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existing at the time of such amendment or re- interest in the premises, nor any other right peal, unless otherwise expressly provided in the with respect thereto, except to remove any propamending or repealing act.” '1 $. & S. 1; Rev. erty they placed thereon, which had not become Stats. $ 79.

part of the realty; and, indeed, the case is in The remedy by error is a proceeding (Hobbs v. principle like Taylor v. Thorn, 29 Ohio St. 569, Beckwith, 6 Ohio St. 252), and it has been held which we follow. that it is a proceeding within Rev. Stats. $ 79, Judgment reversed. which saves pending proceedings when the stat- [This case will appear in 37 O. 8.] ute upon which they are founded is repealed. Railroad Co v. Belt, 35 Ohio St. 479. The same LXVrh GENERAL ASSEMBLY OF OHIO. language, it will be seen, occurs in the act of 1866; and if the words, pending proceeding, include

SYNOPSIS OF LAWS PASSED THIS SESSION. a pending petition in error, it is difficult to see why the words, cause of proceeding, in the same

MARCH 15, 1882. section, when applied to matters as to which re

House Bill No. 216. To amend section 4848 of the Re. lief may be granted notwithstanding the repeal

vised Statutes, to read as follows:

Section 4848. Any balance of assessments made for of the statute on which they are founded, do not the construction of any such road, remaining in any include the right to file a petition to reverse a county treasury, after the payment of all expenses injudgment. True, it was held in Westerman v.

curred on account of the road, shall be certified by the

county, auditor into the treasuries of the townsbips Westerman, 25 Ohio St. 500; John v. Bridgman, through which the road is located, proportionately to the 27 Ohio St. 22, that the act of 1866 did not pre- amount paid for the making of the same in each of the vent the application of statutes regulating pro

townships, to be expended under the order of the town

ship trustees in repairing the roads; but in counties cedure in an action, to causes pending when the wbere the county commissioners are constituted a board statute was passed, and hence a change by stat- of turnpike directors, such unexpended bulance shall be ute in the rule as to the competency of witnesses

transferred to the general improved road repair fund for

such county. applied to pending actions, notwithstanding the H. B. 221. To authorize the Trustees of Union town. act of 1866. It is insisted that the principle ship, Fayette county, to divide such township into four governs here, and that to shorten the period

election precincts, instead of two as now divided.

H. B. 247. An act to change the time for holding the within which petitions in error may be filed is socond term of the Court of common Pleas in Allen not to affect the cause of proceeding, within the County for the year 1882, to the 22nd day of May instead meaning of that act. But in Railroad Co v. Hine,

of the 29th, as fixed by the judges 25 Ohio St. 629, a different view was adopted.

H. B. 307. An act making appropriations to meet de

ficiencies. It was there held that by force of the act of 1866,

MARCH 16, 1882. an action was to be governed, as to the time

Senate Bill 61. To authorize the Trustees of Goshen within which it might be brought, by the stat

township, Clermont County, to purchase a town Hall and

levy a tax for that purpose. ute in force when the cause of action accrued. S. B. 43. Supplementary to section 3378 of the Revised According to the statute in force when suit was Statutes, as follows:

Section 3378a. No contract of or for the sale of railbrought, the action was not barred, but it was

road equipments, rolling stock or other personal propbarred according to the statute in force when erty, (to be used in or about the operation of any rail. the cause of action.accrued, and it was held that

road) by the terms of which, the purchase money, in by force of the act af 1866, the bar was complete.

