. The accused was required to establish this plea of self-defense by a preponderance of the evidence. If the blow was struck in self-defense, then the act was lawful, and the accused innocent of any crime. If the blow was not struck in self-defense, then the act was unlawful, and, death having ensued, the accused was guilty of manslaughter, unless the elements of murder in the first degree or murder in the second degree were present, and the jury having found that he was not guilty of murder in the first degree and not guilty of murder in the second degree, it follows that if he failed to sustain his plea of self-defense by a preponderance of the evidence, he was guilty of manslaughter, and, therefore, the charge of the trial court in this particular was not erroneous.

Judgment of the court of appeals reversed and the judgment of the common pleas court affirmed.

Judgment reversed.

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


text:
    The State, ex rel. Pugh et al., Trustees, v. Sayre, County Auditor, et al.

      Constitutional law—Law Library associations—Entitled to fines and penalties from police court, when—Section 6, Article VIII, Constitution.

    Section 6 of Article VIII of the Constitution is applicable to the taxing power of the state and designed for the protection of moneys resulting from its exercise, and it does not prohibit the devotion of “fines and penalties assessed and collected by the police court for offenses and misdemeanors prosecuted in the name of the state” to the aid of a law library association, whose library is subject to use by all officers exercising judicial functions in the county in which such police court sits, such library being a corporation not for profit.
    (No. 14425
    Decided May 5, 1914.)

      In Mandamus.

      Mr. John M. Sheets, for relator.-

      Mr. Edward C. Turner, prosecuting attorney, and Mr. ,H. S. Ballard, assistant prosecuting attorney, for respondents.
   By the Court.

.This is an action in mandamus to compel the officers named as defendants to issue orders in favor of' relators for the use of the law library association, of which they are trustees, for the sum of $7,133.06, in compliance with statutes which are said to charge upon them the duty of making such payment. The cause is submitted on the petition, answer, reply, an agreed statement of facts and briefs of counsel.

The facts appearing are that the relators are the trustees of the library association named; that there is accumulated in the hands of the treasurer of Franklin county the sum named, having been certified to him by the auditor from the police court of the city of Columbus because of doubts of the clerk of that court as to the validity of the statute under whose provisions payment of the same was demanded by the relators. Said fund has been kept by the treasurer as the “law library funds” and not devoted to any other purpose. The organization of the association was effected in November, 1884, and it has accumlated ten thousand volumes of law books, all of which are accessible without charge to all officers discharging judicial functions in any court in the county of Franklin. The sum mentioned consists of fines which were assessed by the police court of the city of Columbus for offenses and misdemeanors prosecuted in the name of the state of Ohio, and being in excess of the amount allowed by the county commissioners to the judges, clerks and prosecuting attorney of said police court in state cases, demand was made for an order upon the treasurer to pay said fund to the relators. The granting thereof was refused. For several years since its organization the library association failed to account, under Section 3058, General Code, for the funds realized and purchases made, but thereafter they did make full reports, accounting for such receipts ■and purchases during the period covered by their omission. Of funds previously paid by the clerk of the police court on account of said association but paid to its president instead of its treasurer as is required by law, $13,626.92 were, without the knowledge of said association, misappropriated and lost, and the recovery of that amount to the treasury of the association is impossible. The appropriate financial officer of the said association, its treasurer, has been in all respects faithful to his trust.

The reliance of the relators is upon the provisions of Chapter 1 of Division 4, Title X, of the 'General Code, being Sections 3054 to 3058, inclusive, which were obviously intended to make provision for law libraries which are accessible to and used by all courts of the county without charge, as this library has been. Under these sections and prior legislation of like character for more than a generation the fines and penalties assessed and collected by the police court for offenses and misdemeanors prosecuted in the náme of the state, except the portion thereof allowed by the county commissioners to the judges, clerks and prosecuting attorney of such court in state cases, have been in various counties of the state devoted to the purpose of aiding in the maintenance of law libraries.

