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Hamilton County Appeals.

HOMICIDE.

[Hamilton (1st) Court of Appeals, July 5, 1913.]

Swing, Jones and Jones, JJ.

*ABRAHAM SMILE V. STATE OF OHIO.

1. Misnomer from Misspelling Accused's Name in Indictment for Murder not Raised by Motion for Arrest of Judgment.

The misspelling of the name of the defendant in the indictment under which he was tried does not present a question which can be raised on a motion for arrest of judgment.

2. Use of Numerals to Designate Degree of Murder in Verdict Reprobated but not Reversible Cause.

The use in a verdict in a case of homicide of a figure to designate the degree of murder of which the defendant has been convicted, while to be reprobated as bad practice, does not prejudice the defendant nor afford ground for a reversal of the judgment.

ERROR.

Charles O. Rose, for plaintiff in error.

error.

Thomas L. Pogue and Walter M. Locke, for defendant in

JONES, O. B., J.

Abraham Smile was placed on trial under an indictment charging murder in the first degree in the killing of one Lucy Smile, otherwise known as Lucy McDyer, on June 21, 1912, after defendant had filed a motion to quash and a demurrer to the indictment, both of which were overruled, and had entered a plea of "not guilty" to the indictment against him as Ahraham Smile, and after the jury had been impanneled and sworn and all of the evidence heard, at the request of the defendant the suggestion was made that the real name of the defendant was Abraham "Smiley," and at his request the clerk was directed to make the change accordingly in the proceedings. Defendant was found not guilty of murder in the first degree but was found guilty of murder in the second degree. *Leave to file petition in error refused by Supreme Court, Smile v. State, 58 Bull. 391.

Smile v. State.

No motion was filed for a new trial, but within three days after the return of the verdict the defendant filed his motion in arrest of judgment and for the discharge of the defendant. Proceedings in error are predicated upon the overruling of this motion.

Two errors are relied upon by plaintiff in error:

First. A failure of proof as to the name of the deceased; Second. The verdict does not find defendant guilty of any offense under the laws of Ohio but amounts to a verdict of not guilty.

It is claimed that each of these errors entitled the defendant to his discharge.

1. Considerable argument is made by counsel for plaintiff in error based upon the question of the name of the plaintiff in error, claiming that the name "Smile" was essentially different from the name "Smiley." If, as is the case with the names of most foreigners the name written "S-m-i-l-e" were pronounced in two syllables, having a syllable for each vowel, it would receive the same sound as if written "S-m-i-l-e-y." The evidence shows without question the identity of the woman who was killed, and there is no question that her first name was Lucy. She was known as the wife of the defendant and had lived with him as such, which would be sufficient proof that her proper name might be Lucy Smile; and the testimony shows that she was also known as "Lucy McDyer." The case therefore does not come within the case relied upon the plaintiff in error of Goodlove v. State, 82 Ohio St. 365 [92 N. E. Rep. 491; 30 L. R. A. (N. S.) 134; 19 Ann. Cas. 893]. In that case it should also be noted that a motion for new trial had been interposed. Such a motion is necessary in order to review the question of evidence. Everett v. Sumner, 32 Ohio St. 562.

The only questions that can be raised on motion for arrest of judgment are those set forth under Sec. 13748 G. C.; Myers v. State, 2 Circ. Dec. 712 (4 R. 570); Carper v. State, 27 Ohio St. 572.

2. The form of the verdict which was criticized is as follows:

Hamilton County Appeals.

"We, the jury, in issue joined find defendant Abraham Smile, right name Abraham Smiley, is not guilty of murder in the 1st degree as he stands charged in the indictment, and guilty of murder in the 2nd degree."

Objection is made by counsel to the use of the numerals in describing the degrees of the crime of murder. If the form of this verdict was drawn by the clerk, as was stated in argument, it certainly is to be reprobated, as the words "first" and "second" should have been written out in full in any form so prepared; and we observe that the transcript of the record shows an indiscriminate use by the clerk, in making up such record, of numerals and words, which is not to be commended. In view, however, of the provisions of Sec. 13581 G. C., that an "indictment shall not be invalid” because "dates and num

*

bers are represented by figures";

we think that the

use of figures in the verdict as in this case can not be prejudical to the defendant, as there is no uncertainty as to what these figures mean, the Arabic figures in combination with the letters being as clear in their meaning as the words would be if fully written out in letters alone.

Judgment below will therfore be affirmed.
Swing and Jones, E. H., JJ., concur.

ELECTION-SPECIFIC PERFORMANCE.

[Hamilton (1st) Court of Appeals, July 1, 1913.]

Swing, Jones and Jones, JJ.

*SAM LEE, ET AL, V. JOSEPH S. THOMA.

1. Electing to Invoke Specific Performance Bar Action for Damages. An action for specific performance is a bar to a subsequent action for damages alleged to have been sustained through failure of the defendant to carry out the contract which forms the basis of the first suit.

*Affirmed, no op., Lee v. Thoma, 91 O. S. 444.

Lee v. Thoma.

ERROR.

Thorndyke & Capelle, for plaintiffs in error.

W. A. Hicks, J. R. Jordan and Worthington & Strong, for defendant in error.

JONES, O. B., J.

The action below was brought by plaintiff to recover damages for failure to carry out a contract to lease certain premises at 514 Vine street together with an entrance, same to be used for a chop suey restaurant, the term of the lease to be four years. Plaintiffs took possession after making the contract, and occupied said premises for a few months. Defendant made changes in the entrance and stairway to which plaintiffs ohjected and finally moved out of the premises and filed suit in the court of common pleas on June 15, 1911, in case No. 148116, to compel the specific performance by the defendant of his contract for the execution of a lease for four years under the conditions prescribed in the contract. On December 4, 1911, this suit was dismissed without prejudice at plaintiffs' costs.

In the meantime, on August 22, 1911, plaintiffs filed a suit in an action for damages suffered during the period of plaintiffs' occupancy against defendant for failure to carry out the same contract, which is the suit now under review.

In this case below an answer was filed practically admitting the making of the contract and its performance by the defendant, and as a fourth defense set up the suit brought in action No. 148116 of the court of common pleas for specific performance of this contract and claiming "that in filing said suit plaintiff's thereby elected to pursue their remedy of specific performance for the alleged failure of this defndant to comply with the provisions of said contract, and by such election are barred froin prosecuting this action for damages."

To this defense plaintiff demurred, which demurrer was overruled by the court, and plaintiffs rely upon the error of the court below in overruling such demurrer.

In the opinion of this court the demurrer to the fourth defense was properly overruled. Plaintiffs elected in filing their

Hamilton County Appeals.

first suit to compel specific performance, and having made their election they must rely upon that, and can not now abandon that suit or bring an action for damages for breach of the same contract. Zutterling v. Drake, 30 O. C. C. 661 (10 N. S. 167); 7 Enc. Pl. & Pr. 364.

Judgment below is therefore affirmed.
Swing and Jones, E. H., JJ., concur.

CANALS-PATENTS.

[Licking (5th) Court of Appeals, 1913.]

Powell, Voorhees and Shields, JJ.

(Voorhees, J., not sitting.)

ISAAC JONES V. WM. P. MYERS.

ISAAC JONES V. JAMES T. HAYNES.

Title to Borrow Pits Adjacent to State Canal Reservoir is in Patentee and Sucessors and not in Lessees of State.

Admitting that certain depressions adjacent to the embankment surrounding a canal reservoir are borrow pits from which earth was taken in constructing the embankment, the act of the state in so excavating and removing the earth, or in subsequently tiling the depressions in order to drain them of water seeping out of the reservoir, did not amount to an appropriation of the land from which earth was thus removed; and in the absence of any evidence that title to these pits was acquired by the state by selection, under the act of congress of May 24, 1828, a lease of such lands by the state is void as against the title of one holding by a direct line of mesne conveyances to himself from the United States under a patent issued in 1843.

Kibler Z Kible, for plaintiffs.

Flory & Flory, for defendants.

POWELL, J.

These two cases came into this court by appeal, and are submitted together, being identical in the issues presented, both of fact and of law. The plaintiff seeks to have his title and possession quieted to a tract of land described in his petition; the defendant Myers claims the right of possession to the west half,

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