(148 N.E.) sions of the Court of Appeals of this state, | O. R. Co. v. Whittaker, 24 Ohio St. 642, 651, Mr. Sunderland concludes: "Evidently the Ohio Supreme Court feels irrevocably committed to this all but obsolete doctrine." Whatever reason for the employment of the term may have formerly existed in the early jurisprudence of this state, there is no reason for its existence under our present legislation. Formerly the trial court was not shackled by legislation, but could grant new trials ad libitum on the weight of the evidence. Since 1898, that power of the trial court has been curtailed by section 11577, General Code, whereby but one new trial may be granted on the weight of the evidence. Having once exercised this power, the trial court now is powerless to grant another trial, but, under the so-called scintilla rule, is compelled to render judgment where a scintilla has been offered, even though the testimony adduced by the other side has completely overwhelmed it. In view of the doubtful results obtained by the present application of the scintilla rule by which trial courts may be guided, the minority of this court, MARSHALL, C. J., and JONES and KINKADE, JJ., feel constrained to reject the term in its entirety and employ the more common-sense rule heretofore indicated. Was there evidence of a substantial character having a probative value, tending to show that the box of explosive caps had been taken from the mill and hauled to the dump by the employé of the defendant? No witness gave explicit testimony tending to prove that this box of explosive caps was in the load of rubbish hauled from the mill and dumped by this employé. Proof thereof rests upon circumstantial evidence, and upon rational inferences which may be drawn by men of ordinary reason and fairness from the facts and circumstances testified to. If an inference is necessary to sustain a verdict, it lies within the province of the court to determine whether different minds could reasonably arrive at different conclusions in raising such inference. If so, it becomes a question of fact for the jury; otherwise a question of law for the court. The law es tablished by the decisions of this court is that, where negligence depends upon a varie ty of circumstances over which different minds may reasonably arrive at different conclusions as to whether negligence exists, the court should not direct a verdict. Cincinnati Ry. Co. v. Snell, 54 Ohio St. 197. 43 N. E. 207, 32 L. R. A. 276. Naturally, the corollary must necessarily be true that, if different minds should reasonably arrive at no other conclusion than that of the nonexistence of defendant's negligence, a verdict of nonsuit should be directed. This rule is substantially sanctioned by Day, C. J., in B. & and carried in the syllabi in the following cases: C., C. & C. Ry. Co. v. Crawford, Adm'r, 24 Ohio St. 631, 15 Am. Rep. 633, and M. & C. Ry. Co. v. Picksley, 24 Ohio St. 654. It may be conceded that the trial court has a duty, though often a difficult one, to perform. However, the same duty rests upon the reviewing courts. If proof of a material fact necessary to establish negligence rests upon an inference only, and such inference is a rational one, which can reasonably be arrived at from the facts and circumstances testified to, the link in the chain of proof is supplied. Was there any testimony in the instant case tending to establish negligence upon the part of the defendant? Or, stating it in another form, could the jury draw a rational inference from the facts and circumstances actually proven that negligence of the defendant existed? Testimony was introduced by the plaintiff that, in the operation of defendant's mill, almost every conceivable foreign substance was taken from the bales of paper, and cast aside and placed in receptacles, which, with the general rubbish of the mill, were hauled and dumped partly upon the premises where the plaintiff picked up the box of explosive caps. The boy testified that upon the day he was injured an employé of the mill dumped a load of rubbish at the edge of and in the highway, and that he saw bleach cans "on top of the other stuff;" that within 15 or 20 minutes later he picked up this box of explosives in the wagon track, at the point in the highway where this rubbish was dumped. We all know that circumstantial evidence may have a very high value even in criminal cases. What could have a stronger probative value than these circumstances testified to, connecting the defendant's employé with the placement of this rubbish and the finding of the box of explosives at the bottom of the dumped load? The insistence of counsel for plaintiff in error rests upon the fact that it was not shown that this particular box was brought from the mill, and that since it was found in the highway it was possible that it was left there by some other agency. However, the facts and circumstances proven are such that reasonable minds could arrive at the conclusion that this box came from the mill and was dumped into Cemetery road by an employé of the defendant. Indeed, it might be more rational to arrive at this conclusion than any other. The circumstances strongly support it. There was testimony indicating that explosions occurred in the mill, and testimony that the box was not observed in the highway before the employé unloaded the rubbish, 15 or 20 minutes before the accident. We do not think the trial court erred in refusing to direct a verdict in favor of the defendant, [2] The incident concerning the alleged misconduct of the jury occurred in the courtroom during the progress of the trial. This was developed near the close of the trial. Thereupon the defendant moved the court to withdraw a juror and that the jury be discharged from consideration of the case. There does not appear to be any attempt at concealment of this incident by any one, nor any effort made on behalf of the plaintiff to induce the conversation. So far as the juror is concerned, all that she did was to ask that she see the boy's hand again, and make the remark that "he has two fingers." Previous to this time, during the course of the trial, the infant had exhibited his hand to the jury, and his mother had testified fully as to the character of these injuries. The juror obtained no knowledge other than that she had obtained in the jury box. It is very probable that the facts she gleaned from this short conversation did not influence her verdict, since, as a juror, she obtained the full knowledge of them on the trial. The court specifically cautioned the jury in its charge that any conversation had with the mother concerning the injury should not be permitted to affect their verdict, and that they were to disregard the incident entirely. We do not think that the alleged misconduct was of such a substantial character ås to cause a mistrial, and therefore we cannot say that prejudicial error intervened in this feature of the case. STATE ex rel. GETTLES v. GILLEN. (No. 18925.) (Supreme Court of Ohio. May 19, 1925.) (Syllabus by the Court.) Municipal corporations 142-Mayor of municipality qualifying as member of General Assembly does not forfeit office of mayor. A mayor of a municipality who is elected to membership in the General Assembly, and qualifies and discharges the duties of such office, but nevertheless continues to serve as mayor and to discharge the duties of that office does not by virtue of section 4 of article 2 of the Constitution forfeit the office of mayor. The ineligibility relates to membership in the General Assembly. Original quo warranto by the State of Ohio, on the relation of William A. Gettles, against Roy Gillen. Petition dismissed.[By Editorial Staff.] Joseph McGhee and P. E. Dempsey, both of Columbus, for relator. Willis & Jones, of Wellston, and Vorys, Sater, Seymour & Pease, of Columbus, for respondent. MARSHALL, C. J. been filed, and the cause is submitted to this court upon demurrer to the answer. elected as mayor of Wellston in November, 1923, and qualified and began his duties Jan The admitted facts are that Gillen was This is an original suit filed in this court in quo warranto, alleging that the respondent, Gillen, unlawfully holds the office of mayor of the city of As in other cases recently presented to Wellston, Ohio, and that the relator is enthis court, counsel for plaintiff in error urge be ousted therefrom, and that relator be adtitled thereto, and praying that said Gillen that the trial court erred in charging the ju-judged entitled to the office. An answer has ry on the issue of contributory negligence. In this case the defendant not only pleaded a general denial, but further alleged that the infant's injuries were caused solely by his own negligence. Upon this issue the trial court substantially gave an instruction in conformity to the first and second proposi-elected as state senator for the 7th-8th senIn November, 1924, he was uary 1, 1924. tions of the syllabus in B. & O. R. Co. v. atorial district, and in January, 1925, qualiWhitacre, 35 Ohio St. 627. In its answer the fied as such, and has ever since performed defendant had charged the infant with neg- the duties of state senator. The relator, in ligence, and the record discloses that the de- November, 1923, was elected president of the fendant produced evidence tending to show council of Wellston, and if Gillen is disqualcontributory negligence. This phase of the ified from continuing to hold the office of case has been fully passed upon and decided mayor, relator is by statute made his sucby this court in Bradley v. Cleveland Rail- cessor to said office. road Co., 112 Ohio St. 35, 146 N. E. 805. We find no error committed by the trial court in its admission of testimony tending to prove that explosions occurred in the mill prior to the day when the boy was injured. In the answer Gillen alleges that the relator is disquailfied from holding the office of president of council, and therefore holds no title to said office, because, Gillen alleges, prior to his election as such president of council, relator held the office of civil service The judgment of the Court of Appeals is commissioner, and while holding such office affirmed. Judgment affirmed. was guilty of certain malfeasance in office, which, under the provisions of section 3808, General Code, disqualified him from holding DAY, ALLEN, and KINKADE, JJ., con- "any office of trust or profit in the corporation, * * and if in office shall be dismissed therefrom." cur. MATTHIAS, J., concurs in the judgment. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) Relator filed a reply denying all such allegations, and later withdrew the reply and filed a demurrer to the answer for the purpose of testing the sufficiency of these allegations as defensive matter. This question will first be disposed of. It is claimed by relator that this question cannot be determined in this court in this proceeding, and must be determined, if at all, in accordance with the provisions of sections 4670 to 4675, inclusive, General Code. These sections give jurisdiction to the probate court to hear and determine such charges, and give to the person so accused the right to a jury trial. This identical question has been met and determined by this court in the case of State ex rel. v. Ganson, 58 Ohio St. 313, 50 N. E. 907, the syllabus of which reads: "Where the causes of removal from office are prescribed by statute which also provides a special mode of procedure for such removal, the statutory remedy is the exclusive one, and quo warranto will not lie." The answer of Gillen alleges: "He [Gillen] has been and is now performing all and singular the duties pertaining to said office, as alleged in the amended petition." We find nothing, therefore, indicating an intention on the part of Gillen to abandon the office of mayor, but, on the contrary, find his sworn declaration and admission of the allegations of the petition to the effect that he has been and still is the mayor, and acting as such, and is performing all of the duties and functions of the office. Relator relies upon section 4 of article 2 of the Constitution, which reads: "No person holding office under the authority of the United States, or any lucrative office under the authority of this state, shall be eligible to, or have a seat in, the General Assembly; but this provision shall not extend to township officers, justices of the peace, notaries public, or officers of the militia." This quo warranto proceeding is predicated upon this constitutional provision. The respondent says that this provision cannot be made to apply to him, because it has nothing to do with the office of mayor; but, on the other hand, if it has any application to him, disqualifies him from eligibility to, or having a seat in, the General Assembly. Any study of this controversy, however casual, would seem to lead to the conclusion that the office of state senator is a much more important and much more desirable office than that of mayor of Wellston, and yet We are entirely satisfied with the reasoning of the opinion in that case, and it is unnecessary to review the same in this opinion. It is claimed, on the other hand, that the case of State ex rel. Holbrock v. Egry, 79 Ohio St. 391, 87 N. E. 269, 16 Ann. Cas. 155, is a counter authority which is more nearly in point. In that case Holbrock, the relator, admitted his disqualification in his petition, and the court very properly held that he was not in court with clean hands, and therefore not entitled to invoke the pro- | Mr. Gillen appears in this court, represented cesses of a court of equity. In the instant case Gettles has filed a sworn reply, and states professionally in open court that, if the demurrer is overruled, the reply will be refiled. If this demurrer should be overruled on this ground, and the reply should be re-election, and that he has ever since continfiled, an issue would be raised which this court would have no jurisdiction to determine. The court may not, therefore, deliberately place itself in a position of inviting an issue which will later have to be rejected. If this were the only question presented by this demurrer, the demurrer would have to be sustained. An examination of other allegations of the petition and answer presents other and more difficult questions. It is alleged in the petition that the respondent "has claimed and unlawfully holds said office of mayor of said city of Wellston, Ohio, and as such officer assumes to do and perform all and singular the duties pertaining to said office and to receive the fees and emoluments thereof to the exclusion of and against the rights of said relator as hereinafter set forth." Again in the petition we find: "Said Roy Gillen refused to so surrender said office of mayor, and still usurps and unlawfully holds and attempts to exercise the duties of said office." by able counsel, who advocate the proposition, that, if there is any constitutional inconsistency in holding both offices at the same time, the fact that Mr. Gillen was holding the office of mayor at the time of his ued to hold and discharge the duties of that office, renders him ineligible to the office of state senator, and that that fact cannot.in any event automatically oust him from the office of mayor. It is further contended that the continued occupancy and discharge of the duties of the office of mayor cannot in any event be construed to be an abandonment of the office, and that his qualification and discharge of the duties of the office of state senator cannot be construed as tantamount to a resignation of the office of mayor. It is impossible to mistake the position of Mr. Gillen and his counsel on this point. Counsel distinctly point out that the language of section 4 of article 2 of the Constitution refers only to the ineligibility to have a seat in the General Assembly, and does not directly or remotely, expressly or by implication, disqualify him from holding the office to which he was theretofore elected, and which he still claims. We are further referred by counsel to the case of State ex rel. v. Kearns, 47 Ohio St. 566, 25 N. E. 1027, the fifth syllabus of which declares: sion of the Constitution may not entirely disregard section 4, relating to eligibility. Manifestly the senate may not declare a member eligible under circumstances where the "The appointment by a city council of a mem-er that we should point out that this proviber thereof to an office which the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office is absolutely void." That case construes the provisions of sec tion 1717, Revised Statutes of 1880: "No member of council shall be eligible to any other office, or to a position on any board provided for in this title, or created by law, or ordinance of council, except as provided in the seventh division of this title." Two members of the council of the city of Springfield had been appointed to membership in other boards, and, in a quo warranto proceeding, it was held as shown by the fifth paragraph of the syllabus, above quoted. In the case at bar the Constitution, in section 4 of article 2, declares that any person holding a lucrative office under the authority of this state is ineligible to a seat in the General Assembly. Applying the principles of the Kearns Case to the case at bar, as we are asked to do by counsel for Mr. Gillen, it results in declaring that Mr. Gillen still holds the office of mayor, and that any ineligibility must relate to the office of state senator. Counsel for the respondent are protesting that this court, as well as other courts, is powerless to inquire into the qualifications of respondent to hold the office of state senator, claiming that this has already been determined by the action of the state senate in January, 1925, at which time it was determined by the senate that, inasmuch as respondent was not accepting any fees or compensation whatever as mayor of the city of Wellston, he was not holding any lucrative office under the authority of this state. Without deciding the validity of the claim of respondent to the office of state senator, it may be suggested that the mere fact of not receiving the salary provided by law and the ordinances of the city of Wellston does not by any means determine that the office itself is not a lucrative office. It is further claimed by counsel that, because of the provisions of section 6 of article 2, that, "Each house shall be judge of the election, returns, and qualifications of its own members," there can never be a judicial inquiry into the eligibility of any of the members of either house, except by inquiry in the house in which he has been elected to membership. It is prop Constitution itself has declared him to be in eligible. This court, in the case of State ex rel. v. O'Brien, 47 Ohio St. 464, 25 N. E. 121, has virtually held that quo warranto may be employed to inquire into the title of a person to the office of member of a city council. in two other cases. In the case of State ex This question has been more directly met rel. Allen v. Mason, 61 Ohio St. 62, 55 N. E. 167, the question did not arise in such form that it was necessary to decide it, but the opinion nevertheless declared that the court would assume without deciding that a member of the General Assembly could be adjudged to be disqualified, although the house had recognized him as qualified. Again, in the case of State ex rel. Leland v. Mason, 61 Ohio St. 513, 56 N. E. 468, that being a mandamus suit brought by a member of the General Assembly to recover his salary as such, after he had accepted an appointment to a federal judgeship, the syllabus makes the following pertinent declaration: "A member of the General Assembly, who has accepted an appointment to a federal judgeship, thereby, by force of section 4 of article 2 of the Constitution, becomes ineligible to a seat in the General Assembly and ceases to be a member of that body, and is not entitled to payment of salary thereafter." We are not called upon in this case to decide the question of Gillen's title to the office of state senator. We are only called upon by the demurrer to the answer, which searches the record, and challenges the sufficiency of the petition, to determine Gillen's title to the office of mayor of Wellston, and we have reached the conclusion, under the admitted facts of the petition and answer, that he was duly elected and qualified as mayor, and has not abandoned the office or become disqualified to hold it. The demurrer to the answer will therefore be overruled, and a demurrer to the petition will be sustained. Under the admitted facts, and applying thereto the law which has been cited and commented upon, the cause must be dismissed. Petition dismissed. MATTHIAS, ALLEN, and ROBINSON, JJ., concur. JONES, J., not participating. GROSSWEILER v. STATE. (148 N.E.) (No. 18956.) (Supreme Court of Ohio. June 2, 1925.) Rape (Syllabus by the Court.) 