Counsel for the defendant has alleged in the answer that the law library is a private corporation and that the granting of the writ in this case' would cause a part of the public revenues to be diverted to private uses and purposes, and in argument he relies upon Section 6 of Article VIII of the Constitution, the pertinent provision being, that no law shall be passed authorizing any county “to raise money for, or to loan its credit to, or in aid of, any such company, corporation, or association.” The terms of this section and the case of Walker v. City of Cincinnati, 21 Ohio St., 14, relied upon by counsel for defendants, show that it is for the protection or safeguarding of revenues raised by taxation. It does not either substantially or in terms prevent the use of money derived from ,the assessment of fines and penalties in state cases, which is the source of the moneys in controversy here, for the purpose in view, While it is entirely clear that the trustees of the library were in default for some years in not making a detailed statement to the auditor of the county of the fines and penalties so received by them and the money expended by the association, no such penalty as is insisted upon by counsel for the defendant is annexed to that failure. And while it does appear in the case that moneys due from this source to the association were received by an officer of the association not by law entitled to receive them, and that they were misappropriated, and while the trustees of the association may have been remiss in attention to their duties in that regard, since the validity of said payments is not here in question, such default, if assumed, could not operate to excuse the defendants from drawing warrants in favor of the officers who are entitled to the funds since accumulated. The constitutional provision referred to was necessarily construed in accordance with this view in Dick, Auditor, v. The State, 51 Ohio St., 570.

Peremptory writs will be allowed as prayed for.

Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.

Nichols, C. J., not participating.


author: Newman, J. Donahue, J.,

text:
    The State, ex rel. Young, v. Cox, Governor of Ohio, et al.

      Office and officers—Clerk of common pleas court—Constitutionality of Section 2867, General Code—Biennial elections and two-year term—-Article XVII and Section 16, Article IV, Constitution.

    Section 1240, Revised Statutes, as amended April 2, 1906 (98 O. L., 273), now Section 2867, General Code, providing that there shall be elected biennially, in each county, a clerk of the court of common pleas, who shall hold his office two years, beginning on the first Monday of August next after his election, is a valid legislative enactment and is not in conflict with any of the provisions of the constitution of this state.
    (No. 14612
    Decided May 26, 1914.)
    Error to the Court of Appeals of Franklin county.

      The relator, on the 20th day of April, 1914, filed a petition in the court of appeals of Franklin county in which he averred that on the first Tuesday after the first Monday of November, 1912, he was elected clerk of the court of common pleas for the county of Seneca; that he received from the board of deputy state supervisors of elections a certificate of election; that the respondents, acting under and by virtue of Section 2867, General Code, issued to him a commission as clerk for a term of two years, from the first Monday in August, 1913; that he accepted said commission, was duly qualified as clerk and entered on the duties of his office on the first Monday of August, 1913.
    He averred that he was advised and believed, and he therefore charged, that Section 2867 is in conflict with the Constitution of this state, and especially in conflict with Section 16 of Article IV thereof, and that said Section 2867 is in conflict with and unauthorized also by Article XVII of the Constitution.
    .He prayed for a writ of mandamus commanding the respondents to cancel the commission theretofore issued to him for the term of two years and to make and deliver to him a commission as clerk for a term of three years from the first Monday of Au- ■ gust, 1913, and until his successor was elected and qualified, it having been averred in the petition that a demand therefor was made on the respondents on the 7th day of April, 1914, and by them refused, and that relator had no other adequate remedy.
    To this petition an answer was filed, in which respondents admitted the election of relator as clerk; that he received a certificate of election and that they issued to him a commission for the term of two years from the first Monday of August, 1913; that he qualified and entered upon the discharge of his duties as clerk; that he had been advised that Section 2867, General Code, was unconstitutional and that a demand was made upon them for a certificate. They denied all other allegations of the petition.
    They set out in their answer a copy of the amendment to the Constitution of Ohio, designated as Article XVII, adopted November 7, 1905; a copy of a portion of the act of April 2, 1906: “To conform the terms of office of various state and.county officers to the constitutional provisions relating to biennial elections”' (98 O. L., 271); also a copy of Section 1240, Revised Statutes, as amended, now Section 2867, General Code. Respondents averred that by reason of this amendment to the constitution and these laws relator was not entitled to a writ of mandamus. There are other averments in the answer, reference to which is unnecessary.
    A demurrer to the answer, upon the ground that facts sufficient to constitute a defense to the petition were not stated therein, was overruled and, the demurrer searching the record in the cause, the court of appeals held that, under the facts admitted in the petition and answer, the relator was not entitled to the relief sought, and the writ was-refused and petition dismissed at the costs of relator. To reverse the judgment of the court of appeals error is prosecuted to this court.

