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There was no evidence on the part of the Hammond police showing what property they received by means of a search of Caul's person or the premises occupied by him. Mrs. Miller testified that she did not see the officers at Hammond search Caul, but immediately thereafter they exhibited to her $68.35 in money, together with the articles of property stolen from her by Caul, which included the white sapphire ring. The checks Caul said he had destroyed. The articles in the possession of the Newton county sheriff were exhibited to Mrs. Miller and identified by her at the trial as her property except the ring and money. She disclaimed any previous knowledge of "that ring." The key to the machine and safety box key had previously been given to her.

In October, 1924, on information given by Caul after his arrest, the Miller home was searched and the officers took possession of a bedspread, napkins, pillowcases, bath towels, ribbon, Bible, carving set, old blanket, and part of a bolt of linen. It conclusively appears that these articles were in the Miller home long prior to the Conrad burglary. Whether they were brought to the Miller home before or at the time or after Caul worked for Mrs. Conrad, or when he was otherwise at her house, is not determinable from the evidence. Mrs. Miller testified that Caul, a week or two before Christmas, 1923, while living at her home, brought them there, saying that his mother had given them to him. He placed most of them in a trunk at the head of the stairs, and the others were in use about the house when the officers came. When Caul came to her house, it was the understanding between Mr. Miller and him that he was to assist in the care of the stock and do chores for his board. While making his home at her house he worked for short periods of time for neighbor farmers, but when not so employed, he would come and go, saying he was looking for work and that he would pay board for this time, which he did not do, but promised to give the bedspread in payment.

Mrs. Conrad testified that she lost no jewelry prior to the night of the burglary, and that the rings taken were all diamond rings, and that the one in the possession of the sheriff shown her at the trial was one of the rings stolen from her. The watch had been returned and the issuing company had paid her for the travelers' checks. She identitied the spread, napkins, linen, blanket, Bible, and carving set as her property, but did not know when they were taken from her home, as "each one was in a different place in my house from top to bottom." Both of these appellants unqualifiedly denied Caul's testimony in every particular pertaining to the Conrad burglary.

[1] It must be kept in mind that appellants were charged, tried, and convicted of the of

objection of these appellants, evidence was introduced tending to show that one of these appellants, Mrs. Miller, had purloined a bedspread, napkins, and other articles belonging to Mrs. Conrad more than five months prior to the time of the alleged burglary. There was no evidence whatever connecting appellant Fehlman with the commission of any crime other than as Caul had coupled him with the burglary. It will be noticed that within a few days after Mrs. Miller caused Caul's arrest for burglarizing her home, an official search of her premises was made, and not a single article taken from Mrs. Conrad by means of the burglary was found. It may be said that one of the rings belonging to Mrs. Conrad, and by the officers obtained from Caul and exhibited at the trial of these appellants, was, by Caul, stolen from Mrs. Miller. There is no evidence to that effect unless such inference may be legally drawn from the testimony of Caul that he had sold all of the rings he received on account of the burglary, further supported by an inference, without evidence justifying it, that the officers at Hammond obtained from Caul only such articles as he had stolen from Mrs. Miller and that the ring in evidence was one of them. The tracing of the burglariously stolen ring into the possession of Mrs. Miller is largely, if not wholly, a matter of speculation, or, at most, such thought must result from an inference based upon another inference, which the rules of evidence do not permit. Warner v. Marshall, 166 Ind. 88, 117, 118, 75 N. E. 582; Pittsburgh, etc., R. Co. v. Vance, 58 Ind. App. 1, 6, 108 N. E. 158.

[2, 3] From the foregoing conclusion it follows that the evidence pertaining to the articles recovered by means of the search unquestionably had reference to the commission of an entirely separate and distinct offense from that for which these appellants were being tried. It was evidence of a collateral crime and inadmissible unless it can be said to be within an exception to the general rule. Absolute necessity for the admission of such evidence creates the exception, and there was no showing of such necessity. Zimmerman v. State, 190 Ind. 537, 130 N. E. 235; Underhill, Criminal Evidence (3d Ed.) chap. 15, § 150 et seq.

[4] Instruction No. 4 given by the court upon its own motion, over the objection and exception of appellants, told the jury, in effect, that while evidence tending to prove a collateral crime had been admitted, its purpose was not to prove directly the commission of the crime charged, but that it "may be considered by you in connection with all the other evidence in the case relative thereto, if any, in determining the purpose and intent of the defendants, the weight and credibility of their testimony, their motive and good or bad faith, and whether or not the alleged burglary, if committed. was or was not a part

(161 N.E.)

If the evidence to which this instruction had reference was erroneously admitted because not within the range and scope of the offense charged, it necessarily follows that an instruction authorizing the jury to consider it for any purpose would be erroneous, and more so because it suggested to the jury the thought of "a criminal program or system." when there was no evidence tending to show common features or any connection whatever between the larceny and burglary. The instant case did not call for evidence to negative innocent intent or accident, nor was the evidence of the collateral crime inseparable from the act charged. Underhill v. State, 185 Ind. 587, 114 N. E. 88; Turner v. State, 102 Ind. 425, 1 N. E. 869; Underhill's Crim. Ev. (3d Ed.) § 154; 1 Wigmore, Evidence (2d Ed.) § 218.

[5, 6] As said by Underhill:

"The connection must appear from the evidence. Whether any connection exists is a judicial question." Underhill's Crim. Ev. (3d Ed.) p. 199, § 152.

[7] Of the 24 separately numbered instructions tendered by appellants, the court gave 15. Each of the 9 instructions refused is here

urged by each of the appellants in support of their motion for a new trial. Following the order of their presentation, No. 3 cautioned the jury on the reception of testimony of an accomplice. That point was fully covered by No. 4 tendered by appellants and given, wherein the jury was told:

"That a person accused of a crime may be convicted upon the uncorroborated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination in the light of all other evidence in the case, and the jury ought not to convict upon such testimony alone, unless after a careful examination of such testimony you are satisfied beyond a reasonable doubt of its truth and that you can safely rely upon it."

[8, 9] Instruction No. 7 refused correctly declared that "the burden of proof never shifts to the defendant." We see nothing seriously wrong with this instruction, and it should have been given were it not for the two instructions immediately preceding it, which unmistakably placed the burden on the state of proving the appellants or one of them guilty as charged beyond a reasonable doubt. The jury, in addition, was told that the defendants were not required to introduce any evidence as to their innocence because the law presumes every defendant charged with a crime to be innocent until proven guilty beyond a reasonable doubt, and that this presumption abides with the defendants throughout the trial and until, from the evidence, the contrary appears beyond a reasonable doubt.

[10] Instructions Nos. 10, 14, and 16 refused were on the subject of proof of guilt of one or both of the defendants beyond all rea

sonable doubt and to the exclusion of every reasonable hypothesis of innocence. No. 15 tendered and given was on the same subject and sufficiently advised the jury concerning its duties in that regard. A trial court, although requested so to do, is not required, nor would it be justified in emphasizing any particular phase of a case by repeating propositions of law, however applicable thereto they may be. Zimmerman v. State, supra; Robbins v. Fugit (1920) 189 Ind. 165, 126 N. E. 321; Louisville, etc., Traction Co. v. Miller, 82 Ind. App. 344, 142 N. E. 410.

[11] Nos. 17 and 18 refused were substantially alike, and were intended to warn each individual juror to be satisfied beyond a reasonable doubt of the truth of each material allegation of the affidavit before consenting to a verdict of guilty; but they were not drawn with that care and clearness as would likely obviate a misunderstanding of their purpose. They were refused probably for that reason, and because of another instruction requested and given which told the jury that

"The defendants are presumed to be innocent until their guilt is established by legal evidence beyond a reasonable doubt, and should you, or any of you, have a reasonable doubt of their guilt, you should acquit them."

