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 unless 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 applicaC. 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 have 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 conveyance (Whipple v. Brown Bros. Co., 225 N. Y. 237, 241, 243, 121 N. E. 748), a defense which, though equitable in origin and history (Jackson v. Hills, 8 Cow. 290), is submitted almost daily along with legal issues for the verdict of a jury. We have held that even the label of a counterclaim will not change the mode of trial at the instance of a defendant if what is described as a counter-pered by an imperfect knowledge of the lanclaim is also a defense (Bennett v. Ed. El. II. Co., supra; Civ. Prac. Act, § 424; Code Civ. Pro. 974), unless the situation is one in which affirmative relief through a formal judgment of reformation is essential for complete protection (Walker v. Am. Central Ins. Co., supra). That situation may arise where an instrument is capable of being used thereafter to the prejudice of the signer, for the verdict of a jury, if the possibility exists that it has been based on more grounds than one, is an uncertain basis for a plea of res adjudicata. In the absence, however, of a counterclaim, all defenses, legal and equitable, stand upon a parity. The process of assimilation has been made easier by the growth of the action for money had and received which has accustomed us to the solution of problems essentially equitable through the medium of juries. Very likely there is danger of confusion and injustice at times in this blending of the issue. Juries may find it difficult to apply the presumption that 146 N.E.-25 [6, 7] The plaintiff argues that the defense is foredoomed to failure, and that any error in excluding evidence to support it is too technical and unsubstantial to lead to a reversal. We cannot say that this is so. There is some suggestion that the defendant's letter as it stands is a departure from an earlier letter written by the defendant's representative, who is said to have been ham guage. Even if he should be shown, however, to have written it himself, the right to reformation would not be lost if the true agreement of the parties was imperfectly expressed. Pitcher v. Hennessey, supra, at page 424. These matters are for the trial. We may assume that the defendant will have no easy task in making proof of its defense. We are not at liberty for that reason to bar it from its day in court. There are other questions in the case, but they were properly disposed of in the courts below. The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event. POUND, CRANE and LEHMAN, JJ., con cur. HISCOCK, C. J., and MCLAUGHLIN and ANDREWS, JJ., dissent. Judgments reversed, etc. (Supreme Court of Ohio. Dec. 9, 1924. Rehearing Denied Feb. 19, 1925.) (Syllabus by the Court.) Criminal law ~780(1)—When accomplice testimony corroborated, trial court may refuse to instruct not to convict on accomplice's uncorroborated testimony. In the trial of one charged with a felony, where the record discloses that the testimony of an accomplice is corroborated by other evidence material to the issue, the trial judge in the exercise of a sound discretion may refuse to instruct the jury not to convict upon the uncorroborated testimony of an accomplice. Allen v. State, 10 Ohio St. 287, and State v. Lehr, 97 Ohio St. 280, 119 N. E. 730, approved and followed. for the assault upon Shaedel because he had not been kept from work. waited for Shaedel and made an assault upLater, on April 7, Leischer and Solderitz on him, as a result of which he sustained severe wounds on the head, and was unable to work for a considerable time; and it appears by the record, according to the testimony of Solderitz, that the additional $35 for the assault upon Shaedel was paid by Reichert. It further appears that the money received by Solderitz was divided between himself and Leischer, the latter corroborating much of that which Solderitz testified to. There is other evidence in the record apart from the testimony of Leischer and Solderitz tending to connect Reichert with the assaults in question, one Kobaker testifying to conversation with Reichert, wherein he, Kobaker, was solicited to take part in assaults of Error to Court of Appeals, Hamilton those that were working at the plant in County. Jacob Reichert was charged with assault with intent to kill. On error to the Court of Appeals, judgment of conviction was reversed, and the State brings error. Reversed, and judgment of court of common pleas affirmed.-[By Editorial Staff.] The record in this case discloses that Jacob Reichert defendant in error, Irwin Leischer, and Frank Solderitz were jointly indicted for the offense of assault with intent to kill. em The state elected to try Reichert separately, and he was placed on trial on the 24th of May, 1922. At the trial, Solderitz and Leischer were called by the prosecuting attorney as witnesses on behalf of the state. Solderitz testified that the defendant in error ployed him to assault some of those who were working in a certain factory, so that they would be kept from work, and that it was agreed that defendant in error should pay $35 for each person so assaulted and kept from work. Solderitz further testified that he arranged with Leischer to assist him, and they armed themselves with blackjacks; and Solderitz further claimed that the defendant in error gave him the names and addresses of Shaedel and Weissfeld, two of those who were working at the factory in question, and that he and Leischer went to the residence of Weissfeld and made assault upon him, as a result of which he was unable to go to work and was confined to his bed under the care of a physician. On the following morning Solderitz and Leischer, according to their testimony, lay in wait for Shaedel, but the assault upon him was not successful, and he was not kept from work. It further appears by the testimony of the accomplices that Reichert paid $35 for the assault upon Weissfeld, but declined to pay question, and also to the further fact that a committee, either under the direction of Reichert or by his consent, called upon the daughter of one of the assaulted men, to wit, Shaedel, and warned her that if she did not keep her father from going to work she and her father would both be sorry. Other corroborative circumstances appear in the record. The matter came on for trial, a jury was impaneled, and at the close of the testimony, before argument, the following request for special instructions, among others, was asked by the defendant: "The degree of credit which ought to be given to the testimony of a witness who has turned state's evidence is a matter exclusively within the province of the jury to decide. I caution you to scrutinize with care the testimony of any such witness or witnesses, and not to convict this defendant upon the testimony of such witness or witnesses alone, without corroboration." This request was refused, to which the defendant excepted, and after argument the court instructed the jury, and did not incorporate in its general charge the above request, nor did the defendant again call the attention of the court to such request, nor ask the court to incorporate the same things in his general charge, although the record discloses that defendant did call the atten tion of the court to the offense of assault, upon which the court refused to instruct. No other request was made by the defendant, nor was the court's attention called to any other matter, and the defendant contended himself with taking a general exception to the charge. Upon submission to the jury a verdict of guilty was returned. The motion for new trial was overruled and judgment pronounced. Error was prosecuted to the Court of Appeals, and that court reversed the judg (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. "And the court, being fully advised in the premises, finds that there is error apparent upon the face of the record in this, to wit, that the trial court failed to charge the jury as to the propriety and necessity of corroboration of the testimony of the accomplices; that said failure constituted prejudicial and reversible error, and that the record in all other respects is free from error; that the judgment of the court below for the error herein set forth should be reversed. "It is therefore ordered, adjudged, and decreed that the judgment of the Court of Common Pleas of Hamilton county be and the same is hereby reversed, set aside, held for naught and the cause be and the same hereby is remanded to that court for further proceedings according to law. "To all of which defendant in error, the state of Ohio, by its counsel excepts." Whereupon error was prosecuted to this court and the reversal of the judgment asked by the plaintiff in error. In the statement of the case, at page 290, the following will be found: "The testimony on both sides being closed, counsel proceeded to argue the cause to the jury. Allen's counsel, in argument to the jury, claimed that there was no testimony before the jury, but that of said Herron, which tended to show the guilt of Allen, and asked the court to charge the jury that they could not convict him upon the testimony of Herron, an admitted accomplice, unless his testimony was corroborated by other testimony upon some matters material to the issue. The court refused to give this charge to the jury, but, upon that subject, charged the jury thus: 'I can't say that you (the jury) can't find a verdict upon his (Herron's) testimony alone, but it is the safer rule not to find the defendant guilty upon the testimony of Herron alone, without corroboration, which corroboration should be in some matter material to the issue.'" 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. all of Cincinnati, for defendant in error. DAY, J. This record discloses that the Court of Appeals reversed the common pleas court upon the sole ground of failure to instruct the jury that it should not convict upon the uncorroborated testimony of an accomplice, and found no other prejudicial error in the record. In the face of such a finding, therefore, the chief question for this court to determine is, Did failure of the court to instruct the jury as to the propriety and necessity of corroboration of the testimony of the accomplices constitute reversible error? The fact that the request was refused before argument is not urged, as that is settled in this state by Blackburn v. State, 23 Ohio St. 146, and Wertenberger v. State, 99 Ohio St. 353, 124 N. E. 243. But the failure of the court to instruct as requested in its general charge is the error complained of, even though the request was not repeated. We think the law upon this subject has been settled in this state for many years, and the leading case thereon is Allen v. State, But we per ceive no error in the refusal of the court to give the instruction proposed by counsel, nor in the instruction actually given to the jury upon that subject. "The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively for the consideration of the jury. In most cases it is highly important that the jury should require his testimony to be corroborated by other evidence or circumstances, rather than to convict upon his unsupported testimony. Indeed, it can very rarely be expected that the testimony of an accomplice, admitting his own depravity and turpitude in the matter, would be sufficient to overcome all reasonable doubts and presumptions in favor of the accused. But it is said there is no rule of law requiring of the jury a refusal to convict upon the uncorroborated testimony of an accomplice. This doctrine is tise on Evidence, vol. 1, § 380; but he adds that distinctly laid down by Greenleaf, in his Treajudges, in their discretion, will advise a jury not to convict of felony, upon the testimony of an accomplice alone, and without corroboration. And it is now so generally the practice to give them such advice, that its omission would be regarded as an omission of duty on usual caution to the jury; and the evidence set the part of the judge.' The court gave this forth in the record does not show that that advice of the court was disregarded. "The case of People v. Castello, 1 Denio, 83, is a case in which the authorities upon this point are well collected and ably considered; and that case, as well as Greenleaf, fully sustains the opinion here expressed upon this point." 10 Ohio St. 287. In that case there was an indictment for the procuring by a person in possession of a warehouse under a lease of another to burn the warehouse, the property of a third person. One William C. Herron was indicted for arson in burning the warehouse, and Simeon Allen was indicted for procuring him to do so. 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 called as a witness for the state, and tes In the case of State v. Robinson, 83 Ohio St. 136, 93 N. E. 623, 21 Ann. Cas. 1255, the 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 syllabus of that case which changes the doctrine of the Allen Case. The matter was again before this court in State v. Lehr, 97 Ohio St. 280, at page 281, 119 N. E. 730, 731, wherein this language appears: "This brings us to the vital questions in the case: "1. Under the established law of Ohio is any corroborating evidence essential to a verdict of guilty? "2. If so, does the record disclose such corroborative evidence?" The rule of the Allen Case, as appears in the fifth paragraph of its syllabus, is quoted with approval, and is commented upon as sound and salutary law, and the court in the Lehr Case, on page 282 (119 N. E. 731) of the per curiam, adds: "Under this doctrine it is immaterial as to whether there was or was not corroborating evidence." Other citations of lower courts in Ohio might be given, but the rule of the Allen Case is recognized by text-writers as well as courts of last resort in other states. In Jones on Evidence, Civil Cases (3d Ed.) § 769, it is said: The rule of evidence in a criminal case, after all, is that the guilt of the accused must be shown by evidence which satisfies the jury beyond the existence of a reasonable doubt, and in its last analysis it is for the jury to say whether the evidence measures up to that standard, long fixed by the law. And there is no rule of law in this state preventing a jury from convicting upon the uncorroborated testimony of an accomplice, if from the evidence in the case the jury believe the defendant guilty beyond the existence of a reasonable doubt. This doctrine is well stated in the fifth and sixth propositions of the syllabus in Lamb v. State, 40 Neb. 312, 58 N. W. 963: "5. It is not error to refuse an instruction to the effect that a person accused of a crime cannot be convicted upon the uncorroborated testimony of an accomplice. The weight to be given the testimony of such a witness is for the jury to determine, after a careful examination of the same, in the light of all the other evidence in the case. "6. A conviction may rest on the uncorroborated evidence of an accomplice, when, considered with all the testimony, it satisfies the jury beyond a reasonable doubt of the guilt of the accused." An analysis of the request made discloses 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 credibility of witnesses, it logically follows that a defendant may be convicted upon the unsupported evidence of an accomplice. Although the jury ought not to convict upon such testimony without corroboration their verdict will not be set aside. "Owing to the fact that witnesses of this character are often subjected to strong temptation to shift the burden of guilt upon the defendant it has long been a rule of practice in criminal trials for the court to charge the jury that they should not convict the prisoner upon the uncorroborated testimony of an accomplice. But, although it might ordinarily be regarded as an omission of duty for the judge to neglect to so instruct the jury, yet the decisions are to the effect that his refusal so to do is not reversible error, as the matter lies in the discretion of the judge. The instruction relates to the value or weight of the testimony, and does not withdraw the case, from the jury. The questions of fact are for their determination." in two respects: First, to caution the jury to scrutinize with care the testimony of any such witness or witnesses; and, second, not to convict the defendant upon the testimony of such witness or witnesses alone, without corroboration. Now, this record discloses that there was corroborating evidence in the case in the form of testimony by Kobaker and Miss Shaedel, and other facts and circumstances introduced in evidence. Therefore the court might well be within its discretionary powers in refusing this request and not instructing on the subject. As was said by Justice Holmes in Commonwealth v. Bishop, 165 Mass. 148, at page 150, 42 N. E. 560: "At the close of the charge, the defendant asked for fuller instructions as to the uncorroborated testimony of an accomplice, which 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 Ill. 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 v. Wallin, 55 Mich. 497, 22 N. W. 15; State v. Simon, 71 N. J. Law, 142, 58 A. 107; State v. Haney, 19 N. C. 390; State v. Green, 48 S. C. 136, 26 S. E. 234; State v. Hier, 78 Vt. 488, 63 A. 877; Murphy v. State, 124 Wis. Although it is permissible, and in some cases may be desirable, to advise in the form above mentioned, the general rule under our practice is to leave such presumptions to the jury, and follow the general rule rather than the exit is in the discretion of the presiding judge to ception, if it seems best to him to do so. (146 N.E.) 214.] see of Moore v. Vance, 1 Ohio, 1; Lessee of 463, Kinsman v. Loomis, 11 Ohio, 475; Crumbaugh v. Kugler, 2 Ohio St. 374; Moore v. Lessee of Moore, 3 Ohio St. 154, distinguished. Cominonwealth v. Clune, 162 Mass. 206, Reaching the conclusion that the proposition requested to be given in charge to the jury might have been refused by the trial judge in his discretion, under the testimony, facts, and circumstances of this case, it follows that there was no error in so doing, and the question of the duty of counsel to reiterate his request as to the general charge becomes immaterial. The Court of Appeals has reversed this case on the sole ground of error of the trial court in refusing the request above discussed, and affirmatively finds no other prejudicial error in the record. We have examined the record upon the points urged, and are content with the conclusions of the Court of Appeals as to the freedom of the record of the trial court from prejudicial error. It therefore becomes our duty to reverse the judgment of the Court of Appeals and affirm that of the court of common pleas. Judgment of the Court of Appeals versed, and that of the common pleas firmed. Error to Court of Appeals, Wayne County. Action by P. J. Coolahan and another against the Empire Gas & Fuel Company. Judgment for defendant on demurrer was reversed by the Court of Appeals, and defendant brings error. Affirmed.-[By Editorial Staff.] This cause originated as an action to quiet title to real estate and to have the court of common pleas declare null and void a certain lease of oil and gas underlying lands in Wayne county. The petition alleges that the lease was signed by the owners of the lands and the acknowledgment taken in Wayne county, Ohio, before a justice of the peace duly elected and qualified as such in and for Prairie township, Holmes county, Ohio. The lease was also acknowledged by the owners in said Wayne county, Ohio, before a notary public for Holmes county, Ohio. It is therefore claimed that the acknowledgment before the justice of the peace and the notary public, both of whom were at the time of acknowledgment outside of their respective jurisdictions, was void and of no effect. An answer was filed admitting the manner and form of the execution and acknowledgment of the lease, and further alleging that the lease was given for a valuable consideration, and that it was filed for record. A demurrer was filed to the answer, and upon consideration of the demurrer it was ruled by the court of common pleas that the anthe record, the court found the petition to swer was good, but, the demurrer searching re-fore sustained as to the petition, and the be insufficient, and the demurrer was thereaf cause dismissed. On error to the Court of Appeals the judgment was reversed and the acknowledgment to the lease held to be null MARSHALL, C. J., and JONES, ALLEN, and void. and CONN, JJ., concur. EMPIRE GAS & FUEL CO. v. COOLAHAN et al. (No. 18609.) (Supreme Court of Ohio. Feb. 10, 1925.) (Syllabus by the Court.) Acknowledgment 19-Acknowledgment of lease by notary public or justice of the peace, but outside county for which they were commissioned, for lands outside county, is nullity. An acknowledgment of a lease taken by a notary public or justice of the peace at a place within the state and outside of the county in and for which such notary public or justice of the peace is commissioned, for lands located outside of such county, is null and void. Les Weygandt & Ross, of Wooster, for plaintiff in error. K. E. Hoover, of Wooster, for defendants in error. MARSHALL, C. J. This error proceeding involves an interpretation of three statutes. Section 8510, General Code, makes provision for the acknowledgment of deeds and leases, and provides that the signing must be acknowledged "before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto." That section contains no limitation upon the geographic radius of action of any of the officers by whom the acknowledgment may be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |