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the rights of this defendant in error must be | 2. CRIMINAL LAW (§ 200*)-FORMER JEOPARDY measured by the same rule that would apply -IDENTITY OF OFFENSE. to Peebles at that time, and not to the conditions as they existed at the time of the commencement of this action.

Our attention is also called to the statement that the circuit court found, as a fact, that this roadway was appurtenant to said premises. There is no such finding by the circuit court. On the contrary, the language is as follows:

"And was used as an appurtenance to said premises, since the date of the purchase of the same by the plaintiff."

The provision of the Constitution relating to jeopardy is in the following words: "No person shall be twice put in jeopardy for the same offense." The offense charged in the information is not the same offense and does not inhence the defense of jeopardy must fail. clude the offense charged in the indictment, and

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. 200.*]

(Additional Syllabus by Editorial Staff.)
3. CRIMINAL LAW (§ 1*)-"OFFENSE."
It is generally understood that the word
"offense" means simply a crime (citing Words
and Phrases, vol. 6, pp. 4915-4918; vol. 8, p.
7736).

Law, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*]
[Ed. Note.-For other cases, see Criminal

CRIMINAL LAW (§ 195*)-"SAME OFFENSE." The words "same offense" mean same offense, not the same transaction, not the same acts, not the same circumstances or same situ.. ation.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 382, 383; Dec. Dig. § 195.* For other definitions, see Words and Phrases, vol. 7, pp. 6323-6325; vol. 8, p. 7794.]

Exceptions from Court of Common Pleas, Ross County.

Defendant in error relies on the claim that this roadway was appurtenant to the premises at the time the Yellow Poplar Lumber Company conveyed to Peebles. Unless it was then a way appurtenant thereto, Peebles ac-4. quired by his deed no right or interest therein, and of course could pass none to his devisees, nor could they in turn convey any interest therein to their grantees. If the circuit court had found, as a fact, that this was a way appurtenant to these premises at the time of the repurchase by Peebles from the Yellow Poplar Lumber Company, such finding would not foreclose further inquiry by this court. That is a question of law, especially where there is no conflict of evidence, and even if there had been a conflict of evidence, then, resolving every disputed question of fact in favor of the plaintiff below, the question of law would still be presented wheth-tained. er there is any evidence in support of a finding that the way was a way appurtenant to the premises at the time of the conveyance to Peebles. Clearly there is no such evidence. For these reasons the judgment of the circuit court will be reversed, and judgment for plaintiff in error upon the facts found by the

circuit court.

Albert Rose was indicted for contributing to the moral delinquency of one Z. S. and filed a plea of former jeopardy. From an order overruling the demurrer and sustaining the plea, the State excepts. Exceptions sus

The defendant, Albert Rose, in September, 1912, was tried under favor of section 1654, General Code, in the probate court of Ross county upon a charge of contributing to the delinquency of one Z. S., by having illegal sexual intercourse with her on July 4, 1911. The jury in this case disagreed after con

Judgment reversed. Judgment for plain-sidering the case a little over three hours.

tiff in error.

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Whereupon they were discharged by the probate judge, and the following entry was made upon the court record:

"This day, this cause coming on for trial to jury, the evidence and argument of counsel were heard by said jury, which was thereupon charged by the court. Upon consideration said jury failed to agree, and were thereupon discharged by the court. To which action of the court in discharging the jury the defendant at the time excepted.'

Subsequently, at the October term, 1912, this said defendant was indicted on the charge of rape without consent upon the same Z. S. on the same date, which charge involved substantially the same transaction as that charged in the probate court by affidavit and information as aforesaid. To this indictment the defendant, Rose, filed his plea in bar, setting up former jeopardy. To the plea in bar a demurrer was filed by the state. Upon hearing the court overruled the demurrer and sustained the plea. The de

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. §fendant was discharged, and the state filed 200.*] its exceptions in this court.

Walter W. Boulger, of Chillicothe, Pros. is the same offense as "rape," and that is Atty., for the State. James I. Boulger, of Chillicothe, for defendant.

WANAMAKER, J. (after stating the facts as above). The sole question in this case is whether or not the defendant, by this indictment in the court of common pleas, is twice put in jeopardy in violation of his constitutional rights.

*

twice put in

"rape." We have no trouble with the plain purpose and manifest meaning of these words of the Constitution. He who runs may not only read but clearly understand.

We contend that there is nothing here for Where there is no this court to construe. doubt, no ambiguity, no uncertainty as to the meaning of the language employed by the Constitution makers, there is clearly neither right nor authority for the court to assume to interpret that which needs no interpretation and to construe that which needs no con

struction.

[1, 2] The 1912 Constitution of the state of Ohio, article I, Bill of Rights, section 10, dealing with the subject of former jeopardy as a defense, reads as follows: "No person shall be It is not enough that some single element of jeopardy for the same offense." the offense charged may have a single eleThis same provision, in the same identical ment of some other offense as to which the words, is contained in the state Constitution of defendant had theretofore been in jeopardy, 1851 and 1802, and the same identical words but the constitutional provision requires that appear in our federal Constitution of 1787. it shall be the "same offense." The usual The indictment to which the plea of former test accepted by the text-writers on criminal jeopardy was interposed charged the defend-law and procedure is this: If the defendant ant, pursuant to section 12,413, General Code, with rape upon Z. S., on July 4, 1911. The case in the probate court was a prosecution upon affidavit and information, pursuant to section 1654, General Code, charging that the defendant, Albert Rose, contributed to the delinquency of Z. S.

a crime.

[3] Since we have no common-law crime in the state of Ohio, we must look to the statutes for the declaration and definition of The constitutional provision uses the word "offense." Layman and lawyer alike understand the word "offense" to here mean simply a crime. Bouvier's Dictionary; Words and Phrases Judicially Defined. An offense or crime in Ohio is an act prohibited by statute law, for the violation of which a penalty is provided.

Now, who will dare to say that the information in the probate court charged the same offense as the indictment in the court of common pleas? A few of the radical differences between these two offenses will be specially noted:

1. The information charged a misdemeanor; the indictment a felony.

2. The information charged a moral delinquency upon the part of Z. S., which the state, before it was entitled to a conviction, was required to prove beyond a reasonable doubt. Fisher v. State, 84 Ohio St. 369, 95 N. E. 908, of the opinion of Judge Donahue. This was no part of the charge contained in the indictment.

3. The probate court was wholly without jurisdiction to try the charge of rape, hence the defendant could never have been in jeopardy on the charge of rape in the probate court; for to be in jeopardy there must not only be a sufficient legal charge, but a sufficient jurisdiction to try the charge.

[4] The words "same offense" mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation. There is but one offense that

upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.

Some courts have greatly expanded the natural and ordinary meaning of the words that may be fairly included within the ma"same offense" to include all lesser degrees jor charge.

In all offenses against the person there must be in the first instance an assault. To such lengths have some courts gone as to hold that if the defendant had been in jeopardy of a simple assault upon another person and subsequently such assault proved to be fatal, by reason of which he was subsequently indicted, charged with murder, the defendant might thereupon successfully plead a former jeopardy, because necessarily inIcluded within the charge of murder or manslaughter was the charge of assault or assault and battery, with which he had been previously charged and as to which he had previously been in jeopardy. This doctrine, however, has not found favor in the decisions of the Supreme Court of this state.

True, it is clear that the proceedings had in the probate court were such that the defendant was in jeopardy of the offense there charged, and could not again be tried upon the same offense, for the jury was discharged over his objection and the court made no finding that there was no probability of the jury being able to agree in accordance with the statute. But to say that he had been in former jeopardy as to the charge in the probate court and to say that he had been in former jeopardy as to the charge now in the common pleas court is an entirely different proposition.

Numerous decisions can be cited to sustain the contention of the defendant as to his former jeopardy. Some of these decisions may be accounted for by a difference in the constitutional provisions, but more of them are accounted for by the fact that the courts have usurped the power of the lawmaker and the

Constitution maker and have added some- nor 14 years of age. Upon trial had he was thing to or subtracted something from the found guilty as charged. Motion for a new plain provisions of the laws and Constitution. | trial was overruled, sentence imposed, and erCase law is fast becoming the great bane ror prosecuted to the Court of Appeals. The of the bench and bar. Our old-time great Court of Appeals affirmed the judgment and thinkers and profound reasoners who conspic-a rehearing was thereupon granted on the auuously honored and distinguished our jurisprudence have been succeeded very largely by an industrious, painstaking, far-searching army of sleuths, of the type of Sherlock Holmes, hunting some precedent in some case, confidently assured that if the search be long enough and far enough some apparently parallel case may be found to justify even the most absurd and ridiculous contention.

thority of the unreported case of Rason v. State, 78 Ohio St. 449, 85 N. E. 1131 [mem.]. The error of the trial court found by the Court of Appeals upon rehearing was as follows: That the trial court erred in permitting the state to offer evidence over the objection of the defendant of other and similar acts of incestuous conduct occurring subsequent to the act charged in the indictment. The state has now prosecuted error to this court for a reversal of the judgment of the Court of Appeals and the affirmance of the judgment of the court of common pleas. Reversed.

Charles C. Hall, Pros. Atty., and J. D. Barnes, both of Sidney, for the State. Charles C. Marshall and Percy R. Taylor, both of Sidney, for defendant in error.

Case after case is piled, Ossa on Pelion, and about an equal number can be found on each side; then the court is expected to strike the balance and decide according to the preponderance of cases rather than the preponderance of reason and justice. Courts too frequently fall into the very common error of assuming to interpret everything in the line of legal language. The utter folly and wholesale abuse of construing words that need no construction and of interpreting language that needs no interpretation has led to much of the judicial confusion and most of the irreconcilable diversity of court decisions. There can be no stability about law until there be certainty about law, and when the Constitution maker or statute maker uses a plain phrase, a simple sentence, and a workaday word, with a clear, simple, and unmis-on a certain date by showing that upon other takable meaning, it is almost criminal in a court to scramble what is simple and confuse what is clear, under the mask of its right to construe.

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STATE v. REINEKE. (No. 14343.) (Supreme Court of Ohio. Feb. 3, 1914.)

(Syllabus by the Court.) CRIMINAL LAW (§ 372*)-EVIDENCE-SIMILAR ACTS.

In sexual crimes with consent, including incest, other and similar adulterous or licentious acts or conduct by the defendant toward the prosecutrix, whether prior or subsequent to the date of the specific act charged in the indictment, are, if not too remote, admissible for the purpose of showing the adulterous or incestuous disposition of the defendant toward the prosecutrix and the illicit and continuous sexual relations existing between them. Rasor v. State, 78 Ohio St. 449, 85 N. E. 1131, distinguished.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.*] Error to Court of Appeals, Shelby County. The defendant in error, Charles Reineke, was indicted at the January term, 1913, of the court of common pleas of Shelby county, Ohio, under section 13023, General Code, for the crime of incest with his daughter, a mi

WANAMAKER, J. The sole question in this case is as to the admissibility of other and similar acts of incestuous conduct occurring subsequent to the act charged in the indictment. It is an elementary proposition of law, both sound and humane, that a person may not be convicted of the crime charged up

dates, previous or subsequent, he committed other crimes and offenses. But this rule has many exceptions in certain particular lines of cases as to prior acts:

1. Where a specific intent to defraud is charged, other fraudulent acts may be offered to show fraudulent intent between the same parties, and in some cases as between different parties by the same defendant.

2. Where scienter or guilty knowledge is a necessary element of the offense, other criminal acts may be shown of the same or similar nature, as in the sale of adulterated foods.

3. Where the various acts show a general scheme or system of criminal conduct. 4. In what are known as "sexual crimes," such as a continuous adultery or fornication, criminal conversation, incest and the like.

The authorities are overwhelming that acts prior to the act charged in the indictment or information may be offered in evidence to prove the adulterous disposition of the defendant and the sexual relations between the parties, and also for the purpose of rendering it more probable that the act of sexual intercourse charged was actually committed as charged.

One of the latest cases in Ohio supporting this doctrine is that of Boyd v. State, 81 Ohio St. 239, 90 N. E. 355, 135 Am. St. Rep. 781, 18 Ann. Cas. 441. The syllabus of the case reads as follows:

"On the trial of an indictment charging de- | probable the specific and distinct offense fendant with having carnally known and abused charged. a female person under 16 years of age with her consent, evidence of similar prior acts of sexual intercourse between the accused and the prosecutrix within a period of two months immediately preceding the date laid in the indictment is admissible for the purpose of showing the relation and intimacy of the parties, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction."

This syllabus, as all others should, relates, of course, to the particular facts of the particular case.

The crime of rape by force is generally excluded from this class of sexual crimes, and soundly so, because it would be an extraordinarily rare case where the defendant would, for a second time, commit rape by force upon the same prosecutrix.

In the Rason Case, supra, the indictment by its second count charged rape by force, and, that being a distinct and generally acknowledged exception to the rule in the other sexual-consent crimes above referred to, the

Judge Crew in his opinion uses this lan- Supreme Court of Ohio was right in holding guage: that such evidence under such a charge was incompetent.

"The doctrine must now be considered as fairly well settled by the weight of authority, that in prosecutions for adultery, seduction, rape upon one under the age of consent, and incest, acts of sexual intercourse between the parties prior to the act charged in the indictment may be given in evidence as tending to sustain the principal charge, by showing the relations between the

parties."

The exact question involved in this case, however, has not been decided by this court, unless the unreported case of Rason v. State, supra, should involve the question raised here. Being an unreported case, we are compelled to rely largely upon defendant in error's brief as to the history of this case. It seems that Rason was indicted in Defiance county on two counts, the first of which contained a charge of rape on one G. S. with her consent, while said G. S. was under the age of 16 years. The second count was for the same act, but was alleged to have been with force and against her will. There was no election required of the state, and the case went to the jury upon both counts. The jury returned a verdict of not guilty on the first count, that is, the consent count, and found the defendant guilty of assault under the second count, that is, the count charging rape with force and against her will. No error, of

course, could be complained of on the first count for on that count the defendant, Rason, was acquitted. Was this evidence as to subsequent acts admissible as against Rason under the second count of the indictment? The Supreme Court of Ohio found that it was not admissible, and we believe this judgment is sustained by the great weight of authority, as well as by good reason and sound policy.

These sexual crimes, which are an exception to the general rule as to other similar acts being admissible in evidence, may be characterized as crimes in continuando. The law recognizes as a matter of common knowledge that where a single act of that character arises, there is great probability of other similar acts, either before or after, or both, and therefore the sexual conduct of the parties in question toward each other, especially the lechorous and bestial disposition of the defendant toward the prosecutrix, is a proper fact for the consideration of the jury, not to prove some other and independent offense, but for the purpose of making more

It is as impossible as it is unnecessary to reconcile the diverse decisions in the many states upon the question whether or not subsequent acts may be admitted to prove the specific act charged for the purpose of showing the adulterous disposition of the defendant toward the prosecutrix and of showing the sexual relations between the parties.

Prior or subsequent acts are admissible in cases involving adultery, fornication, criminal conversation, and incest, cases involving seduction, bastardy, and breach of promise of marriage, and cases involving rape. 1 Wigmore on Evidence, § 398.

"Improper familiarities and adulterous acts between the same parties prior, or subsequent to, the act charged, but not too remote, or, if remote, connected with it so as to form a part shown for the purpose of bringing out the relaof a continuous course of conduct, may be tion and adulterous disposition of the defendant." Underhill on Criminal Evidence (2d Ed.) § 381.

"At the time of the present writing, this doctrine-namely, that subsequent familiarities and adulteries between the same parties, equally with the prior ones, are admissible-may be deemed to be established in all our courts, as respects alike the divorce suit and the indictment." Bishop on Statutory Crimes (3d Ed.) § 682.

the parties subsequent to the act specifically under trial is admissible when indicating continuousness of illicit relations." 16 Am. & Eng. Ency. Law (2d Ed.) 139.

"Evidence of acts of illicit intercourse between

This same doctrine is sustained in People v. Koller, 142 Cal. 621, 76 Pac. 500; State v. King, 117 Iowa, 484, 91 N. W. 768; State v. Way, 5 Neb. 283; State v. Fetterly, 33 Wash. 599, 74 Pac. 810; Lanphere v. State, 114 Wis. 193, 89 N. W. 128; State v. Robertson, 121 N. C. 551, 28 S. E. 59; Smith v. Commonwealth, 109 Ky. 685, 60 S. W. 531; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972; Lawson v. State, 20 Ala. 65, 56 Am. Dec. 182; State v. Witham, 72 Me. 531; Crane et al. v. People, 65 Ill. App. 492.

The contrary doctrine is approved in 1 Wharton's Criminal Evidence (10th Ed.) 170 et seq.

"And so it has been repeatedly held that, upon a trial of a charge of having committed any of of prior acts of the same character is admissible, the crimes known as 'sexual offenses,' evidence although such prior act is, in and of itself, a crime. There are also decisions to the effect

that evidence, not only of prior, but also of those | committed subsequent, to the act charged, is admissible, although showing a distinct, independent crime. These are, however, believed to be in the minority, and, besides, are lacking the strong reason which is given for the admission of evidence of the prior act."

This doctrine is followed in People v. Clark, 33 Mich. 112, and in State v. Hilberg, 22 Utah, 27, 61 Pac. 215, and in Gross v. State, 61 Tex. Cr. R. 176, 135 S. W. 373, 33 L. R. A. (N. S.) 477; State v. De Masters, 15 S. D. 581, 90 N. W. 852; Lovell v. State, 12 Ind. 18, and some other states, unnecessary to mention, have also adhered to this latter doctrine.

Now it is urged that, inasmuch as crimes of this character are recognized as the most difficult to defend against, the courts should abundantly safeguard the defendant's rights under the presumption of innocence by rigidly restricting the state to the specific act charged. But it may also be suggested that these same crimes are likewise the most difficult to prove, and therefore, by reason of their aggravated atrocity, their bestial and vicious general effect, not only upon the parties directly involved, but also the community and state, that these latter considerations are such that the state should not be unfairly and unjustly precluded in the prosecution of the crime charged.

It is elemental that any fact is competent that makes more or less probable the fact in the controversy. Now, if these sexual crimes, excepting rape by force, are not ordinarily single, isolated acts, but are only a part of the sexual relation of the defendant and prosecutrix, then these other acts are relevant for the exclusive purpose of showing the adulterous disposition of the defendant toward the prosecutrix and his sexual relations with her. Why do they not tend to prove the specific act charged, which after all is in the common knowledge of men only a part of the course of sexual conduct of the parties ofttimes during the period of months or years? Now it is admitted that as to the prior acts the rule is and should be to admit them, but that as to subsequent acts the rule should be otherwise.

We believe that there is a misapprehension here of the real purpose of admitting this kind of evidence. Its relevancy is to get before the court and jury the sexual relations of the parties covering the date of the indictment. If the sexual relations of the parties at the time of the indictment be a proper question, then certainly their relation for a reasonable time before, as well as a reasonable time thereafter, is equally competent, notwithstanding the fact that the prior acts may have more probative force and effect than the subsequent acts; but this all goes only to the weight of the evidence and not to its competency.

But in the case at bar there are special reasons why the subsequent acts were com

acts of the most revolting and licentious nature of the defendant toward this prosecutrix before the date charged in the indictment. If, now, you have the adulterous and licentious acts of the defendant toward the prosecutrix before the date charged in the indictment, and also the adulterous and licentious acts of the defendant toward the prosecutrix subsequent to the date charged in the indictment, you have then a series of acts or arches bridging the entire period of his sexual relations with prosecutrix, rendering much more probable the commission of the act charged in the indictment.

The second special reason is this: The evidence overwhelmingly shows the systematic, persistent, and habitual conduct of this defendant, not only toward the prosecutrix but toward her sisters, so that we have here a series of like offenses, like conduct upon the part of the father toward three of his own daughters, showing a system of criminal conversation and conduct that is almost incredible in a human being.

If the sexual relation be by consent of the parties, or under some coercion between a father and his own child living in the same house, the strong probabilities would be that, unless there were an immediate exposure of the same, there would be a repetition of similar acts between the same parties. If under all circumstances there were no such repetition where there was opportunity so to do, and no exposure, the very fact that the state could only show one act might lead the jury to seriously consider whether or not such act was not fabricated or perjured.

We believe the good morals of the state, the safety and security of its virtue, the protection of the home and the relation of parent and child, brother, sister, and all others within the incest statute, demand at our hands the admission of subsequent acts as well as prior acts for the purpose aforesaid.

But if we were persuaded that there was error upon the part of the trial judge in the admission of this evidence, we would be constrained, upon a careful reading of the whole record of this case, to reverse the Court of Appeals and affirm the court of common pleas for the reason that, excluding the subsequent transactions, the evidence of the prosecutrix, the corroborating evidence of her sisters, as well as the evidence of the defendant, satisfy this court of his guilt to a moral certainty. In that view of the case then, if it were error, which we hold it is not, it would be at best harmless error. Substantial justice was done both to the state and the defendant.

Our attention has been specially challenged to the State v. Lawrence, 74 Ohio St. 38, 77 N. E. 266, 6 Ann. Cas. 888. An examination of the syllabus of the case, as well as the opinion, discloses the fact that the subsequent acts in question which were offered in evidence occurred (in the language of the syl

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