It is true, a defendant in a criminal case, on request, is entitled to a complete and specific instruction applicable to each individual juror that he must be satisfied from the evidence that each essential element of the crime with which the defendant is charged has been proven beyond a reasonable doubt before consenting to a finding of guilty.

Refused instruction No. 23, while authoriz. ing the jury to consider the evidence tending to show the commission of another offense with all the other evidence relative to the crime charged, limited its probative value to "determining the purpose and intent," "weight and credibility," "motive and good or bad faith" of the defendants, "and whether or not the alleged burglary, if committed, was or was not a part of a criminal program or system." The questions urged in support of this instruction will not likely arise on a retrial of this case, and hence no further attention will be given them.

Objections on the ground of self-serving and hearsay were sustained to offered evidence by the defendants tending to prove that Mrs. Miller, appellant, during the Christmas season of 1923, in the presence of Caul, exhibited a bedspread and six napkins to the witness, and stated that Caul had given them to her in payment of a past-due board bill, and at about or near this time Caul, in the presence of Mrs. Miller and other persons, said that his mother had given him the bedspread and napkins and that he had given them to Mrs. Miller.

[12] The proffered evidence excluded and

the evidence admitted tending to show one of the defendants guilty of an extraneous crime had the effect of injecting into the case then on trial an issue, as we have seen, from which an illogical inference might be, and in all probability in this case was, drawn by the jury, that is to say, if Mrs. Miller was guilty of larceny, she must therefore be guilty of burglary, of which offense she was then on trial, when there was no evidence to connect one with the other, or again, we may say, no common features between the two crimes. Smith v. State, 10 Ind. 106; Lovell v. State, 12 Ind. 18; Todd v. State, 31 Ind. 514; Dunn v. State, 162 Ind. 174, 181, 70 N. E. 521.

[13] Nor was the evidence admissible on the theory that the intent in the instant case was equivocal. Shears v. State, 147 Ind. 51, 46 N. E. 331.

For the reasons suggested, the motion of both appellants for a new trial should have been granted.

Judgment as to both appellants reversed, with instructions to grant them a new trial. The clerk of this court is directed to make and certify the usual order to the superintendent of the Indiana Woman's Prison for the return of Mrs. Jennie Miller to the custody of the sheriff of Newton county, Ind., as also an order to the superintendent of the Indiana Reformatory for the return of Gerald Fehlman to the custody of the sheriff of Newton county, Ind.

(118 Ohio St. 360) EAST BAY SPORTING CLUB v. MILLER et al. (No. 20555.)

Supreme Court of Ohio. Feb. 29, 1928.

Rehearing Denied April 17, 1928.

(Syllabus by the Court.)

1. Fish 3-Navigable waters 16-Public has right to fish and navigate in waters forming Lake Erie or its open bays, regardless whether they are navigable in legal sense.

The public has a right of navigation and fishing in the waters of the open bays of Lake Erie, and such rights are not limited within such public bays to the particular portions thereof which are navigable in the legal sense, but such rights of fishing and navigation extend to any portions of such waters so long as they are a part of Lake Erie or its open bays. Winous Point Shooting Club v. Slaughterbeck, 96

Ohio St. 139, 117 N. E. 162, L. R. A. 1918A, 1142, approved and followed.

2. Navigable waters (3)-Waters capable of use in ordinary condition as highways for commerce on water are "navigable."

Waters are "navigable" in law when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may

be conducted in the customary modes of trade and travel upon water.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Serics, Navigable.]

3. Waters and water courses 38-"Water course" is stream in definite channel discharging into another body of water, though not flowing continuously but resuming flow in definite course between recognized banks.

A "water course" is a stream usually flowing in a particular direction in a definite channel having a bed, banks, or sides and discharging into some other stream or body of water. It need not flow continuously, and may some times be dry or the volume of such water course may sometimes be augmented by freshets or water backed into it from a lake or bay or other extraordinary causes; but so long as it resumes its flow in a definite course in a recognized channel and between recognized banks, such stream constitutes a water course.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Water Course.]

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4. Fish 5(1)-Owner of land comprising both banks and bed of stream not legally navigable or part of Lake Erie has exclusive fishing rights and may enjoin trespassers.

The owner of land comprising both banks and the bed of a stream or river which is not legally navigable and not a part of Lake Erie or its bays has the exclusive right of fishing in such waters and may enjoin trespassers from entering upon and fishing therein. Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828, approved and followed.

Error to Court of Appeals, Erie County. Equitable proceeding by the East Bay Sporting Club against A. F. Miller and another. Judgment by Court of Appeals for defendants, and plaintiff brings error. Modified and affirmed.-[By Editorial Staff.]

This action originated in the court of common pleas of Erie county and the parties appear in the same order there as in this court, plaintiff in error being plaintiff below and the defendants in error defendants below. It is an equitable proceeding, in which the plaintiff claims to be the owner of the real estate described in the petition, which is largely composed of marsh lands, part of which is dry land and part covered by water. Plaintiff further claims that such premises contain large numbers of wild fowl, muskrat, and other game and animals; that the premises constitute a game preserve; that the same is used for such purposes and as a fur farm; that plaintiff, at large expense, has dredged and dug canals and waterways upon the premises and improved the same as a game preserve for the harboring and protection of wild animals and wild game; that the defendants claim the right to fish upon and over said marsh lands,

(161 N.E.)

dredge cuts, and channels, and have entered upon the streams, brooks, and ponds of plaintiff and otherwise trespassed thereon; that such trespassing is of a continuous and constantly recurring nature; and that the same will drive and scare said game and animals from said premises and will cause irreparable injury to property of the plaintiff. Plaintiff asks that the defendants be enjoined from trespassing and from injuring the breeding grounds of said wild fowl and animals, and from scaring and driving the same from its said premises, and it asks that its title to this property may be quieted as against the claims of the defendants.

In the answer filed by the defendants it appears that they do not claim any interest or estate in the real estate described in plaintiff's petition except such rights as they have with the public generally in the premises. They claim the right to fish and nayigate upon the part of said property covered by water. In other words, defendants claim a public right of fishery upon the premises of plaintiff, and they further allege that to deprive them of the public right of fishery upon the premises of the plaintiff would be a violation of their rights under the Constitution of the state of Ohio and the Consti

tution of the United States.

A reply was filed by the plaintiff, in which it is denied that the defendants have the right of public fishery in the waters upon this property. It denies that any part of the premises of plaintiff are covered by public waters, and, further, it avers that in certain cases entitled Teasel v. West Huron Sporting Club, 70 Ohio St. 502, 72 N. E. 1165, and Stroud v. West Huron Sporting Club, 78 Ohio St. 445, 85 N. E. 1132, the property rights of the West Huron Sporting Club, the predecessor in title of plaintiff here, were adjudicated by the circuit court of Erie county, and that such findings were affirmed by this court; that such decisions remain in full force and effect; that plaintiff owns the premises in question in fee simple; that the same are marsh lands, through which run the creeks known as Black Channel and Plum brook, and that the west line of said premises is the west line of Huron township; that said line is the east end of Sandusky Bay; that the decisions above referred to have become the rule of property in the state of Ohio as to the rights of all parties in the property of plaintiff and other similar properties. Upon the issues thus made up the parties went to trial before the court of common pleas, which court quieted the title of plaintiff in the premises in question, but recognized the right of the defendants to fish in the waters of Sandusky Bay east of the west line of Huron township, which included Black Channel. The matter was taken to the Court of Appeals upon appeal, which court found:

"That between the west line of said Huron township, extended, and the Black Channel, and the marsh adjacent thereto, there is a large triangular shaped body of open water about one-half mile wide from north to south, and about one-half mile from east to west, 事 * * that the waters in said above-described triangular shaped body of water, and in said Black Channel and Plum brook, and in said marshlands of plaintiff described in its petition, are the waters of Sandusky Bay and rise

and fall therewith and vary in depth from time to time as the level of that bay and Lake Erie, of which it is a part, is affected by the wind or other causes."

