Vanvalkenburg v. State of Ohio.

A careful comparison of this indictment with the section of this statute (parts of which I have given) will convince the mind that it contains all the averments which our statute requires, and that the court of common pleas could not have pronounced it defective without disregarding the law, and requiring of the prosecutor something beyond what it had made sufficient. Motion overruled and cause remanded for judgment.

ISAAC VANVALKENBURG V. The STATE OF OHIO.

Proof of uttering and publishing counterfeit bank notes as true and genuine, will not sustain an indictment under section 29 of the statute for selling and bartering such notes.

THIS is a writ of error to the court of common pleas of Cuyahoga county.

The plaintiff in error was indicted under section 29 of the act providing for the punishment of crimes, Swan's Stat. 236, for "selling, bartering, and disposing of two certain counterfeit bank notes to one Seth Goodwin."

The proof was that the counterfeit notes were passed to Goodwin, as true and genuine bills, in exchange for other bank paper. The exchange was made by plaintiff, under pretense of accommodating Goodwin, as an old customer, and without charge. On the trial, the court was asked to charge the jury, *that, if [405 they found, from the testimony, that the notes were passed, uttered, or published, as true and genuine, with intent to defraud Goodwin, the prisoner could not be convicted under this indictment. The court refusing so to charge, a bill of exceptions was taken, and this refusal is assigned for error.

Other errors were assigned on the record, in relation to the jurisdiction of the court, which, as the case is disposed of on other grounds, are omitted.

J. ADAMS and C. STETSON, for plaintiff in error.

F. T. BACK US, for the state.

READ, J. It is a clear principle of law that you can not indict

Vanvalkenburg v. State of Ohio.

a man for one crime and convict him of an offense wholly different from that laid in the indictment. The allegations and the proof must correspond in criminal as well as in civil cases.

It is a well-settled rule of criminal proceedings that, in all statutory offenses, the indictment must pursue the words of the statnte substantially in setting out the offense. With us there is no such thing as common-law crimes. The prisoner was indicted for selling and bartering counterfeit bank notes, under section 29 of the act punishing crimes. The proof shows that he uttered and published them as true and genuine, with intent to defraud, which is an offense punishable under section 22 of the same act. Swan's Stat. 233.

A majority of the court are very clear in the opinion that an indictment, under section 29, for selling, bartering, etc., will not warrant a conviction of the offense specified in section 22 of the act.

The offenses are certainly not identical, or else the legislature performed a work of supererogation in creating them both. The one embraces the case of uttering and passing, as true and genuine, spurious and counterfeit paper, knowing it to be such, 406] with intent to defraud. The other is where a person sells, barters, or disposes of spurious bills, as such, not as true and genuine, and without any intent to defraud. In the latter it was designed to punish a person who kept and sold, or disposed of counterfeit bills, to willing purchasers and receivers, who well understood the character of the articles purchased. One section punishes the person who vends the counterfeit bills to such as wish to purchase the article. The other punishes him who passes them as genuine money, or bank notes, with intent to defraud. Guilty traffic is the essence of one, but of the other, an intent to defraud.

The words of the statute, describing the offenses, are very dif ferent, being in the one, "utter and publish, as true and genuine ;” in the other, "to sell, barter, or in any manner to dispose of;" the legislature have thus defined different offenses, and in different words.

The rules of criminal pleading require the offense to be set out substantially in the words of the statute. The statute contains a definition of the offense. Now, if under an indictment for one offense, you may convict of a distinct and different offense, it would

Vanvalkenburg v. State of Ohio.

bring us to this legal conclusion: That you could have a common indictment under which a conviction could be had for every variety of offense. But can this conviction be sustained upon the principle that the greater offense includes the less? It is true that where, to the same act, the law attaches different degrees of criminality, according to the motives and circumstances under which it was performed, an indictment for the highest degree of criminality will authorize under it a conviction for any less degree. As an indictment for murder in the first degree will sustain a con. viction for murder in the second, or manslaughter, so upon an indictment for an assault with an intent to murder, there may be a conviction for the assault only. But this is not the case where the offenses complained of are distinct.

According to the theory of criminal pleading, no one definition of a crime, in an indictment, can contain two distinct offenses, so as to warrant a conviction for either, any more than *by the [407 laws of matter, two bodies can occupy the same space at the same time. Judgment reversed.

BIRCHARD, J., dissenting. I am not able to concur in the decision just announced:

1. Because I know of no authority against the correctness of the decision of the court below, and, in the limited research which I have been enabled to make for such authority, I have discovered well considered cases, which, in my judgment, will sustain it. 15 Mass. 187; 7 Conn. 54; 9 Conn. 259, and cases there cited.

2. The indictment charged, upon the plaintiff in error, the offense of bartering counterfeit paper, knowing it to be such. The statute defines such an offense. The proof established the facts of the guilty knowledge, and the bartering of the paper, by swapping it for Ohio paper, worth, nominally, a less sum in market. This fully made a case of crime, as defined by the statute, and the proof sustained all the allegations of the indictment. I can not, in the absence of any authority, and against strong authority, hold that there is any legal principle which would enable a defendant, on trial for such a crime, to defeat the state, by proving, in addition to the facts established against him, that he also intended to defraud his victim. It would have been proving his innocence by establishing a greater degree of moral turpitude, on his part, than that which was alleged against him. It would be like allowing

Foote v. City of Cincinnati.

one indicted for larceny to escape punishment, by proving, that, when he stole, he also committed a burglary or robbery; or, one indicted for an attempt to commit a rape, to show that he did not make any such attempt, by establishing the fact, that he not only made the attempt, but was actually successful in the perpetration of the crime. The case cited from 7 Conn. 54, is in point. The statutes of that state define a rape, and an attempt to commit one, as two distinct and separate offenses; and, however illogical it may seem to others, the Supreme Court of Connecticut held, 408] proof of an actual rape committed *carried with it proof of the attempt to commit the offense; and that conviction or acquittal of the latter was a bar to any future prosecution for the former. The books appear to me to sustain them. 1 Hale P. C. 246; 4 Co. 46, b; 15 Mass. 187; 1 Leach Crown Law, 36, 88; 2 East P. C. 560; 2 Hale P. C. 302.

As I understand the law, the rule is, that in cases where an indictment is fully sustained by the facts in proof, and the facts also disclose that the defendant might, with propriety, have been indicted for a graver offense, it is discretionary with the court to allow a noll. pros., and to discharge the jury, in order to prevent the trial from barring a future prosecution, for the more aggra vated offense. 1 Chit. Crim. Law, 637.

JOHN P. FOOTE v. THE CITY OF CINCINNATI.

The amendment to the city charter of Cincinnati, passed March 12, 1838, has never been duly accepted.

The liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street, and he is entitled to a compensation from the city for this liability.

LANE, C. J. This case presents a motion, by the plaintiff, for judgment on a verdict, and a motion, from the defendant, for a new trial.

In 1837, Foote leased certain tenements from Longworth, for five years, at the annual ground rent of $300. In 1838, the city extended Pearl street, and occupied the whole land leased. This

Foote v. City of Cincinnati.

suit is brought by Foote, to recover damages for this appropriation of his property. The jury, under the direction of the court, have assessed his damages at $3,860.10, if by law, he is released from the payment of his rent; but if his liability subsists to pay rent for the residue of his term, they estimate his damages at $5,201.76.

*The questions arising are, whether the plaintiff shows a [409 right to recover in a suit at law, without averring by his declaration that he has attempted to get his compensation in the form prescribed by the charter and city ordinances, and if such recovery may be had, for what sum he is permitted to take judgment.

In March, 1838, an act was passed amending the city charter, and authorizing the council to open streets, ascertain damages, and provide for their adjustment. In May, 1838, an ordinance was made to carry this act into effect. The defendants insist that the plaintiff must show, by pleading, an attempt to obtain his com pensation by the provisions of this ordinance, before recovery.

But the amendatory act was to be of no force until adopted “by a majority of the voters of the city." Section 8 of the act provides "that the qualified voters of said city are hereby authorized, at the time and place of holding their annual election in April next, to vote by ballot for or against this act becoming a part of the charter of said city; and at such election it shall be lawful for said qualified voters to indorse on their tickets, 'yea,' or 'nay,' which tickets shall be received by the trustees of said city, who shall act as judges of said election and make returns thereof to the mayor of said city, at his office, in the same manner that returns of the election of city officers are required to be made by the act to which this is an amendment." 36 Ohio L. 242. To obtain this acceptance, the council requested the qualified voters of the city to vote on this question at the township polls. Now this vote may justly be held void, for although the territorial limits of the city and the township are the same, they constitute different political organizations; the elections are holden before different officers, and the voters composing the two corporations possess different qualifications. The plain intention of the legislature was to present the question of acceptance to the voters of the city at some regular city election; and a request to vote at an election held for a different purpose, and in a different municipal [410 organization, is no fair compliance with the law.