      Mr. W. Z. Davis, for relator.

      Mr. Timothy S. Hogan, attorney general; Mr. J. M. McGillivray and Mr. William J. Ford, for respondents.
   Newman, J.

The principal contention of the relator is that Section 2867, General Code (Section 1240, Revised Statutes, amended April 2, 1906), which provides that there shall be elected biennially in each county a clerk of the court of common pleas, who shall hold his office two years beginning on the first Monday of August next after the election, is in conflict with Section 16, Article IV of the Constitution, and is therefore unconstitutional and void.

The part of Section 16 of Article IV material to the question raised here reads as follows:

“There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas, who shall hold his office for the term of three years, and until his successor shall be elected and qualified.”

On November 7, 1905, there was adopted an amendment to the Constitution, designated as Article XVII, as follows:

“Section 1. Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.

“Section 2. The term of office of the governor, lieutenant governor, attorney-general, secretary of state and treasurer of state shall be two years, and that of the auditor of state shall be four years. The term of office of the judges of the supreme court and circuit courts shall be such even number of years not less than six (6) years as may be prescribed by the general assembly; that of the judges of the common pleas court six (6) years and of the judges of the probate court, four (4) years, and that of other judges shall be such even number of years not exceeding six (6) years as may be prescribed by the general assembly. The term of office of justices of the peace shall be such even number of years not exceeding four (4) years as may be prescribed by the general assembly. The term of office of the members of the board of public works shall be such even number of years not exceeding six (6) years as may be so prescribed ; and the term of office of all elective county, township, municipal and school officers shall be such even number of years not exceeding four (4) years as may be so prescribed.

“And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.

“Any vacancy which shall occur in any elective state office other than that of a member of the general assembly or of governor, shall be filled by appointment by the governor until the disability is removed, or a successor elected and qualified. Every such vacancy shall be filled by election at the first general election for the office which is vacant, that occurs more than thirty (30) days after the vacancy shall have occurred. The person elected shall fill the office for the unexpired term. All vacancies in other elective offices shall be filled for the unexpired term in such manner as may be .prescribed by law.

“Section 3. Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law.”

Counsel insist that there is no direct conflict between Section 16 of Article IV and any other provision of the Constitution, unless a false interpretation is placed on the following language of Article XVII, Section 2: “The term of office of all elective county * * * officers shall be such even number of years not exceeding four (4) years as may be so prescribed”—prescribed, it is conceded, by the general assembly.

The claim is that a clerk of the court of common pleas is not a county officer—that he is a constitutional officer—and counsel would make a distinction between a constitutional office and a county office, and suggest that the constitution itself differentiates between these two classes of offices, and call our attention to Section 20 of Article II and Sections 1 and 2 of Article X.

There may be a technical distinction between these two classes of offices, but can it be claimed seriously that the electors of this state recognized or had in mind such a distinction when they adopted Article XVII containing the term “county officers?” Did they not intend to include in that class every officer generally and popularly known as a county officer ? It is to be presumed that the term was used by them with reference to its popular signification and that it was to be applied as it had been practically applied for a number of years. Hill v. Higdon, 5 Ohio St., 243. As provided by the constitution a clerk is elected in each county by the electors thereof. His jurisdiction is confined to the territorial limits of the county. His bond is approved by county officials. A vacancy in the office is filled by county officials. Whenever the legislature has acted on the subject this officer has been treated as a county officer along with sheriff, auditor, treasurer, coroner and the like. The different codifying commissions have recognized the clerk as a county officer. We are therefore satisfied that when the electors provided for the biennial election of county officers and authorized the general assembly to fix their terms at an even number of years not exceeding four, they intended to include the clerk of the court of common pleas.

Article XVII was adopted as an amendment to the constitution. It does not appear in the article itself just what provisions of the constitution were to be amended or superseded.

As was said in The State, ex rel., v. Creamer, 83 Ohio St., 412, it is as if it were written in Article XVII in express terms that all provisions of the constitution inconsistent with this expression of the will of the electors shall be regarded as amended or abrogated to the extent that may be necessary to give it full effect, which is the familiar rule for amendments and repeals by implication.

This article provides for biennial election of all state, county, township and municipal officers. If the term of office of clerk is to remain three years, as was fixed by Section 16 of Article IV, this would defeat one of the purposes, which we think the paramount one, for which the article was adopted. Again, were the three-year term to remain, it would render ineffective the provision of Article XVII, which requires the term of office of all elective county officers to be such even number of years not exceeding four as the general assembly may prescribe.

Applying then the doctrine announced in The State, ex rel., v. Creamer, supra, that earlier expressions in a constitution must must yield when it is necessary to give effect to the latest expression of the intention of those whose intention is entitled to control, Section 16 of Article IV has been abrogated. ,

The fact that the office of clerk of the court of common pleas was provided for in the judicial article and not in the county and township organization article of the constitution is unimportant. The rule applied in the case of The State, ex rel., v. McCracken, 51 Ohio St., 123, that where there is a general provision in the constitution and a special one the latter controls, has no application here. In the McCracken case there were before the court two contemporaneous provisions of the constitution, provisions which were in the constitution when it was adopted as a whole. Here we are considering an amendment to the constitution, the latest, expression of the electors on the subject, and to this latest expression must yield all the earlier provisions of the constitution which are inconsistent with it.

It is urged, however, on behalf of the relator, that, assuming that the office under consideration is a county office within the meaning of that term as used in Article XVII, the term of the office is placed within the control of the general assembly upon the express condition only that the legislature shall not abridge the term, and our attention is directed to the language used in the second section of the article: “The general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.”

This was a temporary provision, and had reference to terms of officers elected at the time Article XVII became effective. It was not intended as a permanent provision of the constitution applicable to officers to be chosen after its adoption. This was the view of the matter taken by Judge Spear in The State, ex rel., v. Metcalfe, 80 Ohio St., 244, where he refers to this feature of Article XVII as manifestly temporary only in operation; and Judge Davis in The State, ex rel., v. Pattison, 73 Ohio St., 305, says that the power to extend terms .as designated in Article XVII is confined to such officers as were already elected at the time when the amendment became effective.

The general assembly, in pursuance of this provision, extended the term of office of state and county officers by an act passed April 2, 1906 (98 O. L., 271) : “To conform the terms of office of various state and county officers to the constitutional provisions relating to biennial elections.” By this act the existing terms, of office of certain state and county officers therein named, which otherwise would have expired in an even-numbered year, were extended to certain dates named in the odd-numbered year succeeding the time when they would otherwise have expired. The provision in Section 2 of Article XVII, giving the general assembly power to extend existing terms of office so as to effect the purpose of Section 1 of the article, had no application to the terms of officers to be thereafter elected. The terms of those officers were provided for in the first paragraph of Section 2 of Article XVII, and in case of a county officer the term was to be for an even number of years not exceeding four. The office of clerk of the court of common pleas being a county office, the legislature saw,fit to fix the term at two years when it amended Section 1240, Revised Statutes, now Section 2867, General Code, and this it had authority to do, Article XVII having superseded Section 16 of Article IV.

The respondents properly refused to cancel the commission of relator and to issue to him a commission for a term of three years.

Judgment of the court of appeals affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker and Wilkin, JJ., concur.

Donahue, J.,

dissenting. The constitution of Ohio of 1851 provided for the election of certain officers and fixed their term of service. The same constitution also authorized the general assembly of Ohio to provide by law for the election of such county and township officers as may be necessary. Whether the clerk of the common pleas court is or is not a county officer is not important in the determination of the question presented in this case. The more important consideration is whether that office is a constitutional office and the term thereof a constitutional term, or is it a statutory office and a statutory term? Section 16 of Article IV of the Constitution created the office of the clerk of the common pleas court and fixed the term of that office at "three years, and until his successor shall be elected and qualified.” Section 1 of Article X conferred upon the general assembly of Ohio the authority to provide by law for the election of such county and township officers as may be necessary, and Section 2 of Article X authorized the general assembly to provide by law the term of such county officers at any number of years not exceeding three years.

For more than half a century the provisions of Section 16 of Article IV, creating the office of clerk of common pleas court and fixing the term thereof, and Section 2 of Article X, authorizing the general assembly of Ohio to fix the term of county officers, remained the organic law of this state, and the clerk of the common pleas court was elected and held his office for the term provided in Section 16 of Article IV of the Constitution. The general assembly had no authority whatever either to limit or increase that term, nor had it ' any authority to create or abolish the of$ce. That was an office and term of office fixed by the constitution itself and with which the legislature of the ■ state had nothing to do.

Our attention is called to only one reported case in this state where it was ever seriously claimed by any one that the office of the clerk of common , pleas court came within the general provision, of . Section 2 of Article X, relating to county officers. That is the case of The State, ex rel., v. McCracken, 51 Ohio St., 123. This court'in that case “held that Section 2 of Article X had no application whatever to the clerk of the common pleas court, independent of the .question of whether he was a county officer or not, for. the reason that the "provision of Section 2 of Article X is a general provision relating to county officers in general, while Section 16 of Article IV is a special próvision with reference to the clerk of the' court of ' common pleas. Spear, J., in discussing this question in that case used this language: ■’ “In support of the claim of Berwick A. Barton, it is contended ■ that the effect of the statute of March 2, 1893, is '■■to create a vacancy in the office of clerk, because such clerk is a county officer, and Section 2, of Article X, of the Constitution provides that ‘county officers shall hold their office for such term, not exceeding three years, as may be provided by law.’

“It is, we think, a sufficient answer to this proposition to say that the purpose of the framers of the ' constitution, by the adoption of Section 16, of Ar- ' tide IV, to take the office qf clerk of the court out of the operation of the terms of Section 2; of Article X, is so plain as to be practically beyond question. One is a general provision; the other a special one. In such case the-latter controls.” It would appear that this proposition, so clearly stated by Judge Spear, is unanswerable, and that so long as the special provision remains a general provision will not control. The case of The State, ex rel., v. McCracken, supra, was cited with approval in the later case of The State, ex rel., v. Thrall, 59 Ohio St., 368. Shauck, J., in discussing the former' case, uses this language: “The effect of this section [Section 16, Article IV, Constitution of 1851] was distinctly held to be to take the office of clerk out' of the operation of other provisions of the con- • stit'ution which might otherwise have been controlling.” ' 1

•At the time the amendment to the constitution' known as Article XVII was adopted, this special provisión of the constitution, relating to the office of clerk of common pleas court, had been in force over fifty years and the highest court in the state had'twice declared that this section of the constitution created this office and fixed the term, notwithstanding Section 2 of Article X in general terms authorized the general assembly of Ohio • to fix the term of office of all county officers. ■ The provision of this amendment authorizing the general assembly to fix the term of office of all “elective county * * * officers” for an even number of years not exceeding four years is no broader, no ; more comprehensive, than Section 2 of Article X. The original section used the term “county officers,” while the language of the amendment is “elective county officers,” but it is provided in Section 1 of Article X that all county officers shall be elective officers. Therefore, the term “county officers” and “elective county officers” are synonymous within the meaning of the constitution of the state.

