Volume 70 — Ohio State Reports, New Series

At the May term, 1903, of the court of common pleas.of Mahoning county, the defendant in error,. Michael Gr.

<p>Defendant in a criminal case — Other than capital offense — Entitled to hut two peremptory challenges — Section 5117, Revised Statutes — Granting each party four challenges — Applies only in civil causes.</p> <p>1. A defendant on trial in a criminal case, for other than a capital offense, is entitled to challenge but two jurors peremptorily.</p> <p>2. The last paragraph of section 5177, Revised Statutes, as amended April 29, 1902 (95 O. L., 308), giving to each party the right to challenge peremptorily four jurors, furnishes the rule and determines the right of peremptory challenge, only in civil causes. It has no application in criminal cases.</p>

<p>Sale and delivery of chattels — Of described grade or quality— Seiler bound by grade described — Absence of express war ranty does not obligate seller — Where goods are accepted by buyer,' when.</p> <p>By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligatioh is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.</p>

<p>Criminal statute repealed before judgment in a prosecution— Forecloses further proceedings, when — Judgment not validated by subsequent repeal of statute — Repeal of section 1388-11, Revised Statutes — Habitual criminal act.</p> <p>1. Where a statute defining a crime and prescribing the punishment therefor is repealed at any time before final judgment in a prosecution thereunder, such repeal forecloses all further proceedings in such prosecution unless a contrary intent appears in the repealing statute; hut when such repeal occurs after final judgment it does not in any respect vacate- or modify such judgment, or render it invalid.</p> <p>2. A conviction and sentence under, section 7388-11, Revised Statutes, commonly known as the “ habitual criminal act,” does not confer upon the prisoner a right to he paroled at the discretion of the hoard of managers which remains to-him after the repeal of said act.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The case is sufficiently stated in the opinion.</p>

<p>On Motion for leave to file petition in error to the Circuit Court of Stark county.</p>

<p>Error to the Circuit Court of Hamilton county.</p>

<p>Error to the Circuit Court of Auglaize county.</p> <p>Petition was filed in tfie court of common pleas of Auglaize county by tbe defendant in error, Edward Purpus, as executor of tbe will of Frank Koehl, deceased, praying for a construction of said will and asking tbe advice and direction of said court how— properly, to execute and administer bis trust under tbe provisions of said will. Tbe will contained the ■following provisions;</p> <p>“First. My will is tbat all ray just debts and funeral expenses shall be paid out of my estate as. soon after my decease as shall be found convenient..</p> <p>“Second. I give, devise and bequeath to my son, Pearl Koehl, tbe corner lot and building, situate on tbe corner of Spring and Main streets with tbe lot extending to Front street whereon tbe stable building, to be bis forever, after my decease, except tbe lot' and brick building whereon at present a drugstore and department store is in with tbe lot belonging' to the same is hereby devised and bequeathed to my daughter, Emma Federspiel, to be hers forever after my decease.</p> <p>“Third. I bequeath and devise to my daughter, Emma Federspiel, and my son, Pearl Koehl, all personal property now contained in the corner building, Spring and Main streets, to be theirs forever, share and share alike.</p> <p>“Fourth. Whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike. ’ ’</p> <p>Upon the hearing of the case in the court of common pleas that court made and entered the following decree: ‘</p> <p>“The court further finds that the correct and lawful construction of said will of said Frank Koehl, Sr., deceased, is as follows, to-wit:</p> <p>“First. That Philip Pearl Koehl and Emma Federspiel are among the residuary legatees and each share equal, with all the other such legatees in the residuum of said estate, under item four of said last will and testament of said Frank Koehl, Sr., deceased.</p> <p>“Second. That the bequests of personal property contained in the building at the corner of Spring and Main streets in St. Marys, Ohio, bequeaths all tangible personal property therein contained, including the money, to Philip Pearl Koehl and Emma Federspiel, but does not bequeath to them the notes, mortgages, certificates of stock, accounts, credits and other evidences of indebtedness or the property they represent, but that these go into the residuum of testator’s estate, and should be disposed of as directed in the fourth item of the will.</p> <p>“Third. That Emil Henry Koehl and Louisa Maria Koehl under item four of said last will and testament, take per capita and not per stirpes.</p> <p>“Fourth. The court further finds that item one and two of said last will and testament are plain and unambiguous, and need no construction or interpretation.</p> <p>“It is therefore ordered, adjudged and decreed that Edward Purpus, as executor of said last will and testament of Prank Koehl, Sr., deceased, be governed in the administration of said estate and in making distribution thereof, by the terms of the pro-. visions of said last will and testament, and the construction placed thereon as hereinbefore set out.”</p> <p>An appeal was taken from this decree to the circuit court of Auglaize county, where a like construction was, by that court, given the provisions of said will, except as to item four thereof. As to item four the circuit court found and held, that under and by the provisions thereof Emil Henry Koehl and Louisa Maria Koehl, who were grandchildren of said testator, took per stirpes and not per capita, and ordered and decreed that distribution be made accordingly. To obtain a reversal of this order and decree of the circuit court, plaintiff in error, as guardian of said Emil Henry Koehl and Louisa Maria Koehl, prosecutes this proceeding in error. Other facts are stated in the opinion.</p>

