Ohio Law Journal.

COLUMBUS, OHIO, : : MARCH 16, 1882.

THE Supreme Court made no report of cases disposed of during the past week.

NEW LAW MAGAZINE.

The American Law Magazine, published at 46 & 48 Clark St. Chicago, Ill., is a new monthly candidate for the honors and emoluments sometimes visited upon law journals. It is under the direct editorial care of J. B. Martindale who is now assisted by a corps of twenty-seven, able-bodied gentlemen in various states with eleven states to hear from. The first number is full of good reading matter.

NEW LAW FIRM.

The late law firm of Banning & Davidson of Cincinnati, dismembered by the untimely death of General Banning, has been reorganized, and is now under the firm name of " Davidson, Groesbeck, Conway & Gabler." Mr. Davidson is well and favorably known to our readers. Of the new members, an exchange has the following:

"Mr. Groesbeck is the son of Hon. Wm. S. Groesbeck, is now twenty-eight years of age; a graduate of Princeton College and of the Cambridge Law School; has until recently been travelling abroad but has now settled to hard work and will make his mark. Mr. Conway was educated under the care of Bishop McKale of Ireland, and takes charge of the probate business of the firm; while Mr. Gabler is a graduate of Bethany College, and will look after the insurance cases on the docket of the firm. These gentlemen are all capable of hard and effective work and will achieve success."

PERSONAL MENTION.

A Judge with a Backbone.-In this age of greed for office, and of fawning and temporizing to secure the support of powerful and influential persons or classes, the discovery of a man fearless and true when first tried in the harness of a judicial position, gives a sensation of genuine pleasure. There are so many ways in which a weak and vacillating judge can evade the full discharge of his duties, by ambiguous charges; by deferring action upon important cases submitted; by avoiding the main question and rul

ing upon side issues instead; by quashing indictments which contain an uncrossed "t" or an undotted "i"; to say nothing of plain bullheaded disregard of all law or justice in matters where discretion gives full play to fell design; there are so many of these cases, we say, that the election of a judge is like an investment in a lottery, so often (alas!) unsuccessful as to prizes that an undoubted good drawing is productive of real satisfaction and deserved self gratulation. We are impelled to these remarks (which are local, and have no antithetical reference), by the undoubted ability and firmness displayed by His Honor, Judge Wylie, of the Franklin County Common Pleas. It is a matter of common remark among law-respecting people, that crime will henceforth have but a slight chance to escape its proper reward in this county, and that public boasts of ability to buy courts, prosecuting attorneys and grand juries will no longer be attended with unblushing and defiant violations. of law, and the constant and repeated failure to indict or punish the persons so boastful and lawdefying. We do not pretend to locate the reason of, or the responsibility for the fact, but it is well known that palpable and flagrant violations of law, affecting the health and comfort of thousands of our citizens, have been perpetrated and boasted of for a dozen years past in the face of all effort to punish the same.

We venture the prediction that when these same law-breakers come before Judge Wylie, there will be occurrences profoundly astonishing to their sense of fancied security.

JURY TRIALS.

They are indeed becoming a farce if not so already. Inherently, trial by jury has from deep antiquity received the endorsement of the wisest of the age, and it will be difficult to deny that if fairly tried it is the safest guard against the centralizing tendency of power.

Fair minded men of reasonable intelligence actuated by the ordinary impulses to do right, taken by lot and almost by accident from the ranks of the industrious, economical, moral classes as a rule is as safe a guard over the property, character, liberty and life of a people as can well be devised. The trouble with juries and the inefficiency of their actions may be traced to the bold and undisguised usurpation of the judges of courts where juries are employed.

Gradually and imperceptibly as the silent uprising of the coral reef, common pleas judges have

absorbed the high and independent power and duty of juries, and centering in themselves the functions of both judge and jury, have established a tyrannical power in the person of the judge, the most oppressive and dangerous exercise in a free land, and that would have met with resistance even to arms in the far off time of King John.

This power must be curbed, and juries by force of public sentiment made to understand that they are not mere automatons for the judge to direct in the determination of the facts as well as the law, and it is time the people, the press, and the bar, use their power to mould the true relations between the judge and jury as co-elements in the constitution of our courts, and firmly establish the proud and independent functions of twelve intelligent freemen when impanneled as a jury.

JOHN W. CANARY.

Bowling GREEN, O., March 9, 1882.

ADMITTED TO PRACTICE.

