Volume 32 — Ohio Circuit Court Reports, New Series

<p>ACTS FORBIDDEN BY THE CONSTITUTION BUT AS TO WHICH THE GENERAL ASSEMBLY HAS NOT ACTED.</p> <p>Mayor — Improper Statements hy, not Prejudicial to a Defendant, When —One Accused of Keeping a Place Where Intoxicating Liquors are Sold not Entitled to a Jury — Effect of a Constitutional Declaration Mahing an Act Unlawful.</p> <p>1. Improper statements made by a mayor regarding the course he would pursue with persons brought before him charged with offenses will hot be regarded as prejudicial in a case where on the undisputed evidence it was the duty of the mayor to convict.</p> <p>2. In a prosecution under Section 13195, General Code, the defendant is not entitled to a trial by jury. Inwood v. State 42 O. S., 186, followed.</p> <p>3. Section 9, Article 15, Constitution of Ohio in effect May 26th, 1919, forbids the sale of intoxicating liquors as a beverage. The sale of such liquors after that date was in violation of law, without regard to the fact whether the General Assembly had enacted legislation to enforce such provisions with penaltties or not. It is not the penalty which makes the sale unlawful, but the fact that -it is prohibited. Hence, keeping a place where intoxicating liquors were sold as a beverage after May 29th, 1919, is punishable under the provisions of Section 13195, General Code.</p>

<p>TRIAL FOR MURDER IN PERPETRATION OF ROBBERY.</p> <p>Criminal law — Charge of court in trial for murder in perpetration of robbery — Lesser offenses not in issue, when — Rejected documents should be attached to bill of exceptions,, when — Contradictory statements of defendant admissible in rebuttal, when — Scope of cross-examination confided to discretion of trial judge — Special requests submitted as a series — If some are erreoneous, all may be rejected.</p> <p>1. Under an indictment for murder committed in perpetration of a robbery, where the undisputed evidence tends to prove the corpus delicti as charged and the only controverted issue upon the trial is as to the identity of the accused, the trial court is not required to charge as to murder in the second degree, or manslaughter, nor to offer forms of verdict for such lesser offenses.</p> <p>2. A document proposed and rejected as evidence should be made a part of the bill of exceptions and brought before the reviewing court in order to have the question of its admissibility reviewed.</p> <p>3. Where the accused becomes a witness in his own behalf on the trial, contradictory statements made to a police officer while in custody of such officer (proper foundation being laid therefore in the examination of said accused on trial) may be offered in .rebuttal for the purpose of impeachment.</p> <p>4. To a certain extent, and within certain limitations, the scope of cross-examination is confided to the discretion of the trial court, and a reviewing court will not reverse for error in such cross-examination unless such discretion is abused or the legal limitations of cross-examination violated to the prejudice of the complaining party.</p> <p>5. Where special charges are requested to be given as a series the entire series may be rejected if some are erreoneous.</p> <p>6. Proper cautionary instructions urging the jury to agree may be given, and such instructions, if free from the element of coercion, do not constitute reversible error.</p>

<p>CONTRACT ALLEGED TO HAVE BEEN MADE BY REASON OF FALSE REPRESENTATIONS.</p> <p>Charge of Court — Action to Avoid a Contract on Ground of False Representations — Whether Material False Representations xoere made a Question for the Jury — Characteristics of Such Representations must he Explained to the Jury — Error for the Court to Assume or Determine that All or Any of the Representations made were False.</p> <p>. In an action for recovery under a contract of sale, to which a claim of false representations has been interposed, it is for the jury to determine whether the alleged false representations, if made, were untrue and were material to the contract; and for the court to assume, in its instructions to the Jury, that all or any of the representations complained of were false or were materia] is reversible error.</p>

<p>FAILURE TO CONSULT A PHYSICIAN.</p> <p>Negligence — Defenses—Right of Action by One Injured — Not Defeated by Failure to Consult a Physician — Special Findings by Jury.</p> <p>1. Where one has suffered injury because of the negligence of another, the fact that such injured person did not consult a physician at once, but cared, for the wounds himself, does not bar a recovery from such negligent person.</p> <p>2. The court is not bound to instruct the jury to find upon particular questions of fact where the request does not contain the condition that the questions should be answered in case a general verdict should be rendered.</p>