The framers of this amendment to the constitution and the electors voting for its adoption must be presumed to have known not only the provisions of the constitution of 1851 but also the construction given these two provisions by the supreme court of the state. Therefore, if it were the purpose to repeal the special provision language clearly indicating that intention would have been used. The fact that this special provision of the constitution had obtained for so many years, and the further fact that this court had held that this special provision of the constitution exempted this office from the general provisions of Section 2 of Article X, is practically an unanswerable argument that it was not intended that another general provision in identical or at least substantially the same language would be given a different construction. .Nor could the correctness of the construction of these constitutional provisions by this court have been questioned, for there is absolutely no authority to the contrary. The United States courts and the courts of all the states of the Union have uniformly held that special provisions of a constitution or a law always obtain as against general provisions. If this general provision were intended to have the effect of repealing the special provision then the only possible excuse for not specifically mentioning this office in the amendment itself would be that it was overlooked or forgotten by its framers and the electors who voted for it.

There is another consideration, however, that would seem to be decisive of this question. The amendment (Article XVII) does not in terms repeal Section 16 of Article IV of the Constitution of 1851. If that section is repealed by this amendment it must be by implication. Spear, J., in the case of The State, ex rel., v. Metcalfe, 80 Ohio St., 244, 259, expresses a familiar doctrine in this very clear language: “Repeals by implication are not favored with respect to statutes, and for a stronger reason they should not be favored with respect to constitutional provisions. The repugnancy, to work a repeal, must be wholly irreconcilable, as the intention to repeal will not be presumed, nor the effect of the repeal admitted, unless the inconsistency is unavoidable. The State, ex rel., v. Dudley, 1 Ohio St., 437; Cass v. Dillon, 2 Ohio St., 607; Raudebaugh v. Shelley, 6 Ohio St., 308; Commissioners v. Board of Public Works, 39 Ohio St., 628; Eggleston v. Harrison, 61 Ohio St., 397; The United States v. Sixty-seven Packages of Dry Goods, 17 How., 85.”

The provisions of Article XVII are no more in conflict, no more repugnant, to the provisions of Section 16 of Article IV than were the provisions of Section 2 Article X of the Constitution of 1851, yet these two provisions of the constitution of 1851 were held to be consistent, and the correctness of this holding is not even challenged.

In view of the doctrine announced in The State, ex rel., v. McCracken, supra, which is undoubtedly the law of not only this state but-of every other state in the Union, there can be no such-conflict or repugnancy between a special provision and a general provision in the constitution that would require a court to hold that the special provision is repealed by implication, for in such case the special provision excepts that particular subject or matter from the operation of the general provision the same as if the special provision were -written into the general provision as an exception thereto. In such case it would not be claimed that exceptions written into a general provision would be repugnant to the general provision. The application of this doctrine to this case requires that the general provisions of Section 2 of Article XVII of • the Constitution must be read the same as if'the special provision of Section 16 of Article IV were written into it as a part thereof, as an exception to, the general provisions of that section.

It is true that Section 1 of this amendment provides that “Elections for state and county officers •shall be held on the-first Tuesday after the. first Monday in November in.-the even numbered-years; and all elections for all other- elective- officers shall be held, on the first Tuesday after the first Monday in November in the odd numbered years.” .-This, of course, is not possible if the term of- the office of clerk is still three years as specifically provided in Section 16, Article IV, and it is the clear, duty, of this court to give effect to Section! of Article XVII if possible, but that can not be done upon the- theory that there is a difference in the meaning of the term “county officers” as found in Section 2, Article X, and the term “elective county officers” as found in Section 2 of Article XVII. Neither can it be successfully maintained that general provisions either in the same constitution or in any amendment to it will repeal by implication a special provision as to any subject-matter covered by the special provision,' ,so that both of these theories must be abandoned. . It is the. duty of courts to interpret constitutions according to. well-known canons of. construction and in conformity to the settled law of the state except in so far as the constitution itself departs therefrom. Courts can not make constitutions. Neither, can.they supplement them, notwithstanding ■ that it may reasonably appear that, the amen dip ent has .not fully accomplished the result intended to be accomplished. In such .case there is only one remedy, and that is recourse to the people. Any other doctrine or any assumption of power by the courts, while it might, in a given case, result in advantage to the state, would eventually prove disastrous. If this amendment affects the special provision of the constitution in relation to the term of- office of the clerk of the court of common pleas w;e must find some other provision of the amendment: aside from the general provision as to “elective county officers” justifying such construction.