59(19)-Refusal to charge that if, when female refused consent, accused aban. doned purpose, it was not assault with intent to rape, held reversible error; refusal to charge that testimony must show accused's purpose at time of assault and intention to use force to overcome female's resistance held reversible error. Upon a trial upon an indictment for assault with intent to commit rape, where the general charge contains no instruction upon the question of the intent of the accused to use such degree of force as might be necessary to enable him to overcome the resistance of the prosecutrix and to accomplish his purpose, it is reversible error to refuse to give to the jury as a part of the general charge the following requests, or the substance thereof: "I charge you as a matter of law that if you find in this case that the plaintiff in error made an approach towards the prosecuting witness with intent to procure her consent to have sexual intercourse with her, and if she refused, he abandoned the purpose, such act would not constitute an assault with intent to commit a rape. I charge you as a matter of law that to sustain a conviction upon an indictment for assault with intent to commit rape, the testimony must show not only that the accused had a purpose at the time of the assault to have sexual intercourse with the prosecuting witness, but also that he intended to use whatever degree of force might be necessary to enable him to overcome her resistance, and accomplish his purpose." Error to Court of Appeals, Stark County. Harold Gross weiler was convicted of assault with intent to commit rape. Judgment was affirmed by the Court of Appeals, and accused brings error. Reversed.-[By Edi | charged, and, on the other hand, there was. evidence introduced by the defense, which, it believed, would not only create a reasonable doubt of the guilt of the accused in the minds of the jury, but would also rebut the element of force necessary to be established in securing a conviction on a charge of assault with intent to commit.rape. The evidence introduced by the parties being such that the jury could have found a verdict of guilty, or not guilty, as they might have believed the witnesses of the state or of the defense, respectively, any error in the charge of the court instructing the jury upon the element of force would necessarily result in prejudice in the event of a verdict of guilty. We therefore find it necessary to look only to the charge of the court and the refusal to charge, as requested by counsel for the defendant. At the close of the testimony and before the arguments of counsel to the jury, defendant requested the court in writing to give the following instructions: "(1) I charge you as a matter of law that if you find in this case that the defendant made an approach towards the prosecuting witness with intent to procure her consent to have sexual intercourse with her, and if she refused, he abandoned the purpose, such act would not constitute an assault with intent to commit a rape. "(2) I charge you as a matter of law that to sustain a conviction upon an indictment for assault with intent to commit rape, the testimony must show not only that the accused had a purpose at the time of the assault to have sexual intercourse with the prosecuting witness, but also that he intended to use whatable him to overcome her resistance, and acever degree of force might be necessary to encomplish his purpose." It has been settled by this court in the case of Wertenberger v. State, 99 Ohio St. 353, 124 N. E. 243, that under section 13675, Gen. Code, it is not mandatory upon the Elson Wefler, of Massilon, for plaintiff in court to give any instructions to the jury in torial Staff.] error. a criminal case before argument. This dec C. B. McClintock, Pros. Atty., of Canton, laration has never been overruled and this for the State. court is at this time in full accord with it. That case did not decide, nor has any other MARSHALL, C. J. Harold Grossweiler case decided by this court, declared that a was indicted, tried, and convicted in the request made before argument may be igcommon pleas court of Stark county on a nored in the general charge. Neither has it charge of assault with intent to commit ever been declared that it is necessary that rape. It is not necessary to recite the allega- the request be renewed after argument. Havtions of the indictment, or to review the evi- ing carefully examined these requests, we dence adduced in support of it, or the evi- are of the opinion that they state sound prindence adduced by the defense, further than ciples applicable to the case, and that the to say that the indictment is conceded to be defendant was entitled to the benefit of those a good indictment, and, while counsel strenu- instructions as a part of the general charge. ously argue for and against the sufficiency of It is no answer to this proposition to say the evidence, a careful reading of the record that there was sufficient evidence upon discloses that there was evidence introduced which the jury could have rendered a verdict by the state, which, if believed by the jury, of guilty notwithstanding these instructions, would justify a conviction upon the offense because the defendant was entitled to a fair For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |