decided in The State v. Hipp, and I understand the majority opinion to approve that decision, and to reject the view of the constitutional provision which seems to have met the approval of the legislature. True, the judge delivering the opinion refers to passages in The State v. Hipp, in which the act of 1882 is said to be (with certain exceptions) a prohibitory liquor law as to all dealers failing to comply with its terms, and it is claimed that this was the ground upon which the act of 1882 was held to be invalid. But with great respect for the opinion of the majority I'must be permitted to say that this is very misleading. We never had in this state a prohibitory liquor law. The act of 1882 permitted the sale of liquors for medicinal and mechanical purposes, and that act was prohibitory, with these exceptions, as to all persons who failed to comply with its terms; but every person had the right to comply with the conditions, and hereby obtain the privilege freely trafficking in liquors, with the restrictions imposed by the statute. The act of 1883 is, with similar exceptions, a prohibitory law as to all persons who fail to furnish real estate security for their assessments; but everybody has the right to furnish such security, and thereby obtain far greater privileges than could have been secured under the act of 1882. Any attempt, however labored, to distinguish between these acts in this respect, in any matter of principle, will necessarily fail. In the opinion as to the validity of the act of 1882, I endeavored to state fully the effect of the various provisions of the act, and properly characterized the act as being prohibitory in the sense I have stated; but this was not done as furnishing any test by which to determine whether an act is or is not a license law, or whether the act of 1882 was or was not constitutional. The act of 1831, which was the license law in force when the constitution was framed, permitted all persons to sell liquors of any sort, in any quantity not less than one quart, where the liquor was to be taken from the place where purchased, leaving to the tavern keeper, who was licensed, as his only exclusive privilege, the right to sell by the drink. The act was a license law, but it would have been plainly absurd to call that act a prohibitory liquor law; nor has it ever been supposed, that in order to constitute an act a liquor license law, it was necessary that it should be a prohibitory liquor law in any sense or under any condition. Fortunately the ground upon which The State v. Hipp, was decided is expressed too clearly in the syllabus or head note to admit of doubt or question; and the syllabus or head note is with us the test as to the point decided. It was there held, that the constitu

tionality of a statute depends upon its operation and effect, and not on the form it may be made to assume; and that the act of 1882, which required every person engaged or engaging in such traffic to pay a specified sum of money annually and execute a bond as therein required, and also provided that "every person who shall engage or continue in such traffic, without having executed the bond * * * or after his bond shall have been adjudged forfeited * * *shall be deemed guilty of a misdemeanor," was, in its operation and effect, as to the traffic not theretofore prohibited; a license, and hence unconstitutional. Besides, an eximination of the opinion will show that the absence of a clause providing for granting and issuing licenses, and the absence or presence of a clause which rendered the act, under any circumstances, a prohibitory liquor law, were regarded as matters wholly immaterial to the question whether the statute was or was not a license law or a constitution 1 law.

As the act of 1883 provides, in effect, that the persons who submit to a tax of two hundred dollars a year, and give real estate security for its payment, either as owners or by written consent of the owners, shall have the exclusive right of selling alcoholic liquors to be drunk as a beverage at the place where soldwhich was the only privilege secured by a liquor license under license laws-such act is plainly and necessarily a license law, and as snch, unconstitutional, and the infirmity destroys the whole act. But I may well place my dissent on narrower ground. One who is the owner of real estate may pursue the traffic thereon without the consent of anybody. By pursuing the traffic he invokes the tax, which becomes a lien on such property. But this is not true of a tenant. If he carries on the traffic without the consent, in writing, of the owner of the real estate in which the business is done, he becomes a criminal, and is punishable as such. This, it is held, does not apply to persons holding leases at the time the act was passed; and I agree to that upon the ground stated by the majority, and upon other grounds, but for reasons which will now be stated, I need not speak further of such existing leases. The requirement that a tenant must procure such written consent of the owner, applies to all persons who obtain leases after, as well as those who obtained leases before the passage of the act, and there can be no lien for an assessment on premises occupied by a tenant without the written consent of the owner. Besides, unless such written consent be in terms given by the owner in the lease, or be in terms given by the owner by a separate writing, the holder of a lease, whether as

(Ohio Supreme Court. June 26, 1883.)

1. Where the evidence tends to prove the commission, by the defendant, of the crime charged in the indictment, at a particular time and place, and the defendant offers evidence tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tending to show such alibi was not to be considered, unless it established the fact by a preponderance of evidence. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant's guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved.

Error to the Court of Common Pleas of Richland County.

Pritchard & Wolfe for plaintiff in error. D. A. Hollingsworth, Attorney-general, for the state.

OKEY, J.

1. The indictment charges burglary in breaking and entering a barn in the night season and stealing therefrom. The wheat and meat stolen were in a store-house, and the evidence shows that the door of such storehouse was locked, and that in order to get the wheat and meat it was necessary to break open such door. But it was wholly immateterial whether the door of the store-house was open or fastened. There was evidence to prove the breaking and entering the barn, which was the offense charged, and the crime was not disproved by evidence showing that in order to complete the theft it was necessary to break and enter the store-house. We understand the proof to be that the store-house was within the barn and the door of the storehouse could not be reached except by first passing into the barn. In other words, that the store-house was merely a part of the barn. But if it was not necessary, in order to reach the door of the store-house, to pass into the barn, the result would be the same, for "when on the trial of an indictment there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, *** in the name or description of ay matter or thing therein named or described, such variance shall not be deemed

ground for an acquittal of the defendant, unless the court, before which the trial is had, find that such variance is material to the merits of the case or may be prejudicial to the defendant." Rev. Stats. § 7216. Under the circumstances appearing by this record the alleged variance could not in any view be material or prejudicial.

2. Evidence was given tending to show that the defendant committed the alleged burglary and larceny on the night of May 5, 1882. The defendant offered evidence tending to prove an alibi. The court charged the jury, among other things, as follows: "Under the plea of not guilty the defendant, Walters, interposes the claim and defense that at the very time of the alleged commission of crime he was elsewhere; that is, that he was at that identical time either in the city of Mansfield or in the village of Ashland, or in a railroad car journeying between the two places, so that being elsewhere, it was physically impossible for him to be committing crime at the same time at said Balliet's barn. This defense in law is called alibi. The defendant need not make out his defense of alibi by convincing you beyond reasonable doubt. If he established this defense of alibi by a preponderance of evidence, that is enough-you must acquit him. A preponderance of evidence for the alibi will be when it outweighs what the state has produced to the contrary and all the evidence to the contrary. The credibility of the alibi is greatly strengthened if it be set up at the moment of first accusation, and if it be consistently maintained throughout subsequent proceedings; otherwise its weight is lessened." To which charge the defendart excepted.

We hold this charge to be erroneous. It is, in effect, that evidence tending to show such alibi is not to be considered in favor of the defendant unless it outweighs all the evidence in opposition to it. We think it was the duty of the judge to have said to the jury that they must consider all the evidence in the case, including that relating to the alibi, and determine from the whole evidence whether it was shown beyond reasonable doubt that the defendant had committed the crime with which he was charged. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should doubt the defendant's guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi was fully proved. Toler v. The State, 16 Ohio St. 583; 1 Bishop's Cr. Pro. § § 1061-1068; Whart. Cr. Ev. § 333.

Judgment reversed.

[To appear in 39 Ohio St.]

BUILDING ASSOCIATION v. GOLDBECK ET AL. CORPORATION PROCEEDINGS-ACTION OF STOCKHOLDERS PROVED BY PAKOL.

(Pennsylvania Supreme Court. Jan. 15, 1883.) The minutes of a corporation are not the exclusive evidence of what took place at a meeting of the stockholders. The action of the stockholders may be proved by parol evidence, where such proof is not in conflict with any recorded action, but merely to supply that which was omitted from the minutes.

Error to the Court of Common Pleas No. 2, of Philadelphia County.

The action was by a building association upon the official bond of its treasurer. The points of contention in the case will appear by the charge of the court below.

MITCHELL, J.

Gentlemen of the jury: You will understand the position of this case. The defendant, Mr. Goldbeck, was the treasurer, for number of years, for the building association, which is now the plaintiff in this suit, and he gave, in the year 1878, a bond for the faithful performance of his duties, and that bond was entered up in the court, and that bond was a bond for security only, and did not determine how much, if anything, the treasurer owed the association, and you are now proceeding to ascertain whether this defendant, as the treasurer, owed the association anything. There is no dispute about the correctness of his accounts, with the exception of this one item. of five hundred and eighty-two dollars..

Now, you will recollect the circumstances under which this arose. In stating the evidence on that point, I think I state what is undisputed by both parties. In August and September, 1878. John H. Goldbeck and George Berger, two stockholders in this building association, were indebted to the association, Mr. Goldbeck in the sum of $250, and Mr. Berger in the sum of $332, making the sum of $582. Now, this money, due in August and September, 1878, was not paid to the treasurer of this association, but as an act of friendship was paid by the defendant, the treasurer of the association, on their account; that is to say Goldbeck, the defendant, did not actually receive the money, but he put it into his account-accounted for it, and when he came to the annual meeting entered it upon his book as if it had been paid, and when the stockholders' meeting, in 1878, was held the amount was divided up and used in making up the estimate of the value of stock at that time; in short, I think I may say both parties-the members of the building association and the treasurer, Goldbecktreated it exactly as if it had been money paid into the association by the members from whom it was due. In point of fact, however, it was not paid by those members, and those two persons became insolvent about the time of the annual meeting, in 1878. Goldbeck,

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the treasurer, found, in doing this act of friendship, by paying these dues for the other members, or in accounting as if they had been paid, charging himself with the money, although he had not received it, he was likely to lose this money. He thought, and some others of the members of the board of directors appear to have thought, that it was not fair, or that it was not right, nor kind in them to hold him liable for this money; they thought that he ought not to be charged with this loss by reason of his having done a friendly act. Therefore, in the month of December, 1878, they passed a resolution refunding this money to him, or at least directing orders should be drawn which should be a credit in his hands; so that when they finally came to settle his accounts, and he should pay over the balance to his successor, it should be a credit. Now, these orders were not, in fact, signed by the president, as by the constitution and by-laws they should have been, but nevertheless, they are sufficient so far as the authority of the board of directors goes, because they were drawn in accordance with the resolution of the board of directors.

ex

After the meeting in 1879 the committee passed the account, and it was printed and laid upon the table for the members to see, as you have heard, at that meeting. After that meeting the new treasurer, who had been elected in 1879, came with his committee, amined the books of Goldbeck, the treasurer, ascertained the balance, which was a very small one-of some twelve dollars or moreand it was paid over by the defendant, and a receipt taken. Now, so far, gentlemen, as I have recalled the circumstances of this case, there is no dispute upon either side, I believe.

If this were between the ordinary debtor and creditor that would be an end of the case, because it would be a settlement with a knowledge of what were the rights of the parties, and it would be final, conclusive and binding upon both parties. But in this case the board of directors who passed this resolution were not the owners of the money; they were merely trustees, they were agents, with the right to administer the affairs of the association according to law, but with no right at all to give away the money, or pay back money which had once been received into the the treasury of the association. So far therefore, as the authority of the board of director's to pass this resolution is concerned, it was not a sufficient discharge, nor were the orders drawn in pursuance of the order of the board of directors a sufficient discharge to the defendant. But the stockholders of the association are the real owners of the money, and they might do as they pleased with their own money. If they chose to do so, they could acquiesce

or ratify the giving back of the money to the treasurer which he had paid on what turned out afterwards to be an unfortunate mistake, they had a right to do so. Therefore the only disputed point in this case, and one on which the case will turn, is whether or not the stockholders in the meeting referred to adopted this report or ratified the action of the board of directors in giving Goldbeck a credit for these $582. That, I state, is the only question really for your determination in the case.

Now, unfortunately, on that question the evidence is very conflicting. You have heard upon the part of the defendant the testimony of several persons-himself and Mr. Seckinger, and others, as to this report which you have heard so much about. There is no doubt, as it is admitted by all parties, that this report was printed, and a large number of copies were laid upon the table, and that most of the stockholders saw it and read it. Nearly every witness who was here said that he read it, and copy of it was taken home by him that night. In addition to that Mr. Muench, the secretary, says he read it publicly to the meeting, and that a motion was made that it be approved, and that motion was put and carried. Mr. Houseman, who acted as assistant secretary on that occasion, was also very positive that the secretary read it to those that were there, and he thinks that a motion was made and carried, that the report be adopted. But as to that, however, he is not so positive. Now, gentlemen, if that was so; if the stockholders at that meeting, on a motion that the report which had been read be adopted or approved, passed such a motion, that would be a ratification by the stockholders, and no subsequent action could take away the rights of the defendant; but on the other hand, you have the evidence of quite a number of witnesses, Mr. Rumberger, Mr. Kunz, Mr. Roller, Mr. Dessian, Mr. Steickes, Mr. Buchman and Mr. Kraft, that they were in attendance there; some of them during the whole evening, some of them during different parts of the evening, and that they did not hear this report publicly re id, and that they did not hear any motion made. Then counsel have called your attention to a difference very familiar to those concerned in the administration of justice, between what is called positive and negative testimony. It is very easy to see, as a matter of common sense, that as a rule, where witnesses are clear, honest, intelligent, conscientious-where one man says he saw or heard a thing, that his testimony is of more weight than the testimony of four or five that did not see or hear it. They may have been paying attention to something else, and the thing may have happened without their notice. But the plaintiffs have further the testimony

of another party; that is, of Mr. Schmidt, the president, which is in the category of positive testimony. Mr. Schmidt tells you he was the president; that he was at that meeting; that he took the chair before the business commenced, and did not get out of the chair before the end of the meeting. It was his duty, if any motion was made to adopt the

port, to put it to the meeting, and he says no such motion was made, and no such motion was put by him. Then there is in addition to that fact that the minutes made up by the secretary, Meunch, do not contain any mention of this motion.

[Now I am not prepared to say to you, as the counsel has argued for the plaintiffs, that the minutes are exclusive evidence of what took place. Mr. Muench, you will recollect, the secretary, says that he wrote the minutes out himself and that this action did take place, although it slipped his mind, and although for some reason he could not now explain, he failed to put it in the minutes. If that is so, then of course you must treat it as having taken place, although it does not appear in the minutes.]

The presumption, however, is that the minutes are correct. They were read and approved without objection at the following meeting of the board of directors. The presumption is that the minutes contain everything that was done.

Now, gentlemen, the only question for you in reference to the plaintiffs' right to recover this sum of money is, whether or not this report was ratified or adopted at that meeting. As I have said, unfortunately, the testimony is extremely conflicting. It will be for you to say which is the most accurate account of what took place.

If you find that this report was approved or adopted at that meeting then there is no dispute, that in accordance with that report the defendant afterwards settled his account and paid over his balance to the new treasurer. If that is so, then he is discharged and owes the association nothing. If, however, the sockholders did not approve of it, then there is not sufficient authority for his retaining that credit, and he still owes the association $582 which ought to be paid with interest from the time it was due.

The verdict and judgment were for the defendants below.