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William and Martha Davis v. The State of Ohio.

1816.

as such, properly had charge of the jury. It is well settled In Bank. that all presumptions of improper conduct on the part of the jury, may be rebutted, and it is done in this case by the affidavits made part of the record..

Third: This Court will not review the discretion exercised by the Common Pleas in refusing a new trial, so as to permit Martha Davis to make more full proof of her marriage. New trials rest in the sound discretion of the Court below, and its exercise in that Court will not be reviewed: U. States v. Gillies, Pet. C. C. Rep. 159. Nor can this Court infer that there was no evidence rebutting the legal presumption that Martha Davis committed the crime under the coercion of her husband. It will be presumed that the Court and jury had that evidence, and did their duty; 3 W. Law. Jour. No. 11, 491. The whole evidence is not set out in the bill of exceptions. If Martha Davis proved her marriage, the jury found that the presumption of coercion was rebutted. If she did not prove it, and if it does not so appear here, there is nothing on which this Court can act to grant a new trial. If that defence was not made, it is now too late to make it. Any other rule would encourage a defendant to hold in reserve a part of his defence, and would lead to endless new trials.

READ, J. The errors complained of, are, in substance, a violation of law in the conviction of Martha Davis ; a non-observance of the rules of conducting a criminal prosecution; and a refusal to grant her a new trial for the causes set forth in her affidavit. These errors look to the entire discharge of Martha Davis, and a new trial as to one or both. .

As to the entire discharge of Martha Davis. It is claimed that she was the wife of William Davis, and joined with him in the commission of the crime, and, therefore, was not guilty, as the law presumes that she acted by the command and coercion of her husband. The legal principle claimed for her benefit, is admitted; but the fact of coverture, necessary to bring her within its operation, was not established. The fact of her

William and Martha Davis v. The State of Ohio.

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In Bank. being the wife of William Davis, was submitted to the jury Dec. Term, and found against her. Hence her conviction was legal. 1846.

True, the facts and circumstances tending to prove her married, were objected to by the prosecuting attorney after being detailed in evidence, but the record does not show that they were ruled out or withdrawn from the consideration of the jury.

As to the error in refusing to grant a new trial. New trials are granted for some error or misconduct in the conducting of a trial, or for facts or circumstances which lie without the record, but which, when established, induce the belief that the accused has not had a full and fair opportunity to disprove the charge, or to claim the benefit of those safe-guards and principles secured by the law to every person upon trial for crime. Motions for new trials are said to be addressed to the sound discretion of the Court, and its decision upon such motions will not be disturbed by a revising Court. This depends upon the grounds upon which the motion for a new trial rests.

If a new trial be asked because of error in the proceedings, which appear of record, and it be refused, it is error, and the judgment will be reversed. But if the grounds of the new trial are matters of facts which are extrinsic to the record, and are to be established by proof other than the record, the credibility of witnesses and the effect of the evidence is necessarily submitted to the Court. If they find against the facts claimed, and refuse a new trial, such finding and refusal are the legitimate exercise of a discretion reposed, which is final, and cannot be reviewed or reversed. Of such nature was the application of Martha Davis for a new trial, for the grounds set forth in her affidavit, made after verdict, that she was a married woman, and could establish the fact if permitted the opportunity, on a new trial. The Court undoubtedly were not satis fied that her statements were true, looking to the whole evidence as disclosed on the trial.

As to the errors claimed to have been committed in the mode of conducting the prosecution. It is claimed as error that the jury were permitted to separate and disperse during

William and Martha Davis v. The State of Ohio.

1816.

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the progress of the trial, and before verdict, and were not sent In BANK.

, Dec. Term, out in charge of an officer specially sworn, when they retired to consider of their verdict.

Whether jurors shall be permitted to disperse during the progress of a trial, is a matter committed to the sound discretion of the Court. It is no longer an open question. This was decided in the case of Sargeant v. The State of Ohio, 11 Ohio Rep. 474; and also in the case of The State of Ohio v. Engles, 13 Ohio Rep. 492. In the latter case it was decided, furthermore, that the jury might be permitted to disperse after they had agreed, and return a sealed verdict. The reasons for relaxing antiquated strictness, are fully given by the Court in those cases.

It is said that the officer having charge of the jury when they retired to consider of their verdict, was not specially sworn.

The jury retired under the charge of the sheriff. He is an officer sworn to discharge his duty; and to take charge of all juries constitutes a part of his duties. It is not necessary to administer to him an oath to discharge his whole duty, and a special oath to discharge each particular duty. One of the objects of administering the special oath to officers having charge of juries, in ancient times, appeared to be, to secure an observance of those senseless and harsh measures which looked oftentimes to the compelling of a verdict by physical suffering, rather than a conviction of reason, which both officer and jury were disposed to disregard. That has passed away, and with it the means resorted to, to enforce it. Jurors are now considered as honest men — disposed to discharge the obligations of their oath and do justice; and it is not going very far, to presume that they would resist all efforts to corrupt them by improper influences, as much as a sworn constable.

But in this case there appears to be nothing wrong, even in form. It is not claimed that there was, in point of fact. So far as the jury were concerned, it appears to be conceded that they acted honestly and fairly. The sheriff, who was the proper officer, took the jury in charge. The fact that he permitted a

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In Bank. constable, who was in attendance on the Court, to watch the

· door in his temporary absence, we do not think such a violation 1846.

of principle as would demand a new trial. Besides, under the statute, the sheriff is entitled to the assistance of constables during the term of court, and when so acting, he is bound by his official oath, and need not be specially sworn. .

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When a creditor, whose debt is secured by mortgage, recovers judgment for the same

debt, takes out execution and causes the mortgaged premises to be sold, the purchaser takes an indefeasible title, although the money made is not sufficient to satisfy the entire debt. The attestation of a deed, that the same was." sealed and delivered” in presence of

the subscribing witnesses, is sufficient.

This is an action of EJECTMENT, reserved in the County of Hamilton.

The case was submitted to a jury, at the last term of the Supreme Court in Hamilton county. Upon the trial, it was proved that, in 1820, the defendant, Risk, sold and conveyed the land in controversy to one Huddart, and took back a mortgage from Huddart, to secure a note of $1300, the purchase money unpaid. The attestation of the deed, from Risk to the defendant, was in these words: “Sealed and delivered in presence of” the two witnesses. At May term of the Court of Common Pleas, 1822, of Hamilton county, Risk recovered a judgment on this note, for $1356.76 damages, and $11.95 costs. Execution was issued upon said judgment, and first levied upon the crops growing upon the land; and after said crops were sold, the execution was levied upon the land, which subsequently sold at sheriff's sale to Fosdick, the lessor of the plaintiff, for $967. This sale was confirmed by the Court, and

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1846.

a deed executed and delivered by the sheriff to Fosdick. After In Bank. the sale of the growing crops, Huddart abandoned the land, De

ndoned the hond Dec. Term, and Risk, the mortgagee, took possession, and was in possession at the time the land was sold to Fosdick. Risk was indebted to Richard Fosdick, the father of Samuel, lessor of plaintiff, and there was evidence tending to show that, by or under an agreement between Risk and Richard Fosdick, the land was struck off and conveyed to the lessor of the plaintiff, who paid no part of the purchase money except the costs, and was to hold the legal title in trust, to secure the debt due to his father. The debt due to the father was not proven to have been paid. There was further testimony in the case, which it is unnecessary to recapitulate. The Court, by consent of parties, instructed the jury to return a verdict for the defendant, which was done accordingly, subject to the opinion of the Court upon the law arising on the facts before stated. If the Court should be of opinion that the law was with the plaintiff, then the verdict to be set aside and a new trial ordered, otherwise judgment to be entered on the verdict.

V. Worthington, for Plaintiff.

First, I propose to consider Mr. Fosdick's right of recovery, upon the basis, that the sale to him was bona fide, and unassailable in any respect. It will be perceived he holds title under a judicial sale upon the mortgage note, and the defendant essays to protect his possession under the mortgage. ..

Had the sale produced a sum equal to the judgment debt and costs, it would have extinguished the mortgage debt; and when that was extinguished, the mortgage, as its auxiliary or attendant, would have fallen with it; 10 Ohio Rep. 436; 11 Ohio Rep. 341. A mortgage lives and dies with the debt it secures. Satisfaction of the debt destroys it. But, inasmuch as the sale produced only about two-thirds of the mortgage debt, then the question arises, does it extinguish the mortgage entirely, or only pro tanto?

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