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timony of Longsworth followed the testimony his official duty in some of the respects stated of Bouklias. During the course of the cross in the indictment." examination of Bouklias, defendant's counsel developed the fact that it was planned to

This assignment of error must therefore

be overruled. murder the minister because of his activity in exposing vice conditions in the city of

[3] The next assignment of error relates Canton. If the testimony of Bouklias is to to the refusal of the trial court to charge be believed, and it must be believed by this certain requests. We will only discuss those court for the purposes of this review, the which are discussed in the briefs of counsel. plan to murder the minister was a part of Request No. 7 was as follows: the general scheme or conspiracy to thwart "I will say to you as a matter of law that, and annul the administration of justice in according to his own testimony, Harry Bouk: the city of Canton, and that particular fea- lias was an accomplice of the defendant in the ture of the conspiracy having been devel- alleged commission of the offense charged in oped by counsel for the accused, or at least the indictment; and, this being true, you

should scrutinize his evidence, with care, and the way having been opened by the cross

you should not convict the defendant on his eviexamination of Bouklias, we are unable to dence if you find it stands alone and is not see that the mere additional fact that there corroborated by other evidence in this case." was a motive for the murder of the minister becomes a prejudicial factor in this case.

Request No. 8 was in all respects similar Every act of Bouklias which was a part of to No. 7, except that it included Turner, the conspiracy shown by the state becomes Goldfuss, Haas, Saunier, Lochary, Chinas, the act of Curtis. Bouklias testified that and Economopolous. There are two reasons the proposed murder of the minister was the why these requests were properly excluded. thought and suggestion of Curtis, and al. Whether or not these witnesses were accomthough murder is not a crime similar to bri- plices was a question to be submitted to the bery, the testimony was nevertheless admis- jury, and that question was properly submitsible and competent, on the theory that itted to the jury as a part of the general was a part of the plan. The state is not charge under a proper definition of the word driven to the extremity of showing the ad“accomplice.” The jury was also to be the missibility of the testimony of the proposed judge of the belief to be attached to their murder. That testimony was brought out by testimony. To single out one witness, or a the defense. The state only added thereto number of witnesses, for either the prosecuthe evidence of the motive. We are inclined tion or the defense and to discuss their credto think that the evidence of Rev. Longs- ibility, would be manifestly invading the worth was a very minor factor in the case, province of the jury. We are further of the and that the real damaging feature was the opinion that, if the state had made this retestimony of Bouklias, which was developed quest, and it had been granted, or if the by defendant's counsel. We therefore find court had given this charge without a reno error concerning this feature.

quest on the part of the defendant, it would It is claimed that the court erred in the have been error. Manifestly those parties charge to the jury in the use of the follow- could not be assumed to be accomplices of ing language:

the defendant without assuming the guilt of “(3) That at the time he, said Edward E. the defendant. There could be no accomCurtis, accepted this valuable thing, that is, plices unless there was a conspiracy, and the $50, it was accepted with intent to influ- there could be no conspiracy unless there ence him, the said Edward E. Curtis, in his was a plan in which the defendant had parofficial action and duty as such director of ticipated. public safety."

As to the necessity for corroboration, the

court charged the following: It is claimed that above instruction violates the rule declared in State v. Davis, 90

"It is highly important that the jury should Ohio St. 100, 106 N. E. 770, in that it fails require this testimony of every witness who is to require the jury to find that it was ac-dence of facts, and circumstances in the case.

an accomplice to be corroborated by other evicepted by the officer for the specific purpose The evidence of an accomplice should be very set forth in the indictment, and not to influ- cautiously received, and carefully considered ence him generally. If this instruction stood and examined by you as jurors, together with, alone, it would be subject to criticism. This and in the light of all the evidence in the case, particular instruction was one of five instruc- and, when the evidence of an accomplice is tions which were separately stated and num- found by you to be worthy of belief on your bered, making up the essential elements nec- part, you may then believe it, and give just essary to be found in proving the crime such weight to that evidence as you find it to

be entitled at your hands." charged. The other enumerated elements fully supply the deficiency. The fourth enu

These requests were therefore properly demeration was:

nied. "That it was accepted by the defendant as Requests Nos. 3 and 4 related to the eri. such oficer, to influence him with respect to dence of Bouklias and Turner, and sought to

(148 N.E.) require the jury to take into consideration the general charge. That the substance only was fact that they had admitted giving perjured necessary to be charged has been decided in testimony before the grand jury, and that Rheinheimer v. Ætna Life Ins. Co., 77 Ohio they had testified before the grand jury that St. 360, 83 N. E. 491, 15 L. R. A. (N. S.) 245. they had never paid any money to Curtis. We therefore overrule this assignment of erThese requests were proper, but the refusal of ror. the court to give them literally was not error, It only remains to be considered whether because the court did charge generally in the there was misconduct of counsel. The pringeneral charge, without naming any witness- cipal complaint of misconduct relates to the es in particular, that the jury should consid- statement of the prosecutor in the closing er "whether or not any witness has been argument, to the effect that Bouklias had contradicted, or if he has heretofore sworn been indicted for perjury and would have to otherwise and committed perjury, or if he pay the penalty for it, but that "I will not has made other contradictory statements to lift my little finger to ever send Turner or the evidence which he gave upon the witness Bouklias to the penitentiary unless Edward stand."

Curtis goes with them." Request No. 5 related to the testimony of It was claimed by the defense that this a number of the co-conspirators, and asked was a threat on the part of the prosecutor, that the jury be required to take into consid- designed to force the jury to convict Curtis eration the fact that they had admitted un- in order to insure the prosecution of Boukder oath that they were law violators and lias and Turner. The court immediately parties to a conspiracy involving the at- withdrew that statement of the prosecutor tempted corruption of a public official. This from the jury's consideration, and thereby matter was also substantially covered in gen- corrected the error so far as it was within eral terms in the general charge, and its re- the power of the court so to do. This statefusal was therefore not error.

ment of the prosecutor must be considered [4] Requests Nos. 1 and 2 singled out the in connection with the following statement, testimony of the witness Bouklias, and re- made by counsel for the defense in the arquested the court to charge that, if the jury gument to the jury: should believe under all the evidence in the

“Now, ladies and gentlemen of the jury, all case that it was just as probable that Cur- of these men except Bouklias and Turner, who tis testified truthfully as that Bouklias tes- are indicted for perjury, are free to-day, all tified truthfully concerning the payment of these alleged bribe givers are free, the prosethe money, the defendant should be found not cutor says he will get after them, and I hope guilty. The general charge was even strong- he will, but, at the present time, he, the goat, er than this, because it required the jury to is the only man indicted and tried for bribery, find that every element of the offense had and all the confessed bribe givers, Bouklias,

Turner, Economopolous, and Crowley, and all been proven beyond a reasonable doubt, and the rest of them are at liberty, walking around this would of course include the testimony the streets." of Bouklias, because he was the only witness who testified directly to the payment. These

It must be admitted that this statement requests were therefore properly denied.

of counsel for the defense was a strong provRequest No. 6 was as follows:

ocation, and brings the case within the prin"I will say to you as a matter of law that, ciples declared by this court in State v. Auif you believe that the witness Harry Bouklias erbach, 108 Ohio St. 96, 140 N. E. 507. This purposely and deliberately testified falsely as to incident was not reversible error. any material matter in this case, you will be Having read all the briefs of counsel, hav. justified if you so decide in rejecting his tes- ing examined all pertinent authorities cited, timony as to each and all of the matters con- having carefully read the opinions of the cerning which he has testified.”

court of common pleas and Court of Appeals, This was refused, and the court charged having read all portions of the record to

which attention has been called by briefs

and opinions of the lower courts, having read "You may, if your judgment dictates, believe all the testimony of the defense, and having part and disbelieve part of any witness' testi- read all of the testimony of every so-called mony, or believe it all or disbelieve it all as you determine."

conspirator, we are convinced that there was

a conspiracy to thwart and annul the adWe think the instruction as given was the ministration of justice in the city of Canton, correct one.

during the administration of the defendant All of the foregoing requests were pre- as safety director of that city, and we are sented to the court in writing before argu- unconvinced that any conspiracy was framed ment, but, under the well-known principles on the part of the underworld for the purdeclared in Wertenberger v. State, 99 Ohio pose of persecuting the defendant in this St. 353, 124 N. E. 243, they were not re

It is true that the principal witnesses quired to be given at that time, though it who testified against the defendant in this was the duty of the court to incorporate the case had previously testified to the contrary, substance of those requests, if sound, in the and, as suggested by counsel for the defend

the jury:

case.