Fifteen applicants for admission to the Bar, of this State, were before the Supreme Court last week. The following obtained certificates:

Theodore Alvord, Conneaut.
Curtis E. McBride, Mansfield.
John Bender, Fostoria.
Curtis V. McBride, Mansfield.
Joseph Chaney, Newark.

George W. Fluckey, Mt. Gilead.
Carl A. Seiders, Tiffin.

O. W. Bair, Troy.

W. R. Sanborn, Piqua.

John A. Qualy, Columbus.

Adolph Goldfredrick, Circleville.

Andrew J. McClure, Kalida.

LXVTH GENERAL ASSEMBLY OF OHIO.

SNYPOSIS OF LAWS PASSED THIS SESSION.

March 2, 1882.

House Bill No. 120. To amend section 3786 of the Revised Statutes of Ohio authorizing trustees of religious denominations, on the parish or congregation becoming extinct, to take possession of the church property, and to lease, sell, invest or otherwise dispose of the same. H. B. 46. To amend section 4969 of the Revised Statutes to read as follows:

Section 4969. If the judge of a court having but one judge, or if a quorum of the judges of any court having two or more judges, fail to attend at the time and place appointed for holding the court, or if, after the calling of the court, the judge, or a quorum of the judges are unable, on account of sickness, or from any other cause, to attend the daily sessions thereof, the sheriff shall adjourn the court from day to day, until the single judge attend or a quorum is convened, but if the judge or judges be not present within two days after the first day of the term, or if, after the court is called, the judge or judges are unable, on account of sickness, or from any other cause, to be present for ten days, the court shall stand adjourned for the term.

H. B. 82. To regulate the construction, enlargement, changes in, conduct and management of water works

in cities having a population exceeding eight thousand and not exceeding ten thousand, according to the Federal census of 1880, or in July of any year.

H. B. 132. An act to authorize the trustees of Miami township in Logan County, to levy a tax on the Quincy precinct of said township, and issue bonds for the purchase of cemetery grounds and the improvement thereof. H. B. 49. To amend section 5164 of the Revised StatMarch 3, 1882.

utes to read as follows:

Section 5164. The trustees of each township and the councilmen of each ward, shall, on the second Tuesday of October, annually, select of good, judicious persons having the qualifications of an elector, and not exempt by law from serving as jurors, the number of persons designated in the notice to be returned for jurors therefrom, and shall make a list thereof, and deliver the same to the judge of election, who returns to the clerk of the court, the poll-book of election, and such judge of election shall deliver the list to the clerk at the time he returns the poll-book; and in selecting the jurors, if any person shall attempt, by request, or suggestion, to influence said officers, or any of them, to select or not select himself, or any other person or persons as aforesaid, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, before any court of competent jurisdiction, shall be fined in any sum not exceeding fifty dollars, or imprisoned in the county jail not more than ten days or both, in the discretion of the court.

H. B. 161. Making appropriations for the last three quarters of the Fiscal year ending November 15th, 1882, and the first quarter of the fiscal year ending February 15th, 1883.

H. B. 41. Authorizing the Commissioners of Lawrence County to levy an additional tax for certain purposes. H. B. 80. To amend section 3977 of the Revised Statutes to read as follows:

Section 3977. The prosecuting attorney of the proper county, or in case of a city district, the city solicitor shall prosecute all actions which, by this title, may be brought against any member or officer of a school board, in his individual capacity, and shall act in his official capacity as the legal counsel of such boards or officers in all civil actions brought by or against them in their corporate or official capacity, but no prosecuting attorney or city solicitor shall be a member of the board of education; provided, that in counties having a county solicitor, such officer shall prosecute all actions which may be brought against any member or officer of a school board in his individual capacity, and shall do and perform all the duties herein required of the prosecuting attorney, as to schools, school boards, and officers of schools of the county, outside of said city; but for such services he shall receive additional compensation.

H. B. 145 Authorizing the city of Ironton to issue bonds, borrow money and levy a tax for the purpose of defraying the expenses incurred in suppressing the small pox.

H. B. 148. To amend section 5053 of the Revised Statutes to read as follows:

Section 5053. Where an heir or a devisee of a deceased person is a necessary party, and it appears by affidavit that his name and residence are unknown to the plaintiff, proceedings against him may be had without naming him, and the court, or a judge thereof, shall make an order respecting the publication of notice, but the order shall require not less than six weeks publication.

