lows that the demurrer to the petition must exaggerated oral statement is included within the purview of that section. 6. Fraud 69-Communications and documents held not admissible to prove existence of contract and good faith. In a prosecution under section 13175, General Code, where the existence or nonexistence of a contract is the issue, letters, telegrams and other communications and documents passing between parties who are seeking to nego MARSHALL, C. J., and JONES, MATTHI-tiate such contract do not tend to prove the AS, ALLEN, and ROBINSON, JJ., concur. KINKADE, J., not participating. (No. 18780.) HARRISON v. STATE. (Supreme Court of Ohio. April 21, 1925. Rehearing Denied May 21, 1925.) (Syllabus by the Court.) 1. Depositions 2-Statutes providing for taking of depositions in criminal cases held valid. Sections 13668, 13668-1, 13668-2, General Code, are valid legislative provisions pursuant to the authority conferred by section 10, art. 1. of the Ohio Constitution, as amended September 3, 1912. existence of such contract, and do not tend to prove the good faith of the accused in representing the existence of a contract, or want of intent on the part of the accused to deceive. All such communications are therefore immaterial to the inquiry. 7. Fraud 69-Issue is whether stock was less in value than representation. In a prosecution under section 13175, General Code, the real value of the shares of stock of a corporation, concerning which an alleged false statement has been made, is not in issue. The real issue is whether the stock was less in value at that time than the false statements represented it to be. 8. Criminal law 393(1), 406 (4)-Accused's admissions while testifying voluntarily in civil suit held competent. Upon the trial of an accused under an in2. Depositions 32, 38-Neither application dictment, testimony of adverse admissions nor order for deposition beyond state need made by the accused under oath while testifyshow that witness could not be had at trial. ing voluntarily in a civil suit concerning the same matters, is competent, and does not transWhere an application is made by a prose-gress the constitutional prohibition against becuting attorney for an order to take depositions ing compelled in a criminal case to be a witness on behalf of the state in a jurisdiction beyond against himself. the boundaries of the state, and an order of the court is made upon such application, it is not necessary that the application should show or that the order should find that the attendance of the witness cannot be had at the trial. The residence of the proposed witness beyond the jurisdiction of the state dispenses with the necessity of showing that the attendance of the witness cannot be had at the trial. 3. Fraud 69-Indictment alleging statement was false and willfully exaggerated held sufficient. In a prosecution under section 13175, General Code, an allegation in the indictment that a statement made by the accused is "false" and "willfully exaggerated" is sufficient to advise the accused of "the nature and cause of the accusation against him." 4. Fraud 68-"Exaggerated" in statute denouncing false statements of corporation's condition synonymous with false. The word "exaggerated" in that section is not vague or uncertain of meaning and is synonymous with "false." 5. Fraud 68-False or willfully exaggerated oral statement of corporation's condition held within statute. It is not necessary to constitute a violation of section 13175, General Code, that the "statement" therein referred to should be either written or printed. A false or willfully Error to Court of Appeals, Franklin County. Dwight Harrison was convicted of publishing false statement concerning conditior of a corporation to deceive as to real value of its shares. Judgment was affirmed by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.] The facts are stated in the opinion. Smith W. Bennett, of Columbus, and Mattern, Brumbaugh & Mattern and Robt. R. Nevin, all of Dayton, for plaintiff in error. John R. King, Pros. Atty., and Joseph A. Godown, Asst. Pros. Atty., both of Columbus, and C. C. Crabbe, Atty. Gen., for the State. MARSHALL, C. J. Dwight Harrison was indicted and tried by the court of common pleas of Franklin County for violation of section 13175, General Code, as follows: "Whoever knowingly makes or publishes, or permits or causes to be made or published, a book, prospectus, notice, report, statement, exhibit or other publication of or concerning the affairs, financial condition or property of a corporation, joint stock association, copartnership or individual, containing a statement which is false or willfully exaggerated and intended to de For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) ceive any person as to the real value of any The first of the legal questions presented shares, bonds, or property or part thereof, of for determination in this court relates to said corporation, joint stock association, copart- the taking and use on behalf of the state of nership or individual, shall be fined not less than the deposition of one L. C. Morton, of Philaone hundred dollars nor more than ten thou-delphia. Upon this point it is urged, first, sand dollars or imprisoned in the penitentiary that the statute providing the procedure for not less than one year nor more than five years, or both." The indictment alleges