<p>Collateral inheritance tax — Section 2731-1, Revised Statutes — Appeal may be taken from probate court, when — Appeal bond — • Section 6408, Revised Statutes — Perfection of appeal — Sections 6411 and .5227, Revised Statutes — Incorporated boards and societies for public charity — Liable to collateral tax, when —Construction of statutes — Constitutional law.</p> <p>1. Where the probate court, in the settlement of the estate of a decedent, determines the liability of a devise, legacy, bequest or inheritance to pay a collateral inheritance tax, under the provisions of section 2731-1, Revised Statutes, appeal may be taken by either party to the controversy regarding the tax, from the judgment of the probate court, to the court of common pleas as authorized by section 2731-13, Revised Statutes; and where the state, or the prosecuting attorney in behalf of the state, takes the appeal, it may be done without giving an undertaking for such appeal, and without filing the written notice of an intention to appeal provided for in section 6408, Revised Statutes. The appeal may be perfected by either party according to the provisions of sections 6411 and 5227, Revised Statutes.</p> <p>2. Boards and societies and auxiliaries thereto, which are incorporated and organized under the laws of other states, for “purposes of purely public charity or other exclusively public purposes,” are not “institutions” of that class in this state within the meaning of the latter clause of section 2731-1, Revised Statutes; and where they are entitled to receive property within the jurisdiction of this state, by deed of gift, bequest or devise, such gift, bequest or devise is liable to a collateral inheritance tax as provided in said section, although some of the charitable work, operations and enterprises of the institutions so incorporated and organized are carried on within this state.</p> <p>3. The statute so construed is not obnoxious to the second section of our bill of rights, nor to the fourteenth amendment to the constitution of the United States.</p>

In the court of common pleas the defendant in error instituted an action against the railway company, and, upon the trial of the issues of fact joined, recovered a judgment against it. The company, within the time limited by the statute, took proper1 steps to have a bill of exceptions made a part of the record and filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas for errors specifically assigned.

<p>Devise to educational institution — In case devise fails — Testator empowers only lineal descendant to ratify devise — Descendant deeds to devisee — Section 5915, Revised Statutes■ — ■ Construction of wills.</p> <p>1. A testator having devised to an educational institution, and in case such devise should fail or be held void for any cause, then to the children of his two brothers, anil having in a codicil authorized, empowered and requested his daughter, who was his only lineal descendant, to ratify and confirm the devise to the institution, declaring that, “in case she complies” with this request the devises and bequests over to the children of the testator’s brothers “are revoked,” and the testator having died within a year from the making of the will, so that the devise to the institution became invalid by virtue of section 5915, Revised Statutes, and the daughter having executed the power by a deed to the institution, the children of the testator’s brothers take nothing under the will. Board of Trustees of the Ohio State University v. Folsom et at., 56 Ohio St., 701, approved and followed.</p> <p>2. The power and authority by the testator conferred upon his daughter and heir at law, is not a devise in trust to or for such institution, but is a naked power to appoint to a design nated object, and is not rendered invalid by section 5915, Revised Statutes.</p> <p>3. A deed of confirmation expressly purporting to execute such power and conveying the property which had been devised,is operative to invest the grantees with a full and perfect title to the property therein described.</p>

<p>Release of right of way to a railroad company — Vendor has right to private crossing over right of way, when — Right to crossing not tarred ty statute of limitations, when — Pleadings in suit to enjoin crossing — Law of reserved rights in realty</p> <p>1. An instrument of writing by which the absolute owner of a tract of land consisting of twenty acres or moré, releases to a steam railroad company a right of way one hundred feet in width and passing through said lands leaving a portion thereof on each side of said right of way, conveys an easement in the land for railroad purposes, leaving the fee,-subject to such servitude, in the general owner.</p> <p>'2. Among the rights not granted, but remaining in the vendor and incident to his title in fee, is a right to a private crossing over such right of way where the same is necessary for the convenient use of his two parcels of land lying on each side, provided the same can be constructed and used without unreasonably interfering with the use of the right of way by the company for railroad purposes.</p> <p>3. The possession of the right of way by the railroad company for railroad purposes is not adverse to the rights remaining in the owner of the fee. Hence the right to a crossing is not barred by the statute of limitations of twenty-one years, and a plea of the statute which alleges that “neither the plaintiff nor any predecessor in title ever used any easement to cross said right -of way, or any private crossing, farm crossing, way of necessity, or way reserved by implication over said right of way during said time,” does not constitute a defense to a suit brought by the landowner to enjoin the company from interfering with him in the construction and use of such crossing.</p>

The plaintiff in error was tried before the mayor of the village of Bedford, in Cuyahoga county, upon a charge of violating section 4364-20&, popularly known as the Beal law. The affidavit on which the prosecution was founded embraced three counts, each charging an unlawful sale of intoxicating liquor to be used as a beverage on July 22,1903, to three separate purchasers. The sales were averred to have occurred at the village of Lakewood, Cuyahoga county.

The principal question in each of these cases, viz.: (No. 8250) The Central Ohio Natural Gas & Fuel Co. et al. v. Henry S. Eckert et al., and (No. 8251) The Central Ohio Natural Gas & Fuel Co. et al. v. Lewis Kull, is the interpretation of a gas and oil lease.

At the April term, 1902, of the court of common, pleas of Sandusky county, the plaintiff in error, The American Strawboard Co., was by a grand jury of said county, indicted under favor of sections 6920' and 6921, Revised Statutes, for creating and maintaining a nuisance, by the corrupting of a certain stream of water known as the Sandusky river.

<p>Appropriation of property for_ railroad purposes — Assessment for compensation in probate court proceedings — Railroad may prosecute error in common pleas court — Section 6JfS7, Re- ■ vised Statutes — Undertaking—Mandamus of railroad to deposit compensation — Will not lie, when — Court proceedings in condemnation.</p> <p>Where a railroad company institutes and prosecutes in the pro-hate court, a proceeding for the appropriation of property for railroad purposes, and the court approves and confirms the verdict of the jury, assessing compensation to the landowner, the railroad company, under section 6437, Revised Statutes, may prosecute error in the court of common pleas from the judgment of the probate court, within thirty days thereafter, to obtain its reversal, and not having taken possession of the premises appropriated, the company may stay the execution of the judgment so sought to be reversed until the case on error is determined, by giving an undertaking according to law; and while the proceedings in error are pending, accompanied by such undertaking, mandamus will not lie requiring the probate judge to order the railroad company to deposit the amount of the verdict ot pay the same to the landowners.-</p>

Lancaster brought suit against Hamburger, the substance of the allegations of his petition being, that he had, for a long time, been in the employ of the Cincinnati Street Railway Co. in the capacity of a conductor on its Madison avenue line; that at some time prior to December 31, 1898, the defendant, who had conceived a violent dislike to him, and who had repeatedly threatened to procure his discharge from said employment, did, without excuse, cause, or justification, and…

<p>Engineer and brakeman on same train — In same department and fellow servants — Section 3365-22, Revised Statutes — Superior officer and fellow servant defined — Accidental parting of train — Conductor still in control, when.</p> <p>1. An engineer and a brakeman, the latter not being under the actual direction and control of the former, being upon the same train of cars and engaged in the common purpose and employment of operating the same train of cars, are in the same branch or department, and not in separate branches or departments, within the meaning of section 3365-22, Revised Statutes (87 O. L., 149); and they are fellow servants.</p> <p>2. The conductor of such train being in control of the same and the other employes thereon, in the absence of rules or proof of a custom or express authority to the contrary, is not deposed from such control by the accidental parting of the train en route, nor is the engineer thereby made the superior in direction and control of a brakeman who happens to be with him on a section of such divided train.</p>

<p>Appeal from, common pleas to circuit court — Non-signing of notice of appeal sufficient, when — Act March 35, 1903 — Applicant need not himself sign appeal.</p> <p>1. Under the act of March 25, 1902 (95 O. D., 66), regulating appeals from the common pleas to the circuit court, a notice of appeal filed within three days after the entry of judgment is a sufficient notice as to time.</p> <p>2. It is not essential to the sufficiency' of such notice that it be signed by the appellant himself. If the paper purports on its face to be a notice of such appellant expressive of his desire to appeal, and is signed by his attorney of record in the case, it shows a sufficient compliance with the statute.</p>

<p>Error to the Circuit Court of Mahoning county. .</p>

<p>Error to the Circuit Court of Erie county.</p> <p>The defendant in error brought suit in the court of common pleas of Erie county to enjoin the plaintiff in error from enforcing by civil action, a personal judgment which he recovered against her in the court of common pleas of Lucas county, Ohio, at its September term, in A. D. 1897, in the sum of $3,199.26 and costs of that action. The plaintiff in error joined issue on the petition for injunction, and on hearing of the case thus brought, the court of common pleas found for Hart, plaintiff in error, except as to a certain amount of interest, claimed to he due on the judgment, and dissolved the temporary injunction against enforcing the same except as to said interest. The plaintiff below, now defendant in error, appealed to the circuit court, and there obtained leave to file an amendment to the original petition and also what the pleader calls a supplemental petition. The substance of the petition as thus amended and supplemented, is, that on the fourteenth day of April, 1879, she, the plaintiff, executed and delivered to the defendant her promissory note for $986.47, payable three years after date with eight per cent, interest, payable annually, and that when the note was executed and delivered, she was a married woman, resident of Ohio, and that her coverture continued until the death of her husband in the year 1901; that on the nineteenth day of March, 1897, the defendant filed his petition against her, in the court of common pleas of Lucas county, Ohio, alleging therein the execution and delivery of said note, and praying for judgment thereon; that she answered the petition on the eleventh day of June, 1897, alleging that at the date of the note, she was a married woman" possessed of no separate estate, except what was then invested in a certain partnership, / all of which property had been sold by order of the court at about the date of the note, and the proceeds of the sale applied in payment of partnership debts, and that since that time, she has not been the owner of any separate estate, and prayed for a dismissal of the petition; and further that the defendant Hart, replied to the answer, denying its allegations, and also alleging that when the note was executed, she, Mrs. Manahan, was the owner of a separate estate, and that the note was given for the benefit of the same, and for the payment of which she intended to charge her separate property. She further alleged that at the September term of the Lucas county court, in September, 1897, tbe cause was tried on these issues, and that Hart recovered a judgment against her for the sum of $3,199.26 and costs of the action.</p> <p>The petition in this case, further alleges, that prior to the death of her husband in 1901, she owned no property, real or personal, which grew out of any separate estate at any time owned by her, but that at the death' of her husband and by his last will, she acquired certain property, which the judgment creditor, Hart, is seeking to subject to the payment of his judgment, in the supreme court of New York, in New York county, and also in Essex county, New Jersey, where he has brought suits for that purpose. A mistake in the computation of the interest entering into the original judgment in Lucas county, is alleged, and the further fact that the plaintiff, Mrs. Manahan, though formerly a resident of Lucas county, Ohio, where the judgment was obtained, is now a resident of East Orange, New Jersey, and that Hart, the judgment creditor, is a resident of Erie county, Ohio.</p> <p>It is further alleged that she cannot obtain full relief in the action brought against her in the supreme court of New York, because if she filed a cross-petition therein against Hart, she 'could not get service of legal process on him, and that as to the action pending against her in New Jersey, where she resides, she could only obtain relief sought by filing a bill in a court of equity and obtaining service of process on Hart; moreover, that if it were possible for her to obtain the desired relief in those courts, it would be at much expense in proving the laws of Ohio and otherwise establishing her defenses against the Ohio judgment. The plaintiff says she offers to pay Hart any amount the court may find justly due on the judgment.</p> <p>The prayer of the petition is for a finding of the true amount due on the judgment, and for a perpetual injunction against the further prosecution of the actions pending in the supreme court of New York, and in the circuit court of Essex county, New Jersey.</p> <p>Defendant Hart, in answer to the original petition, •denies that any mistake occurred in computing the amount of the judgment herein, but accepted “the offer to. pay any amount the court may find to be .justly due” on the judgment, and asks the court, to require the plaintiff to pay such sum into court, in •default of which, the petition be dismissed'. The answer denies that plaintiff was not the owner of separate estate when the note was executed and since, and denies the impracticability of obtaining adequate relief in the actions pending in the courts of New York and New Jersey. Other averments of the petition as amended and supplemented are denied, not necessary to be repeated here.</p> <p>For reply Mrs. Manahan points out the mistake in calculating the interest which entered into the judgment, and then says the amount she is willing to pay and offers to pay on the same is $25 as the value of her separate estate when the note was executed April 14, 1879.</p> <p>The circuit court made findings of fact which in the main, consist in copies of the record of the original action between the parties on the note in the court of common pleas of Lucas county, and which will be noticed in the opinion. ' The circuit court found for Mrs. Manahan and granted a perpetual injunction against Hart further proceeding in his actions in New York and New Jersey. The cáse is here on error to the judgment of the circuit court.</p>

<p>Prevention of fraud in purchase and sale of merchandise — Discrimination among creditors — Invalidity of act of April 4, 1902 — Constitutional law.</p> <p>The act of April 4, 1902, entitled, “An act to prevent fraud in the purchase, disposition or sale of merchandise” (95 O. L., 96), is repugnant to the first article of the constitution because it places an unwarrantable restriction upon the right of the individual to acquire and possess property, and because it contains a forbidden discrimination in favor of a limited class of creditors.</p>

<p>Error to the Circuit Court of Jackson county.</p> <p>The plaintiff in error was indicted and tried in the court of common pleas for murder in the second degree and was convicted of manslaughter. On the-trial the evidence tended to show that on the night prior to the alleged murder some boys were making' a noise with tin cans through the bottom of which a string had been run and then resined. It was in the woods near the house where the plaintiff in error-lived. He and his father, not knowing what the-noise was, went in that direction taking their gun with them. The boys ran away, and in a conversation that evening, the plaintiff in error, being-laughed at for taking his gun and going out after a noise made by a lot of boys, stated that if the boys-did not have any more sense than to make such a noise in the night, he did not have any more sense-than to shoot, or words similar to those. The next-night, to-wit, the twenty-seventh of August, 1902,. about half past seven o ’clock standard time, the deceased and another boy took a can and went to the top of a hill immediately south of where the plaintiff' in error lived, but had made no noise before the time the shot was fired. Two other boys were making a noise with cans in another direction from the-house of Martin, when the defendant stepped into the house and procured a rifle, and as he stepped out. his father said to him, in substance, be careful, you might shoot some one. Martin answered that he would shoot into the tree tops. He stepped out into-the yard, and for the purpose of frightening the perpetrators of the noises, held the gun up in the air- and fired it toward the hill top, and the ball struck and killed Heber Farrar, at a distance of about two ' hundred yards. Afterwards, when Martin learned that Farrar had been shot, he went to where he was, took his head in his arms, and admitted that he fired the shot that killed him. There never had been any trouble between them. There was no moonlight, but ■starlight. There was no dwelling house in the direction in which the shot was fired, although there were three dwelling houses in other directions within gun shot of the point where Martin stood when he fired. The circuit court affirmed the judgment of the court of common pleas.</p>

Quo Warranto. By Ms petition the relator gives the court to be informed that by the act of the general assembly,, passed April 25, 1904, entitled “An act to impose a tax upon the right to succeed to or inherit properiy, ’ ’ it is made the duty of the auditor of state, defendant herein, to proceed immediately to cause to he prepared blank books and forms upon -which to make the necessary returns and reports to carry into effect and operation the provisions of such act, and to…

<p>Error to the Circuit Court of Hamilton county.</p> <p>The record title of this case is, The Bodmann German Protestant Widows’ Home, plaintiff in error, v. Louisa Lippardt and John L. Duerr, defendants in error.</p> <p>The action was commenced in the court of common pleas of Hamilton county by the defendants in error to recover specific real property in Cincinnati.</p> <p>John Zeltner died testate in November, 1885, seized of the property; his will was admitted to probate in the same year, and so much of it as is necessary to the determination of the questions presented is as follows:</p> <p>'' Second. I give and'bequeath to my beloved wife, Maria Zeltner, all my estate, both real and personal, of which I am now possessed or shall afterwards .come into my possession .or under my control,. by deed or otherwise in fee simple, with power to sell or dispose of it as she may see fit; that after the death of my wife, if there is anything remaining of my personal or real estate, it shall be distributed in the following manner, to-wit: To Louisa Lippardt, wife of William Lippardt, and John L. Duerr shall receive in equal shares subject to this condition, that John Behringer, Stephen, John, George and Margaret Zeltner, children of George Zeltner, shall receive the sum of $100 apiece. I do hereby nominate and appoint my beloved wife, Mary Zeltner, executrix of this my last will and testament, hereby authorizing .and empowering her to compromise, adjust, release and discharge in such manner, upon such terms or conditions as she may see proper, and deeds to purchasers, to execute, acknowledge and deliver in fee simple.”</p> <p>On April 15, 1890, his widow, Maria Zeltner, conveyed the property in question to the plaintiff in error for a recited consideration of “one hundred dollars and other valuable considerations.” Contemporaneously an agreement was executed between her and the plaintiff in error, reciting that whereas the deed was made in consideration of her being admitted as an inmate of said Widows’ Home, therefore it was agreed between the parties that she should have the exclusive right to the enjoyment of the rent of the premises after payment of taxes, and if the property were sold during her lifetime by the plaintiff in error, she should receive for her own use, $2,000 out of the proceeds.</p> <p>On June 4, 1892, the present defendants in error brought an action against the present plaintiff in error in the superior court of Cincinnati to set aside this deed. Subsequently, on July 1,1892, the petition of plaintiffs in that action was dismissed without prejudice and upon cross petition of defendant, present plaintiff in error, its title was quieted as to any claim of the then plaintiffs under any deeds executed by Maria Zeltner on or after August 4, 1890.</p> <p>On June 14,1892, Maria Zeltner brought an action against the plaintiff in error in the same court, to set aside the deed to it; in this action a decree was entered on January 27, 1894, finding the issues joined for the defendant, and that the property had been conveyed by Maria Zeltner to it for a valuable consideration with the contemporaneous agreement above referred to; and decreeing that Maria Zeltner should have the use of the premises during her lifetime or $2,000 out of the proceeds if sold by the plaintiff in error during that time, and dismissing the petition at the costs of the plaintiff.</p> <p>Maria Zeltner died December 17, 1898, an inmate of the Home conducted by the plaintiff in error.</p> <p>The foregoing facts appear in the finding of facts made by the court of common pleas. In that court judgment was given for the plaintiffs, defendants in error; the judgment was affirmed by the circuit court, and error is prosecuted to this court.</p> <p>Counsel for defendants in error states the case as follows:</p> <p>John Zeltner died in 1885, testate, leaving Mary Zeltner his widow. They had no children, but they became the foster parents of John L. Duerr and his sister Louisa, the defendants in error. John and Louisa were orphan children, and had been taken by Zeltner and "wife into their family when quite young. They were brought up and educated by Zeltner and lived with him as members of his family. Zeltner in his life time, and his widow for some time after his death, kept a saloon and restaurant, and the two children assisted them in this while it was so carried on. Louisa got married to Lippardt, and then lived with her husband. John got married and continued to live with Zeltner, and after Zeltner 7s death, with his widow, upon the premises in question, until April 15, 1890, when the widow executed the deed in question, and went to the Widows’ Home, leaving John and his family to live upon the premises. When the widow entered the Home she was seventy-four years old. The by-laws of the Home provide for an admission fee of $100, and that if the widow so admitted has property, she must give one-half thereof to the Home. She was at the Home hut a few months, when she left it and returned to the premises in question and. lived there with her foster son John and his family. On August 4, 1890, the widow executed a deed for the same premises to John Duerr and his sister, Louisa Lippardt, hut the same was never recorded. In October, 1890, John and his sister Louisa brought suit to set aside the deed to the Home, upon the ground that the widow was not of sound mind and memory and had been unduly influenced to make the same, which suit, on their own motion, was on July 1, 1892, dismissed without prejudice to their rights under the will of John Zeltner, deceased. Upon a cross petition filed in said case by the Home, its title was quieted against any claim they might have under the deed of August 4, 1890, or any other deed executed since. On June 14, 1892, the widow entered suit against the Home to set aside the deed so made by her to the Home, upon the ground of want of consideration; that she was of old age, had not sufficient mental capacity, and was ignorant of the nature of the same, and alleging that the premises were worth $8,000. To this action the Home filed the following answer :</p> <p>“Now comes the defendant and for answer to the plaintiff’s petition admits that plaintiff was the owner of the premises described in the petition prior to April 15,1890, and that the defendant is a corporation for charitable objects under the laws of Ohio. Defendant by way of answer further says, that in consideration of $100 and other good and valuable considerations, the plaintiff conveyed by a good and sufficient deed the said premises to the defendant on July 19,1890, and that the defendant is the owner of the same, subject, however, to a life estate therein for the plaintiff as by the terms of said purchase was agreed. Defendant further answering denies each and every other allegation of plaintiff’s petition.”</p> <p>The suit on. January 27, 1894, resulted in a decree against her. The defendants in error were not parties to said suit.</p> <p>While thus away from the Home, the widow, in March, 1892, sold an improved piece of the Zeltner property to one Ulmschneider for $1,200; and in March 1894, she deeded an unimproved, and only remaining piece of property, to John Duerr, one of the defendants in error, the consideration being one dollar and other considerations. She afterwards (sometime in 1894) went back to the Home, and remained there until her death, which occurred on December 17,1898, aged eighty-two years.</p> <p>He concedes that these facts do not all appear of record, but says they were used in argument in the courts below and tbat this court should bave tbe benefit of them.</p> <p>In tbe determination of tbe case no consideration was given any fact tbat does not appear of record, and counsel’s statement is quoted only because it makes it easier to understand tbe statement of tbe case.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The record title of this case is William J. Gibbons and Agnes Gibbons, plaintiffs in error, v. Marie Ebding, defendant in error.</p> <p>In 1890, one, Southern owned a tract of land at the northeast corner of Willson avenue and Kinsvater street, in Cleveland, fronting one hundred and twenty-four feet on the east side of Willson avenue and running east one hundred and sixty feet along the north side of Kinsvater street.</p> <p>He conveyed several lots out of the tract, fronting them on Willson avenue and describing them in the deeds as running east one hundred and twenty feet “to a twelve-foot driveway.” Subsequently he conveyed a strip forty feet in width off the east end of the tract to the plaintiffs in error and in the deed recited, “The westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway, and by the above grantees.”</p> <p>At that time he still owned a lot fronting on Will-son avenue, a part of which thereafter, by mesne •conveyances, passed to the defendant in error, the deed from Southern reciting that the premises extended “to a twelve-foot driveway,” and the deed to the defendant in error reciting that the premises extended “to a proposed driveway twelve feet wide. ’ ’</p> <p>The defendant in error, plaintiff below, brought, suit to enjoin the defendants from building a fence-along the west side of the driveway and from erecting a gate across it, and for damages.</p> <p>The defendants answered, averring that they owned the twelve feet in fee simple; that the.plaintiff had no title or easement in the twelve feet strip,, and-that a gate across it was necessary to keep the public from trespassing.</p> <p>The courts below granted the relief prayed for. The circuit court in its finding of facts found as follows:</p> <p>“Eighth. Said driveway was used by plaintiff and other grantees of the property abutting on the same and fronting on Willson avenue, for taking in. coal, taking out ashes, hitching horses, and as an approach to the stable of plaintiff, which she built after she bought the property. It was also used by trespassers who made use of the twelve-foot strip' and committed nuisances therein, and the rental value of defendant’s property was reduced thereby.”</p>

<p>Real property of a judgment creditor — Exempt from levy in lieu of homestead — May he sold hy judgment debtor — Grantee holds free of judgment lien — Section 5441, Revised Statutes— Exemption laws.</p> <p>Real property of a judgment debtor that is exempt from levy and sale in lieu of a homestead under section 5441, Revised Statutes, when selected and held by such judgment debtor as so exempt, becomes his absolute property with full power of disposition, and if thereafter he sells and conveys the same, such property in the hands of his grantee is not subject to the lien of a judgment obtained against the grantor prior to such sale and conveyance, nor to seizure and sale upon execution in satisfaction of such judgment.</p>

<p>Error to the Circuit Court of Lucas county.</p> <p>On the first day of July, 1902, the plaintiff in error obtained a judgment against the defendant in error by the consideration of the city and justice court of the city óf Toledo, in and for Lucas county, Ohio, for a certain sum of money.</p> <p>No appeal was taken from the judgment and it has not been paid.</p> <p>On August 12, 1902, the judgment creditor, now plaintiff in error, filed his affidavit in the same court, in aid of execution, in which he alleged the rendition and existence of the above judgment, and that he had good reason to believe and did believe that the Lake Shore & Michigan Southern Railway Co. was then liable to the judgment debtor, Frank J. Reardon, defendant in error, in a sum of money which was then due him, and that the sum so due was not exempt from execution or attachment under the laws of the state of Ohio.</p> <p>On this affidavit, the justice, on the same day, issued an order commanding the railway company to appear before that court on August 23d, and answer under oath respecting its liability to the defendant, Reardon, and- to answer all questions touching the amount due him.</p> <p>The order also embraced a notice for the judgment debtor, to appear at the same time and place, and present such objections as he might have to the proceeding. Service of these notices was duly made on the railway company and the judgment debtor, Reardon, by the constable of the township.</p> <p>The railway company and judgment debtor appeared on the day designated, and the railway company acknowledged its indebtedness to the judgment debtor in the sum of $88.87. The bill of exceptions taken at the hearing shows that the judgment debtor moved the court to refuse an order requiring the money to be paid into court to apply on the judgment against him, and also moved to strike the plaintiff’s affidavit from the files.</p> <p>In support of his objection to any order to pay the money owing by the railway company into court, the defendant filed his own affidavit and also the affidavit of his mother. In his affidavit, defend•ant denied the statement in the affidavit of the .judgment creditor, “that the Lake Shore & Michigan Southern Railway Co. is liable to affiant in a sum of money not exempt from execution or attachment under the laws of Ohio.” He also deposed that he is the son of Catharine Reardon, who is a widow, wholly dependent upon affiant for her support, and that affiant has, for some months maintained, and is now in good faith maintaining and supporting her, and that the money sought to be applied to the payment of the judgment, are the personal earnings of affiant in a sum less than $150, for •services rendered within three months, and that the money was necessary for the immediate maintenance of said widowed mother.</p> <p>The affidavit of the mother alleges that she is a widow and the mother of the defendant, and that from his personal earnings he is, in good faith, supporting her, and that she is wholly dependent upon him for her support; that he has no money or property other than his personal earnings from said railway company, and that she is now in need of the money sought to be applied to the judgment against her. son.</p> <p>This is the sum and substance of all the facts adduced on the hearing, except the admission in -open court that the judgment debtor is unmarried.</p> <p>The justice refused to dismiss the proceeding, and ordered the railway company to pay the amount admitted to be due defendant, into court to cover the judgment and costs. The defendant excepted, and took a bill of exceptions and prosecuted error to the court of common pleas, where the proceedings of the justice were affirmed.</p> <p>The defendant, to reverse both judgments, prosecuted error in the circuit court, and it is the judgment of that court that the judgments of the justice and the court of common pleas be reversed, and that the money be released from the order of the justice, as exempt under the laws of Ohio.</p> <p>The judgment creditor now prosecutes error in this court to reverse the judgment of the circuit court.</p>

<p>Supreme court without original jurisdiction of suits for injunction — Out in quo warranto suit may grant ancillary injunction, when.</p> <p>This court, though without original jurisdiction of suits for injunctions, may, in an original action in quo warranto to determine the right of rival boards to exercise official functions, grant an ancillary injunction to protect those having the prima facie right from interference by other claimants during the pendency of such original action.</p>

<p>Error to the Circuit Court of Mahoning county.</p> <p>Defendant in error brought an action against the plaintiff in error to recover for a loss, under a policy which contained the following stipulations: “This entire policy shall be void * # * if the premium,, or any note given therefor, shall have been due and unpaid for thirty days at the time any loss or damage shall happen to the property insured hereby.”' Upon the trial it appeared that a note was given for the premium on this policy, and that the same had not been paid, although it was more than thirty days past due; nor was there any offer to pay except that after the fire had occurred a check for the face of the note was sent to the company’s agent, which was returned. The court instructed the jury that the policy was void by its terms, the proof being con-elusive that a note had been given for the premium, that it was unpaid for more than thirty days at the time of the loss, and that there was no evidence whatever as to waiver of this provision of the policy; and the court thereupon directed the jury to return a verdict for the defendant. A verdict was accordingly returned for the defendant and a judgment rendered thereon. • On petition in error the circuit court reversed this judgment and remanded the cause to the court of common pleas for a new trial. The insurance company now prosecutes a petition in error in this court to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Franklin county.</p> <p>At the April term, 1902, of the court of common pleas of Franklin county, the defendant in error, George T. Barlow, was indicted for the crime of embezzlement charged to have been committed the nineteenth day of the preceding February, the defendant being then in custody by force of an order of commitment by the police court of Columbus, dated March 5, 1902. On the twenty-second day of the following October another indictment was returned in the same court charging the same offense-committed at the same time. The cause being at issue, on March 9, 1903, a jury was called to try the-indictment of October 2, 1902, to which jury the defendant interposed a challenge to the array, which challenge being overruled, the cause proceeded to-trial. The defendant was found guilty and sentenced to the penitentiary. On error prosecuted to-the circuit court that court reversed the judgment- and sentence on the ground that the trial court erred in overruling the challenge to the array. The state-brings error.</p>

<p>Error to the Circuit Court of Butler county.</p> <p>The defendant was tried and convicted of murder in the first degree. The victim of the murder was his wife, Hannah Gr. Knapp. The indictment charged that the defendant murdered his wife by choking .and strangling her until she died. The state introduced evidence tending to prove the corpus delicti .and supplemented it by certain confessions as follows : ‘ ‘ That before the finding of the body and on the day of his arrest the said defendant made a confession, first to the mayor of the city of Hamilton, and then to the chief of police of the city of Hamilton, in the presence of said mayor, in which Knapp said that he had killed his wife in the early morning of December 22, 1902, while she was asleep in bed; that at that time she was attired in but a night gown and a pair of stockings, and that he had killed her By 'choking her upon the neck with his hands thereby strangling her to death, and that after he had so choked and strangled said Hannah G-. Knapp that he procured a shoe box from a business house in Hamilton, Ohio, and hired a horse and wagon; that.he took the shoe box to his residence where laid the dead body of his wife, and that he doubled the body up, Hannah Gf. Knapp being a small woman weighing less than one hundred pounds, and placed it in this shoe box, and that he then secured the assistance of a passerby in having the box placed in the wagon, and that he drove to a point south of the corporate limits of the city of Hamilton, Ohio, along the roadí adjoining the Great Miami river to a point near what is known as the sucker hole, where there is an eddying current in the Great Miami river, and that he threw the box containing the dead body of his wife attired in this night gown and stockings aforesaid, into the Great Miami river, and that he returned the horse to the stable, went to Cincinnati,, afterwards returned to Hamilton, went to West Virginia, and thence to Hamilton, and thence to Indianapolis, where he married another woman, and was afterward arrested.” The state also offered a written confession which is as follows: ‘ ‘ Confession of Alfred A. Knapp. On June 21, 1894, I killed Emma Littleman in a lumber yard in Gest street, Cincinnati. And on August 1, 1894, I killed Mary Eckert in Walnut street, opposite the Y. M. C. A. building in Cincinnati. And August 7, 1894,1 killed my wife Jennie Knapp under the canal bridge at. Liberty street and threw her in the canal in Cincinnati. And in July, 1895,1 killed Ada Gebhart in Indianapolis, Ind. And on December 22, 1902,1 killed my wife Hannah Knapp at 339 South Fourth street in Hamilton, Ohio, and threw her in the river out by Lindenwald. This is true. Alfred A. Knapp. Hamilton, Ohio, February 26, 1903;-’ I make ’this statement by my own free will, and mot by the request of any officer or any one else.' Alfred A.' Knapp. ’ ’ This was sworn to - before Mayor Bosch' of Hamilton. Objection to the same was made and overruled, and the entire paper read to the jury; motions to exclude the whole paper,- and all- parts except that relating to Hannah Goddard Knapp, were made and overruled on the ground that the paper was one and indivisible; exceptions 'were- duly taken. The testimony in behalf of the defendant, as well as the testimony offered by the state in rebuttal, was all in •relation to the alleged insanity-of the defendant at the time of the murder. A large number of exceptions were taken on the trial. Oh a petition in error 'by the defendant, in which seventy-one errors were-alleged, the circuit court found that there was error in the proceedings as-follows': - :</p> <p>“First. That the state of Ohio failed to prove-according to law that the deceased came to her death in the manner and by the means alleged in the indictment; and that -the state produced no evidence-of the cause, manner or means of the death aside-from the alleged confession of the defendant in error, the defendant named in said indictment.</p> <p>“Second. That the court of common pleas erred in admitting in evidence the alleged written confession of the defendant in error, the defendant in said .cause in said court of common pleas, of other crimes than that charged in the indictment and in permitting the prosecuting attorney to read said alleged written confession as a part of Ms argument to the jury, and in permitting the jury to have said alleged written confession in the jury room during their deliberation upon the verdict.</p> <p>“Third. That the court of common pleas erred in its general charge to the jury in’ instructing the jury that ‘in all doubtful cases the presumption of innocence is sufficient to turn the scale in favor of the defendant.’</p> <p>“Fourth. That the court.of common pleas erred in giving to the jury the following instruction as part of its general charge: ‘ Sane men who are innocent, as a rule, do not make confession of crime.’ ”</p> <p>The circuit court for said reasons reversed the judgment of the court of common pleas and remanded the cause for a new trial. The state excepted to the ruling of the circuit court and its judgment of reversal; and prosecutes this proceeding in error to reverse the judgment of the circuit court and to.affirm the judgment of the court of common pleas.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>On the fourth day of April, A. D. 1903, the grand jury of Hamilton county, returned into' the court of common pleas an indictment in which it charged Frederick Geiger, now plaintiff in error, with the crime of murder in the first degree.</p> <p>The victim of the alleged murder was his wife, and the indictment describes the deed in the fob lowing language: “That Frederick Geiger on the twelfth day of February in the year nineteen hundred and three, with force and arms, at the county of Hamilton aforesaid, in and upon one Ada M. Geiger,, then and there being, did unlawfully, purposely and of deliberate and premeditated malice, make an assault in a menacing manner, with intent, her the said Ada M. Geiger, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder, and with a certain flat iron, which he, the said Frederick Geiger in his hands then and there held, he the said Frederick Geiger, her the said Ada M. Geiger, in and upon the head of her, the said Ada M. Geiger, then and there, unlawfully, puiv posely and of deliberate and premeditated malice, did beat, bruise and strike, with the intent aforesaid, thereby then and there giving her, the said Ada M. Geiger, mortal wounds and fracture of the skull, of which mortal wounds and fracture of the skull, she,, the said Ada M. Geiger, then and there instantly died. * * * ” •</p> <p>Then follows the conclusion of the grand jury as to the crime committed, usually found in indictments for first degree homicide.</p> <p>When arraigned to plead to this indictment, the prisoner presented and filed his plea in abatement, wherein he attacked the organization of the grand jury, alleging that the jury commission which supervised the selection of grand and petit jurors was not composed of judicious free-holders, electors of Hamilton county, as required by law, and that the statute under which the selection and drawing was had is unconstitutional, etc., and that the grand jury was not drawn, selected and impaneled as required by law. The state replied and denied the allegations of fact made in the plea, but, the defendant, on leave of the court, having amended it by leaving out the averments respecting the qualifications, or want of qualifications, of the jury commission, the reply was withdrawn, and a demurrer filed by the state. The court sustained the demurrer, and the plea in abatement held insufficient. The prisoner took exception. A plea of not guilty was entered and the case came on for trial in June, 1903.</p> <p>A motion to quash the array of the petit jury had been previously filed and overruled. Motions to quash the several special venires issued to complete the panel had also been filed and overruled. The prisoner excepted to all rulings of the court against him.</p> <p>Numerous challenges were made of jurors composing the panel, and when overruled the prisoner excepted.</p> <p>During the progress of the trial there were many controversies over the admission and exclusion of testimony, and the prisoner saved exceptions to all adverse rulings of the court. He requested many special charges, some of which were given and others were refused.</p> <p>Exceptions were taken to the, general charge. Additional statement of the history of the case is contained in the opinion. The jury returned a verdict of guilty of murder in the second degree, and not guilty of murder in the first degree, as charged in the indictment. On this verdict the court sentenced the accused to imprisonment for life, and the circuit court affirmed the judgment. The case is here on error to reverse the judgment of each of the lower courts.</p>

<p>Error from the Common Pleas Court of Columbiana county.</p> <p>Exceptions by prosecuting attorney of Columbiana county.</p>

<p>Exceptions to the Common Pleas Court of Plamilton county.</p>

<p>Exceptions to the Common Pleas Court of Hamilton county.</p>

<p>Error to Circuit Court of Lucas county.</p>

<p>Error to Circuit Court of Putnam county.</p>