ant, it is necessary to determine whether | tutes a taking of property without due process they spoke the truth on the one or the other of law and a taking of private property for occasion. Those witnesses having been guilty public use without compensation, and is invalid. of violation of the liquor and gambling laws, and having been guilty of bribery, not to say

Error to Court of Appeals, Mahoning

County. many other crimes, and having crowned their unholy work committing per ry in an

Action by the Kahn Brothers Building endeavor to save themselves from the pen- Company against the City of Youngstown alties for their crimes, there was every rea- and others. Judgment for defendants in son why they should have adhered to that court of common pleas, and on appeal Court perjured story, because they certainly have of Appeals granted plaintiff relief prayed not made their situation better by telling a for, and defendants bring error. Affirmed.contrary story, and it seems quite certain [By Editorial Stafr.] from this record that, except for their repent Upon January 29, 1923, the city council of ance and confession, the state never could Youngstown, Ohio, passed an ordinance eshave made a case against any of these par- tablishing “The Wick and Crandall parks ties except that of violation of the liquor residence district" in Youngstown. This disand gambling laws. It is easy to organize a trict embodies about 1.22 square miles of terconspiracy for any purpose, but the instances ritory, being but a small fraction of the area are rare where a conspiracy on the part of of the entire city. a large number of people can succeed to the The ordinance provided, among other point where it does not ultimately meet dis- things, that no building should be erected closure and punishment. This is what has within the district to a height in excess of happened to the real conspiracy in this case, 214 stories, or in excess of 35 feet, with the which we believe was the only conspiracy. exception of churches, schools, and library It is impossible to read this record in its en buildings. It regulated side lines, back-set tirety without feeling that the testimony of lines, and the area and bulk of buildings, and these conspirators has the ring of truth and also provided that no building intended to be that the defendant is guilty as charged in the used as a residence should be erected within indictment.

the district other than a single or two-family We find no prejudicial error in this record, dwelling. and the judgment of the lower courts must

The defendant in error is seeking to build be affirmed.

within the limits of this district the apartJudgment affirmed.

ment house in question, which is designed to

contain 30 apartments. DAY, ALLEN, and KINKADE, JJ.,

The ordinance created an exception in favor of buildings wherefor a permit had been issued prior to the passage of the ordinance, and “the construction of which shall have been diligently prosecuted within thirty (30)

days from the date of such permit.” CITY OF YOUNGSTOWN et al. v. KAHN A permit was issued to the defendant in BROS. BLDG. CO. (No. 18727.) error upon January 19, 1923, by the building

inspector of the city of Youngstown, for the (Supreme Court of Ohio. May 19. 1925. Re- erection of a three-story apartment house. hearing Denied Sept. 29, 1925.)'

Upon January 26, 1923, contracts were let (Syllabus by the Court.)

for the work and surveys were made. The

ordinance was passed upon January 29, 1923. Constitutional law Om 278(1) - Eminent do

Between January 26 and February 19 sketchmain Om2(1)-Ordinance creating part of city into restricted residential district held es were made of the land for use in plans. invalid as taking property without due pro- Upon February 19, 1923, which was a Moncess; ordinance creating part of city into day, the land was staked out for the buildrestricted residential district held invalid as ing, and some trees and brush were cut and taking private property without compensa- stones were moved. Thereafter the defendtion.

ant in error proceeded to work upon the land A provision in an ordinance establishing a and to make excavations upon the lot. The fraction only of the territory of a municipality 30-day limitation provided for by the ordiinto a district, and providing that no building nance expired upon February 18, which was which is intended to be used as a dwelling shall a Sunday. be erected within the district except as a sin

Subsequent to the making of excavations gle or two-family dwelling, in a case where the record shows that the district is a most health- upon the lot, a warrant was issued for the ful part of the municipality in which to erect arrest of M. H. Parrish, who was in charge an apartment house and that the public health, of the construction, charging Parrish with morals and safety of the district and of the proceeding to construct a building without entire municipality will not be impaired by the having first secured a permit from the builderection of such an apartment house, consti-Jing inspector. A criminal trial was held upon

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

con

cur.

(148 N.E.) this charge in the municipal court of the city, such a delegation, or by virtue of specific of Youngstown, and the defendant was found constitutional authority, the municipality exguilty. Later the building company, defend- ercises such power, it is to be presumed that ant in error here, applied to the court of such power has been legitimately exercised; common pleas of Mahoning county, Ohio, for and that where such power has been legitia temporary order restraining the city of mately exercised there is no taking of private Youngstown, plaintiff in error here, from in- property without compensation merely beterfering in any way with the construction cause some legitimate use of the property of the said apartment house, upon the ground has been restricted. that the construction was carried on under a It is conceded, also, that the police powvalid permit and was authorized in the or- er is not unlimited and must not be arbitraridinance, and upon the further ground that ly exercised, that the police power cannot be the ordinance itself was unconstitutional. invoked for purely æsthetic considerations, The temporary order was granted, but, upon nor to promote merely private comfort or prihearing, the injunction was refused and the vate welfare, and that while a statute or ordipetition dismissed. Upon appeal to the Court nance is presumed to be valid a mere declaof Appeals of Mahoning county a perpetual ration therein that it is enacted to protect injunction was issued by the Court of Ap- public safety, health, morals, will not render peals enjoining the city of Youngstown from the statute valid as being within the police interfering in any way with the plaintiff or power unless there is some reasonable relaits contractors in proceeding with the exca- tion between such purpose and the regulation vation, foundation, and construction of the prescribed. building.

There is no difficulty in stating these prinThe Court of Appeals found on the issues ciples. The difficulty arises in fitting these joined for the building company except as to conceded principles to the facts before us. the validity of the building permit referred

The building contemplated contravenes to in the pleadings, which was not deter- that provision of the ordinance which remined, and granted the relief prayed for.

quires that none but single or two-family The case comes into this court upon allow- houses be built within this district, as it will ance of a motion to certify the record, and al-contain 30 apartments. The main legal quesso upon petition in error filed as a matter of tion arising in this case is whether a specific right; & constitutional question being in

use restriction, which prohibits apartment volved.

houses from being built within a purely resiC. W. Osborne, City Sol., U. C. De Ford, dence section, is constitutional, and J. H. Leighninger, all of Youngstown, Sections 4366–1 to 4366–5, General Code for plaintiffs in error.

(106 0. L. 455), and sections 4366–7 to W. F. Guthrie, and Moore, Barnum & 4366_-12 (108 0. L., pt. 2, 1175), supplemental Hammond, all of Youngstown, 1or defendant thereto, embody the act “providing for a city in error.

planning commission in municipalities,” and

provide that such city planning commission ALLEN, J. The plaintiff in error contends in any municipality may make plans for zonthat the building contemplated by the de- ing the municipality into districts and for fendants in error violates the so-called zon- regulating the structure and location of ing ordinance of the city of Youngstown, and buildings and the use of buildings and land that the Court of Appeals therefore erred in within such districts. making the injunction perpetual.

Section 4366_8 provides that after the The defendant in error contends that the city planning commission has certified to the ordinance is unconstitutional, in that it con- council a plan for the zoning of a municipaltravenes provisions of both the federal and ity, then the council in the interest of the state Constitutions, namely, the Fourteenth promotion of the public health, safety, conAmendment of the Constitution of the United venience, comfort, prosperity, or the general States, which provides, "Nor shall any state welfare, may regulate the location of builddeprive any person of life, liberty, or proper- ings and other structures, and of premises to ty, without due process of law," and article 1, be used for trade, industry, residence, or oth$ 19, of the Constitution of Ohio, which pro- er specific uses, and for said purpose may divides, “Private property shall ever be held vide the municipality into districts of such inviolate, but subservient to the public wel. number, shape, and area as may be deemed fare

where private property shall best suited to carry out the purpose of this be taken for public use, a compensation section. For each of such districts, regulatherefor shall first be made in money. tions may be imposed designating the kinds

or classes of trades, industries, residences, or It is conceded that the state under the po- other purposes, for which buildings or other lice power has the right to limit the use of structures or premises may be permitted to private property for the purpose of preserv- be erected, altered, or used, subject to special ing the public health, safety, and morals; regulations. that the state can delegate its police power If the ordinance in question is valid as an to a municipality; that where, by virtue of exercise of the police power, it is authorized

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under the statute, and under the home-rule The police power, however, is based upon provision of the Ohio Constitution, article public necessity. There must be an essential 18, § 3, as it deals with a function of local public need for the exercise of the power in self-government. Hence the question before us order to justify its use. This is the reason is whether an ordinance of the kind set forth why mere æsthetic considerations cannot jusby this particular record, covering the par- tify the use of the police power. Haller Sign ticular sort of district established, which pro- Works v. Physical Culture Training School, hibits the erection of more than a two-family 249 Ill. 436, 94 N. E. 920, 34 L. R. A. (N. S.) dwelling in this particular residence district, 998, and note. It is commendable and deis a legitimate exercise of the police power. sirable, but not essential to the public need, The decision of this question necessarily in- that our ästhetic desires be gratified. More volves an application of the law to the par- over, authorities in general agree as to the ticular facts in the case, which are conceded. essentials of a public health program, while It will be observed that in distinction to the the public view as to what is necessary for case of Pritz v. Messer, 112 Ohio St. 149 æsthetic progress greatly varies. Certain N. E. 30, this day decided, which construed Legislatures might consider that it was more a comprehensive ordinance that had been important to cultivate a taste for jazz than thought out, in most careful detail, dealing for Beethoven, for posters than for Remwith every section of the city of Cincinnati, brandt, and for limericks than for Keats. the ordinance in this case covers merely a Successive city councils might never agree small fraction of the entire city of Youngs- as to what the public needs from an æsthetic town. Moreover, the instant case differs standpoint, and this fact makes the æsthetfrom the Pritz Case in the fact that the Cin- ic standard entirely impractical as a standcinnati case, upon the record, did not raise ard for use restriction upon property. The the specific question as to whether property world would be at continual seesaw if æscan legally be zoned in residence districts so theticconsiderations were permitted to govern as to exclude apartment houses which in oth- the use of the police power. We are thereer respects comply with valid building re- fore remitted to the proposition that the police strictions.

power is based upon public necessity, and In other words, this is not a comprehensive that the public health, morals, or safety, and zoning ordinance, but is a so-called "block" not merely esthetic interest, must be in danordinance, relating only to a certain small ger in order to justify its use. district of the city of Youngstown. Also the Does the apartment house per se endanger record shows in clear terms that so far as the public health, morals, or safety? It is the health and safety of the inhabitants of true that noise affects health through nerve this apartment house are concerned, there is strain, and the apartment house is attacked in the city of Youngstown no more healthful upon the ground of noise; but people who and better spot in which to reside than in live in apartment houses may not of them. this particular district. This is the testi- selves be so noisy as people who live in primony of the eminent physician who was vate houses. The very fact that they have chairman of the city planning commission. learned to consider the foibles of others liv. Moreover, there is nothing in the record to ing within the same walls often makes them indicate that the health, safety, or morals of more thoughtful with regard to phonographs the district, or of the city of Youngstown, and pianos than the people who dwell in pri. will be impaired by the building of this vate houses. Two-family houses might house apartment house, unless it be conceded that families which would make five times as an apartment house is a nuisance per se. much noise as the people in large apartment Hence the case is strongly distinguished up houses. There is not per se more danger on the facts from the Pritz Case, and, in- from fire from an apartment house than from deed, from all the cases cited to us.

a private house, for modern apartments are A positive prohibition is imposed by the apt to be fireproof, as is contemplated in this ordinance upon the erection of an apartment instance. Perhaps there is even less danger house upon residence territory within the of fire from an apartment house than from a district. Thus the owner is substantially de- private house of frame and shingle roof. It prived of the use of his property. If this is argued that an apartment house menaces deprivation is reasonably imposed to prevent the public health because it increases conthe use of the property for any purpose di- gestion of population. We fail to see how rectly detrimental to the public health, mor- removing the congestion from an apartment als, or safety, such a restriction does not district, and distributing it in a healthful legally constitute a taking of property with park surrounding, will injure the health of out compensation and without due process. the city at large; rather will it aid the pubThis is true, for the reason that all proper- lic health. ty is held subject to the police power of the It is also urged that this apartment house state, and the state has the inherent right to will result in congestion of traffic and danprevent a citizen from using his property in ger to automobiles. The answer to that cona way which is harmful to the public health, tention is that removing part of the congessafety, or morals. 6 Ruling Case Law, 201. tion of traffic from more crowded areas to

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