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(148 N.E.) Relator filed a reply denying all such al The answer of Gillen alleges: legations, and later withdrew the reply and filed a demurrer to the answer for the pur- all and singular the duties pertaining to said

"He (Gillen) has been and is now performing pose of testing the sufficiency of these allega- office, as alleged in the amended petition.” tions as defensive matter. This question will first be disposed of. It is claimed by relator

We find nothing, therefore, indicating an that this question cannot be determined in intention on the part of Gillen to abandon this court in this proceeding, and must be de- the office of mayor, but, on the contrary, termined, if at all, in accordance with the find his sworn declaration and admission of provisions of sections 4670 to 4675, inclusive, the allegations of the petition to the effect General Code. These sections give jurisdic- that he has been and still is the mayor, and tion to the probate court to hear and deter- acting as such, and is performing all of the mine such charges, and give to the person so

duties and functions of the office. Relator accused the right to a jury trial.

relies upon section 4 of article 2 of the ConThis identical question has been met and

stitution, which reads: determined by this court in the case of State "No person holding office under the authority ex rel. v. Ganson, 58 Ohio St. 313, 50 N. E. of the United States, or any lucrative office 907, the syllabus of which reads:

under the authority of this state, shall be eligi

ble to, or have a seat in, the General Assembly; "Where the causes of removal from office are but this provision shall not extend to township prescribed by statute which also provides a officers, justices of the peace, notaries public, special mode of procedure for such removal, the or officers of the militia." statutory remedy is the exclusive one, and quo warranto will not lie."

This quo warranto proceeding is predicat

ed upon this constitutional provision. The We are entirely satisfied with the reason- | respondent says that this provision cannot ing of the opinion in that case, and it is un- be made to apply to him, because it has nothnecessary to review the same in this opin- ing to do with the office of mayor; but, on ion. It is claimed, on the other hand, that the other hand, if it has any application to the case of State ex rel. Holbrock v. Egry, him, disqualifies him from eligibility to, or 79 Onio St. 391, 87 N. E. 269, 16 Ann. Cas. having a seat in, the General Assembly. 155, is a counter authority which is more Any study of this controversy, however nearly in point. In that case Holbrock, the casual, would seem to lead to the conclusion relator, admitted his disqualification in his that the office of state senator is a much petition, and the court very properly held more important and much more desirable ofthat he was not in court with clean hands, tice than that of mayor of Wellston, and yet and therefore not entitled to invoke the pro- Mr. Gillen appears in this court, represented cesses of a court of equity. In the instant by able counsel, who advocate the proposicase Gettles has filed a sworn reply, and tion, that, if there is any constitutional instates professionally in open court that, if consistency in holding both offices at the the demurrer is overruled, the reply will be same time, the fact that Mr. Gillen was holdrefiled. If this demurrer should be overruled ing the office of mayor at the time of his on this ground, and the reply should be re- election, and that he has ever since continfiled, an issue would be raised which this ued to hold and discharge the duties of that court would have no jurisdiction to deter- office, renders him ineligible to the office of mine. The court may not, therefore, delib- state senator, and that that fact cannot.in erately place itself in a position of inviting any event automatically oust him from the an issue which will later have to be rejected. office of mayor. It is further contended that If this were the only question presented by the continued occupancy and discharge of the this demurrer, the deinurrer would have to duties of the office of mayor cannot in any be sustained.

event be construed to be an abandonment of An examination of other allegations of the the office, and that his qualification and dispetition and answer presents other and more charge of the duties of the office of state sendifficult questions. It is alleged in the peti- ator cannot be construed as tantamount to a tion that the respondent

resignation of the office of mayor. It is im“bas claimed and unlawfully holds said office possible to mistake the position of Mr. Gillen of mayor of said city of Wellston, Ohio, and as and bis counsel on this point. Counsel dissuch officer assumes to do and perform all and tinctly point out that the language of section singular the duties pertaining to said office and 4 of article 2 of the Constitution refers only to receive the fees and emoluments thereof to to the ineligibility to have a seat in the Genthe exclusion of and against the rights of said eral Assembly, and does not directly or rerelator as hereinafter set forth.”

motely, expressly or by imprication, disqual

ify him from holding the office to which he Again in the petition we find:

was theretofore elected, and which he still "Said Roy Gillen refused to so surrender said claims. We are further referred by counsel office of mayor, and still usurps and unlawfully to the case of State ex rel. v. Kearns, 47 Ohio holds and attempts to exercise the duties of said St. 566, 25 N. E. 1027, the tifth syllabus of

which declares:

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office."

“The appointment by a city council of a mem-qer that we should point out that this proviber thereof to an office which the statute makes sion of the Constitution may not entirely disa member of council ineligible to fill, and his regard section 4, relating to eligibility. Manacceptance thereof, does not work an abandon- ifestly the senate may not declare a memment of his office as councilman. The appoint- ber eligible under circumstances where the ment to the second office is absolutely void."

Constitution itself has declared him to be inThat case construes the provisions of sec- eligible. This court, in the case of State ex tion 1717, Revised Statutes of 1880:

rel, v. O'Brien, 47 Ohio St. 464, 25 N. E. 121,

has virtually held that quo warranto may be “No member of council shall be eligible to employed to inquire into the title of a person any other office, or to a position on any board to the office of member of a city council. provided for in this title, or created by law, or ordinance of council, except as provided in the in two other cases. In the case of State ex

This question has been more directly met seventh division of this title."

rel. Allen v. Mason, 61 Ohio St. 62, 55 N, E, Two members of the council of the city of 167, the question did not arise in such form Springfield had been appointed to member that it was necessary to decide it, but the ship in other boards, and, in a quo warranto opinion nevertheless declared that the court proceeding, it was held as shown by the fifth would assume without deciding that a memparagraph of the syllabus, above quoted. In ber of the General Assembly could be adthe case at bar the Constitution, in section 4 judged to be disqualified, although the house of article 2, declares that any person hold- bad recognized him as qualitied. ing a lucrative office under the authority of

Again, in the case of State ex rel. Leland this state is ineligible to a seat in the Gen- v. Mason, 61 Ohio St. 513, 56 N. E. 468, that eral Assembly. Applying the principles of being a mandamus suit brought by a member the Kearns Case to the case at bar, as we of the General Assembly to recover his salare asked to do by counsel for Mr. Gillen, it ary as such, after he had accepted an apresults in declaring that Mr. Gillen still pointment to a federal judgeship, the syllaholds the office of mayor, and that any in- bus makes the following pertinent declaraeligibility must relate to the office of state

tion: senator.

“A member of the General Assembly, who Counsel for the respondent are protesting has accepted an appointment to a federal judgethat this court, as well as other courts, is ship, thereby, by force of section 4 of article powerless to inquire into the qualifications of 2 of the Constitution, becomes ineligible to a respondent to hold the office of state senator, seat in the General Assembly and ceases to be a claiming that this has already been deter- member of that body, and is not entitled to mined by the action of the state senate in

payment of salary thereafter." January, 1925, at which time it was deter We are not called upon in this case to demined by the senate that, inasmuch as re- cide the question of Gillen's title to the office spondent was not accepting any fees or com- of state senator. We are only called upon by pensation whatever as mayor of the city of the demurrer to the answer, which searches Wellston, he was not holding any lucrative the record, and challenges the sufficiency of office under the authority of this state. the petition, to determine Gillen's title to the Without deciding the validity of the claim of office of mayor of Wellston, and we have respondent to the office of state senator, it reached the conclusion, under the admitted may be suggested that the mere fact of not facts of the petition and answer, that he was receiving the salary provided by law and the duly elected and qualified as mayor, and has ordinances of the city of Wellston does not not abandoned the office or become disqualby any means determine that the office itself ified to hold it. The demurrer to the anis not a lucrative office.

swer will therefore be overruled, and a deIt is further claimed by counsel that, murrer to the petition will be sustained. Unbecause of the provisions of section 6 of der the admitted facts, and applying thereto article 2, that, "Each house shall be the law which has been cited and commented judge of the election, returns, and quali- upon, the cause must be dismissed. fications of its own members," there can Petition dismissed. never be a judicial inquiry into the eligibility of any of the members of either house, MATTHIAS, ALLEN, and ROBINSON, except by inquiry in the house in which he JJ., concur. has been elected to membership. It is prop JONES, J., not participating.

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(148 N.E.)

charged, and, on the other hand, there was GROSSWEILER V. STATE. (No. 18956.) evidence introduced by the defense, which,

it believed, would not only create a reason(Supreme Court of Ohio. June 2, 1925.)

able doubt of the guilt of the accused in the (Syllabus by the Court.)

minds of the jury, but would also rebut the Rape B 59 (19)—Refusal to charge that if, in securing a conviction on a charge of as

element of force necessary to be established when female refused consent, accused aban. doned purpose, it was not assault with intent sault with intent to commit rape. The evito rape, held reversible error; refusal to dence introduced by the parties being such charge that testimony must show accused's that the jury could have found a verdict of purpose at time of assault and intention to guilty, or not guilty, as they might have beuse force to overcome female's resistance lieved the witnesses of the state or of the deheld reversible error.

fense, respectively, any error in the charge of Upon a trial upon an indictment for assault the court instructing the jury upon the elewith intent to commit rape, where the general ment of force would necessarily result in charge contains no instruction upon the ques. prejudice in the event of a verdict of guilty. tion of the intent of the accused to use such We therefore find it necessary to look only degree of force as might be necessary to enable him to overcome the resistance of the to the charge of the court and the refusal to prosecutrix and to accomplish his purpose, it is charge, as requested by counsel for the dereversible error to refuse to give to the jury fendant. as a part of the general charge the following At the close of the testimony and before requests, or the substance thereof: "I charge the arguments of counsel to the jury, deyou as a matter of law that if you find in this fendant requested the court in writing to case that the plaintiff in error made an ap- give the following instructions: proach towards the prosecuting witness with intent to procure her consent to have sexual

(1) I charge you as a matter of law that if intercourse with her, and if she refused, he you find in this case that the defendant made abandoned the purpose, such act would not con

an approach towards the prosecuting witness stitute an assault with intent to commit a

with intent to procure her consent to have rape. I charge you as a matter of law that sexual intercourse with her, and if she refused, to sustain a conviction upon an indictment for he abandoned the purpose, such act would not assault with intent to commit rape, the testi- constitute an assault with intent to commit a mony must show not only that the accused had rape. à purpose at the time of the assault to have

“(2) I charge you as a matter of law that to sexual intercourse with the prosecuting wit- sustain a conviction upon an indictment for asness, but also that he intended to use whatever sault with intent to commit rape, the testidegree of force might be necessary to enable mony must show not only that the accused had him to overcome her resistance, and accom

a purpose at the time of the assault to have plish his purpose."

sexual intercourse with the prosecuting wit

ness, but also that he intended to use whatError to Court of Appeals, Stark County. able him to overcome her resistance, and ac

ever degree of force might be necessary to enHarold Grossweiler was convicted of as- complish his purpose.” sault with intent to commit rape. Judgment was affirmed by the Court of Appeals, and

It has been settled by this court in the accused brings error. Reversed.-[By Edi- 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 Wefier, of Massilon, for plaintiff in court to give any instructions to the jury in

a criminal case before argument. This decC. 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 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

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

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was

trial, and he could only have a fair trial in Calvin Dimmitt was convicted in the court event the jury should be fairly instructed up of common pleas of Greene county on a bason all the law applicable to the evidence in- tardy charge, and on February 20, 1923, was troduced. It was clearly the theory of the adjudged to be the father of the bastard defense in this case that the accused did not child of Helen Milburn, and ordered to pay intend to use force to accomplish his pur- to her $150, and, in addition, the sum of $2 pose, and that he only intended to procure per week from and after February 20, 1923. the consent of the prosecutrix to sexual rela- Dimmitt did not then or at any time pay said tions. There being some testimony in the judgment or any part thereof, and did not record to support that theory, he was en- then or at any time give security to perform titled to have the jury consider it, and it is the order of the court, as provided by section apparent that he was deprived of the benefit 12123, General Code. Being dissatistied with of the consideration of that testimony by the judgment rendered, he prosecuted error reason of the absence of any instruction up therefrom to the Court of Appeals, and gave on that point in the general charge. The a supersedeas bond in the penal sum of $500, situation is rendered more aggravated by the which bond recited in detail the judgment of fact that, after the judge had completed the the common pleas court, and contained the charge, and after the jury had been instruct-following condition: ed to go to their jury room for consideration "If the said Calvin Dimmitt shall prosecute of the case, the court gave defendant's coun error within the time allowed by law, shall abide sel an exception to the refusal to make these by the order and judgment of the Court of Aprequests a part of the general charge.

peals made upon his said petition in error, to This exception, appearing in the record be filed in said Court of Appeals, then this oblias a part of the bill of exceptions allowed gation shall be void." by the trial judge, indicates that the matter The Court of Appeals affirmed the judge was called to the attention of the court at the ment of the court of common pleas, and time the charge was given, and the omission thereupon Dimmitt, still refusing to pay the to instruct as requested therefore constitutes judgment or give security, surrendered himprejudicial error, and the judgment of con- self to the court and was committed to jail viction must therefore be reversed.

in Greene county, where he remained for Judgment reversed.

three months and was then discharged from

custody by the commissioner of insolvents, JONES, MATTHIAS, KINKADE, and pursuant to the provisions of section 12124, ROBINSON, JJ., concur.

General Code.

On February 15, 1924, a new suit was brought against Dimmitt and his sureties up

on the supersedeas bond, and this suit was DIMMITT et al. v. STATE ex rel. MILBURN tried by the judge, a jury having been waivet al. (No. 18967.)

ed, and judgment was rendered in favor of (Supreme Court of Ohio. May 26, 1925.) the defendants. Error was prosecuted to the

Court of Appeals, which court reversed the (Syllabus by the Court.)

judgment of the trial court, and rendered the Bastards On92 Supersedeas bond to stay judgment which it should have rendered

judgment of conviction creates liability against against Dimmitt and his sureties, in the sum sureties for performance of judgment of court of $500, with interest at 6 per cent. from the of common pleas to limit of penalty thereof.

13th day of December, 1923, and costs, and A supersedeas bond given in a proceeding awarded execution. A motion to certify the in error to obtain a stay upon a judgment of cause to this court has been allowed. conviction in a bastardy case, conditioned that the obligor "shall abide by the order and judg L. T. Marshall, of Xenia, for plaintiffs in ment of the Court of Appeals,” creates a liabili- error. ty against the sureties upon such bond for the

Charles L. Darlington and Frank H. Dean, performance of the judgment entered in the both of Xenia, for defendants in error. court of common pleas, to the limit of the penalty of such bond.

MARSHALL, C. J. The sole question for

determination is whether a suit can be mainError to Court of Appeals, Greene County. tained upon a supersedeas bond under the

Action by the State of Ohio, on the rela- circumstances of this case to compel the paytion of Helen Milburn and another, against ment of the judgment in the original bastardy Calvin Dimmitt and others. Judgment for proceeding to the amount of the penalty of defendants was reversed by the Court of Ap- the bond. The petition fully pleads the peals, and judgment rendered for plaintiff, bond, its execution and breach, and the anand motion to certify case to the Supreme swer admits the execution of the bond and Court was allowed. Aflirmed.--[By Editorial the affirmation of the judgment in the Court Staff.)

of Appeals, and pleads by way of new mat

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

(148 N.E.)
ter that, after the affirmance of the judg. p supersedeas bond was given not for his per-
ment in the Court of Appeals, Dimmitt sur-sonal appearance after a judgment of affirm-
rendered himself and was committed to the ance, but to stay the execution of every part
county jail of Greene county. It only re- of the judgment pending the review in the
mains to be determined, therefore, whether appellate court. Upon reversal the judg-
his surrender and commission to jail was a ment becomes a nullity, but upon affirmance
compliance with the condition of the super- it stands in full force as though no error
sedeas bond, or whether, on the other hand, proceeding had been entered. By the error
the sureties on the bond were obligated to proceeding the prosecutrix has been delayed
pay the judgment to the limit of the penalty and has lost the benefit of an earlier recom-
of the bond. It is contended that if there pense, but has gained the benefit of such se-
should be a recovery upon the supersedeas curity for the ultimate satisfaction of the
bond in this action, it would provide main- judgment as the supersedeas bond affords.
tenance for the child, and that this practice The law has mercifully provided for stay of
is not permissible, because a special section, execution during the pendency of the error
to wit, section 12123, General Code, makes proceeding, because it would be a cold com-
provision for security for the performance of fort to a wronged suitor to be first punished
a maintenance order, and that therefore only and later justified, and the law at the same
a bond given pursuant to that section would time justly provides that, if the hand of the
create responsibility on the part of sureties. sheriff is stayed, it shall be upon the condi-

A bond under section 12123 is employed in tion that when the judgment becomes a final-
the event that the defendant is willing that ity its terms will be fully met.
the judgment of the trial court shall be final, This is an action to recover upon a writ-
and waives the right of review, or it may ten instrument, and recovery must either be
be employed after affirmance by the Court of sustained or denied upon the terms of the
Appeals to save the defendant from going to instrument, construed as any other contract
jail. Since the defendant did not at any would be construed. Dimmitt seeks a re-
time employ it, there is no place for discus-versal on the theory that there can be no
sion of it in this case further than to say recovery upon this supersedeas bond, if the
that it has no relation to supersedeas, but is bond is not in full compliance with the stat.
rather a part of the performance of the ute which authorizes the bond, and calls at-
judgment itself. Section 12123 requires se tention to the statutory provisions for super-
curity that the defendant will “perform such sedeas in both civil and criminal procedure.
order," that is to say, furnish “maintenance Section 12265, General Code, governs in civ-
in such sum as the court orders;" or in the il cases, as follows:
alternative be committed to jail. Inasmuch “When the judgment or final order sought to
as section 12123 specifically provides what be reversed directs the payment of money, the
the judgment in a bastardy proceeding shall | bond shall be in double its amount, to the effect
contain, every part of that section becomes that the plaintiff in error will pay the condem-
a necessary part of the judgment whether nation money, and costs, if the judgment or or-
written in the journal entry or not. It is der be affirmed, in whole or part."
quite clear that if Dimmitt had given a bond

Section 13698 governs in criminal cases, under section 12123, and had faithfully com

and the pertinent portion is: plied with its provisions, there would be no

"That the accused will prosecute such error occasion for pursuing the supersedeas bond. It seems equally clear that even if a bond proceedings without delay, and abide the judghad been given under section 12123, and the inent or sentence of the court.” sureties on such bond were later found to be

It is contended that the supersedeas bond insolvent, or if for any other reason recovery in the instant case was framed pursuant to upon that bond should fail, the mother of the section 13698. We are unable to see any subchild might then pursue the supersedeas bond stantial difference in the liability created, as an additional remedy. When judgment was entered in the common pleas court in the whether the bond follows the one or the oth

er of these sections. In the one case it probastardy proceeding, Dimmitt had the al- vides for the payment of the condemnation ternative of paying the judgment, or at least

money and costs; in the other it requires that part stipulating a lump sum payment, that the unsuccessful appellant abide the and giving bond for maintenance, or, on the judgment or sentence of the court. other hand, going to jail and thereafter pur

This is not a matter of first impressions in suing insolvency proceedings. This being the this court. That the meaning of the two exsolemn judgment of the trial court, the only pressions is substantially the same has been escape from one or the other alternative was decided three times by this court, the first to have the judgment reversed by the Court decision having been rendered at the Decemof Appeals. He might have prosecuted er- ber 1823 term, in the case of Gardener v. ror to the Court of Appeals without a super- Woodyear, 1 Ohio, 170, 176. In that case the sedeas bond, but in such event would have statute was practically the same as section been subject to the jail penalty during the 12265, but the condition of the bond was pendency of the appellate proceedings. The "that he will prosecute the said writs to ef.

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