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(1855) 12 N. Y. 266, 64 Am. Dec. 506, was an 213 N. Y. 563, 108 N. E. 80. Cases to the conaction of ejectment. Plaintiff claimed the trary may be found in the Appellate Division legal title. Defendant said in defense that (see, e. g., Ward v. Union Trust Co., 166 App. the property in dispute was by mistake omit- Div. 762, 152 N. Y. S. 237), but they go back ted from his deed. We held the answer good to Born v. Schrenkeisen (supra) for what. as an equitable defense. There was the same ever authority supports them. situation, followed by the same ruling in [4] To hold that mistake, though adequate Hoppough v. Struble (1875) 60 N. Y. 430. for reformation, is never the basis for relief We said (page 434) that a decree of reforma- | unless pleaded as a cause of action or a tion, though proper, not necessary. counterclaim would lead, indeed, to unexpect“The same state of facts which would entitleed consequences of circuity and hardship. the defendant to a reformation of the deed A plaintiff would then be helpless if the dewould establish his equitable right to the fendant were to plead a release or an acpossession, and would as effectually defeat cord and satisfaction which through some the action, as would the legal title.” Other scrivener's mistake had been stated so broadcases, both earlier and later, announce a likely as to include his cause of action. The bar conclusion in situations similar in substance would stand, unless the complaint was though varying in details. We may instance amended so as to change the nature of the Haire v. Baker (5 N. Y. 357), where we said suit. New matter in an answer is deemed, that in an action to recover damages for the it is true, to have been controverted by breach of a covenant against incumbrances traverse or avoidance (Civ. Prac. Act, $ 243; defendant might show by way of defense Code Civ. Pro. 8 522), but mistake is not a that by mistake the incumbrance complained ground of traverse, and, unless sufficient, as of was omitted from an exception; Pitcher a défense may not be ranked as an avoidv. Hennessey, 48 N. Y. 415, where, upon an ance. Our decision in Kirchner v. New Home answer which, like this one, was a cross be- Sewing Machine Co., 135 N. Y. 182, 189, 31 tween a counterclaim and a defense, we said N. E. 1104, shows that the remedies avail(page 422) that the equitable defense “should able to suitors have not been circumscribed have been tried and determined by the so narrowly. We think the principle that uncourt,” though the action was at law; Cav- derlies our law of equitable defenses was alli v. Allen, 57 N. Y. 508, where, upon plead- stated long ago with precision and discern. ings much the same, we reached the same ment. “The question now is, ought the plainconclusion; Mandeville v. Reynolds, 08 N. tiff to recover; and anything which shows Y. 528, 543, 545, where, in an action on a that he ought not is available to the defendjudgment, the defendant showed in defense ant, whether it was formerly of equitable or that there was fraud in its procurement; and legal cognizance." Dobson v. Pearce, 12 N. Young v. Overbaugh, 145 N. Y. 158, 39 N. E. Y. 156, 168 (62 Am. Dec. 152); Mandeville 712, where the legal title was overcome by a v. Reynolds, supra. The whole body of prindefense of a parol gift, followed by possession ciples, whether of law or of equity, bearing and improvements. To this list may be add-on the case, becomes the reservoir to be ed Lamont v. Cheshire, 65 N. Y. 30; Chase v. drawn upon by the court in enlightening its Peck, 21 N. Y. 581, 586; Glacken v. Brown, judgment. N. Y. Central Ins. Co. v. Nat. 39 Hun, 294, 298; Madison v. Benedict, 73 | Protective Ins. Co., 14 N. Y. 85, 90, 91. App. Div. 112, 76 N. Y, S. 402; Page v. Hig [5] There remains for consideration the gins, 150 Mass. 27, 28, 22 N. E. 63, 5 L. R. A. manner of the trial. Our statute provides 152; Eustis Mfg. Co. v. Saco Brick Co., 198 that in an action for money only "an issue Mass. 212, 217, 84 N. E. 449; and Loewen- of fact must be tried by a jury unless a thal v. Haines, 160 App. Div. 503, 145 N. Y. jury trial is waived or a reference is directS. 579. There is, indeed, a dictum in Born v. ed.” Civ. Prac. Act, $ 425; Code Civ. Pro. Schrenkeisen, 110 N. Y. 55, 60, 17 N. E. 339, § 968. An issue of fact arises upon a denial that mistake, though of such a nature as to in the answer, or upon "a material allegajustify reformation, does not help a defend- tion of new matter,” constituting a defense. ant sued at law unless it is pleaded as a Civ. Prac. Act, $ 422; Code Civ. Pro. & 964; counterclaim. What was said, if more than Code of Procedure, $ 253 et seq. There is no dictum, was at all events not essential to the distinction in this respect between kinds of decision, for the case went off upon the defenses, dependent upon their origin in ground that the defect of pleading was un- equity or at law. The distinction is between important because disregarded by the par- all defenses on the one side and counterties. We find a return in later cases to the claims on the other. Civ. Prac. Act, $ 424; earlier and simpler view. Walker v. Am. ( Code Civ. Pro. $ 974. The rule is settled unCentral Ins. Co., 143 N. Y. 167, 38 N. E. 106 ; der these provisions that equitable defenses Bennett v. Edison Electric Il. Co., 18 App. are triable in the same way as defenses that Div. 410, 46 N. Y. S. 459 ; Id., 164 N. Y. 131, are legal. Southard v. Curley, 134 N. Y. 145, 58 N. E. 7; cf. City of N. Y. v. Matthews, 31 N. E. 330, 16 L. R. A. 561, 30 Am. St. Rep.