■ Section 2 of this amendment provides that the general assembly shall have power to extend existing terms of office so as to effect the purpose of section 1 of this article. It is claimed that this provision applies only to the existing terms of officers then in office, but that is not the language used. “Existing terms of officers” is one thing; “existing terms of office” is another, and while ordinarily they might be used interchangeably, yet in the framing of a constitution great care should be used and undoubtedly is used in the selection of language that will convey the exact meaning intended.

This provision of the amendment has been construed by this court in the case of The State, ex rel., v. Pattison, 73 Ohio St., 305. At page 328 the court, in its opinion, says: “The phrase ‘existing terms of office’ means the terms of office as defined in the constitution and the acts of the general assembly as existing at the time of the proposal and adoption of the amendment. It could not refer only, to the terms of those actually holding office at the time of the adoption of the amendment. Those were provided for by Section 3 of the amendment.” This proposition, so clearly stated in the opinion, is carried into the third paragraph of the syllabus of that case, part of which is as follows: “The phrase ‘existing terms of office’ means the terms of office as defined in the constitution and acts of the general assembly as they existed at the time of the proposal of the amendment and of its adoption.”

Section 3 of this amendment does provide that every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor is elected and qualified as provided by law. So that there was absolutely no necessity for any provision in the constitution authorizing the general assembly to extend existing terms of officers, but it now clearly appears that there was great necessity for authorizing the general assembly to extend existing terms of office, at least in the particular case of the office of clerk of common pleas court, so as to effect the purpose of Section 1 of Article XVII. Section 3 of this amendment was self-executing. It did not depend upon any act of the legislature in order to become effective, but existing terms of office did require legislative action in order to effect the purposes declared in Section 1 of the amendment. The extension of the term of the clerk of common pleas court to four years would have literally complied with the power given and would have effected the purpose of the amendment as stated in Section 1 of Article XVII.

This limitation upon the authority of the legislature to change existing terms of office could apply only to constitutional offices and constitutional terms, and not to offices created by the legislature or terms fixed by the legislature itself, for as to these terms the constitution conferred full power upon the legislature to fix the term within certain limitations of time. Nor would it apply to the constitutional offices where the constitution specifically authorized the legislature to fix the term. This construction may not be free from doubt, yet it is in line with the former constructions given this section by this court, and it does effect the purposes of Section 1 of Article XVII. There is no other possible construction of this amendment that will effect such purpose or that will authorize the legislature of the state to ctano-e existing terms of office specifically provided by the constitution itself.


author: Shauck, J.

text:
    The Columbus Mutual Life Insurance Company v. Ford.

      Jurisdiction—Supreme court—Cases not pending in circuit court January I, 1913—Section 1476, General Code—Cases disposed of and again coming to supreme court.

    1. This court is without jurisdiction to review a judgment of the court of appeals in a civil action or proceeding which was not within the original jurisdiction of' that court, which does not involve a constitutional question and is not a case of public or great general interest, unless the proceeding was pending in the circuit court on the first day of January, 1913. (City of Akron v. Roth, 88 Ohio St., 456, approved and followed.)
    2. The question is not affected by the provision of Section 1476, General Code, that “If a case is disposed of and again comes into court, it shall be taken up as if it had its original place on the docket,” because (a) that provision does not relate to jurisdiction, but only to procedure in this court in causes brought within its jurisdiction by other provisions, and (b) the statutory provision, if interpreted to favor jurisdiction, would be repugnant to the constitutional provision considered in City of Akron v. Roth.

    (No. 14563
    Decided June 2, 1914.)
    On. Motion to dismiss the petition in error for want of jurisdiction.
    Error to the Court of Appeals of Geauga county.

      Mr. J. M. Sheets and Mr. R. S. Parks, for plaintiff in error.

      Mr. Jay Buchwalter, for defendant in error.
   Shauck, J.

