Accomplice.

find the defendant guilty upon the testimony of such accomplice, corroborated, as to one or more material facts, by other reliable evidence, notwithstanding his infamy and complicity. (Brown v. State, 18 Ohio St. 496.)

Credibility of accomplice.-The evidence of accomplices in crime should be very cautiously received, and should in all cases be suspiciously scrutinized by a jury. From the fact that the witness is shown to be void of moral principle, so much so that, in a case like this, it is considered unsafe for him to be at large in community, and that when his punishment commences he is debarred from testifying in any criminal case, the dictate of common sense would appear to be against relying with much confidence on his veracity. (Noland v. State, 19 Ohio, 131.)

Declarations of accomplice after commission of offense; not evidence. On the trial of a person indicted under the 36th section of the crime act (S. & S. 266), for procuring another to commit an offense, it is not competent to prove the declarations of the principal offender, made after the completion of the offense, for the purpose of showing the guilt of the procurer. (Sharpe v. State, 29 Ohio. St. 263.)

Homicide by one of joint burglars.-How far and under what circumstances a homicide by one of several joint burglars implicates the others-whether, as a matter of law, his act is their act, and his purpose their purpose, or whether the guilt of the accomplices depends upon the actual assent or dissent to the murder, quære. But where the evidence shows a joint burglary, a threat to kill, the firing of the shot, and another, and the flight, it tends to show, and authorizes the jury to find, that there was a common purpose to commit the murder. (Huling v. State, 17 Ohio St. 583.)

Presence at the commission of an offense.-If two or more persons confederate together to break open a store in the night season, and steal the goods therein, and it is agreed between them, in order to facilitate the burglary and lessen the danger of detection, that one of them shall, on the night agreed on, entice the owner to a house a mile distant from the store, and detain him there, while the others break into the store and remove the goods, and the confederates perform their respective parts of the agreement, the person who thus enticed the owner away, and detained him, was constructively present at the burglary, and may be indicted as a principal offender. (Breese v. State, 12 Ohio St. 146.)

Admissions-Best evidence.

Rebutting evidence to disprove presence.-In case of a joint indictment against two or more persons for burglary, and one of them is being separately tried, it is competent for the prosecution to give evidence tending to prove that one of the accused, not on trial, as well as the one on trial, was present and participating in the commission of the crime; aud that very shortly before the commission of the crime, the two were consorting with each other, and secretly consulting. But such evidence having been given by the state, it is error in the court to exclude evidence offered by the accused on trial, tending to prove that the other was not and could not have been present and participating in the crime. (Davis v. State, 19 Ohio St. 217.)

ADMISSIONS

See DECLARATIONS AND ADMISSIONS.

ALIBI

Attempt to prove.-An attempt by the defendant to prove an alibi in a criminal case is no admission of the body of the crime charged; nor does his failure to prove it necessarily afford any presumption that he was present at the time and place when and where the crime is alleged to have been committed. (Toler v. State, 16 Ohio St. 583.)

BEST EVIDENCE

Conviction. Where a witness is asked, on cross-examination, whether he has been indicted before or not, the objection that the record is the best evidence, if available at all, must be made at the time, or it can not be considered. Whether it is available, quære.

(Wroe v. State, 20 Ohio St. 460.)

Corporate existence.-Where an indictment charges the defendant. with being the clerk of an incorporated railroad company, and having fraudulently embezzled and converted to his own use the property of the corporation, then under his care by virtue of his employment as such clerk, it is sufficient to establish the corporate existence of the company by showing that it assumed to be and notoriously exercised the franchise of a railroad corporation. (Calkins v. State, 18 Ohio St. 366.)

Foreign corporation; corporate capacity.-In a prosecution under section 22 of the crimes act, for passing counterfeit bills, purporting to have been issued by the bank of another state, the existence

Character.

of the foreign corporation may be proved by one who, of his own knowledge, is acquainted with the fact, or by one who has seen or handled its notes, currently passed in the community as the notes of such institution, or by general reputation. (Reed v. State, 15 Ohio, 217.)

Foreign corporation; existence.-S. was indicted under the act of 1835 (1 Curwen, 193, sec. 31), for knowingly having in his possession and secretly keeping a plate for printing counterfeit bank-notes of the Bank of Tennessee; and was also indicted under the same act, section 29, for having in his possession counterfeit notes of the Merchants and Mechanics' Bank of Wheeling, Virginia, for the purpose of selling the same. On the trials, it was contended, that it was necessary to prove that those foreign banks had a legal existence, and that this could only be done by the production of the charters or a copy. But the court held that the fact might be proved by oral testimony. And this was held not to be error. (Sasser v. State, 13 Ohio, 453.)

License to tavern-keeper-The defendant was indicted as a "licensed tavern-keeper," under the act of 1831 (3 Chase, 1826, sec. 12), for keeping a disorderly house. To prove the averment that he was such "licensed " keeper of a tavern, the counsel for the state offered in evidence the entry in the journal of the court, granting to the defendant a license, and offered no other evidence to show that fact. Held: That the prosecutor was not bound to produce the license, or to give to the defendant a notice to produce it, and that it was not the duty of the court to arrest that evidence from the jury. (Baldwin v. State, 6 Ohio, 15.)

Punishment is provable by parol.-Where it is shown that a roll of counterfeit bills has been found in a saddle near where the prisoner had been seen under suspicious circumstances, it is competent for the prosecution to show that he had a motive for concealing them. The fact that he had first been recognized by one who had him whipped for counterfeiting in Vermont, is competent for such purpose, and may be shown by parol, for of the whipping the record of the judgment is not the best evidence. It would not even show the fact, as it would conclude with the judgment. (State v. Spring, Tappan, 167.)

CHARACTER

Character; how proved.-A defendant in a criminal case, who, by the nature of the issue, is entitled to give evidence of his char

Character.

acter for peace and quietness, is not limited to proving what people may have said of him, as to his being or not being a quiet and peaceable man, but is entitled to inquire as to his character from those acquainted with him, and they are authorized to speak from his general peaceable and quiet conduct, and from not having known or heard anything to the contrary. (Gandolfo v. State, 11 Ohio St. 114.)

Commission of another offense, proof of; when competent.-Testimony otherwise competent as tending to prove the offense charged in the indictment, is not rendered incompetent by reason of the fact that it also tends to prove a separate and distinct offense. (Brown v. State, 26 Ohio St. 176.)

Commission of former crimes, proof of; not competent.-On an indictment, charging the prisoner with poisoning A. in December, 1851, it is error to permit evidence in chief to show that she poisoned B. in the month of August previous; for proof of the commission of former crimes is not admissible in proof of the crime for which defendant is on trial. Nor is such evidence admissible to show the prisoner's knowledge of the deadly quality of the drug. In the use of poisons, like the use of fire-arms, a scienter is presumed, in the absence of contrary proof, unlike cases of passing counterfeit money, where presumption of guilty knowledge does not arise. (Farrer v. State, 2 Ohio St. 54.)

Commission of similar offense, proof of; not competent.-On the trial of B. for horse-stealing and grand larceny, the state offered evidence that B. hired the horses, buggy, and harness which he was charged with stealing, from the owners, T. & A., of C., for the alleged purpose of driving to A., a distance of twenty miles; and that on leaving he drove to P., a distance of thirty miles, in an opposite direction, and was arrested on the same night. The state then proved by E. that on the night before B. drove off the horses, B. lodged with him; that he left the next morning about daylight; that after he was gone, witness missed twenty-five dollars in gold; that after B. was arrested and in jail, he informed witness that the officer had the gold, and that E. called on the officer and got his money. The prosecutor stated that he offered the evidence to prove that the defendant stole the gold, and the circumstances connected with that larceny, for the purpose of showing that B., when he hired the horses, did not intend to return with them. this evidence B. objected, but the court overruled the objection. Held: That in admitting the testimony the court erred. There

To

Circumstantial evidence.

was no connection between the two transactions that would enable court or jury to draw any legitimate conclusion as to one larceny from proof of the other. Each case must be tried on its own merits, and be determined by the circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously have committed similar crimes. The prosecutor could not offer evidence as to character when B. had offered none; much less could he offer evidence of particular acts, of which the record gave no notice, and which, therefore, he could not be presumed ready to meet. (Barton v. State, 18 Ohio, 221.)

Rebuttal of evidence as to character.-Upon the trial of a criminal cause, a defendant may give evidence of his general good character; and such evidence may thereupon be rebutted or disproved by the prosecution; but it is not competent to rebut such evidence of good character by proof of a bad local reputation, limited to a community or neighborhood remote from the defendant's residence, where he has never lived, and where he is not shown to be generally known or acquainted; nor by proof of reports relating to particular facts. (Griffin v. State, 14 Ohio St. 55.)

Rebuttal must be as of same period.-When the defendant has offered evidence of good character prior and up to the time of the commission of the alleged offense, it is error to permit the state to prove his bad character at a subsequent period. (Wroe v. State, 20 Ohio St. 460.)

Weight of evidence as to character; grade of crime does not affect.In a criminal case it is error to charge the jury that proof of the prisoner's good character is entitled to less weight where the question is one of great and atrocious criminality than upon accusations of a lower grade. The presumption of innocence which it raises varies with the force of circumstances, but not with the grade of the crime charged. (Harrington v. State, 19 Ohio St. 264.)

Weight of evidence as to character; must be left to jury in all cases. -In a criminal case it is error to instruct the jury that evidence of the defendant's good character is not to be considered by the jury or made available to the defendant, except in doubtful cases, the true and proper rule being to leave the weight and bearing of such evidence to the jury. (Stewart v. State, 22 Ohio St. 477.)

CIRCUMSTANTIAL EVIDENCE

Character of-Evidence of anything may be either positive or circumstantial. Whichever kind is produced should be of a nature