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(161 N.E.)

ent upon the record in the case at bar, and upon the authorities above cited.

A section to accomplish the purpose sought by the city council, based on constitutional lines, is capable of construction, and so long as it does not violate the constitutional rights of a citizen is a beneficent measure, and, in the interest of the safety of the public on the highways of the city, it is the duty of the legislative body to fulfill the original purpose of the passage of the ordinance in question by constructing legislation along constitutional lines that will accomplish the same object and fulfill the same purpose intended by the ordinance in question.

Therefore the trial and conviction below is without authority in law, and it is our unanimous judgment that the plaintiff in error was unlawfully convicted. Thus holding, the judgment of the lower court is reversed, and the defendant is discharged. Judgment reversed.

LEVINE and VICKERY, JJ., concur.

FOTI v. LEWIS,

Court of Appeals of Ohio, Summit County.
Jan. 9, 1925.

1. Landlord and tenant 162-Landlord re-
serving portion of premises for common use of
tenants must maintain portion in reasonably
safe condition for tenants and their invitees.

Where a landlord expressly or impliedly reserves to himself, for the common use of his tenants, the control of a portion of the premises, he owes a duty to his tenants and their invitees to exercise ordinary care and prudence, to the end that such portion of the premises be maintained in a reasonably safe condition.

2. Landlord and tenant 162, 164(1)-Landlord held to have reserved control over walks and passageways used by tenants on rented premises; landlord held liable for injury to tenant's child playing on walk, caused by falling wall which landlord failed to keep in reasonably safe condition.

Facts considered, which are held to establish by implication such a reservation of control as rendered the landlord liable for injury to tenant's child, caused by landlord's failure to exercise ordinary care in keeping premises in a reasonably safe condition.

Action by John Lewis, administrator, etc., against Frank D. Foti, etc. Judgment for plaintiff, and defendant brings error. Affirmed. [By Editorial Staff.]

WASHBURN, J. This was an action to recover damages for the wrongful death of a five year old child.

The child's parents were tenants of the plaintiff in error, living in one of his three houses on one lot. Near to one house there was a wall, which the landlord knew for a long time was in such condition as to be liable to fall over at any time. The child, with other companions of about his age, was playing marbles by the side of said wall when it fell and killed said child.

The wall was close to one of the houses, but not to the house in which the child lived, but said child and other children, as well as the tenants in the three houses, were in the habit of going past said wall in going to and from their houses, and the children were in the habit of playing near said wall and any other place upon said lot. There was, however, another walk leading directly to the house in which said child lived, which was also used in going to and from said house.

Each house was occupied by two families, and there were no written leases with any of the tenants, their occupancy being from month to month, and the landlord acknowledged that he had control of the wall, which he had arranged to have repaired months before the accident. He also acknowledged that a short time before the accident the tenant in the house closest to the wall complained to him about the condition of the wall, and, with his consent, moved out because of fear of being injured by the falling of the wall, the landlord having full knowledge of the reason for so moving and consenting thereto.

The fair inference to be drawn from the landlord's testimony, and the arrangement and condition and use of the premises, is that the walks and passageways to the houses were not rented to any particular tenant, but were designed to be, and were, used in common, and remained under the care and control of the landlord; and no one of the tenants had the right, or was obligated, to repair them, that right and obligation being the landlord's.

The important question in this case, which to a large extent forms the basis of the claim of the plaintiff in error, is that the five year old boy who was killed was a trespasser at the time and place where he was killed, to whom the plaintiff in error owed no duty.

[2] We have given to the evidence in this case, as disclosed by the record, a very careful consideration, and have viewed the premises, and we are clearly of the opinion that under the circumstances here presented, the boy was not a trespasser; that he had a right to be where he was at the time of the

Staley & Trunko, of Akron, for plaintiff in accident; that plaintiff in error, under all the

error.

circumstances, owed him a duty to see that

Benner, Harter, Walker & Watters, of Ak- the passageway along the said wall was mainron, for defendant in error. tained in a reasonably safe condition; and

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

that the liability of the plaintiff in error did not necessarily depend upon his being guilty of wanton and willful negligence.