whole or in part, is to be paid in the future, and wherein

it is stipulated or conditioned that the title to the prop It is impossible to distinguish that case from erty so sold shall not vest in the vendee, but shall rethis, in the particular now under consideration,

main in the vendor until the purchase money shall have and other cases construing the act of 1866, sup

been fully paid, shall be valid against creditors or inno

cent purchasers for value, unless recorded in the office of port the same view. The State v. Washington the Secretary of State, or a copy thereof filed in the 24 Ohio St. 603; Bode v. Welch, 29 Ohio St. office of said Secretary of State, and when said contract

is so recorded, or a copy thereof so filed as aforesaid, the 19; Bergin v. The State, 31 Ohio St. 111. And

title to the property so sold, or contracted to be sold, see Rev. Stats. $ 79, note. We hold, therefore, shall not vest in the vendoe, but sball remain in the ven. that by force of the act of 1866, this case is gove

dor until the purchase money shall have been fully paid, erned in this particular by section 523 of the

and euch stipulation or condition shall be and remain

valid, notwithstanding the delivery of the property to, civil code of 1853, and consequently the right to and its possession by such vendee. maintain this proceeding in error is not barred. Section 33786. In any written contract for the renting, 2. The other question, whether the district

leasing or biring of such property (to be used as afore

said), it shall be lawful to stípulate or provide for a concourt erred in sustaining & demurrer to the an- ditional sale of such property at the termination of such swer and cross-petition of the administrator of renting, leasing or hiring, and to stipulate or provide Francis Shinn, is more easily determined. And

that the rental reserved shall, as paid, or when paid in full,

be applied to and treated as purchase money; and in we are quite clear that the district court erred. such contract it shall be lawful to stipulate or provide There is no reason why the administrator was that the title to such property shall remain in the lessor not entitled to an order of sale on his answer and

or vendor, until the purchase money shall bave been

fully paid, notwithstanding delivery to and possession cross-petition. His right to obtain an order of

by the other party; subject, however, to the requirement sale for the payment of debts, as against the par- as to recording or filing, contained in the foregoing sec

tion of this act. ties to this suit, was wholly unaffected by the

Section 8378c. The Secretary of State, when so restatute of limitations; the heirs of Francis

quested, and upon being paid the proper fees, aball reShinn held title to the premises subject to the cord any such contract, and shall file in his ofico . copy right of the administrator for such purpose; the

of any such contract, when the same shall be delivered

to him for that purpose, and for every such copy so filed widow and heirs of Joseph W. Lafferty had no be shall be entitled to receive ono dollar.

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Olio Law Journal.

between us and I did not sustain the court in Vinton in any ruling against this doctrine.






COLUMBUS, O. April 8, 1882.

March 20 & 21, 1882. As my name is mentioned by G. in your last The defendant was indicted under section number as giving an opinion in favor of a rul

6979 of the Revised Statutes of Ohio. The ining made by a judge as to the right of prose

dictment alleged substantially that, on or about

the 10th day of August, 1881, one Frederick cuting witness to employ counsel in a criminal Wheatley robbed the store of Wheatley & Outcase, I deem it but proper that my position land, of the village of Boston, Belmont county, should not be misunderstood, and for this pur-Ohio, and stole therefrom goods, specified in the pose only I address you a few lines.

indictment, to the value of $101,27; and that In the first article by G. appears this language, ber, 1881, the defendant, George W. Douglass,

afterwards, on or about the 2nd day of Septem

, ' “Judge Tripp proceeded to deliver a long, fully-harbored and concealed the said Frederick prepared and manifestly pre-arranged decision, Wheatley, knowing him to be a tirief, and knowin which he held, that the attorney was improp- / ing him to be guilty of the larceny charged in

, erly in the case and had no right to appear under

the indictment.

The evidence showed that the alleged thief the circumstances." Again, “the decision was an arbitrary opinion of the judge unsupported of Wheatley & Outland, and a second cousin of by law, precedent or common sense.”

the defendant. It was shown that a robbery Again, “no lawyer can read this section of the

had been committed, as charged in the indictstatute without concluding that this section con

ment, and testimony was given pointing

strongly to Frederick Wheatley as the guilty pertains the only limitation upon the right of out- It was proven that on the 2nd of Septemside counsel to appear in cases."

ber, Wheatley was arrested at defendant's house, Another correspondent has shown that this upon a charge of having previously committed section referred to was repealed, and, therefore,

some crime in the State of Illinois; and testithe only legal construction that can be given to

mony was given tending to show that the dethis language is, that there is now no limitation

fendant, when asked as to Wheatley's where

abouts by the officers who went to the house to upon the right of such counsel to appear.

make the arrest, at first denied Wheatley's beTo this view of G. I did dissent, and to this ing there, but afterwards, when assured that the

, only, and expressly stated that without the stat

officers would search the premises, induced ute, “the court might permit the prosecutor to

Wheatley to come out and deliver himself up. have assistance when it was deemed necessary."

It was further shown that, upon a search-war

rant subsequently issued, goods of Wheatley & The decision of the court in Bailey v. The Outland to the value of about $2.50 were found State, cited in the last article, would expressly concealed in defendant's house. uphold this view, and goes, no further, and even

The court charged the jury as follows:

In order to maintain the indictment, it is esG. in another article of February 10th, says, sential that the State prove: 1st. That said “that it was not claimed by him that counsel Fred Wheatley was, at the time of the act retained by outside parties might demand to ap- charged against the defendant, a thief-that is, pear." "This language expressly admits the cor

that he said Wheatley), had recently before rectness of the legal principles laid down in my (namely, of Wheatley and Outland, the owners

that time stolen the personal goods of another former article, although it would disclaim the named in the indictment), of the value of $35, construction given by me to his first article, or over, and that Fred Wheatley was, at that which was based upon the language above quo- time, liable to arrest, indictment and punishted, and which seemed to claim such right.

If ment for the crime of larceny. If said Fred

guilty of larceny-that is, if he took and carcourt may allow such appearance when it deems ried a way the goods of another without consent it proper and necessary, there is no difference

of the owner and without claim or color of right,


no such right is claimed by G., but only that the Wheatley stole the goods of another, and was

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with intent to deprive the owner of them, and guilty. If not-so proved, your verdict must be
to appropriate them to his own use,--and the not guilty.
goods were of the value of $35 and upwards, JUDGE ST. CLAIR KELLY, on the bench.
then said Wheatley was a thief within the
meaning of the statute.

A. H. Mitchell, Prosecuting Attorney, for the

State. 2nd. The defendant must, at the time, have

S. W. Emerson, W. S. Kennon and R. E. known that Fred Wheatley was such thief, and that he was subject to, and in danger of arrest | Chambers, for the defense. and punishment for said crime of larceny Verdict of Not Guilty. named in the indictment, namely, the goods of Wheatley & Outland.

EVIDENCE IN CRIMINAL TRIAL-GEN3d. That the defendant with such knowledge,

ERAL REPUTATION. concealed or harbored said Fred Wheatley, for the purpose and with the intent to prevent his

SUPREME COURT OF OHIO. arrest and punishment for the crime.

HENRY H. UPTHEGROVE Defendant is presumed to be innocent until his guilt is proved beyond a reasonable doubt,

THE STATE OF Ohio. and each and all of the ingredients of the crime charged against him must be so proved before he

March 21, 1882. can be convicted.

In a trial upon an indictment charging the prisonet If the evidence proves that a larceny was com- with shooting at the prosecuting witness, with malicious mitted at the store of Wheatley & Outland, and intent to kill, where evidence has been introduced tendproves that Fred Wheatley was in possession of

ing to show that the act charged was committed by the

accused at a time when he was being actually assaulted the stolen goods soon after the larceny, such pos- by the prosecuting witness with a dangerous weapon, it session is to be considered by the jury in con- is competent for the defense to prove that the general nection with other evidence of the conduct of

reputation of the prosecuting witness was that of a vio

lent and dangerous man, and that such general reputssaid Fred Wheatley, in relation to said goods, tion was known to the accused at the time of the assault, for the purpose of ascertaining whether such as tending to support the plea of self defense. possession was an innocent or guilty possession. Error to the Court of Common Pleas of PauldIt is said that possession of goods stolen, re-ing County. cently after the theft, affords a strong presump- At the October term, 1881, of the Court of Comtion of guilt; but there is no rule of law that mon Pleas of Paulding County, the plaintiff in such possession is, of itself, sufficient proof of error was tried upon an indictment for shooting guilt. It is for the jury to determine the effect at one Lewis Talbot with intent to kill. of such possession, upon a consideration of all The State having rested its case, evidence was the testimony in the case.

introduced by the accused tending to show that If Fred Wheatley stole only a part of the at the time charged, Talbot attacked him and goods named in the indictment, and not the knocked him down with a club, and was about whole;'or if the goods stolen were of less value

to strike him again. That he, the accused, fearthan $35, then he could not be convicted of ing death or great bodily harm at the hands of grand larceny, and the defendant in this case his assailant shot at him, with the sole purpose can not be convicted, even if proved in other re.

of self-defense and without malicious intent. At spects guilty. But if a quantity of goods were this stage of the case the accused proposed to stolen from Wheatley & Outland by one act of prove, by a competent witness, that the general burglary and larceny, as alleged, and part of reputation of Talbot for peace and quietness was these goods were soon afterward found in pos- bad and that his character was that of a dangersession of Fred Wheatley, the fact of such posses- ous and violent man, and that this was known sion of a part will be considered by the jury as to the accused at the time. To the introduction evidence tending to prove that Fred Wheatley of this testimony, objection was made and sus stole the whole of the goods.

tained by the court, and exception was noted. You will carefully examine all the testimony This ruling of the court is now before us for rein the case, and decide whether each and all of view by the present proceeding in error. the essential, as before stated, of the crime have Geo. K. Nash for defendant in error. been proved.

I. N. Alexander and De Witt & Freshwater for Wheatley—did defendant knowingly and inten- plaintiff in error

. —

LONGWORTH, J.. tionally give him shelter, refuge, concealment or protection from detection or arrest? Was As a general rule in trials for homicide, or feFred Wheatley, at the time, a thief, subject to lonious assault, the character of the person asarrest for having stolen said property of Wheat- saulted or killed cannot be shown, for the reason ley and Outland worth $35 and more, and did that the law holds it to be as criminal to assault defendant at the time know that Fred Wheatley a bad and violent man as a good and peaceable was such thief and guilty of that larceny? If one. But to this rule there is an exception in all this has been proved so as to remove all rea- cases where the plea is self-defense and there is sonable doubt, it is your duty to find a verdict of evidence tending to show that the actual or at

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tempted killing took place while the accused probably to have been done in self-defense or in was being actually assaulted. In such case, the

& quarrel." intent being an essential element of the crime, The subject is carefully discussed in Wharton evidence is competent to show what the accused Crim. Ev. § 68 to $ 84 inclusive. See also 14 person really believed at the time, and what rea- Am. Law Review, 579. Bons he had for entertaining such belief; and it The rule as announced by us was declared to will not affect the competency of the evidence be the law in the following cases, in most of that such belief turns out to have been a mis- which the question arose in substantially the taken one. It is no defense to a charge of this same manner as in the case at bar. character to show that the deceased or prosecut- Nichols v. People, 30 Hun, 165. ing witness was a wicked or violent man, but Stephens v. State, 1 Tex. Ap. 591. the fact that the accused believed him to be is People v. Murray, 10 Cal. 309. calculated to throw light on his actual intent as People v. Anderson, 39 Ibid. 703. rendering his act criminal or excusable. A club State v. Bryant, 55 Mo. 75. may or may not be a deadly instrument, and I State v. Matthews et al., 78 N. C. 523. can well understand that when in the hands of a Eiland v. State, 52 Ala. 323. man known to be of blood-thirsty disposition, a Monroe v. State, 5 Ga. 85. reasonable ground to fear great bodily harm Horbach v. State, 43 Tex. 242. might exist, whereas when used under the same People v. Lamb, 2 Keyes, 371. circumstances by an irritated, but ordinarily As far as I am aware the doctrine has never peaceable man, no such apprehension would be been denied except in Commonwealth v. York, justifiable.

