act done, which formed the consideration, was illegal, and the person doing it liable to the party injured, on the ground that the party doing the act did not know of its illegality, and might reasonably have believed it to be legal.

It is contended by the plaintiff's counsel that this case comes within the exception, and we have been referred to a number of cases which are said to be analogous to the present; where the contract for indemnity was held to be valid. We think, however, that none of the cases referred to are similar to the present

one.

The case of Coventry v. Barton, 17 Johns. 144 [8 Am. Dec. 376], is relied on. That was a case where the person indemnified was called on by the overseer to work on the highway, and ordered to remove a gate that stood across the road, and a promise of indemnity was given him by the overseer. On a recovery against him in trespass, he was permitted to recover on his contract for indemnity against the overseer. That case differs from the present one in this, that it was a trespass to property, whereas this was a direct assault on the person; that was a case where the person committing it, at the time was engaged in doing (what he was told to do, to wit), work on the roads, under the direction of the overseer, who was supposed to know what was to be done, and who, for the time being, had the right to control his labor. The same may be said of the most of the cases cited. They are cases of trespass to real property, where the person committing the trespass, and receiving the indemnity, was engaged in his usual occupation under the direction of the person who indemnified him. The case of Fletcher v. Harcot, Hut. 55; S. C., reported sub nom. Battersey's Case, Win. 48, however, is said by counsel to be strictly analogous to the present. That was the case of an innkeeper who kept in his inn during the night, a prisoner who was brought to his house by the sheriff, who had arrested him on a commission of rebellion, the sheriff promising to indemnify him. On a recovery had by the prisoner against the innkeeper for false imprisonment, it was held that he could recover against the sheriff on his promise of indemnity. Although a false imprisonment may be supposed to contain an assault on the person, it does not necessarily imply the use of actual force. In this case the innkeeper did not assist in the first instance in depriving the prisoner of his liberty-he had nothing to do with the arrest, but in the course of his business a prisoner is brought to his house. His business compels him to keep such persons as stop at his house; it is his duty to keep

prisoners as well as others, who must have some place to lodge, and who have to receive the necessaries of life in their transit from one point to another. Humanity, if nothing else, would require the innkeeper to receive him.

We have seen no case where it has been held that a contract to deprive a person of his liberty, in the first instance, or to commit an actual assault on the person, where such arrest or assault was illegal, has been held to be binding. We do not suppose that such case comes within the rule, except in cases where the person committing the arrest is an officer whose duty it is, in a proper case, to arrest persons, and who acts by some supposed legal authority.

We do not think that the fact that the plaintiff in this case acted under the direction of a justice will at all avail him for doing an illegal act. Most of the tyranny and cruelty that has been practiced in the world over the persons and property of men, has been done under some kind of official sanction. I could much sooner sympathize with a person that had committed an illegal act on his own responsibility, than with one who did it because he had the backing or countenance of official power. If a person (as the plaintiff in this case did) commits an assault on another, either for the purpose of depriving him of his liberty, or to hold him in custody after he has been taken prisoner, he should be satisfied that such interference is legal, otherwise he should heed the consequences.

We think that this contract of indemnity comes under the general rule that a contract to do an illegal act is void; and therefore affirm the judgment of the supreme court.

SPALDING, J., delivered a dissenting opinion.

AGREEMENT FOR INDEMNITY, WHEN VOID BECAUSE ACT INDEMNIFIED AGAINST IS ILLEGAL: See this subject discussed at length in note to Ives v. Jones, 40 Am. Dec. 425, where the prior cases in this series are collected. Agreement to indemnify another for the commission of a trespass is not void, where the act is not, at the date of the agreement, known to be a trespass: Marcy v. Crawford, 41 Id. 158.

LAUGHLIN V. STATE.

[18 OHIO, 99.]

DECLARATIONS OF THE INJURED FEMALE IN A PROSECUTION FOR RAPE, made immediately after the offense was committed, are admissible in evidenos for the purpose of corroboration, but not as substantive testimony, to prove the commission of the offense.

TESTIMONY OF A WITNESS WHO HAS REMAINED IN THE COURT-ROOM after an order directing all witnesses to withdraw from the room may be received at the discretion of the trial judge.

RAPE. The prisoner was convicted. The errors assigned by the bill of exceptions consisted in the admission in evidence of the declarations of the injured woman, made immediately after the commission of the offense, and the admission of the testimony of Robert Johnson, the father of the prosecuting witness, who had remained in the court-room, and heard the testimony of the other witnesses, after an order of the court directing all witnesses to withdraw from the room. The further facts appear in the opinion.

Umbstætter, Stanton, and Wallace, and William D. Ewing, for the plaintiff in error.

Henry Stanbery, attorney general, and John Clark, prosecuting attorney, for the defendant.

By Court, CALDWELL, J. The first question raised was decided by this court in the case of Harrison Johnson v. The State of Ohio, 17 Ohio, 593.

The court in that case decided that the declarations of the injured female, made immediately after the offense was committed, may be given in evidence, to sustain the testimony given in court, but not as substantive testimony, to prove the commission of the offense. And for this purpose of corroboration alone, we understand from the record, the evidence in the case now before us was received; and that it related only to such declarations as were made immediately after the commission of the alleged offense.

But the most important question arising in the case, and the only one that the counsel for the accused have relied on in argument, arises on the admission of Robert Johnson, the father of the girl, as a witness.

This is a question of no little delicacy. It relates, exclusively, to the fairness of proceeding on the trial. Much may be said on both sides of the case, and on the part of the accused in this case, many considerations meriting a careful examination have been presented. On the one side, where the order of the court has been made for the witnesses to retire, and be examined out of the hearing of each other, if a witness remains in violation of the order, it furnishes strong ground of suspicion that the witness is not fairly disposed in the cause, and that he wishes to avail himself of the testimony of the other

witnesses, in order to make his statements as potent as possible by making them correspond with theirs.

Where, too, a party in interest in the cause, after the order has been made, should procure his witnesses to be present, in violation of such order, it is equally suspicious that he intends a similar degree of wrong and unfairness. On the other hand, when we consider the little control that a party can have over his witnesses; the little attention he likely to be able to give to their movements; the crowds and the confusion that generally exist during exciting trials, rendering it impossible to note who are present; the questions that may arise on the trial, that could not be anticipated, and which may require by-standers to be called in as witnesses, who have been present and heard the other witnesses testify-these and other considerations which might be presented, render it difficult, and we think impossible, to establish any general rule of exclusion that would not in many cases deprive parties of important and necessary testimony, for the fair presentation of their cause. Nor do we find that any such rule has been established in the United States. The authorities in this country, so far as they go, are against any such rule of absolute exclusion; although we have been able to find but little on the subject. In North Carolina, in the case of State v. Sparrow, 3 Murph. 487, it is decided that the witness may be sworn, although suffered to remain even by design of the party.

Henderson, J., in deciding this case, doubted the right to exclude for incompetency, in any case, as a consequence of the witness disobeying the order. But the court say, that “a refusal by either party to comply with an order of separation would make an unfavorable impression, would be fairly open to observation, and go to the credit of the witnesses."

In Cowen and Hill's notes to Phillips' Evidence, vol. 2, p. 722, note 501, the author, after reviewing the authorities, appears to arrive at the conclusion that it is a matter of discretion with the judge, to exercise the power of exclusion or not.

He says: "On the whole, it seems that although the right to exclude witnesses, for willful disobedience of the order, be well established, yet judges are quite cautious of exercising the power. The reason probably is, because a party may in that way, without any fault of his own, be put in very great hazard, by losing important testimony. He can not prevent the misbe havior of his witnesses."

In Greenleaf's Evidence, page 505, it is said: "If a witness

remains, in violation of the order, it is in the discretion of the judge whether or not he shall be examined."

In some of the English courts, the rule has been more stringently applied than it has ever been in this country. In the court of exchequer, the rule is said to be inflexible, that a witness who is present and hears the testimony of the other witnesses, in violation of the order, shall not be examined.

Starkie and Phillips both lay down the rule, generally, that under such circumstances the witness will be excluded. Still we would infer from the authorities, so far as we have been able to examine them, that, with the exception of the court of exchequer, it is within the discretion of the judge to admit the witness, although he may have been present in violation of the order. In the case of Parker v. McWilliam, 6 Bing. 683, the court hold that it is "always in the discretion of the judge to receive a witness who remains in court after an order to withdraw, except in the exchequer, where he is peremptorily excluded." It is certainly a good practice, where a party requests it, to have the witnesses examined separately. And we think (as in the case before us) where the witness is called to testify as to the previous statements of a witness, in order to corroborate the statement of such witness on the trial, it is especially necessary. And a right-minded judge will be very careful, particularly in a criminal case, where the defendant is generally in custody, unable to attend to his interests, in seeing that the order of the court is strictly complied with. Still we do not find that any rule has been established, in this country, that would justify this court, as a court of errors, in deciding that it was error in an inferior court to admit a witness who had violated the order, and heard the other witnesses testify. We think the law is the other way; and that the court of common pleas in this instance had the right, in their discretion, to admit the witness.

Judgment affirmed.

DECLARATIONS OF THE PROSECUTRIX IN A PROSECUTION FOR RAPE, made immediately after the commission of the offense, are admissible in evidence, for the purpose of corroboration: McCombs v. State, 8 Ohio St. 646, citing the principal case. See also State v. De Wolf, 20 Am. Dec. 90.

WITNESS UNINTENTIONALLY DISOBEYING ORDER EXCLUDING WITNESSES from court-room, when not incapacitated from testifying: Keith v. Wilson, 35 Am. Dec 443.