CRIMINAL LAW-(Continued.)
criminal case that "the court erred in refusing to admit testimony to
go to the jury which was offered by the defendant," is a sufficient
statement to bring to the notice of a reviewing court the question
whether or not error intervened in refusing to permit the defendant
to cross-examine the state's witnesses. Morgan v. State, 371.
2. Joint defendants-Separate trials-Evidence.-Where one of several
defendants jointly indicted for a felony is tried separately, and the
prosecuting witness testifies in chief that the offense was committed
by several persons acting together, and testifies to the identity of the
defendant upon trial, it is proper, in cross-examination, for the de-
fense to inquire as to the identity of the other participants, and it is
error for the court to refuse to permit such cross-examination. Id.
3. Plea-What issues joined by.—The plea of not guilty in a criminal case
puts in issue all facts material to be proven by the state, as well those
relating wholly to the corpus delicti as those relating to the connec-
tion of the accused with the offense. The issue thus made is to be
tried by the jury and not by the court, and where the defendant has
not, by his testimony, or otherwise, admitted the claim of the state as
to the body of the crime, it is error for the court to recite to the jury
the substance of the state's evidence giving the details of the circum-
stances surrounding the commission of the alleged offense, and in-
struct them that those facts are shown by the uncontradicted evidence
in the case. Id.
4. Reasonable doubt-What is.-An instruction to a jury that a reasonable
doubt "is a doubt that you, as jurors, can give a reason for," is in-
accurate and misleading, and the fault is not cured by prefacing the
statement with the instruction that "by a reasonable doubt is meant
not a captious or whimsical doubt." Id.
5. Charge to jury-Summing up the evidence-When not error.—In the
trial of a jury case the judge is not required to sum up the evidence.
It is not improper to do so providing it is fairly done, and all the ma-
terial evidence on both sides fairly presented. But it is improper and
erroneous for the judge to single out isolated parts of the testimony
and instruct as to the law arising on the facts which such testimony
tends to prove, or to give undue prominence to some portions of the
testimony, and entirely pass over other portions equally important, or
give the same but slight attention. Id.
6. Grand Jury-Witnesses before.-Where witnesses have been duly sworn
and sent to a grand jury, and there examined, and an indictment found
and presented, it is not necessary that they should be recalled and
re-examined, to warrant the grand jury in finding another indictment
against the same person, and before the former one has been nollied.
Whiting v. State, 220.
7. Foreman of.-Though the better practice, it is not necessary as a matter
of law, that the foreman of a grand jury, in indorsing an indictment,
a true bill," should describe himself as foreman; for, being appoint-
ed by the court, it is presumed to know who the foreman is. Id.
Indictment-Larceny.—It is an established rule of pleading that facts,
CRIMINAL LAW-(Continued.)
and not conclusions of law, should be pleaded. Therefore, an indict-
ment under section 6858, Revised Statutes, which charges that the
accused did unlawfully and fraudulently receive certain personal prop-
erty-describing it and giving its value and ownership-knowing the
same to have been stolen, sufficiently charges an offense under that
section, without an averment as to the character of the offense he is
thereby deemed to have committed. Id.
9. Receiving stolen property.-Where, in an indictment for larceny, a
count is added under the provisions of section 7227, Revised Statutes, for
receiving stolen property, knowing it to have been stolen, without an
averment that it is the same property, the state cannot be required to
elect on which count it will proceed, where it appears from the de-
scription to be the same property, and no motion has been made to
quash upon that specific ground. Id.
10. Accomplices-Evidence of.-In instructing a jury that, the evidence
of an accomplice should be cautiously received and closely scrutinized,
it is not error for the court, in introducing this caution, to say, that
the witness" admits her complicity in the crime." Id.
11. When finding of jury, conclusive of fact.-Whether the proof shows
that the accused is guilty as a principal in the larceny, or simply of re-
ceiving the goods knowing them to have been stolen, is a question of
fact, and where there is room for doubt, the finding of the jury should
be accepted as conclusive. Id.
CUSTOM. See BAILMENT, 3, 4.
DECENNIAL APPORTIONMENT. See GENERAL ASSEMBLY, 1, 2.
DEDICATION.