9 Met. 93 and in Commonwealth v. Hilliard, 2 The rule allowing evidence of character or

Gray, 294, in which evidence of reputation was general reputation in such cases, brought home

not admitted under a like state of facts. These to the knowledge of the prisoner, is founded on

decisions, although entitled to the greatest rethe clearest principles of reason and common

spect on account of the eminence of the distinsense, and is amply sustained by authority, guished judges who announced them, are at In 1 Greenl. Ev. $ 101, the learned author

variance with the whole current of decision in

other States and with the views of the text writlays down the broad principle as follows: "Thus where the question is whether the party acted

ers who have treated of the subject, and do not prudently, wisely or in good faith, the informa

appear to us to be supported by the sound coin, tion on which he acted, whether true or false, is

mon-sense logic which underlies the whole law

of evidence. original and material evidence.” “Upon the same principle it is considered that

Judgment reversed. evidence of general reputation, reputed ownership, pub

[This case will appear in 37 0. S.] lic rumor, general notoriety and the like, though RAILROAD-FELLOW SERVANT-NEGLIcomposed of the speech of third persons, not un- GENCE-RELATION OF SUPERIOR der oath, is original evidence and not hearsay."

AND SUBORDINATE. To illustrate the proposition he cites with approval, the case of People v. Shea, 8 Cal. 538, in

SUPREME COURT OF OHIO. which it was held that where the accused clained to have procured a pistol to defend himself THE PITTSBURGH, CINCINNATI & St. Louis Rail

, against the attack of another, upon the ground

WAY COMPANY of certain information received from others, such information became an criginal fact proper to be

ALBERT M. RANNEY. proved in the case. It is said in 2 Bishop Crim. Proced. § 614:

March 21, 1882. “Though, as a general rule, even on an indict- 1. Where, by the rules of a railroad company, brakement for murder, the character of the deceased as

men on a train of cars are placed under the control and

direction of the conductor, the relation of superior and being quarrelsome, and the like, can have no ef- subordinate, asbetween the engineer and a brakman, is fect, however ill it may be, to excuse the act of notcreated by a rule of the company requiring the enginthe defendant, and, therefore, it should not be brakes, which also requires brakemen to work the brakes

eer to give certain signals for setiing or relieving received in evidence when brought forward by accordingly, him; yet, if in the particular case as presented 2. In such case, the engineer and brakeman are fellowbefore the court, as for instance, where there is a

servants in a common employment; and the company is

not liable to either for an injury resulting from the negquestion whether the homicide was committed

ligence of the other. Railway v. Lewis, 33 Ohio St. 196, from malice or was prompted by the instinct of approved. self-preservation, and there is no direct testi- Error to the District Court of Franklin mony as to what was done, but the whole or the County. principle evidence is circumstantial—then it The original action was brought by defendant may be proper to permit the defendant to give in error against plaintiff in error to recover damin evidence what he knew of the character of ages for personal injuries resulting from the the person whose life he took; for so an act carelessness of defendant's engineer under the folwhich would otherwise seem unjustifiable, or lowing circumstances: premeditatedly malicious, might appear more On the 2d of August, 1871, the plaintiff below

* *

* *


was employed as a brakeman on a train of he was in the proper discharge of his duties as a freight cars of the defendant running from Co-brakeman on said train of cars aforesaid, in an lumbus, Ohio, to Dennison, Ohio, under the man. ordinary, careful and prudent manner, and agement of a conductor, an engineer, a fireman plaintiff avers that said injuries were so inflicted and two brakemen. On approaching Pataskala upon him as hereinbefore stated, by reason of the station, the train was moving at the speed of negligence, default, and want of proper care and about fifteen miles per hour when a flag signal caution, and by reason of the rashness, negligence from the station was given to slow the train for and carelessness of the said engineer, who had orders, whereupon the engineer, by a single blast charge of the said locomotive, its movements, of the locomotive whistle signaled the applica- management and control as aforesaid, and who tion of brakes by the brakemen and thereby the gave said order and commands to plaintiff, and speed of the train was reduced to six or eight the said injuries were caused by the said engimiles per hour when opposite the station house. neer aforesaid, by his sudden and rapid starting While moving at this rate the engineer received of said locomotive and cars in motion, without dispatches from the station agent, and also or- signal or warning to plaintiff or other employes, ders to proceed without stopping at the station, and without the said engineer waiting à suffiwhereupon, by two blasts of the whistle the en- cient or reasonable time to enable plaintiff to gineer signaled the removal of the brakes by the obey and carry out his said order or command to brakemen. While the plaintiff, in obedience to let off or loosen brakes as aforesaid ; in all which, the signal, was engaged in removing brakes and said engineer was guilty of the most grossly negbefore a reasonable time for the removal had | ligent, improper, rash and careless conduct elapsed, the engineer applied steam to the engine which, as aforesaid, was the sole cause of the in80 violently as to break and separate the train Aliction of said injuries upon plaintiff hereinat the coupling of the cars where the plaintiff before stated." was engaged in removing brakes, whereby the plaintiff was thrown from his feet and fell be

The defendant, by its answer, denied that the tween the cars and was thereby very seriously engineer was guilty of carelessness or negligence injured, so that it became necessary to amputate

as charged in the petition, and also, “that in his left leg above the knee and three toes from

virtue of said employment he (plaintiff) thereby the right foot.

became, and was in fact, subject to the orders In 'stating his cause of action, the plaintiff al

and control and direction of the engineer of said leged in the petition, among other things, the freight train, or that said engineer thereby befollowing:

came, and was in fact, in all respects his supe“This plaintiff states that it then and there

rior u pon said train, whose orders and commands became the duty of this plaintiff, when on said

he was in all respects bound to obey. On the train of cars as brakeman as aforesaid, to obey contrary thereof, the defendant avers that said and carry out in a prompt and reasonable

train was on said day, under the charge and con

trol of a conductor, who was, as such conductor, manner, all orders of commands given to him in any manner by the engineer, then and there

the superior of both said engineer and brakeman, handling, operating and controlling the locomo

and whose orders and commands both said engitive attached to said train of cars, and hauling said common service and in subordination to

neer and brakeman were alike bound to obey in the same from Columbus to Dennison, as aforesaid, in reference to putting on or letting off the

said superior servant of said defendant." brakes attached to the cars, making up and form- To this answer the plaintiff replied as follows: ing said train of cars so hauled and moved by said locomotive, and that in said employment of and connected with said train of cars mentioned

"That this plaintiff admits that there was on brakeman on said' train he was under the command and order of said engineer, and therefore superior of plaintiff, and in reference to the time

in plaintiff's petition, a conductor who was the com pelled to obey the orders and commands

of starting said train at stations where it stopgiven by said engineer to him in reference to

perl, was the superior of said engineer, but using said brakes in the starting or stopping plaintiff' says that in all respects as to the startsaid train of cars, and as above stated in said operating, hauling, and moving said locomotive

ing, stopping, controlling and movements of and train of cars attached thereto, said engineer said engineer and conductor were, in all respects,

said engine and the cars attached thereto, both was in all respects the superior of this plaintiff

, the superiors of plaintiff, and both were the reand it was his duty to give orders and commands to plaintiff when on said train of cars, in refer sponsible parties in charge of said train as to

said plaintiff and said railway company." ence to the time and place, and under what circumstances said brakes should be applied to the On the trial in the common pleas, a verdict etopping or impeding the speed of said train, and and judgment were rendered for the plaintiff. A when the same should be let off or loosened in bill of exceptions containing all the testimony order that the train might be enabled to move and the charge of the court was made part of the at a greater rate of speed."

record. The judgment of the common pleas was “The plaintiff further says that said injuries affirmed in the district court, and this proceed

" were so inflicted upon hin without any fault, ing is prosecuted by the railroad company to reneglect, or carelessness upon his part, and whilst

verse both judgments.

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