Jones v. The State of Ohio.

crime, and that on the facts, it was material matter of law to determine whether a constable or watchman have the right to arrest without warrant; and the court being divided in opinion as to the law upon that point, so told the jury, and said they could not charge them whether a warrant was necessary or not, and did not charge the jury upon that point." According to this part of the bill of exceptions, it seems that the court hearing the case, was of opinion "that on the facts," this "was a material matter of law to determine." This, howover, is not sufficient. This is a question for this court, acting as a court of errors, to determine, and it can not be determined but upon a disclosure of the facts in the bill. of exceptions.

But what, in reality, is the error complained of? Not that the court refused, upon request of the party, to instruct the jury upon a particular point of law arising in the case. Not that the court violated any principle of law, in the instructions given, but that the court neglected, or forbore to instruct upon one point of law, which is said to have been material in the case.

Suppose, after the testimony and arguments of counsel are closed, the court submits the case to the jury without any instructions whatever; would this be error, for which the judgment subsequently rendered could be reversed? I apprehend not, for I know of no rule of law which requires a court, of its own [46 mere motion, to instruct or charge a jury at all; and perhaps those who hold-and there are many such-that in criminal cases the jury are the judges of the law, as well as of the facts, would hold that it was erroneous for the court, in such cases, to give any instructions at all. It is customary for our courts, as a general rule, to charge or instruct juries; but I am not aware of any law which, as a matter of course, imposes any such duty upon them. If it would not be erroneous to neglect to give any instructions whatever, it certainly can not be erroneous to neglect to instruct upon a particular point which may arise in a case. But if the parties to a case, or either of them, request the court to instruct the jury upon the whole case, or upon particular points which may be involved, it is the duty of the court to do it, and if the law is mistaken by the court, it is error.

The rule of law upon the subject I suppose to be this: If the court, in its instruction to the jury, mistakes the law of the case,

Jones v. The State of Ohio.

or if the court is requested to instruct upon a point of law involved in the case, and refuses such instruction, it is error.

Now apply this principle to the case before this court. How does it stand, so far as the first error assigned is concerned? The judges of the court before whom this case was tried, differed upon a point of law, which, in their opinion, was involved in the case. They so stated to the jury, and for this reason neglected to instruct upon that point. Neither the plaintiff in error nor his counsel made any objection to this action of the court, nor requested any instruction upon the particular point. Having failed to do this, it is now too late to complain. Had the plaintiff in error, or his counsel, requested the court to instruct the jury that the law upon this particular point was as they now allege it to be, and had the court refused, the foundation for a writ of error would have been laid, and this court wonld have been called upon to settle the law upon the subject.

Such, however, is not the state of case, and we do not feel that it would be proper for us to undertake to settle the principal 47] question, which has been elaborately and ably argued by counsel. That question, in substance, is, whether a ministerial officer, without process, has any better right to arrest a man suspected of crime than has a private citizen. We are aware that it is a question upon which there is a great contrariety of opinion, and it will be soon enough for the court to decide it when a case is presented rendering it necessary.

The second error assigned is, "that the court erred in not charging the jury that a difference of opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocence of the person accused, was a reasonable doubt, to be construed in the prisoner's favor."

There is the same difficulty with respect to this assignment of error as with respect to the first. It is a mere allegation that the court failed so to instruct, not that there was any refusal of the court so to instruct, when requested. There is also this additional difficulty: the bill of exceptions does not show whether there was or was not any such charge, nor whether any such charged was requested. All that appears in the record is, that this was assigned by counsel as one of the reasons why a new trial should be granted.

Jones v. The State of Ohio.

The third error assigned is, "that the court permitted the prosecutor to comment upon, and denounce the character of, the plaintiff in error, as corrupt, vicious, and criminal, when said plaintiff had not put his character in issue."

Upon this point the bill of exceptions contains this statement: "The prosecutor commented injuriously upon the character of prisoner, when the same had not been put in issue; and the prosecutor claimed it as matter of just inference." There is nothing to show that there was any action of the court upon this subject at all. All that appears is, that the counsel for the prosecution commented upon the character of the accused, and claimed that he had a right so to do. Whether he had such right was not a question made to the court. Possibly he may have been too severe in his remarks. But this is nothing *un- [48 common. Counsel frequently take great, and, in fact, unpardonable liberty in commenting upon the character of parties, and more especially of witnesses. It does not conduce to the ends of justice. It is a bad practice; and the members of the bar who are addicted to it, from respect to themselves, and to the courts in which they practice, should abandon it. But we should be unwilling to reverse judgment because the court in which it was rendered had not interfered to prevent improper remarks of counsel.

The fourth and fifth errors assigned are, "that the court erred in admitting the testimony of persons who were entitled to a reward upon condition the said plaintiff should be convicted," and "that the verdict is unwarranted by the evidence in the case."

As to these errors, it is sufficient to say that the record does not show that such persons were admitted as witnesses, nor does it show what evidence was before the court and jury. The bill of exceptions is silent upon the subject.

The sixth error is, that the court overruled the motion for a new trial; and the seventh, that the judgment was against the plaintiff in error, when it should have been in his favor.

Nothing appears in the record to lead this court to the conclusion that a new trial should have been granted; and, if not, it follows, of course, that the judgment is correct.

Another point is made in the argument of plaintiff's counsel, which is not noticed in the assignment of errors. It is claimed that by the act of March 12, 1845, "to regulate the judicial courts

Hart v. The State of Ohio.

and the practice thereof" (43 Ohio L. 80), all previous laws conferring criminal jurisdiction upon the Supreme Court were repealed. Such is not the construction which has been put upon the statute by this court. True, the question has never been decided by the court in bank, but it has frequently been agitated upon the circuit; and upon the circuit the court have uniformly exercised the same criminal jurisdiction as before the enactment of the law of 1845.

49] *In the whole case we discover nothing erroneous. The sentence and judgment of the Supreme Court is affirmed.

SELAH HART v. THE STATE OF OHIO.

A charge in an indictment for forgery, that the defendant had forged a promissory note, described in the indictment as a note without a seal, is not supported by evidence tending to prove that defendant had committed forgery of a note under seal. It is error in the court to admit such evidence in proof of the charge.

ERROR to the court of common pleas of Morgan county.

At the October term, 1851, of said court, Hart, the plaintiff in error, defendant below, was indicted, tried, convicted, and sentenced to imprisonment in the penitentiary for forgery. The indictment contains three counts. In the first count it is averred that on April 30, 1851, Selah Hart "falsely made, forged, and counterfeited a certain promissory note," etc., which "is of the purport and effect following:

666

Ten months after date, for value received, I promise to pay Selah Hart, or order, the sum of $106, as witness my hand and seal.

"April 2, 1851.

G. ARMSTRONG.'"

The second count charges that Hart, having in his possession a promissory note executed to him by George Armstrong, under the signature of G. Armstrong, precisely in all respects like the note set out in the first count, except that it was for the payment of six dollars, on April 30, 1851, "falsely did alter the said promissory note," by inserting before the words "six dollars," the words

Hart v. The State of Ohio.

"four hundred and," thus making a note similar to the one set out in the first count.

*The third count is for feloniously uttering and publishing, [50 as true and genuine, a false, forged, and counterfeit note, described as in the first count. The indictment does not aver the loss of the forged instrument. The note, as set out and described in all the counts, is not set out or described as a note under seal. The note set out, before the signature and date, contains the words "as witness my hand and seal," but has no seal.

During the trial the state introduced evidence tending to prove that the note purporting to be forged, was in the possession of the accused, and was by him destroyed; and then the state offered secondary evidence of the contents of said note as originally executed, and as it subsequently appeared. This, and all the other evidence, is contained in a bill of exceptions taken during the trial. The accused, by his counsel, moved the court below for a new trial, and in arrest of judgment, which motions were overruled, and exceptions were duly taken to the action of the court in overruling the motions.

Various errors are assigned: 1. That the court erred in refusing to rule out the evidence of the state. 2. That the court erred in receiving evidence of the destruction of the note without an averment in the indictment to that effect. 3. That the court erred in receiving secondary evidence of the contents of the note, without averment in the indictment of the loss of said note, or without averment that it was in possession of defendant, and because no notice was served on defendant to produce the note. 4. That the court erred in receiving, in evidence, a copy of a note not under seal. 5. That the court erred in receiving secondary evidence of the contents of the note alleged to be forged, when the state only proved the destruction of a similar note under seal, and no other.

The last-named error is the one upon which the decision of this court is made, and the evidence upon this part of the case is sufficiently stated in the opinion of the court. The other evidence, having no bearing on the decision, is omitted.

PARISH, EVANS & CLARK, for plaintiff in error, insisted that *the note which was proved to have been destroyed, was a [51 note under seal, and the note counted on was not under seal. No evidence tending to prove forgery could be given, as there