The judgment whose reversal is sought in this case was rendered by the court of appeals on a petition in error filed in that, court after the first day of January, 1913, and counsel for the plaintiff in error expressly concede that under the provision of the constitutional amendment of 1912, as construed in the City of Akron v. Roth, 88 Ohio St., 456, this court is without jurisdiction to review that judgment unless its jurisdiction is. saved by the fact that the controversy was presented to this court upon a former petition in error filed prior to said amendments, when our jurisdiction,was clear. In favor of our jurisdiction of the present petition in error, it is contended that the identity of this case with that which was previously in this court is established by the provision of Section 1476 of the General Code that “If a case is disposed of and again comes into court, it shall be taken up as if it had its original place on the docket.” This provision it is said was so construed in Cockley v. Brucker, 54 Ohio St., 214, as to require the overruling of the present motion. What was under consideration by this court in the case cited was procedure in a cause of which the court had undoubted jurisdiction. To that procedure the statutory provision was apt. It is, and then was, a part of the statutory provisions respecting the order ■ in which cases within the jurisdiction of this court should be taken up and determined, and an exception to the general rule that they should be taken up and disposed of in their order. Although the subject of the jurisdiction in error of this court at the time of the passage of this act was conferred exclusively by statute enacted under the constitutional provision that this court should have such appellate jurisdiction as might be provided by law, this statutory provision had no reference whatever to the subject of jurisdiction. Not only the terms of the provision, but its relation to others in the statute, indicate that its clear purpose was to provide that when a subject of litigation between the same parties and upon the same pleadings should appear in this court for a second time, the parties were entitled to have it heard as though it had the number and docket position of its first appearance. That question is quite apart from the question here presented, whether we have jurisdiction of the present petition in error. The provision relates to the pendency of a cause in this court and within its jurisdiction. The present petition in error is excluded from our jurisdiction by the fact, as shown by City of Akron v. Roth, supra, that the case was not pending in the circuit court on the first day of January, 1913. That is, the jurisdiction of this court over the present petition in error is to be determined by the question whether it was or was not pending in the circuit court on said first day of January. To that question the statutory provision has no relation whatever.

Motion sustained.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    Foster v. The State of Ohio.

      Criminal law—Homicide—Insufficient evidence of deliberate and premeditated malice.

    (No. 14484
    Decided June 9, 1914.)
    Error to the Court of Appeals of Mahoning county.

      Mr. W. J. Kenealy, for plaintiff in error.

      Mr. A. M. Henderson, prosecuting attorney, for defendant in error.
   By the Court.

It appears from the evidence offered by the state upon the trial of .the accused on this indictment charging murder in the first degree that the defendant and deceased were strangers to each other and had never met before the day of the homicide. On that day the defendant came into the deceased’s place of business and while there became engaged in a violent quarrel and dispute with the deceased, and then and there threatened to kill the deceased and menaced him with a revolver. The deceased was prevented from engaging in a personal conflict with the defendant by friends of his who were then in his place of business. The altercation between them lasted for some minutes. The defendant’s conduct was boisterous and his language threatening and abusive, and it does not appear that there was any reasonable cause whatever for the quarrel. After some time, however, he put the revolver in his pocket; went out of the deceased’s place of business and along the street some distance from the. place where the dispute had arisen. The deceased then left his place of business and followed the defendant, passed him and spoke to him. The defendant then went down an alley and into a lot, and shortly thereafter came back upon the street. The deceased was waiting for him and approached him and took hold of his arm. The defendant broke away from him and the deceased again took hold of the defendant’s arm and again the defendant broke away from him. The deceased took hold of defendant’s arm a third time and this time the defendant made an effort to get away from the deceased, but was unable to do so, and while the deceased was still holding him defendant shot and killed him.

This evidence offered by the state wholly fails to show deliberate and premeditated malice at the time defendant shot and killed the deceased, and there being no other or further evidence of this essential element of the crime of murder in the first degree, the verdict of the jury in that particular is not sustained by any evidence and is contrary to law. .

Judgment reversed and cause remanded.

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

Nichols, C. J., and Wanamaker, J., dissent.