that Harrison was an officer of the R. L. Dollings Company, an Ohio corporation handling stock of certain subsidiary corporations, and that as such officer offered for sale to the general public in Franklin county the preferred stock of the Phoenix Portland Cement Company, another Ohio corporation, and a subsidiary of the R. L. Dollings Company, and that the R. L. Dollings Company, through its officers and agents, sold to the general public stock of said subsidiary corporation in the amount of $2,253,600. taking a déposition in a criminal case is unconstitutional, as being in violation of the Fourteenth Amendment of the federal Constitution, as being a denial of due process and the equal protection of the laws; second, that the court in ordering the deposi tion to be taken and in providing the procedure therefor has not followed the mandates of the statute, in that it was not made to appear that the attendance of the witness whose deposition was to be taken could not be had at the trial. [1] Upon the first of these contentions it is sufficient to say at this time that, in the case of Morton v. State, 105 Ohio St. 366, 138 N. E. 45, it was decided that an amendment to the existing statutes was attempted, and that the amendments were unconstitutional and void, and was further decided that the repealing clause of the amendment was unconstitutional, and therefore inoperative, the effect of which was to leave the original enactment as valid provisions relating to the taking of depositions in criminal cases. That question having been recently decided by this court, we do not feel impelled at this time to further review the validity of that statute, but on the contrary will sustain the validity of those sections upon inferences which may be logically drawn from the second syllabus of that The indictment further alleges that the said Harrison, within said county and state, from the 22d of September, 1922, and at divers other times between September 22, 1922, and March 31, 1923, as an officer and agent of the R. L. Dollings Company, and for the purpose of promoting the sale of the preferred stock of said subsidiary corporation, "did then and there unlawfully and knowingly make, publish, and permit, and cause to be made and published, orally and in print, certain false statements, to wit, that the Phoenix Portland Cement Company, subsidiary corporation, as aforesaid, then and there owned a certain cement manufacturing plant at Nazareth in the state of Pennsylvania, and a certain cement prop-case. erty at Birmingham in the state of Alabama, whereas, in truth and in fact the said the Phoenix Portland Cement Company, subsidiary corporation as aforesaid, did not then and there own a certain cement manufacturing plant at Nazareth in the state of Pennsylvania or any cement property at Birmingham in the state of Alabama, which said statements as to the ownership of said plant and property were false and intended to deceive purchasers of said preferred stock of said the Phoenix Portland Cement Company, sub-authority for the conclusions reached. Our sidiary corporation as aforesaid, as to the real value of said preferred shares of stock and said statements did then and there deceive one Lena L. Shadrach as to the true value of said preferred stock," and that thereupon she purchased a portion of said stock. The indictment contains a further count differing from the former only in omitting to allege that the statements were false, and containing the allegation that they were willfully exaggerated. [2] Upon the second contention it is only urged that the dissenting opinion of Wanamaker, J., in the Morton Case argues that a deposition may not be taken or used unless there is a finding of the court that the witness cannot be had at the trial. While no issue was taken upon that point by other members of this court, it does not appear that the dissenting opinion had any support among the other members, and that dissenting opinion cannot therefore be a potent answer to this proposition is that, inasmuch as it appears by the application of the prosecuting attorney that the witness whose deposition was to be taken resides out of the state of Ohio and in the state of Pennsylvania, all courts in Ohio will take judicial notice that compulsory attendance of such witness cannot be obtained in any case, civil or criminal, in the state of Ohio. It therefore sufficiently appears, not only in the application, but also in the entry of the court ordering the deposition to be taken, that The defendant was adjudged to be guilty the said Lindley C. Morton is a material in the trial court, the judgment was affirm-witness in behalf of the state, and that he ed in the Court of Appeals, and a motion resides without the state. for leave to file petition in error in this court was allowed. The record discloses that, when the deposi. tion of Morton was taken in Philadelphia, counsel for Harrison appeared and cross-, may be called on to enforce it, and because examined. There is no claim in this case it does not inform defendant of the nature and that the defendant was indigent, or unable cause of the accusation against it." to defray the expense of going to Philadelphia in person, or of employing the services and defraying the expenses of counsel in going to Philadelphia to cross-examine the witness. If any irregularity had been shown, it is