H. B. 223. To amend sdction 6046 of the Revised Statutes to read as follows:

Section 6046. Before receiving said inventory by the probate court, the executor or administrator shall take and subscribe an oath or affirmation before the probate judge or his deputy, a justice of the peace, or other officer authorized to administer oaths required or authorized by law, stating that such inventory is in all respects just and true; that it contains a true statement of all the estate and property of the deceased which has come to the knowledge of such executor or administrator, and particularly of all money, bank bills, or other circulating medium belonging to the deceased, and of all just claims of the deceased against such executor or administrator, or other persons, according to the best of his knowledge. Such oath shall be endorsed upon or annexed to the inventory.

H. B. 106. To authorize the village of Milford, Clermont County, to transfer certain funds.

CIVIL RIGHTS.

UNITED STATES

V.

JOHN M. BUNTON.

JUDGE BAXTER'S CHARGE TO THE JURY. The prosecution was instituted against defendant as Superintendent of a District School in Clermont County, for refusing to admit the son of a colored man to the school, which is attended by white children, the defendant claiming that

there was a school. for colored children in the vicinity, accessible to the boy, and to which he should be sent. The case was tried last week

before Judge Baxter, at Cincinnati, who charged the jury as follows:

GENTLEMEN OF THE JURY-It is a great relief to a court, and a great relief to a jury, to have a case tried by counsel who understand what the controlling question is and who are frank enough to move right up to the question and present that case. Upon that the decision of the jury turns, without making it necessary for the court to go back, as it were, and traverse all the law in order to show you what the ruling question in controversy is. If this case had been met in that spirit we would have been through it before dinner, but it is a very small case and in a very narrow compass. There is really but one question for the jury, which I will point out after a while.

A good deal of discussion has been gone into, and a good many books have been read in order to satisfy the court, for it was addressed to the court and properly to the court, as it is a question which the court has to decide and not the jury, that there must be a criminal intent to constitute a crime. In the broad sense in which the books intend it, that proposition is true. But what constitutes a criminal intent in one case is very different from what it is in another case. A decision is read here by Judge Rives, of Virginia. That case was upon the trial of a juror commissioner, who was indicted because he refused as jurors-he excluded from the jury box-two colored men because or on account of their color, the law denouncing that act as a crime, and authorizing parties to be prosecuted who did that. Now you will see that the essence of that crime consisted not in his excluding the jurors-I mean persons from the jury-box-but for doing it on account of their color. The exclusion of colored men from the jury-box might have been because they were regarded as incompetent to serve as jurors, as not having sufficient intelligence, or for some other good and reasonable cause. He could not be indicted for that; but if he did it simply and solely on the ground that they were colored persons, then the law applied, and as in that particular instance the evidence consisted in the motive-not in the exclusion of the jurors, but in the motive which in

duced him to exclude the jurors-of course the court was bound to pass upon the fast whether he did exclude them from that motive or some other motive.

Well, again. in another case, a man is indicted for passing counterfeit money. The statute, I believe, in all cases speaks of a man passing it knowing it to be counterfeit, because any of us may pass a counterfeit bill inadvertently and without any knowledge of the fact. In that case the crime consists not simply in the passage of the bill or offering it in payment to some one, edge that it was counterfeit. Then the party but in the passage of the bill with the knowlcan not be convicted unless there is proof of what the law, the books, call the scienter-that is, the knowledge-and that is the proper inquiry to be made in case of that kind. So in an indictment for forgery. The mere fact that I sit down here and draw a note for a thousand dollars, and sign A. B.'s name to it, is not a criminal offense of itself; and the law says, "If done with intent to defraud," if used with the knowledge of the fact that it was spurious-the knowledge or the intent, in that particular instance, is a necessary element to constitute the crime, and in that instance the knowledge must be proven.

Now we will come down to this case. I am cited to a great many other cases of similar character, and in the discussion upon the books, the author is treating upon some particular proposition, and his language is applicable to that proposition, and hence when you turn over very often a page or two forward or a little back you find something to the unthinking mind, whose business it has not been to study law or to discriminate, that seems apparently in conflict with this proposition, but when you look to the facts and the difference in principle they are harmonious, and they are both correct. The crime in this case is, after the slaves were emancipated by a military force and through an amendment of the Constitution of the United States they were made citizens; they were invested with all the rights of citizenship. They have, under the Constitution, the same rights precisely as you and I have, but being an uneducated race just withdrawn from under the yoke of bondage and turned loose upon the world as full-fledged citizens of the United States, the Government, or a majority of the people of the United States who did this thing, felt that it was their duty to throw around the ignorant slave such protection as would be sufficient to guarantee to him the rights with which the Constitution has invested him; because a right, although it be a constitutional right, unless there is some means provided by which to protect that right and protect the parties in the exercise of that right, is en tirely valueless. Several provisions of law have been made in order to give this protection. Among others it has been enacted that every person who, under color of any law, statute, ordinance, regulation or custom, deprives a person.

on account of his color from his rights, is indictable and punishable in this court.