The Court of Appeals quieted the title and possession of the plaintiff, the East Bay Sporting Club, to all and singular the premdefendants and all persons holding or claimises described in its petition as against the ing under them "subject only to the right of each of the defendants and of the public to navigate upon and fish in said above-described triangular shaped body of water and upon and in said Black Channel and Plum brook." And the defendants were enjoined from trespassing upon or in any way interfering with the title and possession of plaintiff in and to its premises except as to the right to navigate upon and fish in the particularly described triangular shaped body of water and said Black Channel and Plum

brook. The plaintiff was enjoined from interfering with the defendants in the exercise of said right of navigation and fishing.

To reverse this decree of the Court of Appeals, error is prosecuted to this court.

True, Crawford & True, of Port Clinton, and J. F. Hertlein, of Sandusky, for plaintiff in error.

John F. McCrystal, of Sandusky, for defendants in error.

DAY, J. [1] It is well settled in this state that the right of the public to fish in the waters of Lake Erie and its bays is as fixed and complete as if those waters were subject to the ebb and flow of the tide, and that the public rights of fishing in the waters of the open, navigable public bays of Lake Erie are not limited within such public bays to the particular portions thereof which are navigable. Winous Point Shooting Club v. Slaughterbeck, 96 Ohio St. 139, 117 N. E. 162, L. R. A. 1918A, 1142; Bodi v. Winous Point Shooting Club, 57 Ohio St. 226, 48 N. E. 944; Sloan v. Biemiller, 34 Ohio St. 492.

It is also the law of Ohio that the ownership of land under the waters of nonnavigable marshes, ponds, rivers, lakes, and creeks carries with it the exclusive right of hunting and fishing, and all other property rights. Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828. See, also, administrators of Gavit v. Chambers, 3 Ohio, 495; Walker v. Board of Public Works, 16 Ohio, 540; Lamb v. Rick

ets, 11 Ohio, 311; June v. Purcell, 36 Ohio St. 396; State v. Shannon, 36 Ohio St. 423, 38 Am. Rep. 599; Beckman v. Kreamer, 43 Ill. 447, 92 Am. Dec. 146; Cobb v. Davenport, 32 N. J. Law, 369; Tripp v. Richter, 158 App. Div. 136, 142 N. Y. S. 563; 11 Ruling Case Law, 1032; 26 Corpus Juris, 598.

With these two rules of law in mind, the question presented narrows itself to the proposition whether the waters in which defend

ants claim the right of fishing are a part of Sandusky Bay, and hence subject to the right of public fishing. The Court of Appeals reached the conclusion:

"That between the west line of said Huron township, extended, and the Black Channel, and the marsh adjacent thereto, there is a large tri. angular shaped body of open water about one

half mile wide from north to south, and about That the waters in said above-described triangular shaped body of water, and in said Black Channel and Plum brook, and in said marsh lands of plaintiff described in its petition, are the wa

one-half mile from east to west.

by a regular channel, with banks and sides." Chamberlain v., Hemingway, 63 Conn. 1, 27 A. 239, 22 L. R. A. 45, 38 Am. St. Rep. 330; Porter v. Armstrong, 129 N. C. 101, 39 S. E. Ind. 511, 10 N. E. 410; Weis v. City of Madi799; Hill v. Cincinnati, W. & M. Ry. Co., 109 son, 75 Ind. 241, 253, 39 Am. Rep. 135; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 So. 780, 33 L. R. A. 376, 53 Am. St. Rep. 262; Eulrich v. Richter, 41 Wis. 318, 320; Eulrich v. Richter, 37 Wis. 226, 229; Hinkle v. Avery, Case v. Hoffman, 84 Wis. 438, 445, 54 N. W. 88 Iowa, 47, 55 N. W. 77, 45 Am. St. Rep. 224; 793, 20 L. R. A. 40, 36 Am. St. Rep. 937; Shields v. Arndt, 4 N. J. Eq. 234, 235; Jeffers v. Jeffers, 107 N. Y. 650, 14 N. E. 316.

