Job v. Collier.

dollars. This makes it a bond. As the law now stands, any paper coming within the legal definition of a bond, employing the term in its largest sense, however defective in other respects, will, if filed in due time for that purpose, sustain an appeal. An instrument without obligor or obligee, or in blank, as to the sum, would be insufficient. The motion to quash overruled. Leave given to file a new bond.

422]

*GEORGE JOB v. JAMES COLLIER.

Money paid on a judgment can not be recovered back while the judgment remains in force.

A judgment entered without objection, in the name of the plaintiff, as commissioner of insolvents, is, between the parties, evidence that the plaintiff was such officer.

THIS was a writ of error to the Supreme Court of Greene county. The original action was assumpsit. The declaration was on the common counts, the plea non assumpsit. At the May term of the Supreme Court, 1841, the cause came on for trial, and, by consent of parties, was submitted to the court without the intervention of a jury. The court found for defendant, and rendered judgment in his favor for costs. A bill of exceptions was taken, which showed the following facts:

In 1824, James Collier, the defendant in error, was appointed commissioner of insolvents, under the law then existing, and was not thereafter reappointed. He was at no time appointed under the act of 1831. In December, 1832, Collier, holding himself out as commissioner of insolvents for Greene county, one Robert C. Poland, believing him to be such commissioner, made application to him for the benefit of the act for the relief of insolvent debtors, gave in his schedule, made an assignment, took the oath, and gave the bond required, with George Job, the plaintiff in error, as one of the sureties. The proceedings were returned to the court of common pleas, there dismissed, and the bond forfeited.

The bond was put in suit by Collier as commissioner, judgment rendered in his favor against Job for the penalty, and $800

McConnell v. Collier.

has been paid by the plaintiff in error in part satisfaction. To recover back the sum so paid to Collier, this suit was brought.

*WOOD, J. In rendering judgment for the defendant, [423 upon the above facts, did the Supreme Court err?

To determine this, it seems to us unnecessary to refer to the act of 1831, repealing that of 1824, and re-enacting, among others, the same provisions. Whether Collier was, or was not, the commissioner of insolvents, when the bond was executed, de jure, or even de facto, is now of no import. The judgment, in his favor, quoad this plaintiff, establishes that fact sufficiently. If he were not such commissioner, the plaintiff in error should have litigated that question in the suit on the bond. Instead of doing so, he suffered judgment to pass, and paid the money on the judgment. It went to pay the debts of his principal, and now he seeks to recover it again out of the pocket of the commissioner, who was, doubtless, innocently acting under the belief that he was, de jure, the commissioner, whether he was so, or not, in fact.

But that judgment on the bond still remains unreversed, and the payment of money on it, is a payment by him, and a receipt by the commissioner, of the money, under authority of that judg ment. It is equivalent to the payment of money into court, and can not be recovered back.

WILLIAM ELLSBERRY, for plaintiff.

A. HARLAN, for defendant.

Judgment affirmed.

JAMES MCCONNELL v. JAMES COLLIER.

THIS was also a writ of error from Greene county, and stood upon the same grounds as the preceding case, the plaintiff in error being one of the securities on the same bond, for Poland. Judgment affirmed.

361

Montgomery v. State of Ohio.

424]

ROBERT MONtgomery v. THE STATE OF OHIO.

It is error to admit evidence of dying declarations, without first finding that the deceased was conscious of his condition when making them.

It is not error to allow a witness to state the substance of competent dying declarations, although he may not be able to give the precise words.

An intent to kill may be an ingredient of the crime of manslaughter, but, under our statute, it is not a necessary ingredient.

The right of a jury to judge of the law in a criminal case is not absolute, but is to be exercised (agreeably to section 6, article 8, of the constitution), "under the direction of the court."

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

The plaintiff in error was tried and found guilty of manslaughter. On the trial, a bill of exceptions was taken to the ruling of the court, on the admission of testimony, and to the instructions given to the jury. The bill shows that the court permitted the prosecutor to prove that Hackett, the deceased, just before his death, and while in extremis, said that, what he had sworn to a few days before, on the trial of a complaint against the plaintiff in error, for an assault and battery, growing out of the quarrel in which deceased received the mortal injury, and also what he had told the witness, the morning of his death, touching the injury of which he died, "was God's truth, and that the whole of those statements were true." Upon this, the court allowed the witness to prove the substance of both statements.

The assignment alleges that there was error in receiving this evidence without proof that Hackett was, at the time, conscious of immediate death; also, in receiving the substance only of the testimony of Hackett, given on the trial for assault and battery.

Other errors were assigned, which are noticed in the opinion of the court.

425] *WADE & RANNEY, for the plaintiff in error, argued that dying declarations can not be received without preliminary proof that the person making them was conscious of approaching dissolution. 1 Stark. Ev. 23; 2 Ib. 261; 2 Russell on Crimes, 683; Greenl. Ev. 188; McNally's Ev. 174; Switt's Ev. 124; State v.

Montgomery v. State of Ohio.

Moody, 2 Hayw. 31; Rex v. Crockett, 4 Car. & P. 544; Rex v. Woodcock, Leach's C. L. 563.

That the dying declarations did not relate to any facts or circumstances competent to be given in evidence, but only referred to former statements made by him. That those statements, even if competent, must be proven as made; their substance is not sufficient. 2 Evans' Pothier, 293; Bliss v. Long, Wright, 351; Smith v. Smith, Wright, 648. They also insisted that the court erred in charging that the jury were not exclusive judges of the law and fact, and in charging that an intent to kill was not essential to constitute the crime of manslaughter.

The reporter was furnished with no argument on the part of the state.

BIRCHARD, J. We should not think that the court erred in permitting the substance of Hackett's statements to be given in evidence, although the witness was unable to give the precise words, and in leaving the credit of the narration and the weight of the evidence to the jury, were there no other objections. The deceased alluded to both statements at the time, and, by reaffirming them, he made them as much his dying declarations as if he had then repeated them at length. The substantial objection to the proof, is, that it was received without a preliminary inquiry by the court, establishing the fact that the deceased not only made the declarations just before death, and while in extremis, but also that he was conscious of his true condition. It is this consciousness, coupled with the condition of the party, which supplies the place of an oath, and peculiarly distinguishes dying declarations from hearsay. In omitting *this inquiry, a majority of the [426 court believe there was error, and that, for that cause alone, new trial should be awarded.

In the charge to the jury the court said, "that intention to kill was not a necessary ingredient in manslaughter, arising from a sudden quarrel;" and this is assigned for error. We are all of opinion that in this there was no error. The point, however, is urged with much ability, and it is claimed to have been twice decided by this court upon the circuit, to wit, in the State v. Turner, Wright, 27; and State v. Town, Wright, 76. Those were cases of murder in which this question was not necessarily made. From the recollection of one member of this court, before whom the

Montgomery v. State of Ohio.

causes were tried, we are inclined to believe that they are so reported, as, on this point, to give an erroneous impression of the actual opinion of the court. That the crime of manslaughter may be committed by an intentional killing, upon a sudden quarrel, is not doubted; but that in all cases this precise intent must exist is what we are unprepared to admit. The statute provides for the punishment of one "who shall unlawfully kill another, without malice, upon a sudden quarrel," and declares he shall be deemed guilty of manslaughter. Swan's Stat. 228. Is it not clear if one strike another with a dangerous and unlawful weapon, upon a sudden quarrel, or beat him in a cruel and vindictive manner, so that death ensues, although there was no specific intent to produce death, that the crime would be manslaughter? If so, an intent to kill is not a necessary ingredient of manslaughter under this clause of the statute. Again, the court were asked to charge that the jury were judges of the law and facts. The court refused to instruct in this form; but said the jury had the power, and, if they chose to exert it, the right to determine all questions of law and fact, so far as to acquit, and, if they did so, there was no power to correct any error committed by them in such acquittal, and that they were not exclusive judges of both law and fact, as a general rule, in criminal prosecutions; for, if they found the accused guilty, and it turned out that their finding was illegal, they had no power, but the court had, to set aside their verdict and 427] grant a new *trial. In this refusal to instruct, as requested, and in the instruction given, it is alleged there was error. It does not, however, appear to us that there was anything erroneous which could prejudice the rights of the plaintiff. We are aware that in some parts of the state, an opinion prevails that in all criminal trials the jury have a right, independent of the directions of court, to determine as well the law of a case as the facts.

By the last clause of section 6 of article 8 of the constitution of this state, it is declared that “in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases." It would seem, from this, that the framers of our bill of rights did not imagine that juries were rightfully judges of law and fact in criminal cases, independently of the directions of courts. Their right to judge of the law, is a right to be exercised only under the direction of the court; and, if they go aside from that direction, and deter