1. Acquiescence and ratification.—Where, in an action for compensation
for land unlawfully taken by a municipal corporation without knowl-
edge of the owners, and devoted to public uses by constructing thereon
a street, it appears that the owners, upon learning that the land has
been so taken, acquiesced in the appropriation as an accomplished fact,
and ratified it by tendering a sufficient deed of the premises conveying
title to the corporation, and by offering to allow judgment that, upon
the value of the premises being fixed and payment of the same, plaint-
iffs should be ordered to convey to the corporation, a case is made en-
titling the plaintiffs to recover the value of the land. Railroad v.
Robbins, 35 Ohio St. 531, distinguished. Longworth v. Cincinnati, 637.
2. When not dedication.-Such acquiescence and ratification, taken alone,
are not sufficient to imply a dedication of the land to public uses by the
owner in such sense as to deprive him of the right of compensation.
Id.
DEFENSES. See CONSIDERATION, 1.
DEMURRER.-See PRACTICE IN CIVIL CASES, 1.
DRAFTS. See BANK CHECKS, 1, 2.
ELECTIONS. See COUNTY BOARDS OF ELECTIONS, 1.
ELECTRIC STREET RAILWAYS. See STREET RAILWAYS, 1, 2, 3.
EMINENT DOMAIN. See DEDICATION, 1, 2.
1. Property already appropriated-When can be taken.—It is a well es-
tablished rule, that property already appropriated, in the proper exer-
cise of the power of eminent domain, cannot be taken for another pub-
lic use which will wholly defeat or supersede the former use, unless
power to make such second appropriation be granted expressly, or by
necessary implication. Railroad Co. v. Village of Belle Centre, 273.
2. May be taken when not in use.-But land held by a corporation, whether
acquired by a purchase or appropriation, which is not employed in, nor
needed for the proper exercise of its corporate franchises, is not within
the reason or operation of the rule. Id.
3. Municipal Corporations.-Municipal corporations, under the power
conferred by section 2232, of the Revised Statutes, are authorized to ap-
propriate for necessary public offices, or a prison, land of a railroad com-
pany, which is not needed, or used in the operation of its road, or the
conduct of its business.
4. Limitation of statutes.-The owner of the soil of a highway, taken by a
railroad company for its roadway, under an agreement between the
company and the commissioners of the county as to the terms and man-
ner of its use, as provided in § 3283, Revised Statutes, is entitled to
compensation for its appropriation, and may compel the company under
the provisions of § 6448, Revised Statutes, to condemn and pay for the
same; and such right is not barred by the lapse of less than twenty-one
years from the time of such occupation by the company: The limita-
tion of two years contained in § 3283, applies only to incidental injuries
to property on and adjacent to the roadway, occasioned by the location
and construction of the railroad, and does not include the remedy for
injuries to, or the taking of, the land itself. Railroad v. O' Harra, 343.
5. Trial by jury in condemnation suit.—In a proceeding in the probate
court under § 6448, Revised Statutes, by a landowner to compel a rail-
road company to condemn and pay for land of his, which it has taken
and appropriated to its own use, either party is, on demand, entitled to
trial by jury on an issue of fact as to the ownership of the land. But
where no demand is made, the question may be heard and determined
by the court. Id.
6. Jurisdiction—Questions of title.—In such proceeding the jurisdiction
of the probate court is not defeated by a denial of the title of the plaint-
iff; and the court may on the demand of either party, proceed and
empanel a jury for the trial of the issue, in any of the appropriate
modes provided by statute for the empaneling of juries in the court of
common pleas. Id.
EQUITABLE ASSIGNMENT. See BANK CHECKS, 1, 2.
ERROR. See EVIDENCE 1, 2; PRACTICE IN CIVIL CASES, 3, 5, 7, 9.
EVIDENCE. See STATUTE OF FRAUDS, 2; CRIMINAL LAW, 2, 10.
1. Parol evidence of real contract.-Upon the trial of an action to enforce
the specific performance of a parol contract to convey land, or an in-
Executors and Administrators-Fire Insurance.
terest therein, it is not error to admit parol evidence of the terms of
the contract, before proof of its part performance has been made.
Shahan v. Swan, 25.
2. When sufficient.—While evidence, consisting, alone, of the declarations
of a deceased person, made to third persons, of the terms of a parol
contract to convey land, sought to be specifically enforced against his
heirs and representatives, should receive careful scrutiny; nevertheless,
if sufficiently definite, it may authorize the trial court to determine
what the terms of the contract are. Id.
EXECUTORS AND ADMINISTRATORS. See TAXATION, 5, 7; FRAUD-
ULENT CONVEYANCES, 1, 2; GUARDIAN and Ward, 2, 3, 4.
1. Authority-Duration of.—The authority of an executor or administra-
tor to represent the estate, unless terminated in one of the modes pro-
vided by statute, continues until the estate is fully settled. Weyer et
al. v. Watt, Ex'r, 545.
2. Effect of settlement of final account, on unadministered assets.-The
probate court, for good cause, may remove an executor or administra-
tor, or accept his resignation. But while choses in action, or other
assets belonging to the estate, remain in his hands unadministered, his
authority to administer the same is not extinguished by an order, made
upon what purports to be the settlement of his final account, directing
that he be discharged from his trust. Id.
1. Person surrendered cannot be tried for a different offense, unless.—A
person surrendered to the authorities of this state by another state or
territory on extradition proceedings, cannot, while held in custody
thereunder, be lawfully tried for a different crime than the one upon
which his extradition was obtained, unless he voluntarily waives his
privilege. Ex parte McKnight, 588.
2. When rights not waived.-The privilege is not waived by failure to plead
it in abatement of the indictment for such different crime, nor by en-
tering a plea of not guilty thereto, when, before the trial, the accused
asserts his privilege and objects to the trial on that ground. Id.
FELLOW SERVANTS. See NEGLIGENCE, 4.
FINAL ACCOUNT. See EXECUTORS AND ADMINIStrators, 1, 2.
FINAL ORDER. See PRACTICE IN CIVIL CASES, 3.
1. Alienation of property.-A provision in a policy of fire insurance, to the
effect that a sale or transfer of the property insured shall forfeit the
policy, does not become operative to avoid the policy, unless the entire
interest of the assured in the property insured is sold or transferred.
Blackwell v. Insurance Co., 533.
2. Taking in partner-When does not avoid the policy.-If the property
insured consists of the stock of goods of a merchant doing business
alone, the taking in by him of a partner in the business is not such a
Foreign Laws-General Assembly.
FIRE INSURANCE-(Continued.)
sale or transfer by him of his entire interest in the property as will avoid
the policy. Id.
3. When partner may maintain action for loss.—Where the policy has not
been assigned or transferred, and the property thus insured is destroyed
or damaged by fire, after the partnership had been formed and had as-
sumed the management of the business, the assured may maintain an
action on the policy in his own name to recover the damages sustained
by him on account of the injury done to his share of the property. Id.
FOREIGN LAWS. See PRACTICE IN CIVIL CASes, 8; Negligence, 4.
FRAUD. See STOCKHOLDERS' LIABILITY, 6, 7; LIFE INSURANCE, 3;
FRAUDULENT CONVEYANCES, 3.
FRAUDULENT CONVEYANCES.
1. When may be set aside by personal representative.—A conveyance
made by a debtor with intent to hinder and delay his creditors, cannot be
impeached by his personal representative, unless the property so con-
veyed is actually required for the payment of his debts. McCall v.
Pixley et al., 379.
2. When cannot be.-When the personal estate in the hands of an admin-
istrator is sufficient to pay the costs of administering the estate, and
all the debts of the decedent, except such as are amply secured by
mortgage executed by him in his lifetime on lands of which he died
seized, an action cannot be maintained by the administrator to subject
to sale for the payment of the mortgage indebtedness, other lands
which the intestate had conveyed away with intent to hinder, delay
and defraud his creditors. Id.
3. When purchase at judicial sale is fraudulent.—An agreement between
one who becomes a purchaser at the sale of an assignee, and a third
person, whereby the latter is for a consideration to abstain from bid-
ding, is, when carried out and the purchaser thereby gets the property
for less than he otherwise would, a fraud on the creditors; and a con-
veyance thereunder may be set aside at the suit of the creditors, or of
one or more suing for the benefit of all, where the assignee, on being
requested, refuses to bring the action. Saxton v. Seiberling, 554.
4. Common pleas court, proper one in which to set aside.-In such case
the court of common pleas is the proper jurisdiction in which to com-
mence the action. Id.
5. Before conveyance can be set aside, purchaser must be restored to his
former condition.-Before the conveyance can be set aside the pur-
chaser must be restored to his former condition; but it is not essential
that there should be a tender of any specific amount before the com-
mencement of the action. All that is required is that the plaintiff
should offer in his petition to pay into court for the use of the de-
fendant, such sum as may be ordered as a condition to granting the
relief. Id.
1. Decennial apportionment-Mandamus will not control.-Where the
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