Opinion of the Court. end to end; that a small wire had been placed around the top of these stakes and had been permitted to sag in the middle so that at the point plaintiff attempted to cross it was not more than ten or twelve inches high; that the place was not lighted by any street lamp and the night was so dark that a pedestrian in the exercise of due care for his own safety could not see this wire or protect himself from injury therefrom, and that, therefore, this wire so placed and permitted to remain was a dangerous nuisance and likely to produce just such an injury to a pedestrian exercising due care for his own safety as the plaintiff sustained. There is evidence in this record in support of these facts upon which plaintiff rests his right to recover in this action. The fact that a municipality may maintain or permit to be maintained a barrier around such strips to prevent pedestrians from going thereon does not authorize the maintenance of such a dangerous construction as would be a menace to the life or safety of a pedestrian exercising due care for his own safety in an attempt to cross over the same. If the jury found from the evidence that this wire was in the condition described by some of the witnesses, then it could rightly find that it was not a barrier to prevent, but rather a device to trip and punish any one who would attempt to cross this strip in the night season. That a pedestrian has not sufficient civic pride to refrain from going upon or passing over this strip does not justify the placing of a nuisance there that might probably cause his death or do him great bodily Opinion of the Court. harm if he should attempt to do so and the pedestrian could not be held to have assumed the risk of injury from such a device if it be shown that he had no knowledge of its existence and could not in the exercise of due care for his own safety see the same or be required to anticipate its presence. True, if he had collided with a tree or with a proper barrier placed there to prevent him from going upon the strip or with a stepping stone, or other obstruction that might reasonably be expected to be found there then the contention of the plaintiff in error that he assumed the risk of injury from such obstruction would obtain. In the absence of knowledge of the fact he could not be required to contemplate the existence of this wire placed so near the ground that it would not prevent his going upon the strip, but rather would more likely result in his injury than in the accomplishment of the purposes for which it is now claimed it was so placed, and while it might be a proper and sufficient guard in the day time, or even in the night season, if properly lighted, yet it was a question for the jury to determine whether under the circumstances of this case it was a legitimate barrier, one that he ought to have expected to meet and, therefore, assumed the risk of injury therefrom, or whether it was a dangerous and unlawful nuisance, the existence of which he would not be required to have in contemplation at the time he attempted to cross the same. It is also claimed on behalf of the plaintiff in error that the court erred in the rejection of the testimony of S. S. Foreman. The defendant Opinion of the Court. sought to show by this witness the plan of the improvement of the streets of this village with reference to the maintenance of park strips between the curbing of the paved street and the paved portion of the sidewalks, and it was permitted to show this plan as fully as the nature of this defense required. The objections to the questions appearing on pages 255, 256 and 257 of the record were properly sustained for the reason then stated by the court that they were leading questions. From the whole record it appears that the issue was properly submitted to the jury and that its verdict is sustained by evidence. The judgment of the circuit court affirming the judgment of the common pleas court is affirmed. Judgment affirmed. SPEAR, C. J., DAVIS, SHAUCK, PRICE and JOHNSON, JJ., concur. Statement of the Case. HORTON V. THE STATE OF OHIO. Obtaining property by false pretenses-Section 7076, Revised Statutes-Indictment must be certain and precise-No defense to indictment that money obtained was unlawful. 1. An indictment under Section 7076, Revised Statutes, for obtaining money by false pretenses must set forth the alleged false pretenses with such certainty and precision as will reasonably apprise the defendant of what he will be required to answer, and so that the court may determine what evidence is admissible and must allege that the pretenses were in fact false and made with intent to defraud. 2. It is no defense to an indictment for obtaining money by false pretenses that the transaction in which the money was so obtained was unlawful. (No. 12919-Decided October 31, 1911.) ERROR to the Circuit Court of Mercer county. At the October term 1909 of the court of common pleas of Mercer county the grand jury returned an indictment against John Horton for obtaining money under false pretenses from one Frank Linneman. Omitting formal parts the indictment is as follows: "That John Horton unlawfully did falsely pretend with intent to defraud one Frank Linneman, that he was selling counterfeit money; by which said false pretenses the said John Horton, then and there unlawfully did obtain from said Frank Linneman sixty-five dollars in money, of the value of sixty-five dollars, of the personal property of said Frank Linneman; whereas in truth and in fact said John Horton was not selling, and had no intention at said time to sell and deliver any counterfeit money; and said Argument for Plaintiff in Error. Horton at the time he so falsely pretended as aforesaid well knew the said false pretenses to be false." A motion to quash and a demurrer were filed to this indictment and were overruled. On the trial at the close of the state's case the defendant interposed a demurrer to the evidence and moved the court to instruct the jury to return a verdict for defendant. This was also overruled. The defendant was convicted and sentenced. On error to the circuit court this judgment was affirmed and error is prosecuted here to reverse the judgments of the courts below. Mr. John E. Egan; Mr. George W. Mannix, Jr., and Mr. Robert R. Nevin, for plaintiff in error. The indictment does not state that the false pretenses were in fact false. 19 Cyc., 394; People v. Reynolds, 71 Mich., 343; People v. Behee, 90 Mich., 356. The alleged false pretenses are not properly made and negatived by specific and special averments. Ellars v. State, 25 Ohio St., 385; Winnett v. State, 18 C. C., 515, 62 Ohio St., 650; Reg. v. Kelleher, 14 Cox C. C., 48; 2 Wharton on Crim. Law (10 ed.), Section 1167; People v. Blanchard, 90 N. Y., 314; 12 Am. & Eng. Ency. Law (2 ed.), 811; Commonwealth v. Drew, 19 Pick., 179; State v. DeLay, 93 Mo., 98; State v. Peacock, 31 Mo., 413. The indictment must show that the prosecuting witness relied upon the false representations set |