(146 N.E.) 642; Kirchner v. N. H. S. M. Co., supra; } preliminary treaties are merged in the writBennett v. Ed. El. Il. Co., supra; Dobson v. ten contract if they are permitted to conPearce, supra; cf. Stockbridge Iron Co. v. sider such treaties as evidence of mistake. Hudson Iron Co., 107 Mass. 290; Cook, su- Against these and like dangers there are two pra; Hinton, supra. Possibly, though this methods of relief. One is suggested by the is far from clear, a different construction provision of the statute that “the court, in might have been given to the statute in its its discretion, may order one or more issues beginnings. The question was one not of | to be separately tried prior to any trial of constitutional privilege, but of the meaning the other issues in the case.” Civ. Prac. Act, of legislation. The federal courts have found $ 443, subd. 3. The other is to be found in a it possible in construing the provisions of the strict enforcement of the rule that reformaJudicial Code (U. S. Comp. St. § 968 et seq.) tion must be refused uniess the case in supto reserve to the judge the trial of equitable port of it is "of the clearest and most satisdefenses while leaving the legal issues to the factory character." Philippine Sugar Est. verdict of the jury. Plews v. Burrage (C. C. Dev. Co. v. Phil. Islands, 247 U. S. 385, 391, A.) 274 F. 881; Susquehanna Coal Co. v. 38 S. Ct. 513, 62 L. Ed. 1177; Christopher & Pratt & Young (C. C. A.) 276 F. 919, 920; Tenth St. R. Co. v. 23d St. R. Co., 149 N. Y. Union Pac. R. Co. v. Syas, 246 F. 561, 158 C. 51, 58, 43 N. E. 538. This rule is as applica0. A. 531; cf. Liberty Oil Co. v. Condon Nat. ble to equitable defenses as it is to independBank, 260 U. S. 235, 242, 43 S. Ct. 118, 67 L. ent suits. Hoppough v. Struble, 60 N. Y. 430, Ed. 232; Nat. Aniline Co. v. Arnhold (D. C.) | 435. Judgments for reformation bave been re298 F. 755; Lestrade v. Barth, 19 Cal. 671. versed even in this court for failure to obey Those provisions, however, when they are it. We have withheld approval from such compared with the provisions of our statute, judgments when the evidence of mistake, will be seen to be essentially different, though, though not lacking altogether, was too conto some extent analogous. We are commit- tradictory or uncertain to measure up to the ted to another holding, not only by the re- prescribed standard. Allison Bros. Co. v. Alported precedents, but by the consistent prac- lison, 144 N. Y. 21, 31, 33, 38 N. E. 956; tice of trial judges extending over many Nebius v. Dunlap, 33 N. Y. 676, 680. The years. A familiar illustration is the de- judge must still be satisfied that this standfense of fraud in the inducement, as distin ard has been reached. guished from fraud in the factum of a con- [6, 7] The plaintiff argues that the defense veyance (Whipple v. Brown Bros. Co., 225 is foredoomed to failure, and that any error N. Y. 237, 241, 243, 121 N. E. 748), a defense in excluding evidence to support it is too which, though equitable in origin and history technical and unsubstantial to lead to a re(Jackson v. Hills, 8 Cow. 290), is submitted versal. We cannot say that this is so. almost daily along with legal issues for There is some suggestion that the defendthe verdict of a jury. We have held that ant's letter as it stands is a departure from even the label of a counterclaim will not an earlier letter written by the defendant's change the mode of trial at the instance of a representative, who is said to have been hamdefendant if what is described as a counter-pered by an imperfect knowledge of the lanclaim is also a defense (Bennett v. Ed. El. II. guage. Even if he should be shown, howCo., supra; Civ, Prac. Act, 8 424 ; Code Civ. ever, to have written it himself, the right to Pro. $ 974), unless the situation is one in reformation would not be lost if the true which affirmative relief through a formal agreement of the parties was imperfectly exjudgment of reformation is essential for com- pressed. Pitcher v. Hennessey, supra, at page plete protection (Walker v. Am. Central Ins. 424. These matters are for the trial. We Co.

, supra). That situation may arise where may assume that the defendant will have no an instrument is capable of being used there- easy task in making proof of its defense. after to the prejudice of the signer, for the We are not at liberty for that reason to bar verdict of a jury, if the possibility exists it from its day in court. that it has been based on more grounds than

There are other questions in the case, but one, is an uncertain basis for a plea of res they were properly disposed of in the courts adjudicata. In the absence, however, of a below. counterclaim, all defenses, legal and equita- The judgment of the Appellate Division ble, stand upon a parity. The process of as

and that of the Trial Term should be resimilation has been made easier by the versed and a new trial granted, with costs to growth of the action for money had and re

abide the event. ceived which has accustomed us to the solution of problems essentially equitable through

POUND, CRANE and LEHMAN, JJ.,

cur. the medium of juries. Very likely there is

HISCOCK, C. J., and MCLAUGHLIN and danger of confusion and injustice at times in this blending of the issue. Juries may find

ANDREWS, JJ., dissent.
It difficult to apply the presumption that Judgments reversed, etc.

146 N.E.-25

con

re

for the assault upon Shaedel because he had STATE v. REICHERT. (No. 18440.) not been kept from work. (Supreme Court of Ohio. Dec. 9, 1924. Re- waited for Shaedel and made an assault up

Later, on April 7, Leischer and Solderitz hearing Denied Feb. 19, 1925.)

on him, as a result of which he sustained (Syllabus by the Court.)

severe wounds on the head, and was unable Criminal law ww780(1)-When accomplice tes to work for a considerable time; and it

timony corroborated, trial court may refuse appears by the record, according to the testo instruct not to convict on accomplice's timony of Solderitz, that the additional $35 uncorroborated testimony.

for the assault upon Shaedel was paid by In the trial of one charged with a felony, Reichert. ' It further appears that the money where the record discloses that the testimony received by Solderitz was divided between of an accomplice is corroborated by other evi- himself and Leischer, the latter corroboratdence material to the issue, the trial judge in ing much of that which Solderitz testified to. the exercise of a sound discretion may refuse to instruct the jury not to convict upon the

There is other evidence in the record apart uncorroborated testimony of an accomplice. from the testimony of Leischer and Solderitz Allen v. State, 10 Ohio St. 287, and State v. tending to connect Reichert with the assaults Lehr, 97 Ohio St. 280, 119 N. E. 730, approved in question, one Kobaker testifying to conand followed.

versation with Reichert, wherein he, Kobak

er, was solicited to take part in assaults of Error to Court of Appeals, Hamilton those that were working at the plant in County.

question, and also to the further fact that Jacob Reichert was charged with assault Reichert or by his consent, called upon the

a committee, either under the direction of with intent to kill. On error to the Court of daughter of one of the assaulted men, to Appeals, judgment of conviction was

wit, Shaedel, and warned her that if she did versed, and the State brings error. Re

not keep her father from going to work she versed, and judgment of court of common and her father would both be sorry. Other pleas affirmed.—[By Editorial Staff.]

corroborative circumstances appear in the The record in this case discloses that Ja- record. cob Reichert defendant in error, Irwin Lei The matter came on for trial, a jury was scher, and Frank Solderitz were jointly in- impaneled, and at the close of the testimony, dicted for the offense of assault with intent before argument, the following request for to kill.

special instructions, among others, was asked The state elected to try Reichert separately, by the defendant: and he was placed on trial on the 24th of "The degree of credit which ought to be given May, 1922. At the trial, Solderitz and Lei-to the testimony of a witness who has turned scher were called by the prosecuting attorney state's evidence is a matter exclusively within as witnesses on behalf of the state. Solderitz the province of the jury to decide. I caution testified that the defendant in error

you to scrutinize with care the testimony of ployed him to assault some of those who any such witness or witnesses, and not to con

vict this defendant upon the testimony of such were working in a certain factory, so that witness or witnesses alone, without corroborathey would be kept from work, and that it tion.” was agreed that defendant in error should pay $35 for each person so assaulted and This request was refused, to which the de. kept from work. Solderitz further testified fendant excepted, and after argument the that he arranged with Leischer to assist him, court instructed the jury, and did not inand they armed themselves with blackjacks; corporate in its general charge the above reand Solderitz further claimed that the de quest, nor did the defendant again call the fendant in error gave him the names and attention of the court to such request, nor addresses of Shaedel and Weissfeld, two of ask the court to incorporate the same things those who were working at the factory in in his general charge, although the record question, and that he and Leischer went to discloses that defendant did call the atten. the residence of Weissfeld and made assault tion of the court to the offense of assault, upon him, as a result of which he was un- upon which the court refused to instruct. able to go to work and was confined to his No other request was made by the defendbed under the care of a physician.

ant, nor was the court's attention called to On the following morning Solderitz and any other matter, and the defendant contendLeischer, according to their testimony, lay ed himself with taking a general exception to in wait for Shaedel, but the assault upon the charge. him was not successful, and he was not kept Upon submission to the jury a verdict of from work.

guilty was returned. The motion for new It further appears by the testimony of the trial overruled and judgment proaccomplices that Reichert paid $35 for the nounced. Error was prosecuted to the Court assault upon Weissfeld, but declined to pay of Appeals, and that court reversed the judg.

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

em

was

(146 N.E.) ment of the court below. Its journal entry | tified to material matters concerning the isin the premises is in the following language: sue joined.

In the statement of the case, at page 290, "And the court, being fully advised in the premises, finds that there is error apparent up- the following will be found: on the face of the record in this, to wit, that "The testimony on both sides being closed, the trial court failed to charge the jury as to the counsel proceeded to argue the cause to the propriety and necessity of corroboration of the jury. Allen's counsel, in argument to the jury, testimony of the accomplices; that said failure claimed that there was no testimony before the constituted prejudicial and reversible error, and jury, but that of said Herron, which tended to that the record in all other respects is free from show the guilt of Allen, and asked the court to error; that the judgment of the court below for charge the jury that they could not convict him the error herein set forth should be reversed.

upon the testimony of Herron, an admitted ac"It is therefore ordered, adjudged, and de- complice, unless his testimony was corroborated creed that the judgment of the Court of Com- by other testimony upon some matters material mon Pleas of Hamilton county be and the same to the issue. The court refused to give this is hereby reversed, set aside, held for daught charge to the jury, but, upon that subject, and the cause be and the same hereby is re- charged the jury thus: 'I can't say that you manded to that court for further proceedings (the jury) can't find a verdict upon his (Heraccording to law.

ron's) testimony alone, but it is the safer rule "To all of which defendant in error, the state not to find the defendant guilty upon the testiof Ohio, by its counsel excepts."

mony of Herron alone, without corroboration,

which corroboration should be in some matter Whereupon error was prosecuted to this material to the issue.'” court and the reversal of the judgment asked by the plaintiff in error.

In his opinion Judge Sutliff, speaking for Charles S. Bell, Pros. Atty., and Jessie the court, says, at pages 304 and 305: Adler, both of Cincinnati, for the State.

“It is also insisted that the court erred in not Louis B. Sawyer, Charles H. Elston, For- giving the instruction requested to the jury in rest W. Smith, and Joseph P. Goodenough, relation to Herron's testimony. But we perall of Cincinnati, for defendant in error. ceive no error in the refusal of the court to

give the instruction proposed by counsel, nor in DAY, J. This record discloses that the the instruction actually given to the jury upon

that subject. Court of Appeals reversed the common pleas

"The degree of credit which ought to be giv. court upon the sole ground of failure to in-en to the testimony of an accomplice is a matstruct the jury that it should not convict ter exclusively for the consideration of the upon the uncorroborated testimony of an jury. In most cases it is highly important accomplice, and found no other prejudicial that the jury should require his testimony to error in the record.

be corroborated by other evidence or cirIn the face of such a finding, therefore, cumstances, rather than to convict upon his the chief question for this court to determine rarely be expected that the testimony of an

unsupported testimony. Indeed, it can very is, Did failure of the court to instruct the accomplice, admitting his own depravity and jury as to the propriety and necessity of turpitude in the matter, would be sufficient to corroboration of the testimony of the accom- overcome all reasonable doubts and presumpplices constitute reversible error? The fact tions in favor of the accused. But it is said that the request was refused before argu- there is no rule of law requiring of the jury a ment is not urged, as that is settled in this refusal to convict upon the uncorroborated state by Blackburn v. State, 23 Ohio St. 146, testimony of an accomplice. This doctrine is

distinctly laid down by Greenleaf, in his Treaand Wertenberger v. State, 99 Ohio St. 353, tise on Evidence, vol. 1, § 380; but he adds that 124 N. E. 243. But the failure of the court judges, in their discretion, will advise a jury to instruct as requested in its general not to convict of felony, upon the testimony charge is the error complained of, even of an accomplice and without corroborathough the request was not repeated.

tion. And it is now so generally the practice We think the law upon this subject has to give them such advice, that its omission been settled in this state for many years, and would be regarded as an omission of duty on the leading case thereon is Allen v. State, usual caution to the jury; and the evidence set

the part of the judgę.' The court gave this 10 Ohio St. 287. In that case there was an

forth in the record does not show that that adindictment for the procuring by a person in vice of the court was disregarded. possession of a warehouse under a lease of "The case of People v. Castello, 1 Denio, 83, another to burn the warehouse, the proper- is a case in which the authorities upon this ty of a third person. One William C. Her- point are well collected and ably considered; ron was indicted for arson in burning the and that case, as well as Greenleaf, fully susWarehouse, and Simeon Allen was indicted tains the opinion here expressed upon for procuring him to do so.

point.”

The two were jointly indicted, and upon motion the prose- The rule above announced has been folcuting attorney elected to try Allen separate lowed in this state since decision of the ly, and continued the case as to Herron. Allen Case. During the progress of the trial Herron was In the case of State v. Robinson, 83 Ohio called as a witness for the state, and tes- St. 136, 93 N. E. 623, 21 Ann. Cas. 1255, the

case:

trial court cautioned the jury with reference, W. Va. 703. See, also, 16 Corpus Juris, 697, to conviction of the defendant upon uncor- 698. roborated testimony, and there is nothing in The rule of evidence in a criminal case, the syllabus of that case which changes the after all, is that the guilt of the accused doctrine of the Allen Case.

must be shown by evidence which satisfies The matter was again before this court in the jury beyond the existence of a reasonState v. Lehr, 97 Ohio St. 280, at page 281, able doubt, and in its last analysis it is for 119 N. E. 730, 731, wherein this language ap the jury to say whether the evidence measpears:

ures up to that standard, long fixed by the “This brings us to the vital questions in the law. And there is no rule of law in this

state preventing a jury from convicting up"1. Under the established law of Ohio is any on the uncorroborated testimony of an accorroborating evidence essential to a verdict complice, if from the evidence in the case the of guilty ?

jury believe the defendant guilty beyond the “2. If so, does the record disclose such cor-existence of a reasonable doubt. This docroborative evidence?"

trine is well stated in the fifth and sixth The rule of the Allen Case, as appears in propositions of the syllabus in Lamb v. State, the fifth paragraph of its syllabus, is quoted 40 Neb. 312, 58 N. W. 963 : with approval, and is commented upon as “5. It is not error to refuse an instruction sound and salutary law, and the court in the to the effect that a person accused of a crime Lehr Case, on page 282 (119 N. E. 731) of the cannot be convicted upon the uncorroborated

testimony of an accomplice. The weight to be per curiam, adds:

given the testimony of such a witness is for “Under this doctrine it is immaterial as to the jury to determine, after a careful examwhether there was or, was not corroborating ination of the same, in the light of all the othevidence."

er evidence in the case,

“6. A conviction may rest on the uncore Other citations of lower courts in Ohio roborated evidence of an accomplice, when, might be given, but the rule of the Allen considered with all the testimony, it satisfies Case is recognized by text-writers as well as

the jury beyond a reasonable doubt of the

guilt of the accused." courts of last resort in other states. In Jones on Evidence, Civil Cases (3d Ed.) 8

An analysis of the request made discloses 769, it is said :

that, after recognizing the province of the "Since the testimony of accomplices is com- jury, the court was asked to qualify the same petent, and since the jury are to judge of the in two respects: First, to caution the jury credibility of witnesses, it logically follows that to scrutinize with care the testimony of any a defendant may be convicted upon the unsup- such witness or witnesses; and, second, not ported evidence of an accomplice. Although the jury ought not to convict upon such testimony to convict the defendant upon the testimony without corroboration their verdict will not be of such witness or witnesses alone, without set aside.

corroboration. "Owing to the fact that witnesses of this Now, this record discloses that there was character are often subjected to strong tempta- corroborating evidence in the case in the tion to shift the burden of guilt upon the de- form of testimony by Kobaker and Miss fendant it has long been a rule of practice in Shaedel, and other facts and circumstances criminal trials for the court to charge the jury introduced in evidence. Therefore the court that they should not convict the prisoner upon might well be within its discretionary powthe uncorroborated testimony of an accomplice. But, although it might ordinarily be regarded ers in refusing this request and not instructas an omission of duty for the judge to neglect ing on the subject. As was said by Justice to so instruct the jury, yet the decisions are to Holmes in Commonwealth v. Bisbop, 165 the effect that his refusal so to do is not re- Mass. 148, at page 150, 42 N. E. 560: versible error, as the matter lies in the discretion of the judge. The instruction relates to

"At the close of the charge, the defendant the value or weight of the testimony, and does asked for fuller instructions as to the uncornot withdraw the case, from the jury. The roborated testimony of an accomplice, which questions of fact are for their determination." the court refused. It is settled that the court

is not bound to advise the jury that generally Attention is also called to the following though courts some times do so. Advice upon

it is unsafe to convict on such testimony, alcases from several states involving this ques- the matter is in substance instructing the jury tion: Earll v. People, 73 III. 329; Johnson that there is a presumption of fact concerning v. State, 65 Ind. 269; Commonwealth v. the veracity of a certain class of witnesses. Clune, 162 Mass. 206, 38 N. E. 435; People Although it is permissible, and in some cases v. Wallin, 55 Mich. 497, 22 N. W. 15; State may be desirable, to advise in the form above v. Simon, 71 N. J. Law, 142, 58 A. 107; State mentioned, the general rule under our practice v. Haney, 19 N. C. 390; State v. Green, 48 is to leave such presumptions to the jury, and S. C. 136, 26 S. E. 234; State v. Hier, 78 Vt. follow the general rule rather than the es

it is in the discretion of the presiding judge to 488, 63 A. 877; Murphy v. State, 124 Wis. ception, if it seems best to him to do so. 635, 102 N. W. 1087; State v. Betsall, 11 | Commonwealth v. Wilson, 152 Mass. 12, 14;

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