Volume 90 — Ohio State Reports, New Series

Plaintiff in error was indicted at the January term, 1913, of the common pleas court of Jackson county for shooting one John Jackson. The indictment contained two counts, shooting with intent to kill and shooting with intent to wound. On March 3, 1913, he was arraigned and pleaded not guilty to the indictment.

On the evening of January 1, 1913, Mike Zacharias, in company with his little son, aged about four years, and certain other men, visited the saloon of his brother, William Zacharias, in Berea street, Berea. Across the street from William Zacharias’ saloon, another saloon was kept by a man by the name of Frank Niec. Between ten and eleven o’clock in the evening, the defendant, John Lasecki, accompanied by John Wisniewski and Ignatz Maslinski, left Niec’s place.

Henry C. Miller and Samuel C. D. Johns, testamentary trustees under the will of Nathan E. Chapman, brought a proceeding in the court of common pleas of Cuyahoga county under Section' 10857, General Code, praying the direction of the. court respecting the administration of their trust. By their petition they submitted certain, questions relative to the execution of the trust and the construction of the will.

March 18, 1911, The Morford-Wood Company brought suit in the court of common pleas to enjoin Naughton from bringing an action in forcibly entry and detainer to recover possession of real estate in the city of Columbus owned by him, it claiming the right of possession under a lease executed by him March 19, 1906, containing stipulations with reference to renewal thereof, and further suing for the specific performance of said obligation to execute a renewal of said lease.

Joseph McDougal, at the time of his death in 1880 a resident of Hamilton county, left his certain last will and testament which was duly admitted to probate in said county.

The relator, as prosecuting attorney of Morgan county, prosecutes this action for the use and on behalf of the county, under favor of Section 2921, General Code.

The indictment in this case was brought under favor of Section 12823, Genéral Code, and charges the defendant, S. A. Davis, with soliciting a bribe from one E. H. Townsend to influence, him, the said S. A. Davis, as county commissioner, with respect to his official duty with reference to the purchase of certain roadmaking machinery. The solicitation charged in the indictment was on August 3, 1909.

Minnie Fetter, on April 23, 1913, filed an application in the court of appeals of Marion county in which she represented that she was the mother of Howard Fetter, a minor nine years of age, that she was entitled to his custody, that she was unlawfully deprived thereof and that said minor was restrained of his liberty by Sylvester Hurr, superintendent of the County Children’s Home of Marion county, Ohio, at which home he was unlawfully detained.

Clara E. Bahl filed her petition in the common pleas' court of Hancock county seeking to set aside the last will and testament and two codicils thereto of her father, Absolom P. Byal, deceased. All! heirs at law and all interested persons were made] parties defendant in the proceeding. Separate] answers were filed by George F. Byal, a son, by j Silas E. Hurin, guardian ad litem for three minor grandchildren and by the trustees of the First; Presbyterian church of Findlay.

The plaintiff filed an amended petition in the common pleas court of Hamilton county which amended petition reads as follows: “Now comes Nancy Louden the plaintiff herein and by leave of court files this her amended petition herein, and says that the defendant, the City of Cincinnati, is a municipal corporation under the laws of the State of Ohio; that the defendant, the Board of Trustees, ‘Commissioners of Water Works/ Cincinnati, Ohio, is a legally constituted board…

The controversy in this action centers ! ¿round the clause, “one bureau and contents,” mentioned in the second item' of the last will and testament of Emma Weaver, late a resident of Fayette county, Ohio, and demands an interpretation thereof in order that the true intention of the testatrix may be ascertained. The will in its entirety reads thus: 'T, Emma Weaver of the county of Fayette and State of Ohio do make and publish this my last will and testament. “Item 1.

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Montgomery county. The grand jury in and for the county of Montgomery, state of Ohio, was duly impaneled and sworn on the 1st day of December, 1913, for the October term, 1913. On the following 8th day of December, 1913, said grand jury filed its first and partial report with said court. On the following 31st day of December, the said grand jury renewed its sessions.

<p> Corporations—Insolvency—Directors hold property in trust—Cannot assign property to secured creditors—Rights of unsecured creditors. </p>

<p>Error to the Circuit court of Franklin county.</p>

<p> Municipal corporations—Streets and alleys—Duty as to street dedicated but not opened—Whether street improved or opened, question for jury, when—Error to direct verdict, when. </p>

<p>Error to the Court of Appeals of Clinton county.</p> <p>At the January term, 1913, of the court of com-non pleas of Clinton county plaintiffs in error wer'e indicted under Section 12438, General Code, for maliciously and forcibly breaking and entering in the night season a certain building, namely, a certain chicken house, the property of one Mary Linton, and stealing therefrom chickens of the value of $15, the property of said Mary Linton. A trial to a jury was had, and plaintiffs in error were found guilty as charged in the indictment. A motion for a new trial was overruled, sentence pronounced and judgment entered. This judgment was affirmed by the court of appeals, and plaintiffs in error here seek a reversal of the judgment below and ask for their discharge.</p>

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.

<p>Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.</p> <p>The facts-are stated in the opinion.</p>

<p> Critninal law—No common-law writs or pleas—Coram nobis and coram vobis. </p>

<p>Error to the Court of Appeals of Coshocton county.</p>

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.

<p>Error to the Court of Appeals of Summit county.</p>

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

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…

<p> 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. </p> <p>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.)</p> <p>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.</p>

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

<p>In Quo Warranto .</p> <p>Facts are stated in opinion.</p>

<p> Constitutional law—State civil service law (103 O. L., 698)—Not delegation of legislative powers—Nor exercise of power of law suspension—Does not deny equal protection, nor abridge privileges or immunities—State civil service commission cannot investigate mayor, when—Right of taxpayer to injunction against public officers and commissions. </p> <p>1. A taxpayer may maintain an action to enjoin public officers or a public commission from the commission of acts in excess of legal authority, which contemplate the expenditure of public money.</p> <p>2. The provisions of the civil service law (103 O. L., 698), authorizing the civil service commission to prescribe, amend and enforce rules with reference to the civil service of the state and the several counties and cities, do not constitute a delegation of power to enact laws, nor are the provisions of that statute, which authorize the commission under certain defined circumstances to omit competitive examinations, repugnant to Section 18, Article I of the Constitution, which prohibits the exercise of the power of suspending laws except by the general assembly.</p> <p>3. The act referred to does not deny the equal protection of the laws nor abridge the privileges or immunities of citizens of the United States,</p> <p>4. The civil service law (103 O. L., 6SS), does not confer power on the state civil service commission to investigate the acts and conduct of the mayor of a city with reference to the enforcement by him of that enactment.</p>

Errot to the Court of Appeals of Sandusky county. On the 21st day of March, 1913, Frank S. Shoff - stall and Carrie A. Shoff stall filed their petition in the common pleas court of Sandusky county against R. A. Elder & Co., a partnership composed of R. A. Elder and Clara J. Elder, alleging fraudulent representation in the sale of a stock of dry goods, millinery and fixtures located in No. 104 Kilbourne street, Bellevue, Ohio, among other things averring that they purchased…

<p>Error to the Court of Appeals of Perry county.</p>

This was an action for an injunction brought by defendant in error on the 28th day of July, 1913,-in the court of common pleas of Cuyahoga… Held: was the owner of the easterly twenty-five feet of sublot 160 and the westerly ten feet of sublot 161 in John W. Taylor & Company’s Douglas Park subdivision and that plaintiff in error, Carrie E. Hunt, was the owner of the easterly thirty feet of sublot 161 and the westerly five feet of sublot 162 in said subdivision, that both…

<p> Wills—Failure to elect—Acts necessary to constitute election in fact. </p> <p>In order that acts or a course of conduct of the surviving consort ' of a deceased testator should operate to equitably estop such consort from claiming dower and a distributive share of the personal property under the law and to amount to an election . to take under the will, such acts must be of such an unequivocal character as will clearly and distinctly demonstrate a puroose to accept the provisions of the will.</p>

In Quo Warranto. . This was a proceeding in quo warranto brought in this court.

<p>Referendum—Elections—Subject of political and not judicial regulation—Powers and duties of state supervisor and inspector of elections—Sufficiency and validity of referenduvt petitions— Section ic, Article II, Constitution of 1912—Secretary of state may reject petitions, when—Effect of false affidavit to part of petition—Section ig, Article II, Constitution..of 1912—Forged signatures to petition—Court cannot order submission of referendum,, when. ■■</p> <p>1. Elections belong to the political branch of the government and not to the judicial, and are. not per se the subject of judicial cognizance, but are matters for political regulation.. (The State, ex rel., v. Harmon, 31 Ohio St., 250; Chapman v. .Miller, 52 Ohio St., 166; Randall v. State, ex rel., 64 Ohio St., 57; The State, ex rel., v. Stewart, 71 Ohio St., 55; The State, ex rel., v. Joyce, .87 Ohio .St., 126; Link v. Karb, Mayor,. 89 Ohio St. 326, approved and followed.)</p> <p>2. The state supervisor and inspector of elections and deputy state supervisors and inspectors of elections are authorized by law duly enacted by the legislature of Ohio to conduct all public elections in the manner prescribed .by the provisions of Title . XIV, Part First, General Code, and to hear and determine all preliminary .questions pertaining thereto.</p> <p>3. The secretary of state, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of -all petitions filed with him under the provisions of Section 1 c of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.</p> <p>4. Where it appears from the evidence that any circulators of parts of a petition have been guilty of a systematic course of fraud and forgery in procuring and writing,names thereon, and have wilfully and intentionally sworn to false affidavits attached thereto, it is neither fraudulent nor an abuse of discretion on the part of the secretary1 of'state to reject all parts of the petition procured by such circulators.</p> <p>5. Where evidence is offered tending to prove that manv of the parts of a petition, although purporting to be verified by affidavit, were not in fact sworn to, as required by the constitution, the state supervisor of elections may reject any or all such parts, notwithstanding there is a conflict of evidence upon that question, unless his decision in that behalf is so. manifestly and palpably against the weight of the evidence as to show fraud, corruption or an abusé,of discretion on his part.</p> <p>6. An affidavit intentionally and knowingly false, attached to any part of a petition, is not a compliance with the provisions of , Section \g. of Article II of the Constitution of the. state, and the part of a petition, to which, such false .affidavit, is attached, must be rejected entirely, the same as a part to which no affidavit is attached, whether it contains genuine names or not, for the reason- that it lacks the affidavit required by the constitution. :</p> <p>7;- Where it is admitted that 20,000 names'signed.to a petition requesting the submission of a law passed -by' the general assembly of this state to the approval or rejection of the electors of the state, are forged by the circulators, and within ten days thereafter additional names. are tendered to the -secretary of state and rejected by him, and no action in mandamus,is brought to compel the secretary of state to accept the additional names until a-time so near the next general election, occurring, more than sixty days after the filing of such referendum petition •that issue cannot be joined and the cause heard and determined in time to submit such question to the electors of the state at such election, a court is powerless to afford the relator relief, even though it should appear that the secretary of state abused his discretion-in rejecting the additional-petition.</p>

<p>Intoxicating liquors—Issuance of licenses—Injunction will b$ refused, when. . ,,</p>

In Mandamus. This action was brought in this court on behalf of the state of Ohio on the relation of the auditor of state against the defendant, John E. Roose, auditor of Putnam county, Ohio, praying for a peremptory writ of mandamus to compel the defendant auditor of Putnam county to place on the tax lists and duplicate of Putnam county the tax levied for state purposes by section 1 of the act of April 8, 1913, as amended April 16, 1913 (103 Ohio Laws, 863).

<p> Criminal law—-Embezzlement—Possession—Section 12467, Generaf Code—Larceny—Receiving stolen goods. </p> <p>1; The possession referred to in the embezzlement statute;1 Section- ■ 12467, General Code, is more than a mere custodianship,, .or naked possession. It is a possession for the time and purpose exclusive of the owner’s possession.</p> <p>2. Where goods are in the possession of the lawful owner, and a. mere custodian, “storekeeper” or watchman takes them and. removes them from the premises wrongfully, and sells the same without authority, such custodian, “storekeeper” or'’watchman is guilty of larceny, and' any one receiving such goods, with! full knowledge, .of - the circumstances, is guilty of knowingly] receiving stolen goods.</p>

This was a proceeding brought in the court of common pleas of Trumbull by Margaret E. Evans and her husband against the treasurer and auditor of Trumbull county.

<p> Burial insurance—Undertaker executing contracts with mutual notes—Subject to state regulation, when—Section 670, General Code. . </p>

<p> Limitation of word “obtain"—Section 13104, General Code—Question of variance between pleadings and proof—Immaterial matter in indictment—Mistrial for error must not be ordered, when. </p> <p>1. The word “obtain,” as used in Section 13104, General Code, is not limited to getting, securing or appropriating money of'property as owner. It includes as well the getting or. securing of money or property by way of a loan.</p> <p>2. Mere matter of unnecessary particularity or immaterial description contained in an indictment is not sufficient upon which to base a charge of variance between pleading and proof. Such variance must be based upon some essential element of the .offense, or some essential part of such element.</p> <p>3. A mistrial should n’o{ be ordered in a cause simply because some error has intervened. The error must prejudicially affect the •merits of the.case and the. substantial rights of one or both of the parties, and this is as true of the temporary absence of the judge as any other departure from due process of law during the trial of a cause.</p>

<p>Error to the Court of Appeals of Franklin county.</p> <p>The facts are stated in the opinion.</p>

<p>Journal entry: It appearing, however, that the plaintiff in error is entitled to occupy the stable upon this property as a place of temporary residence during the construction of such a residence building as is provided for in the contract, provided such residence is constructed within a reasonable time, it is further ordered and adjudged by this court, that the judgtnent of the cgmpiop pleas, court gnd the circuit court, affirming same, be modified to the extent that the judgment of the common pleas court shall take effect and be in force from and after the first day of September, 1914, and as so modified said judgment of the common pleas court and the circuit court, affirming same, be, and the same is hereby, affirmed. —Reporter. :.</p>

<p>Error to Circuff Court of Portage county.</p>

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

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

<p>Error to Court of Appeals of Allen county.</p>

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

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

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

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

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

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

<p>It is, therefore, ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is, hereby affirmed.—Reporter.</p>

<p>Error to Circuit. Court óf sGuyahQga .cpuutyw</p>

<p>Error to Court of Appeals of Hamilton county.</p>

<p>Error to Circuit’ Court of ',Knox county.</p>

<p>Error-to Circuit Court- of Highland county,-</p>

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

<p>Error to'Court of'Appeals of'Franklin county.</p>

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

<p>Error to Court of Appeals of Portage county.</p>

<p>Error to Court of Appeals of Columbiana, county.</p>

<p>Error to Court of Appeals of Belmont county.</p>

<p>Error to.Court,of Appeals'pf ■Cplumbiána county,</p>

<p>Error to Circuit Court of Delaware county,,</p>

<p>Error to Court of Appeals of Perry county-i</p>

<p>Error io Circuit Court of Muskingum county.</p>

<p>Error to Court of Appeals of Jefferson county.</p>

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

<p>Error to Court of Appeals of Crawford county.</p>

<p>Error to Court of Appeals of Franklin county.</p>

<p>Error to Court of Appeals of licking county.</p>

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

<p>Error to Court of Appeals of Butler county.</p>

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

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