We are of the opinion, however, that there was evidence strongly tending to prove that the conduct of the landlord in this case amounted to wanton and willful negligence, and it may be that under the charge of the court the jury found the landlord liable because of his wanton and willful negligence.

But, regardless of that phase of the case, the record clearly shows by the admissions of the plaintiff in error that he failed to use ordinary care under the circumstances, and, having found that he owed the boy the duty to use ordinary care in reference to the wall that fell on the boy and caused his death, we find that there was no error in the court's ruling in refusing to direct a verdict for the plaintiff in error.

[1] It is recognized as a general rule that where a landlord reserves to himself, for the common use of his tenants, the control of a portion of the premises, such as stairways and halls and walks, he owes the duty to exercise ordinary care and prudence to the end that such parts shall be maintained in a reasonably safe condition. The circumstances were not such in this case as to make applicable the principles of law announced in the several cases cited by the plaintiff m error.

We further find that there was no prejudicial error in the rulings of the court in reference to the admission and rejection of evidence, and that, under the circumstances we have indicated, the charge of the court was as favorable to the plaintiff in error as he was entitled to receive.

2. Executors and administrators 272-Mortgage on land inherited from wife by husband dying intestate, leaving personalty sufficient to pay debts, should be paid from personalty (Gen. Code, §§ 8574, 10582, 10774, 10786).

A inherited real estate from his wife under section 8574, General Code, and mortgaged the same and died intestate, seized of same, leaving personal estate sufficient to pay all his debts, including said mortgage; held, that said mortgage should be paid from the personal estate.

Action by the Medina County National Bank, etc., against Jessie Foreman, administratrix of the estate of William J. Wall, deceased, and others. Heard on appeal. Decree in accordance with opinion.-[By Editorial Staff.]

Judgment affirmed by Supreme Court, 162 N. E. 42.

Frank Heath and John A. Weber, both of Medina, for plaintiff.

Beatty & Albietz, of Columbus, and A. D. Davis, of Eaton, for defendant and crosspetitioner Jessie Foreman, individually, and as administratrix, etc.

Frank Spellman, of Medina, for defendant and cross-petitioner Dora Baughman. F. W. Woods, for defendant and crosspetitioner F. L. Harding.

Edward Blythin, for defendant and crosspetitioner William Jacque.

WASHBURN, P. J. This is an appeal case, and the facts are not in dispute.

Dorothy M. Wall, the wife of William J. Wall, died April 3, 1923, intestate and possessed of certain real estate. She left nei

Finding no prejudicial error, the judgment ther issue nor descendants of issue surviving is affirmed.

Judgment affirmed.

FUNK, P. J., and PARDEE, J., concur.

her, but she was survived by her husband, and the defendant Dora Baughman, her sister, and only other heir at law. By virtue of section 8574, General Code, said real estate descended to her husband, William J. Wall, who made and filed the necessary affidavit transferring the title to himself.

On April 10, 1923, said William J. Wall executed and delivered a mortgage upon said

MEDINA COUNTY NAT. BANK v. FORE. premises, and in May, 1925, he executed and

MAN et al.

Court of Appeals of Ohio, Medina County. Nov. 10, 1927.

1. Wills 775-Person making will leaving all property to wife, and dying after death of wife, held to die "intestate" (Gen. Code, § 8577).

A made a will giving all of his property to his wife; ten years later the wife died, and two years thereafter A died without revoking said will; held, that A died "intestate" within the meaning of section 8577, General Code.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Intestacy-Intestate.]

delivered a second mortgage on the premises. In February, 1926, said William J. Wall died, without issue and leaving no widow, and without having paid said mortgage indebtedness, but leaving personal property sufficient to pay all of his debts, including the debts secured by said real estate mortgages.

Jessie Foreman, one of the defendants, is the only sister and heir at law of said William J. Wall. If said William J. Wall died

intestate, said real estate descends, under section 8577, General Code, one-half to his sister, Jessie Foreman, and one-half to Mrs. Wall's sister, Dora Baughman.

The first question to be determined is, Did William J. Wall "die intestate" within the

(161 N.E.)

meaning of that term as used in section 8577, said real estate represented by the amount of General Code?

Long before the death of his wife, said William J. Wall duly executed a will, in which he devised all of his property to his wife. As has been said, his wife died in April, 1923, and he died in February, 1926, and after his death said will that had been made January 9, 1914, was admitted to probate. His sister, the defendant Jessie Fore man, was appointed administratrix.

[1] Although Mr. Wall died leaving a will, his sole beneficiary having died before he did, said will was not operative to vest any of his property in any one. It is settled that, although leaving a will, a person may die intestate as to a part of his property, and we think that "intestate" as used in section 8577, General Code, means without a will which disposes of the particular property in question; and, although William J. Wall left a will giving his property to a beneficiary who was then deceased, he died intestate as to all of his property.

[2] The next question is, Should the administratrix of the will of said William J. Wall be ordered to pay the debts secured by said mortgages out of his personal estate, which is ample for that purpose, and thus exonerate said real estate from the payment of said mortgage debts?

The administratrix made application in the probate court for an order to sell said real estate to pay said mortgage debts, and that application was refused because there was ample personal property to pay said debts. Then this suit was begun by one of the mortgagors to foreclose his mortgage, and all of the interested persons became parties, and the issue was tried in the lower court as to whether said mortgage debt should be paid from the personal estate or from the real estate mortgaged. The question is important because, after the payment of debts, all of the personal estate of Mr. Wall goes to his sister, Jessie Foreman, and his real estate descends one-half to Jessie Foreman and onehalf to Dora Baughman, his wife's sister.

When said William J. Wall inherited said real estate from his wife, under section 8574, General Code, he became the owner thereof, and had a right to sell or dispose of it during his life, or by will, as he saw fit, and section 8577, General Code, operated and controlled the descent only because he did not dispose of said real estate either during his life or by will. He could have rendered section 8577, General Code, inoperative by deeding the property to a third person and having it reconveyed to him, although such transactions were carried through merely for the purpose of rendering such statute inop erative, but we do not think that the mortgaging of the real estate should be considered as a sale or conveyance of an interest in

the mortgage. He did not thereby change the legal title to the real estate, nor convert any part of the real estate into personalty; he simply created a personal debt and secured it by mortgage. The debt remained his personal debt, the same as his other debts, and we think the usual rule should apply that, where lands of a decedent descend subject to a mortgage created by the decedent, his personal estate is primarily liable for the discharge of the debt secured by said mortgage, and the heirs are entitled to have the property exonerated from the lien of the mortgage debt by application of the personal estate to its payment.

Our statutes are declaratory of this common-law rule. Section 10774, General Code, requires an executor or administrator to bring proceedings to sell real estate as soon as it is found that the personal estate is insufficient to pay "all the debts of the deceased"; section 10786 empowers the probate court to order such sale; and section 10582 provides that "the undevised real estate first shall be chargeable with the debts," unless by the terms of the will it is otherwise provided.

This well-established principle of law answers the second question submitted to us for determination by the issues in this case. The common pleas court was therefore right in finding and ordering that the real estate described in plaintiff's petition should be exonerated from the payment of the debts secured by said mortgages, and that the same should be paid by the defendant Jessie Foreman, administratrix, from the personal property belonging to the estate of William J. Wall, and a like entry may be made in this court.

Decree accordingly.

FUNK, J., and PARDEE, J., concur.

LANDON v. STATE. (No. 8545.) Court of Appeals of Ohio, Cuyahoga County. Dec. 19, 1927.

1. Receiving stolen goods 8 (3)—Evidence to justify conviction for receiving stolen property must be convincing beyond existence of reasonable doubt.

Evidence, in order to justify conviction for crime of receiving stolen property, must be of such nature that its import and substance are convincing beyond existence of a reasonable

doubt, particularly upon vital question of knowledge that property was stolen.

2. Criminal law 793-Instruction, authorizing conviction for receiving stolen property on believing any of defendants jointly charged therewith received or concealed property, held erroneous.

In prosecution for crime of receiving sto len property, wherein several defendants were

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

charged jointly, instruction to effect that conviction could be had on jury's being satisfied that any one of defendants received or concealed property held erroneous as misleading, in that jury might have believed general verdict of guilty might result if any one of defendants received property.

3. Criminal law 427 (2)-Evidence of transactions in absence of particular defendant held incompetent without proof of conspiracy.

Where evidence fails to prove conspiracy existing among defendants charged with receiving stolen property, evidence relating to transactions taking place in absence of particular defendant was incompetent.

Frank Landon was convicted for receiving stolen property, and he brings error. Reversed and remanded.-[By Editorial Staff.] Nathan Herstam, of Cleveland, for plaintiff in error.

M. J. Meyer, of Cleveland, for the State.

SULLIVAN, P. J. The defendant Landon was indicted and convicted in the common pleas court of the crime of receiving stolen property, and was sentenced to one year in the penitentiary, and he prosecutes error claiming that under the rules of criminal law the verdict is clearly and manifestly against the weight of the evidence; that the court committed error in its charge; and that evidence inadmissible was introduced in evidence, to which due exception was made.

[1] We have reviewed the record and have come to the conclusion, employing the rule as to reasonable doubt, upon the question of sciente, that the verdict and judgment are clearly and manifestly against the weight of the evidence. The evidence, in order to convict in a case like the one at bar, especially upon the vital question of knowledge, should be of such nature that its import and substance are convincing beyond the existence of a reasonable doubt. To this degree, knowledge that the property was stolen must extend.

It is our unanimous judgment that the proof does not reach that degree required to convict in cases of this character. It should not only be credible, as is necessary in such cases, but should be convincing to the degree required by the criminal law, and this situation should be reasonably apparent on the face of the record.

[2] In this case this defendant is charged jointly with other defendants in an indictment alleging larceny and the receiving of stolen property. Exception is taken to the following part of the charge:

"This third count charges, in substance, that these four men, knowing this Ford coupé to have been stolen from Charles Boland, did re

ceive and conceal this automobile, with intent

to defraud Charles Boland.

"On this third count the state must prove that this was stolen; that these defendants,

or either one or more of them knew it was stolen; that these defendants, or either one or more of them, did either receive, or aid, or assist, or procure in the receiving and concealing of this Ford coupé, or any part of it, which had been stolen, knowing it to have been stolen. If you are satisfied beyond a reasonable doubt that any one of them did receive or conceal this Ford coupé, or any part of it which had been stolen, knowing it to have been stolen, then you will return a verdict of guilty. In this connection you are also charged to bear in mind the instructions which I have given you as to aiding, abetting or procuring. That is, if one, or more, of the defendants did aid, abet or procure in the doing of the act, then you will return a verdict of guilty as against all that you are satisfied beyond a reasonable doubt did aid, abet or procure in the doing of this unlawful act."

The complaint is made that this charge is confusing and that its natural result was to mislead the jury, in that, inasmuch as several defendants were charged jointly, the court did not distinctly and specifically make application of the facts in such a manner as to apply specifically to the defendant or defendants to whom they related. The following language so indicates:

"If you are satisfied beyond a reasonable doubt that any one of them did receive or conceal his Ford coupé or any part of it which had been stolen, knowing it to have been stolen, then you will return a verdict of guilty."

One of the interpretations which a jury might gather from this sentence is that if any one of the defendants received the property, knowing it to have been stolen, a general verdict of guilty might result.

It is our unanimous conclusion that this is error prejudicial to the defendant.

[3] There appears in the record a detail of certain alleged facts and circumstances which are apparently admitted on the basis that a conspiracy existed among the defendants. We think the evidence falls short of proving a conspiracy to the extent that the evidence of the facts and circumstances became competent in the absence of the plaintiff in error, and all evidence of this nature that was admitted, which related to transactions which took place in his absence, is incompetent, and that by reason of its admission prejudicial error was committed by the court below, and for this reason the judgment is reversed and the cause remanded for further proceedings according to law, on the ground that the judgment and verdict are clearly and manifestly against the weight of the evidence; that there was error of law in the admission of evidence without a sufficient

showing of conspiracy; and that there was prejudicial error in the charge, as noted

herein.

LEVINE and VICKERY, JJ., concur.

(161 N.E.)

NEUENSCHWANDER v. STATE.
(No. 25258.)

Supreme Court of Indiana. May 16, 1928.

1. Courts 114-Motions 56(2)-Generally, nunc pro tunc entry may be made whenever memorandum among required records shows action by court which clerk failed to record.

General rule is that nunc pro tune entry may be made whenever there is any memorandum, note, or other memorial found among records of case, required by law to be kept, showing action taken or rulings or orders made by court which clerk has failed to record. 2. Courts 14-Minutes kept by judge are sufficient foundation on which to make nunc

pro tunc entry when they show what records

should contain.

Minutes kept by judge of court made at time are sufficient foundation on which to make nunc pro tunc entry when they show what

records should contain.

3. Courts 114-After term, court may change its record on judge's minutes and parol evidence in support of motion for nunc pro tunc entry and notice to affected party.

After expiration of term, court has power to change its record on evidence of minutes kept and made by judge and parol evidence of motion for nunc pro tunc entry and after notice to party to be affected.

4. Criminal law 1083-Appeal does not deprive lower court of power to amend its record by nunc pro tunc entry.

The fact that appeal has been taken does not deprive lower court of power to amend its record by making nunc pro tunc entry.

5. Courts 114-Grant of motion for nunc pro tunc entry that defendant waived arraignment and entered plea of not guilty held supported by evidence.

Grant of motion for nunc pro tunc entry showing that defendant appeared in open court, waived arraignment, and entered plea of not guilty in order book in office of clerk of court held supported by evidence.

petit larceny and found guilty. The court rendered judgment of fine and imprisonment on the verdict.

On appeal, it is first assigned as error that the court erred in overruling the motion for a new trial. As the record was made at the time of trial and later filed in this court, it did not appear from the order. book entry that the appellant was arraigned and entered a plea, or that any plea was entered for him by the court. After the cause had reached this court, the prosecuting attorney filed in the lower court a motion for a nunc pro tunc entry to show that the defendant appeared in open court, waived arraignment, and entered a plea of not guilty. Notice was served on the defendant and a hearing was had on the

motion, which the court sustained and granted. Thereafter, the appellant filed here a transcript of the proceedings on said motion. On his petition, this transcript was consolidated with and made a part of the original cause. After taking this step, the appellant claims and relies upon additional errors for reversal as follows: (1) The court erred in entering the order and judgment nunc pro tunc. (2) The court erred in entering the order and judgment nunc pro tunc, changing the order book entry, so that it shows that the appellant waived an arraignment and entered a plea of not guilty on the 19th day of April, 1926. (3) The court erred in entering the order and judgment nunc pro tunc, changing the order book entry made on the 19th day of April, 1926. (4) The court had no jurisdiction over the person of the appellant to enter the order and judgment nunc pro tunc made in this cause.

If the judgment as entered on the verdict, as shown by the first transcript, is to control, then the judgment of the circuit court should be reversed. But if the judgment entered nunc pro tunc controls, then the judgment of the lower court must be affirmed. The motion filed by the prosecuting attorney for the nunc pro tunc entry, omitting the formal parts, was as follows:

"Comes now the state of Indiana, by Elmore

Appeal from Wells Circuit Court; A. Wal- S. Sturgis, prosecuting attorney, and asks the ter Hamilton, Judge.

Everett Neuenschwander was convicted of petit larceny, and he appeals. Affirmed.

Fred A. Wiecking and Simmons, Dailey & Simmons, all of Bluffton, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

court that a nunc pro tunc entry be made in said cause in order that the record may show that the defendant, Everett Neuenschwander, appeared in open court, waived arraignment, and entered a plea of not guilty in said cause on the 19th day of April, 1926, which step in fact was taken and is shown by the entry of the court in its docket, in the above-entitled cause on said date, being the 7th day of the April term of said court, in the words as follows: 'Defendant Neuenschwander appeared in open court, waived arraignment, and entered a plea of not guilty.' That although said entry was made as aforesaid by the court, no entry of said fact was made in the order book of said court in the office of the clerk of said court, either on the 19th day of April, 1926, as shown by the Criminal Order Book 1, page 113, of the

GEMMILL, J. In this case, the appellant was charged by an affidavit in three counts with petit larceny, burglary in the second degree, and burglary. The counts charging burglary in the second degree and burglary were dismissed. He was tried by a jury for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 161 N.E.-24

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