Slike stranica
PDF
ePub

(164 Ν.Ε.)

ing an eight year old boy. The testimony showed that other members of the family had died during her period of service, apparently by poisoning. Three members of the court, Thurman, Corwin, and Caldwell, reversed the judgment on the ground of the admission of testimony of collateral offenses. Ranney did not concur in this ground, and Bartley wrote a dissenting opinion.

On the other hand, a long line of cases has recognized and applied the exceptions to the general rule. In Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767, there was a charge of having counterfeit notes in possession. The trial court admitted proof of other counterfeits being found in defendant's house, and in possession of his wife. This court found such testimony competent to prove guilty knowledge. In Reed v. State, 15 Ohio, 217, the defendant was indicted for passing counterfeit bank notes. It was held that proof of other offenses was competent to prove guilty knowledge, and that defendants were jointly engaged in a criminal enterprise. In Shriedley v. State, 23 Ohio St. 130, upon a charge of receiving stolen goods, knowing them to have been stolen, other offenses were shown to establish guilty knowledge. In Brown v. State, 26 Ohio St. 176, upon a charge of cruelty to a horse by injecting poison, other similar of fenses were held admissible to show motive. In Lindsey v. State, 38 Ohio St. 507, upon a charge of uttering and publishing a forged instrument, the trial court admitted testimony of other forged deeds, found in defendant's possession and proved to have been uttered and published by him, as competent testimony to show guilty knowledge, and the judgment was affirmed by this court. In Tarbox v. State, 38 Ohio St. 581, upon a charge of obtaining property by false pretenses, it was held by this court that other crimes of like character were competent to show a conspiracy, and to show knowledge of the falsity of the representations. In Jackson v. State, 38 Ohio St. 585, there was a joint indictment of several defendants, and evidence was admitted of their being engaged in a conspiracy to commit similar crimes shortly after the commission of the offense charged. This court affirmed the judgment.

In Boyd v. State, 81 Ohio St. 239, 90 Ν. Ε. 355, 135 Am. St. Rep. 781, 18 Ann. Cas. 441, upon a trial of an indictment charging defendant with having carnal knowledge and abusing a female person under 16 years of age with her consent, evidence of similar prior acts of sexual intercourse between the accused and the prosecutrix, within a period of 2 months immediately preceding the date laid in the indictment, was held admissible for the purpose of showing the relation and intimacy of the parties, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction. In State v. Reineke, 89 Ohio St. 390, 106 Ν. Ε. 52, L. R. A. 1915A, 138, it was held:

"In sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or subsequent to the date of the specific act charged in the indictment, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant toward the prosecutrix and the illicit and continual sexual relations existing between them."

In Patterson v. State, 96 Ohio St. 90, 117 Ν. E. 169, L. R. A. 1918A, 583, there was an indictment for larceny of an automobile, and it was held that testimony relating to the larceny of other cars was relevant, where the state relies for conviction upon proof of a criminal plan to steal various automobiles other than charged in the indictment. The most recent case decided by this court is that of Barnett v. State, 104 Ohio St. 298, 135 N. E. 647, 27 A. L. R. 351. The indictment charged sodomy with a little girl 6 years of age, and it was held competent to introduce evidence of other like assaults upon other little girls, at or near the time charged in the indictment, to prove the habitual moral degeneracy and sexual perversion of the person committing such offenses, and his criminal course of lascivious conduct, all for the purpose of identifying the defendant as the sexual pervert who committed the crime charged in the indictment. The opinion in that case enters at length upon the reasons for receiving evidence of collateral offenses as an exception to the general rule of exclusion.

Much that is stated in that opinion is applicable to the instant case. Just as individuals are known and recognized by their physical and mental characteristics, so criminals are discovered in many instances by certain characteristics, plans, and methods followed in the commission of offenses. This is more especially true where criminals pursue a life of crime for any considerable time. It would be a serious handicap, to those whose business it is to ferret out, detect, and punish crime, to deny resort to such characteristics in bringing accused persons to justice. It has already been pointed out in this case that in each of the offenses committed prior to November 20, 1927, the same plan, method, and course of conduct was pursued. All these matters were testified to by the witnesses who had been victimized in the former robberies, and it was because of the similarity in the method and plan employed that the authorities were able on the first effort to discover the guilty parties. And it is evident from the testimony that these defendants were preparing to rob the persons in the police car, but were too late in discovering their mistake. The fact that the policemen took this course to discover and arrest the parties proves that the plan and method had been consistently followed and proved to be a certain means of detection and identification.

While such testimony was competent, it was, as heretofore stated, not competent as direct evidence to prove the crime charged in the indictment. It would have been error to admit the testimony without properly instructing the jury as to the purposes for which it should be considered.

It is urged that the jury were not properly instructed in this case. The first two witnesses who testified were the victims of the robbery of November 20th, this being the crime charged in the indictment under trial. They did not, of course, testify as to the other offenses. They identified the defendants as the guilty parties, and testified in detail of the plan, method, and system employed. The third witness was Mr. Leever, who had been robbed on November 18th. Upon objection being made to narrating the details of that offense, the court instructed the jury as follows:

"I have already stated to the jury, and I want to emphasize it with all the force I can, that these defendants are upon trial charged with an offense alleged to have been committed against Robert Gansmiller on November 20th. Now that is the case which is on trial before you. The claim of the state is that this offense named in the indictment was one of a number carried out in the same manner and by the same general plan, and in the same way. It is claim

ed farther that there was a plan, or confederation or conspiracy between these two defendants to commit similar offenses to the one named in the indictment.

"Now the evidence is admitted for two reasons-one as it may reflect upon a plan, or combination or confederation between these two men to commit the offense named in this indictment, and also as the evidence may tend to identify the defendants as the persons who committed the offense named in the indictment, and the jury may not consider the evidence for any other purpose than those named. The objection will be overruled and you may reserve your exception.

"Mr. Outcalt: That applies to the rest of the evidence of the witness."

The next witness called was Mr. Vedern, the victim of the robbery of November 4th. Upon objection being made, the court gave the following instruction:

"The evidence will be admitted for the same purpose which I have stated to the jury with reference to the former testimony, and that is, only as it may relate to or bear upon, or tend to prove a plan or combination between these defendants to commit the crime charged in the indictment, and also as it may tend to identify as the persons who committed the offense charged in the indictment."

The next witness was Agnes Cordy, another victim of the robbery of November 4th. At the outset of her testimony objection was again made, and the following colloquy occurred between court and counsel:

"Mr. Outcalt: Note my objection please. I will file it at this time and let it apply to any similar testimony, if that is satisfactory to your honor.

"The Court: Take any objection and exception you want, but I thought you intended to include all this line of evidence.

"Mr. Outcalt: I was making it as to each witness, but I will make it now to apply to all and save the time.

"The Court: You will be allowed an objection and exception to all this line of testimony."

The only other witnesses who testified for the state were the police officers, who narrated the details of the manner of discovering and arresting the defendants, which, of course, was subsequent to November 20th, to wit, November 23d. While it does not appear that the jury were instructed during the examination of these witnesses, it is likewise true that no objection was made on that ground; but, even if the testimony was regarded as objectionable by counsel for the defendants, there had been an understanding that all such testimony would be objected to and an exception noted. Notwithstanding these very explicit instructions on the part of the court during the examination of witnesses, the court again very definitely warned the jury, in the course of the charge, as follows:

"There has been admitted evidence of other transactions which I will not go over now, which it is claimed by the state tend to prove a plan or combination, or conspiracy between the two defendants to commit the crime charged in this indictment. The evidence was admitted, and the jury at that time cautioned, that that evidence as to other transactions than the one named in this indictment may be used for purposes only of supporting or tending to support or prove the claim that this offense charged was the result of, or grew out of a conspiracy between these two defendants to commit this crime, and similar crimes, and also as the evidence may tend to identify the defendants as the perpetrators of the offense charged in this indictment, the claim of the state being that the transactions were committed in general in the same way, by the same means, and it was admitted upon that theory, and upon the theory that it might tend as the jury might determine, to show a conspiracy to commit this offense. However, you must keep in mind that your verdict will respond to the charge contained in this indictment and that is the matter to which your attention will be given, limited as it will be by what the court has said as to the use you may make of the other evidence offered on behalf of the state."

The jury could not have misunderstood these instructions, so clearly and repeatedly given.

[4] It is further objected that the admissibility of this character of evidence is not a jury question, but rather one for judicial consideration, and that the court should have ruled out all such testimony, because it was not shown that any connection existed between the offense charged and the other offenses. This presents a problem of no difficulty whatever. It was the province of the court to determine whether the testimony was legally relevant; that is to say, whether un

(164 Ν.Ε.)

right to operate machine for purpose of performing duty.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Scope of Employment.]

Action by Mary C. Miller against the Standard Motor Sales Company. Judgment for plaintiff, and defendant brings error. firmed.-[By Editorial Staff.]

Af

W. H. McMorris, of Cleveland, for plaintiff

der the circumstances of the case it would
be essentially misleading or too remote. Hav-
ing determined that it was legally relevant, it
was for the jury to determine its probative
value. While it was primarily a question of
identity, that being the only issue, the trial
court ruled that evidence tending to show
plan, method, or system would be relevant
to the question of identity, these defendants
having also been identified as the persons
who committed the other offenses. The ques-
tion is one of induction, and the larger the in error.
number of consistent facts the more com-
plete the induction. It was for the court to
determine that there was some relation be
tween the system followed in the offense
charged in the indictment and the systems
pursued in the other offenses, and it was for
the jury to determine whether there was a
sufficiently large number of consistent facts
to establish the identity beyond a reasonable
doubt. We find no error in the record and the

Payer, Minshall, Karch & Kerr, of Cleveland, for defendant in error.

SULLIVAN, P. J. This cause is here on error proceedings, and it is sought to set aside a judgment obtained against the plaintiff in error by the defendant in error, which parties were in the reverse order in the court of common pleas, the action being one arising out of

judgment of the Court of Appeals is therefore personal injuries occurring on September 27,

affirmed.

Judgment affirmed.

DAY, KINKADE, and JONES, JJ., concur.

(30 Ohio App. 7)

STANDARD MOTOR SALES CO. v.

MILLER.

1924, at about 4:30 p. m., on Euclid avenue, between East 102d and East 105th streets.

It appears from the record that the plaintiff below, Mary C. Miller, instead of crossing from the north side of Euclid avenue to the south side of Euclid avenue by way of the crosswalks at East 102d or East 105th streets, intended to cross over at a point between the cross-walks, and it appears from the record that as she left the curb, and had gone but some two or three feet therefrom, a servant and agent of the Standard Motor Sales Com

Court of Appeals of Ohio, Cuyahoga County. pany, in attempting to park his car against

Sept. 24, 1928.

1. Automobiles 226(1)-Pedestrian's negllgence in crossing street did not relieve operator of motor vehicle from legal responsibility of exercising due care.

Negligence per se of pedestrian in crossing

street between crosswalks in violation of munic

ipal ordinance held not to relieve operator of

motor vehicle from legal responsibility in exercising due care with reference to such pedes

trian.

2. Automobiles226(2)-Pedestrian's negllgence in crossing street did not relieve operator of motor vehicle from negligence which was proximate cause of resulting injury.

Negligence per se of pedestrian crossing street between crosswalks did not relieve operator of motor vehicle from act of negligence which jury might determine was proximate cause of injuries resulting to pedestrian.

3. Automobiles 193(8)-Automobile salesman held, as regards injury to pedestrian, within "scope of employment" while operating machine.

Automobile salesman, operating employer's machines at any time and place for purpose of carrying on his business of interviewing prospects, held within scope of employment as regards injury to pedestrian, though performing other things in incidental way, while having

the curb, started the car in reverse and collided with plaintiff below as she stood there watching the traffic in order to ascertain the safety of crossing over to the south curb.

It is charged that the court committed error in not sustaining a motion to direct a verdict for the defendant, and one of the serious complaints is that there was no ground for recovery, because an ordinance of the city of Cleveland, preventing pedestrians from crossing from one curb to another, except by way of crosswalks, was violated, which act, being negligence per se, prevented plaintiff from re

covery.

In order properly to adjudge this question, it is necessary to disclose the fact that there was evidence tending to show that the defendant below also violated an ordinance of the city of Cleveland in backing his car without any warning, and it is claimed that this act was also negligence per se, and it is urged that by reason of these parallel facts in the record no recovery could be had.

We have examined the record to ascertain the exact status of the plaintiff with respect to crossing the street. The ordinance is to the effect that pedestrians who cross the streets, except upon crosswalks or intersections, do so in violation of the ordinance. However, from an analysis of the record there

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

is evidence of a credible nature, which was submitted to the jury, that the defendant in error, instead of crossing the thoroughfare, was standing some two or three feet from the curb, examining the situation for the purpose of ascertaining the safety of what was apparently her original intention, and while in this mental and physical attitude she received the injuries complained of.

From this aspect of the record we think that the ordinance in question is immaterial, because its primary purpose applies to a pedestrian in the act of fulfilling the intention to cross, and in the physical act of crossing, and would not apply to a pedestrian who was found standing two or three feet from the curb, deliberating upon the safety or danger of remaining in that attitude or proceeding to cross the street.

It is true that the record is capable of another aspect, and that is that the plaintiff had partially proceeded, at least to the extent of two or three feet, to cross the thoroughfare; but this aspect does not destroy the situation in the record above stated, that the plaintiff from her mental and physical attitude had not yet made up her mind to cross the thoroughfare, as she evidently originally intended.

The jury was justified in considering all the facts and circumstances pertaining to this feature of the case, and in determining the actual facts, for a reasonable inference in the record is that the plaintiff might not have crossed the thoroughfare, even had there been no collision.

The claim is made that the violation of the

ordinance established negligence per se on the part of the plaintiff below, and that there was nothing for the jury to consider, and that the motion to direct should have been sustained.

[1] It must not be forgotten, however, that a vital problem submitted for the consideration of the jury was the proximate cause of the accident, and the jury had a right, as bearing upon this question, to consider all the facts and circumstances in the case, especially with reference to the alleged violation of the city ordinance on the part of both the plaintiff and the defendant. This doctrine of negligence per se certainly did not relieve the defendant below from the legal responsibility of exercising due care with reference to a pedestrian, even though the pedestrian was not conforming to the requirements of the ordinance relating to the crossing of streets. The superstructure is the question of proximate cause, and, if the negligence of the defendant below was the proximate cause, then the injuries complained of happened because of the want of ordinary and proper care on the part of the defendant.

[2] Negligence per se on the part of the plaintiff, even admitting for the moment that there is a basis to the claim, does not relieve the defendant from respect and obedience to the doctrine that requires the exercise of or

dinary care; but, as heretofore stated, there is evidence of a credible nature in the record, tending to establish the fact that the plaintiff, with respect to crossing the street, had gone no farther practically than to form an intention to do so, provided the traffic warranted the venture; but, admitting, for the purpose of argument, that there was negligence per se, that doctrine did not relieve the defendant from an act of negligence which the jury, from the record, might determine was the proximate cause of the injuries. Payne, Dir. Genl. of Rds., v. Gordon, 14 Ohio App. 1; City of Dayton v. Taylor, Adm'r, 62 Ohio St. 11, 56 N. E. 480; Whitaker v. Luebbering, Adm'r, 101 Ohio St. 292, 128 Ν. Ε. 292; Decker v. Mitchell, 10 Ohio App. 438, paragraph 3 of the syllabus.

The doctrine which we apply in our analysis of the record and the law of the case is well laid down in Ivy v. Marx, 205 Ala. 60, 87 So. 813, 14 A. L. R. 1173, that a pedestrian is crossing a street diagonally at a place other than a street intersection, which is forbidden by ordinance under penalty, does not relieve the driver of an automobile upon the highway from the duty of maintaining a lookout for him. In the opinion the court says:

"The sole remaining question, therefore, is whether or not the municipal ordinance requiring pedestrians to cross the street at the street intersection, and not diagonally, punishing a violation of same by fine or imprisonment, has so changed the general rule as to the duty of the defendant to keep a lookout for pedestrians as to exempt him therefrom, when the pedestrian is crossing the street in a manner violative of such ordinance. It is plain there is nothing in the ordinance so indicating; but it is merely a traffic regulation, passed by the city to better conserve the public safety. It was certainly passed with a view to protect human life, and to give the ordinance a construction which would sanction a relaxation of vigilance on the part of drivers of automobiles upon the public streets

would run counter to its evident intent. To construe the ordinance as contended by defendant would mean, in this case, that the defendant had the right, so far as any duty owing to the plaintiff as a pedestrian crossing the street at a place other than the street intersection was concerned, to drive his car blindly along such thoroughfare, and answerable only for wanton conduct or negligence after discovery of plaintiff's peril."

There is a long line of decisions in Ohio and many other states laying down the doctrine above quoted, but we deem it unnecessary to cite further upon this point.

From the case of Hine v. Eikler, 19 Ohio App. 510, 512, we quote the following for examination, because of the strong similarity of the facts in the two cases:

"The important question for consideration and the main specification of error is that the verdict and judgment are against the weight of the evidence.

"It is argued by plaintiffs in error that under the facts the defendant in error was clearly

(164 Ν.Ε.)

guilty of contributory negligence, and they rely on the cases of Schell v. Dubois, Adm'r, 94 Ohio St. 93 [113 N. E. 664, L. R. A. 1917A, 710], and Chesrown v. Bevier, 101 Ohio St. 282 [128 Ν. E. 94], where the Supreme Court of Ohio laid down the rule that the violation of a statute passed for the protection of the public is negligence per se.

*

**

"Assuming, without so deciding, that defendant in error was unlawfully at the place where the injury occurred, what then were her legal rights, and what duty did the plaintiffs in error owe to her?

"Plaintiffs in error claim that under the cir

cumstances they owed her no duty. Their duty, however, rests on the broad maxim 'sic utere, tuo ut alienum non lædas? We know of no law which would excuse any person from the duty to so use his property as not to injure others. The evidence clearly supports a violation of this maxim. But, under the rule, the negligence established against the plaintiffs in error would not permit a recovery if the technically illegal position of the defendant in error should be held to directly contribute in any degree to her injury.

* *

*

"In the case of Tackett v. Taylor County, 123 Iowa, 149 [98 N. W. 730], the court says in the opinion:

"It is not enough that had it not been for plaintiff's disobedience of the law he might not have been present, and that the accident would not have happened. Most injuries would have been obviated had there been no one present to be hurt. The disobedience, to defeat recovery, must have contributed directly to the injury.'

"While these decisions may appear to be in conflict with the decisions in the Schell and Chesrown Cases, we do not think they go that far, as the question of proximate cause is left to the jury.

"We are of opinion that the conduct of defendant in error was not such as could be considered to have directly contributed to her injury. The most that could be claimed against her was that by being illegally there she indirectly contributed to the injury. There is no efficient cause of the injury growing out of her conduct. In other words, her negligence, if any, was an independent matter. In any event the question of proximate cause was properly submitted to the jury."

might stop to buy a cigar, or to get some matches, or to do an errand for his mother, does not affect the law of the case, where the record shows that the demands of his business gave him freedom to go where he pleased, wherever there were human beings that might become customers for his principal, and whether these customers were in a barber shop, or a cigar store, where he may have purchased matches for his mother, would make no difference, so long as these acts did not detract from the main purpose and were in consonance with his general duties. To sever him from the master's employment it would be necessary that the act performed be of such a divergence from his regular duties that its very character severed the relationship of master and servant. Things performed in an incidental way, either for himself or others, while he had the right to operate the defendant's machine, for the purpose of performing his duty, do not relieve the master from liability for those negligent acts which were the proximate cause of the injury.

Holding these views, the judgment of the lower court is hereby affirmed.

[blocks in formation]

ance.

Words of inheritance are not necessary to passing of estate in fee simple by will.

3. Wills 601(8)-Will devising all property to testator's wife, and requesting that property left at decease of wife be equally divided between others, passed fee simple to wife.

[3] There is another assignment of error which is strenuously argued by able counsel for defendant, and that is that there is evidence in the record indisputably showing that the agent of defendant at the time of the accident was not in the scope of his employment, which was that of a salesman for the defendant company, but an examination of the record shows that he was in charge of the automobile which caused the accident, and that it was necessary for him to have the use of it for the purpose of carrying on his bust ness, which, apparently, from the record, was not limited as to time and place. His duties made him a free lance "to go wherever there Action by David P. Trumbull against Maud was a prospect" in his efforts to sell the com- M. Stentz and others. To review judgment modity of the master. That he incidentally sustaining demurrer of defendants Homer

Under will devising to wife all property belonging to testator and reciting testator's request that property left at decease of wife shall be equally divided between others, wife took estate absolute and in fee simple, and provision for subsequent division of property was ineffectual.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« PrethodnaNastavi »