impossible that the same could be prejudicial under the circumstances. We are of the opinion, however, that the statute is constitutional, and that it was fairly complied with, and that no error is shown upon this assignment. [3] The next assignment of error we shall consider relates to the indictment itself. Counsel filed a motion to quash and also a general demurrer challenging the sufficiency of the indictment because the accused was charged with having made a "willfully exaggerated" statement concerning certain property. This challenge reaches directly to the constitutionality of section 13175, General Code, as to that part thereof which makes it a penal offense to make a "willfully exaggerated" statement, It is claimed that this language does not advise the defendant of "the nature and cause of the accusation against him," as required by section 10, art. 1, of the Ohio Constitution, and it is also claimed that it is a denial of "due process" and "equal protection of the laws" as conferred by both state and federal Constitutions. Chief Justice White, in reviewing the case, approved of the reasoning of the trial court. and proceeded to point out the conflicting results which had arisen from the efforts of different judges in administering that statute, as indicating the different standards employed by the different judges in construing the words "just and reasonable," and without an elaborate discussion declared that the statute was void for repugnancy, upon the following authorities: United States v. Reese, 92 U. S. 214, 219, 220, 23 L. Ed. 563; United States v. Brewer, 139 U. S. 278, 288, 11 S. Ct. 538, 35 L. Ed. 190; Todd v. United States, 158 U. S. 278, 282, 15 S. Ct. 889, 39 L. Ed. 982. The opinion of the Chief Justice then briefly referred to other cases decided by that court, which were claimed to be of a contrary tenor. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86;1 Nash v. United States, 229 U. S. 373, 33 S. Ct. 780, 57 L. Ed. 1232; Fox v. Washington 236 U. S. 273, 35 S. Ct. 383, 59 L. Ed. 573; Miller v. Strahl, 239 U. S. 426, 36 S. Ct. 147, 60 L. Ed. 364; Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763. Those cases were distinguished by the chief justice on the ground that in the statutes or subjects with which they dealt "a standard of some sort was afforded." It is not necessary at this time to go farther than the discussion of that case. In the Lever Act no standard of profits is established. Profits might be moderate, reason They de If the accused is advised of the nature and cause of the accusation against him, it must also be held to be a compliance of due process and equal protection of the laws. and we shall therefore only discuss the ap-able, excessive, or extortionate. plicability of section 10, art. 1. A number pend upon a great variety of elements. The of cases are cited, decided by the federal statute only forbids "any unjust or unreasoncourts and by the Supreme Court of Ohio. able rate or charge in handling or dealing." It is not necessary to discuss any federal The justness or reasonableness of a charge case, except United States v. Cohen Grocery depends upon the expense involved. It deCo., 255 U. S. 81, 41 S. Ct. 298, 65 L. Ed. pends upon the hazard of the enterprise. 516, 14 A. L. R. 1045, that being the strong- There are so many elements to be considered est authority for the defendant, and, if that that it is impossible to enumerate them, or authority does not require section 13175 to even conceive of all the things that may or be declared unconstitutional, then it is be- may not occur or enter into the transaction. lieved that no federal authority can have such On the other hand, numerous prosecutions force and effect. In that case the Supreme under the Anti-Trust Act have been approved, Court of the United States was construing where it was necessary to prove "an unreasection 4 of the Lever Act of August 10, 1917, sonable restraint of trade." It is therefore as amended by Act October 22, 1919, § 2 (U. S. difficult to see how the anti-trust laws can Comp. St. Ann. Supp. 1923, § 3115% ff), the be entirely free from the criticism that there pertinent provisions of which are as follows: is no standard whereby guilt or innocence That "it is hereby made unlawful for any per-line of federal cases, and without further can be measured. Without criticizing either son willfully to make any unjust or unreasonable rate or charge in handling or deal-effort to harmonize them, we are of the opining in or with any necessaries." ion that a very different situation is pre sented in section 13175. An indictment under that statute was quashed by the trial court, because"the law is vague, indefinite, and uncertain, and because it fixes no immutable standard of guilt, but leaves such standard to the variant views of the different courts and juries which [4] An exaggeration is defined as "an undue or excessive enlargement, an amplification, an unreasonable or extravagant overstating or overdrawing in the representation of things." The trial court defined it as follows: "Exaggeration means enlarged be129 S. Ct. 220, 53 L. Ed. 417. (147 N.E.) "at a speed greater than is reasonable or proper, having regard for width, traffic, use, and the general and usual rules of such road or highway, or so as to endanger the property, life, or limb of any person." This statute was upheld as not being violative of section 10, art. 1, of the Constitution, by the concurrence of Nichols, C. J., Wanamaker, Newman, Jones, Matthias, and Johnson, JJ. The reasoning in the opinion of Wanamaker, J., in that case applies yond the truth; overstated." It will there- | Cas. 1918E, 1137. In that case this court had fore be seen that, while the statute itself under consideration section 12603, General does not define the term, lexicographers have Code, regulating the speed of automobiles, defined it, and the trial court has defined it wherein it is required that they must not be as being something at variance with the operatedtruth. It is difficult therefore to see any particular reason for having used the words at all, inasmuch as the statute had already forbidden a "false" statement. It is conceivable that the Legislature intended to reach statements which might be true as to every material fact included therein, and yet, by reason of the omission of other facts known to the offender, and which ordinarily would be an essential part of a full, complete, intelligent statement, would make the same essentially false. A statement which with tenfold force to the case at bar. We would recite all the good points about a corporation or property, and would omit the are asked to declare section 13175 unconstistatement of other facts which would coun- tutional because of the employment of the teract and affect the favorable statements, term "willfully exaggerated." Under wellmight be true as far as it goes and yet be settled rules this court should only declare an exaggerated statement, because of being a statute unconstitutional if it is clearly an enlargement upon the favorable features violative of some specific provision of the and an extravagant overstatement of them, Constitution. This court would have no right and not being a recital of the whole truth. to amend the statute by striking out those Without attempting to read the legislative words and leaving the remainder of the secmind, it seems reasonably clear that an extion standing, and the entire statute must The terms aggerated statement must necessarily be one therefore either stand or fall. which conveys a false notion to some intend-"false" and willfully exaggerated" are simied victim of fraud. A careful reading of lar in meaning and must necessarily be provthe entire statute in the light of the def-ed by the same character of evidence. This initions of lexicographers, and especially in indictment has been drawn in paragraphs, the light of the definition contained in the but not numbered as separate counts. No charge of the court in the instant case, leav- reason is perceived why the indictment could es no other conclusion than that there must not have been materially shortened by albe either the existence or nonexistence of leging that the defendant made "a false and fact. There must be that showing of exag-lar question was recently decided by this willfully exaggerated statement." A simigeration which denotes such existence or nonexistence of fact. Section 13104, Gen-court in State v. Peters, 147 N. E. 81, in the eral Code, defines the offense of obtaining matter of the exceptions of the prosecutproperty by false pretense. Nothing is said ing attorney in the trial of W. F. Peters, in in the statute as to the subject of the false which the construction of section 17-1, Genpretense, and yet the courts have uniform-eral Code, was involved. On the principles ly held that the false pretense must relate to a past event or an existing fact; that it is not sufficient that it have relation to future transactions. It must be more than a false promise. It must be more than the expression of an opinion. The courts have found it necessary to apply other principles, well settled in the criminal law, to that statute, and the trial courts should be equally careful, in prosecutions under section 13175, as the trial court was in the instant case, to limit statements to those which willfully enlarge upon or overstate the truth. There is only one quality of truth, and it is not subject to relative gradations into the positive, comparative, and superlative. When these principles are recognized and applied as they were by the trial judge, no error can result. This court has never considered the word "exaggerated" in a criminal statute, but it has considered a more difficult problem in State v. Schaeffer, 96 Ohio St. 215, 229, 230, 117 N. E. 220, L. R. A. 1918B, 945, Ann. decided in that case by the unanimous decision of this court such a statement in the instant case would have been allowed. Section 13175, therefore, does not violate any provisions of either the state or federal Con stitutions. [5] The next assignment of error relates to the evidence of oral statements made by the accused, and also reaches to the indict- cation." The statute makes use of a number of nouns and two verbs. Any of the nouns can be made the object of either of the two verbs. It is apparent that all of the nouns except "statement" found in this section must necessarily be written or printed documents. It is equally apparent that the word "publish" maxim noscitur a sociis. We have examined may include either oral or written matter, it was stated that the Phoenix Portland Ceand that the word "statement" may likewise ment Company of Ohio, a subsidiary corbe either oral or written. Lexicographers de- poration of the R. L. Dollings Company, fine "statement" as "the act of stating, recit-owned a plant at Nazareth, Pennsylvania, ing, or presenting verbally or on paper." The which statement was false and intended to word "publication" is defined "notification to deceive. If at the time that representation people at large by speech, writing, or print- was made, on September 22, 1922, an agreeing." These definitions are not controverted, ment had been executed, which was ambigbut it is claimed that, by reason of the assouous in its terms, and if the entire issue ciation of the word "statement" with other of fact turned upon the construction of such terms, and by reason of the phrase "or other instrument, it is quite clear that the adpublication," following the use of a number vice of competent counsel to the effect that of words of definite meaning, all terms em- the instrument conveyed title would be comployed and the general phrase added thereto petent on the question of the falsity and must all be of the same kind. It is insisted the intent to deceive. We have carefully that the doctrine of ejusdem generis applies, read the deposition of Judge McKeehan, and and that the situation is controlled by the find that, while Harrison and McKeehan han had not been consulted about the purwere acquainted as early as 1919 McKeechase of this property until December, 1922. From that date until after February 8, 1923, many communications passed between Harrison and McKeehan, and certain agreements were drawn and redrawn relating to the acquisition of the stock of the Phoenix Portland Cement Company of Pennsylvania. Nowhere in the deposition does it appear that Harrison sought the advice of McKeehan concerning any dealings or transactions prior to September 22, 1922, or even prior to December, 1922. Neither does it appear that McKeehan had given any advice nor rendered any opinion as to the meaning or effect of any negotiations which had taken place before McKeehan was consulted in DeAll of the communications cember, 1922. with McKeehan, and all of the opinions and advice given by him to Harrison, related to the form and effect of an agreement which was then being negotiated, and which was finally executed on February 8, 1923. It is apparent that this testimony could throw no light upon the state of mind of Harrison in September, 1922. We have been cited to the case of Ratterman, Treas., v. Ingalls, 48 Ohio St. 468, 28 N. E. 168, and, while we agree that the syllabus in that case states a sound proposition of law, we do not believe it has any application to the testimony of McKeehan which was tendered and rejected. The testimony of McKeehan was therefore not material to the good faith of Harrison in making the statement “that the Ohio company had taken over the Pennsylvania company," and it was properly excluded on that ground. the authorities cited, and it must be admitted that in some cases courts have gone to unreasonable lengths in declaring technical rules for the protection of persons accused of crimes, and we are not unmindful of the fact that criminal statutes should be construed strictly against the state and liberally in favor of the accused. They should not, however, be so construed as to destroy the plain and well-known meaning of words, neither should the construction be such as to defeat the obvious intention of the Legislature. The niceties and refinements of reasoning which have been indulged by the courts in times past are no longer looked upon with favor, and it is to be hoped that we have reached the point in the administration of criminal justice where the rights of the public will be given some consideration and innocent persons be protected against the aggressions of those who are criminally inclined, and that the rules of criminal pleading and practice will not be as freely employed on behalf of accused persons as in the early commonlaw administration of criminal justice. We find this particular assignment of error one of little difficulty. The statute would serve no useful purpose if it merely prohibited the use of printed or written statements, and permitted those who seek to victimize credulous purchasers to make oral false statements at will. The contention of counsel for the accused must be overruled. [6] The next assignment of error relates to the rejection of the testimony of Hon. Chas. L. McKeehan, of Philadelphia, who at one time acted as counsel for Mr. Harrison and for the Phoenix Portland Cement Company of Ohio. It is claimed that this testimony was competent on behalf of the de- Another assignment of error relates to fense, for the reason that it tended to show the force and effect of the agreement engood faith and an honest belief on the part tered into on February 8, 1923, between the of Harrison that the representation of own- Phoenix Portland Cement Company of Ohio ership of the Phoenix Portland Cement and the Phoenix Portland Cement Company Company property at Nazareth, Pennsyl- of Pennsylvania. It is claimed by counsel vania, was in the Phoenix Portland Cement for the defendant that the effect of that Company of Ohio. The principal issue of agreement was to give to the Ohio compafact in this case centers around that alle- ny such legal or equitable title to the plant gation in the indictment which alleges that at Nazareth, as well as the plant then be |