The constitutional provision merely de- | language of this last constitutional provision clares that all three judges of the court of is most clear that it was the intention of the appeals must concur before they are war- constitution makers to save these kindred ranted to reverse "on the weight of the evi- statutes as a part of our law. dence." The statute in question says nothing about the number of judges necessary to concur. The constitutional provision above quoted is clearly in conflict with said section 1515, General Code, and repeals that section so far as it relates to a judgment or decree on the weight of the evidence; but section 11577, General Code, does not undertake to fix the number of judges for a quorum to enter any judgment by any court. The sole and exclusive purpose of section 11577 is to limit the number of reversals on the weight of the evidence by the same reviewing court. Clearly there is no conflict between the number of judges who must concur, as provided in the Constitution, and the number of times they may so concur, as provided in the statute. By the Constitution it is said three must concur before you can reverse on the weight of the evidence. By the statute it is provided that you can thus reverse on the weight of the evidence but once. In this view of the case, the constitutional provision and the statutory section are not only fairly reconcilable by a fair course of reasoning, but, upon the contrary, there is no semblance of conflict or repugnancy between them. But even were this course of reasoning absolutely fatal to said section of the statute as to cases generally, as to the case at bar there is an additional and unanswerable reason why the section is preserved. A special provision, not in a schedule but in the very judicial article itself, expressly saves the statute, to wit, article 4, § 6: "The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the Supreme Court, as now provided by law." That is, as to pending cases on January 1, 1913, old section 1515, General Code, provides that two judges should be a quorum to render any order, judgment, or decree, and therefore two judges could reverse on the weight of the evidence. But as to cases not so pending the concurrence of three judges was necessary to reverse on the weight of the evidence. [7] The words "proceed to judgment" are very comprehensive and clearly include final judgment, not only "in the court of appeals," where the case at bar was pending on January 1, 1913, but, as clearly set forth in the language of the Constitution above quoted, "in the Supreme Court" as well. As to the number of reversals on the weight of the evidence the statute in question was in existence and had been for more than seven years. Our various courts were quite familiar with it and applied it frequently and effectually in the interest of justice, being the spirit in which it was enacted. It was then a part of our law of procedure, and the 112 N.E.-13 But above and beyond the application of these rules of interpretation and construction, it must be apparent to the student of political and judicial development that one great purpose that the constitutional convention of 1912 had in mind was judicial reform along the line of one fair trial and one thorough review and no more, to the end that justice should be speedily, economically and substantially administered. The constitutional convention obviously was not seeking to enlarge the right of reviewing courts upon the verdicts of juries, or to increase the number of trials, appeals, and reviews under the then practice of the courts, but, upon the contrary, to limit and restrain the number of trials and the power of review by virtue of the new constitutional provisions in that behalf. If the doctrine contended for by plaintiff in error as to the section in question shall prevail and that section be repealed, the people of the state of Ohio are in a worse plight as to the administration of justice through litigation than they were under the old Constitution; for, if this statute is now repealed, the court of appeals may reverse an indefinite number of times on the weight of the evidence, litigation may be prolonged interminably, and the people are not only without any remedy now, but the General Assembly of Ohio would be powerless to enact such a statute, because it would conflict with the new Constitution by the same process of reasoning as is contended for in the case at bar. We hold that the language of the judicial article in question is a limitation on, rather than an extension of, the statute, section 11577, General Code; that the two are in entire harmony in so far as their co-operation is concerned; that the work of both will expedite and economize the work of our courts and prevent the extravagant farce of interminable, unending litigation, which usually results in favor of the longest purse. [4] Again, it is urged that even if the statute be unrepealed the language thereof, to wit, "the same court," prevents the application of the statute in the case at bar by reason of the fact that the first reversal on the weight of the evidence was by the circuit court and the second reversal was asked of