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Syllabus.

The judgment of the court below is

Affirmed.

SPEAR, SHAUCK, JOHNSON, DONAHUE and O'HARA, JJ., concur.

THE STATE OF OHIO V. HARE AND DAVIS.

Indictment against county commissioners-For accepting bribe-Violation of Section 12823, General Code-Contractors alleged givers of bribe called as witnesses-Authority of Section 12824-1, General Code-Effect of erroneous charge to jury that evidence of illegal agreement-Must be established by other testimony— Than that of contractors-Question of reasonable doubt of good character of defendants.

1. An indictment was found against two county commissioners for accepting a bribe in connection with the award of a contract for repairing a bridge, in violation of Section 6900, Revised Statutes (Section 12823, General Code), and the two contractors, who were alleged in the indictment to have given the bribe, and the third commissioner were, called as witnesses by the state and compelled to testify under authority of Section 12824-1, General Code.

Their testimony tended to prove that said award was made under and pursuant to a general understanding or agreement between the two contractors and the three commissioners with reference to county work, and certain other evidence was offered by the state in corroboration thereof.

The court charged the jury that the conspiracy or agreement claimed by the state to exist as above, "must be established beyond a reasonable doubt by other testimony and otherwise than by the testimony" of said two contractors and the third commissioner, before the jury would be warranted in finding the defendants or either of them guilty.

Held: That the obvious effect of such charge was to entirely withdraw their testimony from consideration by the jury,

Opinion of the Court.

whereas the same should have been submitted under proper instructions as to the weight to be given thereto, and the charge was therefore erroneous.

2. Evidence of their previous good character was offered by the defendants in the above case, and the court included in its charge a statement that "proof of good character may of itself create a reasonable doubt, where otherwise no such doubt would exist."

Held: That this was erroneous, for the reason that it gave undue prominence and effect to such testimony, and the court should have instructed the jury to consider the same in connection with all the other evidence in the case, in arriving at a verdict.

(No. 13591-Decided December 17, 1912.)

Exceptions by Prosecuting Attorney to the judgment of the Court of Common Pleas of Brown county

The case is stated in the opinion.

Mr. Frank K. Frebis, prosecuting attorney; Mr. J. R. Moore and Mr. E. H. Kirkpatrick, for plaintiff in error.

Mr. O. E. Young, for defendants in error.

O'HARA, J. On the 24th day of January, 1912, an indictment was returned by the grand jury of Brown county, Ohio, against the defendants in error, W. E. Hare and S. A. Davis, charging them with having accepted a bribe as county commissioners of said. county, on or about the 9th day of February, 1909, in violation of Section 6900, Revised Statutes of Ohio, then in force, now Section 12823, General Code. It was alleged in the indictment that the sum of thirty dollars was paid to the defendants in error by J. C. Miller and John Randall, partners

Opinion of the Court.

as Miller & Randall, on or about the above date, for the purpose and with the intent of influencing the defendants in error to vote for the allowance of a certain bill pending before them as county commissioners, in favor of said Miller & Randall, amounting to one hundred and seventy-five dollars, for putting new spur braces under a certain bridge in Brown county, the said county commissioners then and there having power and authority to allow or reject such bill. The case came on for trial before the court of common pleas and a jury, and the state offered as witnesses the said Miller and Randall, and also one William Wahl, who was the third member of the board of county commissioners. These witnesses were called by the state upon the recommendation of the prosecuting attorney and with the approval of the court, under favor of an act passed by the general assembly, on April 11, 1910 (101 O. L., 100), now embodied in the General Code as Section 12824-1, which reads as follows: "A person "A person offending against the provisions of Sections 12823 and 12825 of the General Code, is a competent witness against another person so offending, and on the recommendation of the prosecuting attorney and approval of the court, may be compelled to attend and testify in the same manner as any other person is in any court of record in any criminal proceeding prosecuted by the attorney general or any prosecuting attorney, for the violation of any of the provisions of said Sections 12823 and 12825 of the General Code, but no individual shall be prosecuted or subjected to any penalty for or on account of any

Opinion of the Court.

transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, before any such court or grand jury."

The evidence offered by the state tended to show that the contractors, Miller & Randall, had a general understanding with the three county commissioners, whereby they were to get the contracts for the construction of all bridges of the county costing less than two hundred dollars, at a fixed price per lineal foot, and the roofing of all covered bridges and the repair of all bridges, at a price to be agreed upon at the time of letting the contract; that all these contracts were to be awarded to Miller & Randall at private lettings and without competition, and they were so awarded for several years; that Miller & Randall paid the county commissioners from time to time the amounts to be paid them as their percentage under the terms of the foregoing agreement; that the particular contract for the repair of the bridge referred to in the indictment was made between the three commissioners and the two contractors at a meeting in the private office of the commissioners, at which no other person was present; that the contractors were to put in a bill for one hundred and seventy-five dollars for the repair of the bridge, which was to be allowed and paid to them, and that out of said amount they were to pay the sum of thirty dollars to the three commissioners, all of which was accordingly done. All the foregoing was denied by the defendants in error who took the stand as witnesses, and who also offered evidence tending to show their previous good

Opinion of the Court.

character and reputation in the community. Some evidence in rebuttal was offered by the state, and the cause was thereupon submitted to the jury, which returned a verdict of acquittal.

The prosecuting attorney took exceptions to certain parts of the charge of the court to the jury, which were preserved in a bill of exceptions, and have been presented to this court for its determination under Section 13681 et seq., General Code, in order to determine the law for similar

cases.

1. The principal claim of error urged by the state is the giving of special charge number fourteen to the jury. This charge was prepared and submitted by the defendants below and is as follows: "The conspiracy, common understanding, or agreement claimed by the State in this case, to exist between the defendants, as commissioners of Brown county, Ohio, and John Randall and J. C. Miller, as members of the firm of Miller & Randall, must be established beyond a reasonable doubt by other testimony and otherwise than by the testimony of the witnesses, William Wahl, J. C. Miller and John Randall, before you would be warranted in finding the defendants, or either of them, guilty."

The obvious effect of this charge was to remove the testimony of these three alleged co-conspirators altogether from the consideration of the jury, and to compel the jury to base a verdict entirely upon evidence outside of that given by them. In laying down this rule to the jury, the trial judge evidently had in mind the well known reluctance of courts to permit conviction of a felony upon the

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