Court Procedure - Criminal Law.
COURT PROCEDURE - Continued.
Fraud and bad faith not proven, when. See Fred R. Jones Co.
v. Fath, 47.
Question for jury-Criminal law-Insanity of defendant before
sentence Section 13608, General Code. See State v. Hollen-
bacher, 478.
Question for jury-Five workmen or operatives regularly em-
ployed - Workmen's compensation - Section 1465-61, General
Code - Partnership. See State, ex rel., v. Derrer, 498.
Question for jury-Negligence-Wanton and wilful- Proxi-
mate cause-Violation of statute or ordinance. See Higbee
Co. v. Jackson, 75.
Argument to jury-Failure to report same Criminal law. See
Nesmith v. State, 158.
Deeds Building restriction-"One house only" clause Four-
story apartment prohibited, when - Construction of contracts
- Extrinsic aids to interpretation. See Arnoff v. Chase, 331.
Oil and gas-Leases - Breach of implied covenants Damages
Failure to drill offset wells - Burden of proof - Existence of
gas - Preponderance of evidence- Charge to jury. See Fuel
Supply Co. v. Shilling, 106.
![[blocks in formation]](https://books.google.lv/books/content?id=4XsLAAAAYAAJ&hl=lv&output=html_text&pg=PA568&img=1&zoom=3&q=%22Certainly+all+those+who+have+framed+written+constitutions+contemplate+them+as+forming+the+fundamental+and+paramount+law+of+the+nation,%22&cds=1&sig=ACfU3U0WHIYqYp_eNwJ6gW1y_BzR1-Tyow&edge=0&edge=stretch&ci=149,1028,227,22)
1. Carrying concealed weapons-Section 12819, General Code-
No exception as to home, when — Charge to jury- Carrying of
weapon in bunkhouse· On the trial of one accused of the crime
of carrying concealed weapons, as defined by Section 12819, Gen-
eral Code, where the evidence is that the accused, at the time he
was carrying the weapon concealed on his person, was in a bunk-
house, belonging to his employer, where he and other employes
of the same employer lived and slept during their employment,
a charge of the court that if this bunkhouse was the accused's
place of living, where he slept, then it was his home, and he
had a right, as a matter of law, to carry a weapon concealed
on his person while in that bunkhouse, and must be acquitted
of the charge in the indictment, is erroneous. The statute
makes no such exceptions. State v. Nieto, 409.
2. Evidence-Preponderance to establish insanity-Charge to
jury—In the trial of a criminal case where the defense of in-
sanity is made, a charge of the court which places upon the ac-
cused in the making of such defense a greater burden than the
furnishing of a preponderance of evidence is erroneous. (Bond
v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111;
Kelch v. State, 55 Ohio St., 146; State v. Austin, 71 Ohio St.,
317, in this respect approved and followed.) State v. Hauser,
404.
3. Evidence ·Correct and incorrect instruction given—No pre-
sumption jury followed correct rule, when - Where two rules
as to the quantum of evidence required of the accused are given
to the jury, the one correct and the other erroneous, the court
will not presume that the jury followed the correct rule to the
exclusion of the incorrect rule. Ib.
4. Evidence-Preponderance to establish insanity - Charge to
jury In a criminal prosecution wherein the defense of insanity
is interposed by defendant, a charge to the jury that "proof in
support of insanity must be affirmatively established by positive
or circumstantial evidence, which must satisfy you that he was
not sane," is erroneous; and such instruction is not qualified
or modified by a further charge that "Before you can find
* * * [defendant] was insane * * *
fied by a preponderance or greater weight of the evidence
you must be satis-
* "" Such latter charge presents to the jury an inde-
pendent or different rule as to the quantum of evidence neces-
sary to establish such defense, and does not cure the erroneous
charge theretofore given. Ib.
5. Insanity of defendant before sentence-Section 13608, General
Code-Jury to determine sanity, when — Lima State Hospital
Act inapplicable, when - Section 7240, Revised Statutes, was not
repealed by implication by the Lima State Hospital Act, 98 Ohio
Laws, page 236. Its provisions were substantially re-enacted in
the General Code, and the requirements of Section 13608, Gen-
eral Code, formerly Section 7240, Revised Statutes, are man-
datory. State v. Hollenbacher, 478.
6. Prosecution of crimes — State, county or municipal function —
The prosecution of crimes and offenses for the violation of the
criminal laws of the state of Ohio is a state function and not
a county or municipal function. It calls for the exercise of the
CRIMINAL LAW-Continued.
state police power, in which county officers have only such
powers as may be delegated to them by the general assembly.
State, ex rel., v. Price, 50.
7. Prosecution of crimes-Exercise of state police power by
counties — The several counties of Ohio, as political subdivisions
of the state, may be called upon by the general assembly of
Ohio to aid any of the executive officers of the state, in any
manner that the general assembly shall deem best, in the ex-
ercise of the police powers of the state, particularly in the in-
vestigation and prosecution of crimes and offenses. Ib.
8. Manslaughter-Unintentional killing by automobile — Unlaw-
ful act as proximate cause - To warrant a conviction of man-
slaughter, on account of the unintentional killing of a human
being by the operation of a motor vehicle in violation of a valid
statute, the violation of such statute must have been the proxi-
mate cause of death. Jackson v. State, 152.
9. Manslaughter — Unintentional killing by automobile - Charge
to jury-Proximate cause-In such a prosecution a charge
of the court, which eliminates from the consideration of the
jury the question of proximate cause, is prejudicial and re-
versible error. Ib.
Evidence - Affirmative and negative testimony - Weight and
value Charge to jury-Criminal law - Embezzlement of
bank funds Section 710-172, General Code (108 O. L., pt. 1,
123) Testimony of accomplice. See State v. Davies, 487.
Evidence - Similar offense - Unlawful sale of morphine. See
Miller v. State, 535.
Grand jury-Duties - Judicial functions not exercised-
Special grand juries - Section 13560, General Code (108 O. L.,
pt. 1. 158) Prosecution of crimes State, county or munici-
pal function Exercise of state police power by county. See
State, ex rel., v. Price, 50.
Intoxicating liquors - Unlawful to keep, store or use in certain
places Constitutionality of municipal ordinance. See East
Liverpool v. Dawson, 527.
State Medical Act - Section 1269 et seq., General Code - State-
ment to jury and evidence Conspiracy to prosecute chiroprac-
tor-Failure of stenographer to report argument to jury-
Constitutional law. See Nesmith v. State, 158.
Cross-Examination - Decision.
Depositions Contempt - Commitment by notary public-Sec-
tions 11497 and 11526, General Code-Habeas corpus. See Kop-
pel v. Bader, 511; Ex parte Berger, 512.
Grade crossing elimination — Inability to agree upon plan — Juris-
diction of common pleas court Lateral diversion of railroad
tracks Section 8879, General Code. See Sandusky v. B. & O.
Rd. Co., 225.
State highway laws - Act of May 17, 1915 (106 O. L., 574) —
Curative provisions apply, when― Defects in proceedings cured,
when Failure to advertise for bids - Section 1206, General
Code-Act of December 18, 1919 (108 O. L., pt. 2, 1122) —
Validating and ratifying highway contracts - Inoperative upon
contracts adjudicated invalid — Judgments and error proceed-
ings unaffected, when. See Cowen v. State, ex rel., 387.
Injunction Appeal to court of appeals - Jurisdiction of subject-
matter and to assess damages. See Morton v. Morgan, Murray
& Potts Co., 510.
Injunction and damages — Jurisdiction to order nuisance abated -
Railroad embankment obstructs surface water. See Erie Rd. Co.
v. Garman, 516.
Oil and gas lease - Breach of implied covenants - Failure to
drill offset wells - Burden of proof - Existence of gas - Pre-
ponderance of evidence - Charge to jury. See Fuel Supply Co.
v. Shilling, 106.
Negligence Construction or maintenance -
Res ipsa loquitur. See Ice Co. v. Mattern, 62.
Probate court to journalize, when Application to set aside exe-
cution granted - Property seized by writ of attachment-Issued
by common pleas court-Mandamus. See State, ex rel., v.
Lueders, 256,
Covenants - Building restrictions - "One house only" clause-
Four-story apartment prohibited, when - Construction of con-
Extrinsic aids. See Arnoff v. Chase, 331.
Evidence Competency of witnesses
Privileged communica-
Exceptions-Sections 11493, 11494 and 11495, General
Code. See Swetland v. Miles, 501.
Pleading-Prohibition - Writ issued by agreement of parties –
Defendant in default. See State, ex rel., v. Burkhardt, 515.
State highway laws-Act of May 17, 1915 (106 O. L., 574) — Cur-
ative provisions apply, when - Defects in proceedings cured,
when Failure to advertise for bids - Section 1206, General
Code-Act of December 18, 1919 (108 O. L., pt. 2, 1122)— Vali-
dating and ratifying highway contracts - Inoperative upon con-
tracts adjudicated invalid - Judgments and error proceedings
unaffected, when. See Cowen v. State, ex rel., 387.
Criminal law Insanity-Preponderance of evidence. See State
v. Hauser, 404.
Pleading - Contest of election
Mayor defeated for re-election-
Quo warranto. See State, ex rel., v. Babst, 275.
Right to take pending error proceedings-Taxing expense as costs
An existing as distinguished from a potential issue of fact in a
trial court is not necessary in order that a party may exercise the
right given by Section 11526, General Code, to take testimony by
deposition at any time after service of summons on the defend-
ant. Either party may take depositions while error proceedings
are pending in a reviewing court to reverse the judgment of the
trial court. If such depositions are not used, the expense of
taking them cannot be taxed in the costs of the case. Fairchild
v. L. S. Elec. Ry. Co., 261.
- Sections 11497 and 11526,
Cross-examination of adverse party-
General Code - Contempt - Commitment by notary public. See
Koppel v. Bader, 511, and Ex parte Berger, 512.
|