The record discloses that Black Channel and Plum brook have fixed channels and the waters thereof flow between recognized banks diagonally through plaintiff in error's property. The journal entry of the Court of Appeals finds these streams to be "natural waterways," and:

"That Plum brook enters the land of the

ters of Sandusky Bay and rise and fall there- plaintiff near the southerly part thereof and

with and vary in depth from time to time as the level of that bay and Lake Erie, of which it is a part, is affected by the wind or other causes."

We agree with the Court of Appeals in its conclusion that the triangular shaped body of water lying east of the west line of Huron township and the mouth of Black Channel, as described by the Court of Appeals, is a part of Sandusky Bay in so far as the rights of fishing are concerned, and is within the rule of Winous Point Shooting Club v. Slaughterbeck, supra, Bodi v. Winous Point Shooting Club, supra, and Sloan v. Biemiller, supra. We are not, however, able to reach the conclusion that the waters of Plum brook and Black Channel form a part of Sandusky Bay, but are of opinion that the law as to the open waters of Sandusky Bay should not have been applied to Plum brook and Black Channel, as the facts disclosed by this record require an application of law relative to water courses.

runs in a northerly direction into Black Channel. Within the plaintiff's land its length is about 3,000 feet, its width varying from 40 to 60 feet, and its depth from 1 to 6 feet.

"That Black Channel, in so far as the same is

included in the description named in the petition and from 90 to 160 feet in width, and from a of plaintiff's premises, is about 11⁄2 miles long fraction of a foot to about 5 feet or more in depth, and extends northwesterly through the plaintiff's property to the waters of Sandusky Bay."

Inasmuch as the characteristics of Black Channel and Plum brook as water courses are important, in addition to the findings of the Court of Appeals the following references to the record may be made:

According to the testimony of the Engineers Judson and Henkelman, Black Channel flows from Long pond in the southeast part of the plaintiff's property. "It begins at the roadway and runs northwest to the dredge cut of the G. A. Beckling Company." The banks of Black Channel are from 1.1 feet to 2 feet in height on its north side and from 1.6

[2, 3] A generally accepted definition of feet to 2 feet on the south side. water courses is:

"A stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. The flow of water need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes; there must be substantial indications of the existence of a stream, which is ordinarily a moving body of water." Hutchinson v. Watson Slough Ditch Co., 16 Idaho, 484, 101 P. 1059, 133 Am. St. Rep. 135; Luther v. Winnisimmet Co., 9 Cush. (63 Mass.) 171; Simmons v. Winters, 21 Or. 35, 27 P. 7, 28 Am. St. Rep. 727.

"A water course consists of bed, banks, and water. Yet the water need not flow continually; there are many water courses which are sometimes dry. To maintain the right to a water course it must be made to appear that the water usually flows in a certain direction, and

Plum brook rises in Perkins township, outside the land of plaintiff in error, draining considerable territory, and flows into Black Channel. Plum brook is 30 to 60 feet wide and has a depth of from .9 of a foot to 2.6 feet. Its banks are from 1.2 feet to 1.6 feet in height. At a point 400 feet south of the south line of plaintiff in error's property the depth of Plum brook is 2.5 feet; at a point 100 feet south it is .2 of a foot, and at the south line of plaintiff in error's property it is 2.4 feet. At points about 200 feet apart to a point where it flows into Black Channel it is from 2.6 feet to 1.3 feet in depth.

That Black Channel has long been recognized as a water course is shown by an examination of the record in the case of Teasel v. West Huron Sporting Club, 70 Ohio St. 502, 72 N.

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