the court of appeals, and that therefore the statute has no application in the instant case. Section 6, art. 4, of the Constitution of 1912, so far as applicable here to this discussion, reads as follows: "The judges of the circuit courts now residing in their respective districts shall be the judges of the respective courts of appeals in such districts and perform the duties thereof until the expiration of their respective terms of office. * * The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the Supreme Court, as now provided by law, and cases brought into said courts of appeals after the taking effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the courts of appeals." This court, in State ex rel. Chittenden v. Harmon, Governor, 87 Ohio St. 364, 101 N. E. 286, reviewed section 6 of the article 4 of the Constitution, touching the issue of identity of courts, and held that said section, "although substituting the court of appeals for the circuit court, recognizes and preserves the identity of those courts to the extent that one who prior to that date had been elected a judge of the circuit court for a term of six years, beginning February 9, 1913, is entitled to serve as a judge of the court of appeals for the term to which he had been so elected." True, Shauck, C. J., rendering the opinion, uses the following language cited in plaintiff in error's brief: "It is true that the language employed to confer appellate jurisdiction on the court of appeals differs widely from that previously employed by the statute to confer such jurisdiction upon the circuit court, but whether any substantial change in that jurisdiction was intended will be for determination in cases which may present the question." But later in the same opinion this language appears: The mandate remanding the case to the court of common pleas, however, was not issued by the then court of appeals until February 20, 1913, so that the case was pending in the circuit court on the 1st day of January, 1913, and error could have been prosecuted to this court under the provisions of section 6. art. 4, of the Constitution, adopted September 3, 1912, effective January 1, 1913. Akron v. Roth, 88 Ohio St. 456, 103 N. E. 465. Instead, the case was remanded to the court of common pleas and again tried to a jury and resulted in a verdict and judgment in favor of defendant in error. From this judgment error was prosecuted to the court of appeals, the petition in error being filed June 7, 1914. It was a case brought into the court of appeals, within the meaning of section 6, art. fact that the controversy had been presented to the circuit court upon a former petition in error, filed prior to the taking effect of 4, after that section became effective. The section 6, did not exempt it from the provisions of the section relating to cases brought into the court of appeals after the section became effective. The constitutional provision is that all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the Supreme Court, as then provided by law, and cases brought into the courts of appeals after the taking effect of the section are subject to the provisions thereof. Under this provision, as we have "The comparison seems to justify the statement that no change whatever is effected which required a change in the Constitution except in the name of the court and the addition of prohibition to the subjects of its original jurisdic-stated, when this matter was in the circuit tion." The language of the constitutional provision, its spirit, and its very evident purpose all combine in favor of the conclusion that we have a constitutional identity of courts in the merger of the circuit court into the court of appeals, the latter appearing as the successor of the former, the only difference being a mere change of name, each being the court of review upon the judgment of the court of common pleas. To hold otherwise would be like distinguishing tweedledee from tweedledum. In this view of the case, the judgment of the court of appeals should be, and therefore is, affirmed. Judgment affirmed. court in 1913, it could have proceeded to judgment in that court and in this court according to the provisions of law in force when the constitutional amendments went into effect. But when the case was remanded to the court of common pleas and another trial had and a judgment rendered, and error was prosecuted from that judgment to the court of appeals, the case was subject to the provisions of section 6 and was under the jurisdiction of the court of appeals as conferred by that section. The judgment under review here was rendered upon the petition in error filed June 7, 1914, in a new proceeding in error coming into the court of appeals after section 6 became effective. and this court is entertaining jurisdiction, not because it was a pending case, but because a constitutional NICHOLS, C. J., and JOHNSON, DONA-question is involved. The court of appeals HUE, and MATTHIAS, JJ., concur. NEW MAN, J. (dissenting). I do not concur in the third proposition of the syllabus or in the judgment in this case. In 1912, defendant in error recovered a verdict and judgment in the court of common pleas. Error was prosecuted to the circuit court, and at the October, 1912, term of that court the judgment of the court of common pleas was reversed upon the ground that the verdict and judgment were clearly and manifestly against the weight of the evidence. affirmed the judgment of the court of common pleas upon the ground that the circuit court having, on October 24, 1912, reversed the judgment of the court of common pleas upon the ground that the verdict and judgment were against the weight of the evidence, it, the court of appeals, under the terms and provisions of section 11577, General Code, was wholly without jurisdiction to review the evidence presented in the record for the purpose of determining the weight thereof. The question presented is: Does section 11577, which provides that "the same court shall not grant more than one new trial oned to and did do away with a review by this the weight of the evidence against the same court in nearly every case. True, when a party in the same case, nor shall the same judgment of the court of common pleas is afcourt grant more than one judgment of re- firmed, that is the end of the litigation, exversal on the weight of the evidence against cept in the cases coming expressly within the the same party in the same case," conflict jurisdiction of this court. But it certainly with section 6, art. 4, of the Constitution as cannot be contended seriously that, where a amended? judgment is reversed by the court of appeals and the cause remanded, there can be no other review of the matter by the court of appeals. The framers of the Constitution never intended that there should be one review in the literal sense of the word. A case begun in the common pleas may reach the court of appeals as many times as error has intervened in the trial of the case. The general schedule of the Constitution provides that all laws in force when the amendments took effect and not inconsistent therewith shall continue in force until amended or repealed, and we subscribe to the rule announced in the syllabus here, following Cass v. Dillon, 2 Ohio St. 607, that before a statute can fall by reason of such inconsistency the repugnancy must be necessary and obvious, and, if by any fair course of reasoning the statute and Constitution can be reconciled, the statute must stand. In Cincinnati Polyclinic v. Balch, 92 Ohio St. 415, 111 N. E. 159, it was held that section 6, art. 4, of the Constitution, confers jurisdiction upon the court of appeals to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts, and other courts of record within the district, and the General Assembly has no power to enlarge or limit the jurisdiction conferred by the Constitution of the state, but may provide by law for the method of exercising that jurisdiction. In the majority opinion here "jurisdiction" is defined. We adopt that definition. It is the power to hear and determine causes; the authority by which judicial officers take cognizance of and decide them; the power of a court or judge to entertain an action, petition or other proceedings; the power constitutionally conferred upon judges or magistrates to take cognizance of and determine causes according to law and carry their sentence into execution. As we view it, section 11577 is aimed directly at the very power of the court. It certainly does not relate to "practice" or "procedure," as those terms are defined in the majority opinion, or prescribe a mode of proceeding or regulate the steps in an action, but it attempts to restrict and limit the power of the court of appeals in reviewing judgments, which the General Assembly cannot do, as this court held in Cincinnati Polyclinic v. Balch, supra. It is provided in section 6 that no judgment of a court of common pleas shall be reversed except by the concurrence of all the judges of the court of appeals on the weight of the evidence. In this provision the jurisdiction and power of the court of appeals to reverse upon the weight of the evidence is recognized, and the only limitation placed upon the exercise of that power is that all the judges must concur. If the statute we are considering is to be treated as a rule of procedure, then the General Assembly could enact a law upon that theory providing that there can be no reversal upon the weight of the evidence. It could go further and provide that there can be no reversal on the ground that there is error in the charge of the court, and so on, until there would remain no ground upon which a reversal could be had, and the rule, carried to its logical end, would result in the General Assembly not only limiting the jurisdiction of the court of appeals in the reversal of judgments but abrogating it entirely. We think therefore that section 11577, which limits the power of the court of appeals in reviewing the judgments of the common pleas and superior courts, is irreconcilably in conflict with the provisions of the Constitution. JONES, J. (dissenting). I concur in the judgment and in the first, second, and fourth propositions of the syllabus, for the reason that this case was a "pending case" in the court of appeals on January 1, 1913, to be thereafter determined under the then existing laws. I dissent from the latter part of the third proposition of the syllabus. Section 6, art. 4, of the Constitution, embraces the plenary jurisdiction of the courts of appeals, both original and appellate, and included in that section is the limitation on its jurisdiction or power to reverse on the weight of the evidence. This constitutional provision, ex proprio vigore, definitely seized the subjectweight of the evidence from the realm of statutory jurisdiction and legislative control, and incorporated it in the constitutional section dealing with the jurisdiction of the courts of appeals. This appellate jurisdiction or power of reversal is unqualified, save by the single, specific limitation that a reversal on the weight of the evidence must be by a concurrence of all the judges of the court of appeals. The statute in question, section 11577, It is suggested that the one great purpose General Code, affecting the power of the of the constitutional convention of 1912 was court to render a judgment, is jurisdictional to have one trial and one review. This, we and not procedural, and became inoperative think, refers to the number of reviewing by the adoption of the section of the Consticourts. The constitutional convention intend- tution above referred to. -- CRIMINAL 1. LIBEL AND SLANDER 154 [Ed. Note.-For other cases, see Libel and 2. LIBEL AND SLANDER 143 CRIMINAL RESPONSIBILITY ELEMENTS OF OFFENSEINTENT. Under Gen. Code, § 13383-1, as amended by 103 Ohio Laws, p. 469, imposing a penalty upon any one who makes and circulates any false statement, rumor, or suggestion derogatory to the financial condition of any bank, building and loan association, or trust company, or with intent to depress the value of the stocks or securities of any corporation, willfully and knowingly makes or circulates such a statement, rumor, or suggestion, the intent is not material where the statement relates to a bank, building and loan association, or trust company, and, if false, the party is guilty, but if true he is not guilty regardless of the intent. TIONS. Express malice is no part of the offense of circulating a report affecting the financial condition of a bank, building and loan association, or trust company; but if the statement is false and willfully and knowingly made or circulated, the law implies malice. Slander, Cent. Dig. § 406; Dec. Dig. 143.] In a prosecution for making a false report as to the financial condition of a bank, building and loan association, or trust company, the accused cannot complain that the state was required to prove express malice, since the error was not prejudicial to the state. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3129; Dec. Dig. 1168(6).] Error to Court of Appeals, Mahoning County. One Kollar was convicted of libel. From a judgment of the court of appeals reversing judgment of conviction by the court of common pleas, the State brings error. Judgment of court of appeals reversed and that of common pleas affirmed. Edward C. Turner, Atty. Gen., and A. M. Henderson, Pros. Atty., of Youngstown, for the State. E. N. Brown, of Youngstown, for defendant in error. [Ed. Note.-For other cases, see Libel and PER CURIAM. [1] In a prosecution unSlander, Cent. Dig. § 406; Dec. Dig. 143.] der that part of the provisions of section 3. LIBEL AND SLANDER 159 CRIMINAL 13383-1, General Code (103 O. L. 469), relatRESPONSIBILITY PROSECUTION-INSTRUC-ing to banking institutions, building and loan associations, or trust companies, the burden is upon the state to prove, beyond a reasonable doubt, that the statement, rumor, or suggestion, which the indictment charges the defendant with having made, transmitted, or circulated, is false. In a prosecution for circulating a false report as to the financial condition of a bank, building and loan association, or trust company, an instruction that, if the article was true and was published with good motives and for justifiable ends, the jury should acquit was error, since the jury should acquit if the statement were true. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 444; Dec. Dig. 159.] 4. CRIMINAL LAW 1137(3)-WRIT OF ER ROR ESTOPPEL TO ALLEGE ERROR. In a prosecution for circulating a false report as to the financial standing of a bank, building and loan association, or trust company, where the defendant requests the court to charge that if the matter published was true and was published for good motives and for justifiable ends the jury should acquit, the defendant cannot complain of a charge to that effect. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3009; Dec. Dig. 1137 (3).] 5. CRIMINAL LAW 1137(3)-WRIT OF ERROR ESTOPPEL TO ALLEGE ERROR. Where the defendant requested a charge that, if the accused made to the state a report of the financial condition of his establishment which was false, then any comment or criticism of such false statement which tended to expose its falsity would not be a libel, defendant can not complain of a charge that if defendant made a false statement it would give the right to the defendant to comment on the falsity of the statement. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3009; Dec. Dig. 1137 (3).] [2] Under this provision of that section, the intent of the accused is not material, but it is made a material element of the further offense defined by this section against any corporation. If the statement, rumor, or suggestion, derogatory to the financial condition, solvency, or financial standing of any bank, banking association, building and loan association, or trust company doing business in this state, is false, and the accused, directly or indirectly, willfully and knowingly, made and transmitted it to another, or circulated the same, then he is guilty of the offense charged. If the statement, rumor, or suggestion is true, then he is not guilty of this offense, regardless of the intent and purpose with which it is made or transmitted to another or circulated. [3] It is error for the trial court to charge the jury that: "If the article was true and was published with good motives, and for justifiable ends, it would be your duty to acquit the defendant." [4, 5] The court should have charged the jury to acquit the defendant if it found that the statement published is true. Where, however, the defendant requests the court to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1. (Syllabus by the Court.) CRIMINAL LAW ~~108(1)—VENUE "SHIP." The word "ship," as used in section 13216, Gen. Code, means to deliver to a common carrier for transportation; and, where intoxicating liquor is bought and paid for in one county, with instructions to the seller by the buyer to ship by express to him in another county, if it be shipped under a false or fictitious name or title, the offense under section 13216 is complete in the county where the liquor is bought and delivered to the express company, and the ship. per must be prosecuted there. charge the jury that, "if it shall appear to vision of the law under which this indict- see Criminal [Ed. Note.-For other cases. Law, Cent. Dig. §§ 220-226, 230, 234; Dec. Dig. 108(1). For other definitions, see Words and Phrases, First and Second Series, Ship.] (Additional Syllabus by Editorial Staff.) SALES 201(4) CONSTRUCTION OF CON TRACT-TRANSFER OF TITLE. Gen. Code, § 8426, provides that, when under a contract of sale the seller is authorized to send the goods to the buyer, delivery to a carrier, whether named by the buyer or not, is deemed a delivery to the buyer, except as provided in section 8399, rule 5, which provides that, if the contract requires the seller to deliver the goods to the buyer or at a particular place, to pay the freight or costs of transportation, the property does not pass till the goods have been delivered to the buyer, or reach the place agreed upon. Section 6098 provides that sales of liqmade at the place of destination or where the uor to be paid for on delivery shall be held to be money is paid or the goods delivered. Held that, where liquor is paid for in advance, and the seller is not required to deliver the goods to the buyer or at a particular place, nor to pay the freight or costs of transportation, the carrier is the agent of the buyer, and title passes on delivery to the carrier. The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows therefore that, for much graver reasons, a litigant cannot be permitted, either intention-Dig. §§ 535, 536; Dec. Dig. 201(4).] ally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible. [6, 7] Express malice is no part of the offense charged in this indictment. If the statement is false, willfully and knowingly made or transmitted to another or circulated, the law implies malice, but the accused cannot complain that the state was required by the trial court to prove express malice on his part as an essential element of the crime. The error is prejudicial to the state, but not to the accused, for the fact, if it be a fact, that the act was done maliciously, does not make it any less a crime. The judgment of the court of appeals is reversed, and judgment of the court of common pleas affirmed. Judgment of the court of appeals reversed, and that of the court of common pleas affirmed. JOHNSON, DONAHUE, NEWMAN, WANAMAKER, JONES, and MATTHIAS, JJ., concur. [Ed. Note.-For other cases, see Sales, Cent. Error to Court of Appeals, Union County. Harry Bayer was convicted of shipping intoxicating liquor under a false and fictitious name. From a judgment of the Court of Ap peals reversing a judgment of conviction, the State brings error. Affirmed. Milton Haines, Pros. Atty., of Richwood, John H. Willis, of Marysville, and James A. White, of Columbus, for the State. O. H. Mosier and Timothy S. Hogan, both of Columbus, for defendant in error. NEWMAN, J. The prosecuting attorney of Union county filed an information in the probate court of that county based upon an affidavit filed by one W. B. Mathews, charging the defendant, Harry Bayer, with the violation of section 13216, General Code, in unlawfully and knowingly shipping and transporting into the village of Marysville intoxicating liquor under a false and fictitious name, to wit, one paper box containing eight pint bottles of whisky, said box marked and labeled "Glass." The case was heard in the probate court, and the defendant was found For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |