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we have seen was rendered in 1858 in the probate court of Hamilton county, that court holding that probate courts in Ohio have power to admit aliens to citizenship. Downs, Ex parte, 3 Dec. Re. 47 (2 Gaz. 278). That decision, was, however, reversed in the district court of that county. Downs, In re, 3 Dec. Re. 56 (2 Gaz. 318).

In 1859 the subject was given careful consideration in the district court in Monroe county in Wingard, Ex parte, 2 Dec. Re. 126 (1 W. L. M. 453), and a decision rendered by that court, holding that probate courts in Ohio do have power to admit aliens to citizenship.

Shortly thereafter the identical question came on for hearing in the circuit court of the United States in a case entitled Smith, Ex parte, 3 Fed. Dec. 552 (22 Fed. Cas. 380). The circuit court of the United States in an opinion in that case delivered by Judge McLean held that the probate courts of Ohio have common law jurisdiction in numerous instances and a seal provided by law and are empowered to employ deputy clerks and have jurisdiction to naturalize aliens. The rule thus announced by Judge McLean was in the placing of a construction by a federal court on a federal statute, and the rule as thus laid down has been followed generally throughout the state of Ohio until the amendment of the federal statute. The federal court gave critical attention to the phraseology of the statute, construing the expression "having common law jurisdiction and a clerk and a seal," and after such consideration reached the conclusion already stated. The case was cited in People v. Pease, 30 Barb. (N. Y.), 588, 603, that court saying that to hold that the court had no jurisdiction would be fruitful of mischief, creating doubt and uncertainty as to civil and personal rights, endangering titles to property, and in many instances perhaps destroying inheritances and changing the course of descent. The reasons thus given come now with added force for when the decision just cited was rendered the court then under consideration had been exercising the authority for only ten years, whereas the authority has been exercised by the probate courts of Ohio for a century, and until the amendment of the federal statute in 1906.

Bell v. State.

In 1910 the jurisdiction of the probate courts to grant naturalization was before the court of common pleas of this county and a decision rendered by Judge Johnson, State v. Metzger, 21 Dec. 72 (10 N. S. 97), in which, after a thorough review of the authorities, the court reached the conclusion that such jurisdiction existed in that court.

The surrogate's court of New York has been held to have such jurisdiction. See Harstrom, In re, 7 Abb. N. C. (N. Y.) 391.

On a review of all these cases, and especially in view of the holding of the United States circuit court cited above and the following of that authority in general practice for a half century and more, we are clearly of the opinion that the probate court of Lucas county had jurisdiction in 1887 to grant naturalization to aliens.

Counsel for Bell insist that even though the probate court had jurisdiction to grant naturalization to Roger Sheehy, the record introduced in evidence does not show that it did so. The record is certified under date of October 29, 1887, by J. W. Cummings, probate judge, by B. A. Case, deputy clerk, and recites, in substance, that at a probate court held at the probate office in the city of Toledo on October 29, 1887, Roger Sheehy, a native of Ireland, personally came and proved to the court that he had arrived in the United States before he had attained the eighteenth year of his age, and made the requisite declaration of his intention to be naturalized and became a citizen of the United States; and also proved to the satisfaction of the court that he has behaved as a man of good moral character, attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same. The record further recites that Sheehy, having fully complied with the laws of the United States in relation to the naturalization of aliens, and on being admitted by the court, took the oath to support the constitution of the United States of America and to renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereign, and particularly to the queen of England. The record thereupon certifies that Roger Sheehy

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Attached to

was admitted as a citizen of the United States. this record is a paper purporting to be an affidavit of Roger Sheehy, an applicant for naturalization, but it does not bear the signature of Roger Sheehy.

It is unnecessary to have perpetuated the evidence on which the probate court acted. It was a court of record proceeding in a matter in rem over which it had jurisdiction and its record imports absolute verity without setting forth the facts and evidence on which the judgment was rendered. Shroyer v. Richmond, 16 Ohio St. 455. Even though it were permissible to look to the affidavit made by Sheehy, for the purpose of determining the evidence on which the probate court acted, the absence of his signature to the affidavit is not sufficient to impeach the judgment of the court granting naturalization. The statute (Sec. 2165, U. S. Rev. Stat.) provides that the applicant shall "declare on oath," and the record of the court shows that it was found by the court that he had complied with the statutes and was entitled to be naturalized, and the judgment ordered that he be admitted as a citizen of the United States. While the judgment of the court is not perhaps technically regular in form, it cannot be attacked in this collateral way. The judgments of courts in the granting of naturalization should be liberally construed and we hold that the record introduced in evidence is sufficient to show that Roger Sheehy became a naturalized citizen of the United States in October, 1887, and was therefore qualified to sit on the grand jury which returned the indictment against the accused. It follows, therefore, that the trial court committed no error in overruling the plea in abatement.

On the trial of the case the evidence disclosed that the defendant on the date named in the indictment, to-wit, November 7, 1916, was driving a seven passenger Hudson automobile north on Collingwood avenue in the city of Toledo. Ashland avenue runs into Collingwood avenue from the southeast, and at the point where these two avenues meet the car driven by Bell collided with a car going south and driven by the deceased, Donald Fallon. As a result of this collision Fallon was killed. Bell himself took the stand and testified in his own

Bell v. State,

behalf and in the course of his testimony stated that he was driving his car at a rate of speed of from eighteen to twenty miles an hour, which would be in violation of Sec. 12604 G. C. The evidence, however, would justify the jury in finding that he was going at a very much higher rate of speed than testified to by him, some of the witnesses putting the speed at forty miles an hour or more. The bill of exceptions contains photographs of the two cars taken shortly after the accident, and their condition as there shown would indicate that they must have been proceeding at a very high speed at the time of the collision. Bell contended that he believed that Fallon, the deceased, was about to veer to the left onto Ashland avenue immediately before the collision, and that the collision was caused by the fact that Fallon changed his mind and determined to proceed down Collingwood avenue instead of going down Ashland as he had evidently first intended to do. He also claimed that the collision was caused by the high speed maintained by Fallon in driving his car, which Bell says was approximately twenty miles per hour. It is evident that the jury would be perfectly justified in finding that if Bell had been operating his car within the speed authorized by the statute the collision could have been avoided easily.

Under this state of the record numerous requests to charge the jury were submitted by the defendant which were refused and to which he excepted. Most of those requests are along the same line and, if given, would have required the jury to find a verdict of not guilty unless they should find that a wilful violation of law by the defendant was the sole and only cause of the death of Donald Fallon. Substantially all of those requests were based upon the theory that if Fallon was guilty of any negligence which contributed directly to the collision then the defendant could not be convicted. The court committed no error in refusing to give these instructions. If the defendant was guilty of a violation of Sec. 12604 G. C. in operating his automobile at a greater rate of speed than is permitted by that statute, and if this conduct directly caused the death of Fallon or was one of the causes which directly

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resulted in his death, then the jury would be justified in returning a verdict of guilty.

It is further insisted that the trial court erred in refusing to charge on the subject of assault and battery. If the defendant was operating the car at a greater speed than was allowed by Sec. 12604 G. C., and if this resulted directly in the death of Donald Fallon, then the defendant was guilty of manslaughter. If the speed at which the defendant was operating the car was not in violation of that statute, or if it was not the direct cause, or one of the direct causes, of the death of Donald Fallon, then he was entitled to a verdict of not guilty. We see no reason why the trial judge should have been required to charge the jury on the subject of assault and battery. The case appears to be directly within the holding of the Supreme Court in State v. Vancak, 90 Ohio St. 211, 214 [107 N. E. 511]. The record discloses that Donald Fallon lost his life by reason of the unlawful conduct of the accused in operating his machine at a speed in violation of the statute.

In a careful examination of the record we find no prejudicial error and the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.