Now, the mere fact that this defendant excluded this colored boy from the privileges of his school would not constitute an offense. There must be more than that. He must have excluded him from his school, and he must have done that under some color of law, or statute, or ordinance, or regulation, or custom of the State. It requires an exclusion, and also that that exclusion should be for the reason which the law gives, on account of his color, and the person who thus excludes must be acting, or claiming to act, under some authority of law of the State, local law, custom, regulation, or statute or ordinance. If, therefore, this defendant did exclude this colored boy from his school, if this colored boy was a resident of the district, and if he had a right to go to that school, in reference to which I will instruct you directly, and if this defendant excluded him from the school, claiming to do so under the authority of the statute which provided for a separate school for colored people, or under some regulation, or custom, or ordinance of the State, and excluded him because he was a colored boy, or for same other reason-he might have been spiteful towards him, and exclude him for some other reason-if he excluded him nder color of authority, and because he was a olored boy, then the court instructs you that he would be guilty, and you ought to find him. guilty, unless you should find in his favor upon the question of fact, which I would bring to your attention, but which the counsel for the defense did not discuss. This only question in the case has not been discussed.

Now, referring to some portions of the argument, and the positions assumed by counsel in this connection, he proved by four witnesses that defendant is a man of good character and a law-abiding citizen. The law presumed that before he introduced the proof, and the proof only confirms that proposition. And then he reads authorities to the court in order to inform the court what the law is upon that question! Well, the authorities read are all correct enough, but let us see if they have any application to this case. When a proposition of law is announced that is correct, it means that it is correct when there is anything for it to operate upon, when it is applicable to the case that is under trial. The only thing which this defendant is accused of doing is that he excluded this boy from the school, and he did it under the color of the statute relating to the subject, and did it because he was a colored boy. The defendant is introduced as a witness himself, and that is his statement-that he thought the boy had been provided for at another school; that it was his right to apply at the other school; that he had no right to come to his school; that the other school had been provided for colored children, and 'money set apart for that purpose. In other words, he admits every fact necessary to constitute this case. Now, doesn't the jury, in the exercise of its own good sense, see at once that good character

has nothing to do with the proposition? If the proof is plain and indisputable that a man did do a particular act, if the party accused comes into the court and admits the fact that he did do a particular act-that is, that he did exclude this person; that he did do it under color of that law which has provided another place for them to go to, and that he did do it upon that ground; that he had not been employed to teach colored people, what use could you make of the fact that he was a man of good character-I mean in passing upon the facts which constitute that part of the case? He certainly is a man of good character, but if he admits the offense, there is nothing for this evidence to operate upon. And the court. instructs you that good character, in this particular case, very proper and influential in proper cases, has no application, no bearing, and is entitled to no consideration at the hands of the jury. If the defendant were to deny the facts alleged, if he would say the testimony on the part of the prosecution or Government was not true, if he were to raise an issue between himself and the other witnesses, or even stand off and deny the truth of the indictment, then the jury, in passing upon the fact whether he was guilty of the particular matters alleged against him, or not guilty, would very properly be authorized to take into consideration that he was a man of truth, a man of veracity, a good citizen and a law-abiding man; but when they are called upon, first, to decide whether he.excluded this colored boy; secondly, whether he did it under color of authority, and thirdly, whether he did it because he was a colored boy, and the defendant, himself, upon his oath, who is examined as a witness in his own behalf, admits these particular allegations are true, the court instructs you that the question of good character and law-abiding citizenship has nothing to do with it.

Now, the same remark may be made in reference to his motive. It is proper for you to inquire whether he was moved to exclude the boy on account of his color, and whether he assumed the right to do that, to exclude the boy under any authority of the State Statute, custom, regulation or ordinance. You have a right to look at his motives in that particular, and if you find that he had another motive than that stated in the statute, why, then the Federal Courts would have no jurisdiction over the question. They They could not try him for a simple denial of a could not try him for a bare assault and battery. right unless it was a right arising under the Constitution and the laws of the United States, and unless that right was denied by color of authority, and because the party was a negro. In that respect you have a right to look at his motives, but if he has admitted that it was done on into his motives at all; he himself admits the that ground, why, then you have no inquiry

motive.

I have stated to you, gentlemen of the jury, that under the Constitution and laws the negro has the same rights as the white man, precisely