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presumed to have that knowledge. The principal's liability does not depend upon the agent's duty to communicate, or the likelihood that he will communicate, his knowledge to the principal, but upon the fact that the agent is the alter ego of the principal, acting for the principal, and knows that his acts and knowledge ipso facto become the knowledge and acts of the principal.

This doctrine of liability based upon the legal identity of the parties is in the main sustained by a number of cases: Messick & Co. et al. v. Roxbury & Wilcox, 1 Handy, 190, 191; Craige et al. v. Hadley, 99 N. Y., 131, in which the following is a part of the opinion: "Notice to an agent of a bank entrusted with the management of its business is notice to the corporation in transactions conducted by such agent acting for the corporation, in the scope of his authority, whether the knowledge of the agent was acquired in the course of the particular dealing or on some prior occasion."

In Holden v. New York & Erie Bank, 72 N. Y., 286, the court in speaking of the duties of the chief managing officer of a bank say: "As a matter of fact, whatever knowledge, information or notice, Ganson had in either of these capacities [managing officer of the bank, individual, or executor], he carried with him into his exercise of the other. As agent of the bank, he owed it a duty in every transaction in which the bank took a part, under his observation. Hence, as a matter of law, whatever notice of facts he had in any capacity, which were material in the performance by him on the part of the bank in any transaction,

Opinion of the Court.

became notice to the bank, his principal, as it was his duty to give it notice thereof in that matter. It is the rule, that the knowledge of the agent is the knowledge of his principal, and notice to the agent of the existence of material facts is notice thereof to the principal, who is taken to know everything about a transaction which his agent in it knows."

National Security Bank v. Cushman, 121 Mass., 490: "If a director of a bank, who acts for the bank in discounting a note, has knowledge that the note was procured by fraud, the bank is affected with his knowledge.

Even in the Innerarity case, supra, the court in its opinion uses this language: "A bank or other corporation can act only through agents, and it is generally true that, if a director who has knowledge of the fraud or illegality of the transaction acts for the bank, as in discounting a note, his act is that of the bank, and it is affected by his knowledge."

In First National Bank v. Blake, 60 Fed. Rep., 78: "A large number of cases are cited in support of this view, and it is well settled that an officer or agent, dealing with a corporation or his principal on his own account, is not presumed to communicate knowledge which it would be to his interest to conceal, and the corporation or principal is not chargeable with such knowledge. But there is no room for the application of this principle where the agent is the sole representative of both parties in the transaction. If Cornish was the sole representative of the bank in the transaction with himself, there was no one from whom infor

Opinion of the Court.

mation could have been concealed, or to whom it could have been communicated. If he was the sole representative of each party, each must have had equal knowledge."

To the same effect is Brobston v. Penniman, 97 Ga., 527. Latter case distinguished in EnglishAmerican Loan & Trust Co. v. Hiers, 112 Ga., 823.

To hold otherwise would open the widest possible door for all sorts of fraud; the more atrocious and aggravated the fraud the less the likelihood of fixing the liability upon the principal. Why? Because the agent would be the less likely to communicate the fact to the principal. Such a holding has no place in sound business or good morals and ought not to be encouraged by our

courts.

There was clear error in the trial court sustaining the motion, and the judgment of the circuit court reversing the judgment of the court of common pleas is hereby affirmed and the cause remanded to the court of common pleas for a new trial and for such other and further proceedings as are agreeable to law.

Judgment affirmed.

JOHNSON, DONAHUE, NEWMAN and WILKIN, JJ., concur. NICHOLS, C. J., and SHAUCK, J., not participating.

Statement of the Case.

THE STATE OF OHIO V. McCoy.

Indictment charging shooting with intent to kill, etc.-Includes lesser offenses of assault, etc.-Court in charge to jury omits mention of certain lesser offenses-Of which accused may be found guilty Judgment of conviction not reversible for court's omission, when-General exception to charge of trial courtDoes not raise question of error, when-Criminal law.

1. An indictment charging, in separate counts, shooting with intent to kill and shooting with intent to wound includes the lesser offenses of assault and battery and assault, and upon the trial of the accused upon such an indictment the jury may find the accused not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery or an assault only.

2. Where, upon the trial of a person charged by indictment with shooting with intent to kill and shooting with intent to wound, the court properly charges the jury upon all the issues in the case, except that it inadvertently omits to charge that the defendant might, if the evidence warrants, be found not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery, and the court's attention is not called to this omission, and no request to give such a charge is made, a judgment of conviction of the accused of shooting with intent to wound should not be reversed for such inadvertent omission of the court to so charge.

3. A general exception to the charge of a trial court does not raise any question of error as to the omission of the court to give further correct instruction, but presents only questions of errors of law existing in the charge as given. (Columbus Railway Co. v. Ritter, 67 Ohio St., 53, approved and followed.)

(No. 14061-Decided October 7, 1913.)

ERROR to the Circuit Court of Jackson county.

Albert McCoy was indicted by the grand jury at the January term, 1912, of the court of common pleas of Jackson county, Ohio. The indictment

Opinion of the Court.

contained two counts, shooting with intent to kill and shooting with intent to wound. He was tried at the September term following and found guilty of shooting with intent to wound, as charged in the second count of the indictment. A motion for a new trial was overruled and the defendant sentenced. Error was then prosecuted by the defendant in the circuit court of Jackson county, which court at its December term, 1912, reversed the judgment of the common pleas court for the reason as stated in its journal entry, "because the general charge was misleading and failed to instruct the jury as to the lesser degree of assault and battery." The circuit court found no other or further error in the charge except the omission of the trial court to charge that the defendant under this indictment might be found not guilty of shooting with intent to kill and not guilty of shooting with intent to wound, but guilty of assault and battery, and for this reason, and this reason only, the circuit court held the general charge misleading.

The state of Ohio now prosecutes this proceeding in error in this court to reverse the judgment of the circuit court.

Mr. Charles H. Jones, for plaintiff in error.

Mr. R. R. Lively, for defendant in error.

DONAHUE, J. The record in this case presents but one question. It is not contended that the charge as given is incorrect in any particular except in the omission of the court to inform the