Morgan County.

"That Wilbur E. Wray, late of said county, on the thirty-first day of July, in the year of Our Lord one thousand nine hundred and three, at the county of Morgan aforesaid, in and upon one William Farris, then and there being, did unlawfully, purposely, and of deliberate and premeditated malice, make an assault, in a menacing manner, with intent, him, the said William Farris, unlawfully, purposely, and of deliberate and premeditated malice, to kill and murder; and that the said Wilbur E. Wray, a certain pistol then and there charged with gunpowder and certain leaden bullets, which said pistol he, the said Wilbur E. Wray, then and there in his right hand had and held, then and there, uniawfully, purposely, and of deliberate and premeditated malice, did discharge and shoot off to, against and upon the said William Farris, with the intent aforesaid, and that the said Wilbur E. Wray with the leaden bullets aforesaid, out of the pistol aforesaid, by force of the gunpowder aforesaid, by the said Wilbur E. Wray then and there discharged and shot off as aforesaid, him, the said William Farris, in and upon the lett side of the belly of him, the said William Farris, then and there unlawfully, purposely, and of deliberate and premeditated malice did strike, penetrate, and wound, with the intent aforesaid, thereby then and there giving to him, the said William Farris, with the leaden bullets aforesaid, so as aforesaid discharged, and shot out of the pistol aforesaid, by the said Wilbur E. Wray, in and upon the left side of the belly of him, the said William Farris, two mortal wounds, the length and breadth of said mortal wounds, and each of them, being to the jurors aforesaid unknown, of which said mortal wounds he, the said William Farris, afterward and on the second day of August, in said year of Our Lord one thousand nine hundred and three, and in the county of Muskingum, and in said state of Ohio, died; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Wilbur E. Wray, him, the said William Farris, in said county of Morgan, at the time, in the manner and by the means aforesaid, unlawfully, purposely, and of deliberate and premeditated malice, did kill and murder."

It is contended by plaintiff in error, as it is charged in the indictment, there were two shots fired, and that the state must prove beyond a reasonable doubt either the first or second shot alone produced the death, but if the death only result from the combined effects or results of both shots, then before there can be a conviction of the grades of crime charged in the indictment, including the grade of manslaughter, the state must show beyond a reasonable doubt, and the jury must so find, that each of said shots were fired unlawfully.

Wray v. State.

We do not agree with this contention. The testimony in this case shows that both shots were fired by the defendant while he was engaged in a single conflict or struggle with the deceased, and without any discontinuance of the conflict, or either party withdrawing therefrom. The question of the lawfulness or unlawfulness of both shots depends upon the same state of facts and upon the same evidence. From this record it does not appear upon any hypothesis that one of these shots could have been lawful and the other unlawful; therefore, the evidence not having distinguished between the shots it was unnecessary for the trial court to do so in its charge. If in the conflict the defendant unlawfully fired a shot, which produced death, either alone or in combined effect with another shot fired by him in the same struggle, the jury may find him guilty under this indictment.

The indictment is not bad for duplicity, and although the shots were both fired while the defendant and the deceased were engaged in a struggle or conflict, if the defendant unlawfully fired one or both shots, thereby killing the deceased, he could be rightfully convicted of manslaughter, if the jury found death resulted from such unlawful act. Taking this view of the law, the court is of opinion that there was no error in the court refusing each and all of the ten requests asked by defendant, plaintiff in error.

4. That the verdict of the jury is not supported by sufficient evidence.

The defendant was found guilty of manslaughter only; and it is contended by plaintiff in error, that the verdict is not supported by sufficient evidence. The record is a very voluminous one, and we have taken the time, and with care and labor have gone through and carefully examined the whole record. There is much of the record that does not bear directly on the main question, or defense, involved. There are many circumstances introduced in evidence tending to throw light upon the transaction up to the time the final tragedy occurred, resulting in the death of William Farris.

It is contended by the plaintiff in error that when he fired the shots that wounded the deceased, and which it is claimed by the state produced his death, he was acting in self-defense. The evidence is conflicting on this question.

Our Supreme Court, in the case of Marts v. State, 26 Ohio St. 162, held:

"Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of

Morgan County.

death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.”

It is contended by the state that when the defendant fired the shots, or at least the first shot, he believed Farris wanted to get from him his "gun," or revolver, and that he would be able to take the "gun," and these were the only things he thought of until he fired the shot. In other words, the state contends, from the whole evidence, and the explanation given by the defendant himself, that the reason why he shot was, that he believed Farris would and could take from him his "gun," and not that he believed and had reasonable ground to believe that he was in imminent danger of death, or great bodily harm, and that his only means of escape from such danger was in the use of his weapon.

The jury found the issue thus made against the defendant, and we cannot, consistently with the rule of law, say from a careful examination of all the evidence that they were manifestly wrong in so finding. Other grounds of error are alleged, but we do not regard them as being of sufficient gravity to warrant a reversal or extended consideration.

The court has reached a unanimous conclusion upon all the questions involved; and without attempting to review the record in detail, we are of the opinion the judgment should be affirmed with costs. Execution is awarded and the cause remanded accordingly.

Judgment affirmed.

McCarty and Winch, JJ., concur.

LANDLORD AND TENANT-DAMAGES-NEGLIGENCE.

[Hamilton (1st) Circuit Court, January 10, 1905.]

Giffen, Jelke and Swing, JJ.

JOHN H. HONNEMEYER V. JOHN FISCHER.

1. INJURY TO FURNITURE BY LANDLORD HAVING ROOF REMOVED AT IMPROPER TIMEINDEPENDENT CONTRACTOR NOT LIABLE.

The injury to furniture in a residence resulting from replacing the old roof with a new one, is one that might be anticipated as a direct or probable consequence of the performance of the work, if reasonable care is omitted in selecting the time of performance; hence, the doctrine that the independent contractor is alone responsible does not apply. 2. REMOVING ROOF DURING IMPENDENCY OF UNUSUAL STORM IS PROXIMATE CAUSE OF INJURY TO FURNITURE, WHEN.

Where the injury occurred to the tenant's furniture by reason of the landlord's negligence in removing the roof of the house at a time when he knew that a heavy storm was impending, he is liable therefor, not

Honnemeyer v. Fischer.

withstanding the storm was an unprecedented one, because the original negligence was the proximate cause, and the unusual storm merely increased the amount of the damages.

3. BURDEN OF PROOF NOT ON PLEADER WHEN ALLEGATIONS NOT DENIED. Where the answer alleges that plaintiff is indebted to defendant for certain rent, which allegation is not controverted by reply or otherwise, an instruction to the jury that the burden of proof is upon defendant to prove the allegation is erroneous..

ERROR to Hamilton common pleas court.

D. F. Cash and F. J. Dorger, for plaintiff in error:

The storm was an unprecedented one, and beyond human foresight to guard against. The doctrine of vis major applies. Pollock, Torts (6 ed.) 405; Nichols v. Marsland, L. R., 10 Ex. 255.

The work was not necessarily dangerous; it was done by an independent contractor, and the owner is not liable. The general rule applies. (Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269]; Covington & C. Bridge Co. v. Steinbrock, 61 Ohio St. 215 [55 N. E. Rep. 618; 76 Am. St. Rep. 365n.]; Jacobs v. Fuller & Hutsinpiller Co. 67 Ohio St. 70 [65 N. E. Rep. 617], have no application.) Cincinnati v. Stone, 5 Ohio St. 38; Lawrence v. Shipman, 39 Conn. 586; Hoff v. Shockley, 122 Iowa 720 [98 N. W. Rep. 573]; Wiese v. Remme, 140 Mo. 289 [41 S. W. Rep. 797]; Mahon v. Burns, 9 Misc. (N. Y.) 223 [29 N. Y. Supp. 682]; affirmed, Mahon v. Burns, 13 Misc. (N. Y.) 19 [34 N. Y. Supp. 91]; O'Connor v. Schnepel, 12 Misc. (N. Y.) 356 [33 N. Y. Supp. 562]; Jefferson v. Jameson, 165 Ill. 138 [46 N. E. Rep. 272].

Edward M. Ballard, for defendant in error, cited:

Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269]; Wertheimer v. Saunders, 95 Wis. 573 [70 N. W. Rep. 824; 37 L. R. A. 146]; Sultzbacher v. Dickie, 6 Daly (N. Y.) 469; Glickauf v., Maurer, 75 Ill. 289 [20 Am. Rep. 238].

GIFFEN, J.

The injury to furniture in a dwelling house resulting from replacing the old roof with a new one, is one that might be anticipated as a direct or probable consequence of the performance of the work, if reasonable care is omitted in selecting the time of performance, and hence, the doctrine that the independent contractor is alone responsible does not apply. Railway v. Morey, 47 Ohio St. 207 [24 N. E. Rep. 269; 7 L. R. A. 217].

Where the testimony shows that the injury occurred to the tenant's furniture by reason of the negligence of removing the roof at a time. when the landlord knew that a heavy storm was impending, he is liable,

Hamilton County.

notwithstanding the storm was an unprecedented one, for the reason that the original negligence was the proximate cause, and the unusual storm merely increased the amount of the damages. 1 Am. & Eng. Enc. Law (1 ed.) 592.

The plaintiff was therefore entitled to recover, although we think the damages awarded by the jury were excessive, and that the actual loss was not in excess of $50.

The court erred in charging the jury that the burden of proof was on the defendant to establish by a preponderance of the evidence that the plaintiff owed $12.50 for rent, when the allegation was not controverted by a reply or otherwise. Laning R. L. 8596 (R. S. 5081). Deducting the amount of rent from the $50, the balance of $37.50 is all the plaintiff should recover.

If he will consent to a remitittur of all in excess of $37.50, the judgment will be affirmed; otherwise, reversed and cause remanded for a new trial.

Jelke and Swing, JJ., concur.

LOTTERIES-MORTGAGES.

[Hamilton (1st) Circuit Court, March 2, 1904.]

Giffen, Jelke and Swing, JJ.

MICHAEL G. HEINTZ ET AL. RECEIVERS v. HARLEY E. SAWYER ET AL. TRANSACTION IN FURTHERANCE OF LOTTERY AGAINST PUBLIC POLICY, AND PARTIES THERETO DENIED AFFIRMATIVE RELIEF.

A transaction whereby a loan of money, evidenced and secured by a real estate mortgage, was procured by the mortgagor from a debenture company, and the mortgagor, by contemporaneous written agreement, and as part consideration of the transaction, agreed to purchase certain debentures in the mortgagee company, which debentures were in the nature of a lottery, is against public policy, and void in its entirety; and neither the mortgagor nor the mortgagee is entitled to any affirmative relief whatsoever, either by foreclosure, cancellation or otherwise. The courts will leave both parties where it finds them.

C. W. Baker, for plaintiff.

Province M. Pogue and Walter A. DeCamp, for defendant:

The general doctrine applicable to this case is founded on the two maxims, "ex dolo malo non oritur actio" and " in pari delicto melior est conditio melior est conditio defendentis." State v. Investment Co. 64 Ohio St. 283 [60 N. E. Rep. 220; 52 L. R. A. 530]; Roll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759]; Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dec. 266]; Raguet v. Roll, 7 Ohio (pt. 1) 77; Thomas v. Cronise, 16 Ohio 54;