HABEAS CORPUS.

Hamilton Common Pleas.

Fulford, Shook, Wilby & Fricke, for petitioner.

Charles A. Groom and Edwin S. Morrissey, for respondent. WARNER, J.

The applicant was arrested and charged with the violation. of the following section of the code of ordinances of the city of Cincinnati:

"Section 1019-2. It shall be unlawful for any person knowingly to have in his possession or in his custody or under his control any writing, slip, paper or document, such as is commonly used as a representation of or a memorandum of or evidence of or in the process of making, settling, paying, registering, evidencing or recording a wager upon the result of a trial or contest of skill, speed or power of endurance of any beast."

Section 1019-4 provides a penalty as follows:

"Section 1019-4. Any person or persons found guilty of violating any of the provisions of the foregoing Sections 1019-1 and 1019-2, shall be fined in any sum not exceeding one hundred ($100) dollars for the first offense; and for each subsequent offense shall be fined in a sum not less than twentyfive ($25) dollars nor more than one hundred dollars or shall be imprisoned and kept at hard labor in the city workhouse not more than sixty days, or both."

The accused now seeks to be released upon various grounds, which he claims renders said ordinance invalid.

It is contended, first, that said ordinance was not authorized by statute.

By the provisions of Sec. 3658 G. C., a city is authorized to enact ordinances "to prevent riot, gambling," etc.

It seems to be very clear that said ordinance seeks to prevent one form of gambling, and that being so I think making it unlawful for any person to knowingly have in his possession any writing, etc., as provided in said ordinance, is a legitimate means in preventing the character of gambling sought to be prevented. It follows, therefore, that this ordinance would seem to be fully authorized by said statute.

Sherlock, Ex parte.

It is further claimed that the ordinance is unreasonable and indefinite.

I think that an ordinance should not be held to be unreasonable which is clearly authorized by the legislature, and I think that while the court has power to declare an ordinance unreasonable, the exercise of that power should be restricted to cases where the legislature has enacted nothing on the subject matter of the ordinance. In this case, it appearing that the ordinance is authorized by the legislature, I think it would be going too far to say that it is unreasonable and indefinite.

The further claim is made that the applicant is denied the right to trial by jury.

If the applicant is entitled to a trial by jury it is enough to say that his right to such trial is fully protected and secured by Sec. 4577 G. C.

The final contention is that the punishment provided by said ordinance is excessive.

The provisions of Sec. 3665 G. C. declare what punishment may be inflicted for offenses specified in Sec. 3664, of which the offense in this case is not one, and therefore Sec. 3665 does not determine the limit of punishment that may be inflicted in this

case.

This case comes within the provisions of Sec. 3628 G. C. which is as follows:

"Section 3628. To make the violation of ordinances a misdemeanor and to provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed five hundred dollars and such imprisonment shall not exceed six months."

It is apparent, therefore, that the penalty section of said. ordinance is clearly within the limit prescribed by said Sec. 3628.

Therefore, upon all considerations affecting this case, I am very clearly of the opinion that the writ must be discharged. Ordered accordingly.

'Hamilton Common Pleas.

INJUNCTION-NUISANCE.

[Hamilton Common Pleas, August, 1916.]

ROSE BELL ET AL. V. POLLAK STEEL Co.

Injunction Denied against Operation of Heavy Machinery in Steel Plant in Factory District.

Injunction does not lie against the operation of a factory on the ground of injury to residence property from smoke and vibration of the earth, where it appears that the factory is located in a factory district, and is separated from the property in question by a stream of water and a railway operating sixtyfour trains a day, and the trains cause more smoke and vibration than does the operation of the factory, and that the parties complaining acquired their property with one exception, some time after the factory began to operate.

INJUNCTION.

Schmuck & Jacobs, for plaintiffs.
Stricker & Johnson, for defendants.

CALDWELL, J.

The court finds that said defendant's plant is located in a manufacturing district on some twenty acres of ground west of the Cincinnati, H. & D. Ry. tracks and also west of Millcreek and directly west of Carthage; that the Cincinnati, H. & D. Ry. and Millcreek separates it from the residential part of Carthage; that the defendant's plant is connected with said railway by switch, and located where it is naturally to be presumed factories will locate in the progress and growth of our city; that the Cincinnati, H. & D. Ry. runs an average of sixtyfour trains a day; that the plaintiffs' property is immediately across the street eastwardly from the said railway tracks: that said defendant's business is a lawful and useful business; that they are engaged in the manufacture of all kinds of round and square bars, locomotive driving axles, car axles, tender, truck and trailing shafts, and there is some evidence that they are now engaged in connection with their other business in the manufacture of rough forgings for shells; that said plant located there some eighteen years ago. At that time the only

Bell v. Pollak Steel Co.

one of the complainants that owned property was Mrs. Bell. It is in evidence that two or three of the plaintiffs lived in the houses they now own some little time before they purchased them, and therefore were familiar with the workings of defendant's plant.

While it is claimed by plaintiffs that the noise and vibration has been greater in the eight months preceding the filing of the petition, there is evidence tending to show that there was more noise before this time, and much more smoke than at the present time. It is in evidence that plaintiff, Berner, worked for the defendant company some seventeen years, and that he was discharged May 9, 1916, and May 10, 1916, Berner, with others of the plaintiffs threatened the defendant company through counsel to enjoin the operation of their plant, but suggested this might be avoided by the purchase of their property, and thereupon gave prices at which the same could be purchased. It appears in evidence also that Berner, when he was discharged, stated it was his duty to get legal advice as to an injunction, as he stated, so they could sleep.

The court has made several trips to the neighborhood and one to the plant. The observation of the court is that the smoke from this plant. while it might be lessened, does not affect the property of plaintiffs anything like as much as does the smoke and cinders from the trains passing over the railway tracks, and the smoke from the factory immediately north of said property. The houses of the plaintiffs do vibrate more or less from the operation of this plant, but from the court's observation and from the testimony they are not in excess nor equal to the vibration caused by the passing of trains over the C., H. & D. Ry. There are some cracks in the houses of the plaintiffs, according to the testimony and the observation of the court, and there is testimony to the effect that some of the cement work of the houses has been cracked, and it is claimed from the vibration coming from this plant.

is:

The rule governing these cases, as the court understands it,

"To authorize an injunction it must be such a noise as

Hamilton Common Pleas.

produces actual physical discomfort in persons of ordinary sensibility, and it must be noise unnecessarily made."

Therefore, under the ruling of the court of appeals in the case of Gau v. Ley, 38 O. C. C. 235 (27 N. S. 1), and considering the general rule in this state as announced in Goodal v. Crofton, 33 Ohio St. 271 (31 Am. 535), the court is unable to grant the relief prayed for in plaintiffs' petition, and an entry may be made accordingly.

1.

2.

CRIMINAL LAW-HOMICIDE.

[Franklin Common Pleas, May 25, 1917.]

STATE OF OHIO V. LUTHER KINGCADE.

Evidence of Provocation and Self-Defense Admissible to Reduce Grade of Homicide on Convicition by Confession.

In the case of one convicted by confession in open court in a capital case, it is permissible to bear testimony in support of claims of provocation and self-defense for the purpose of re ducing the grade of the crime to manslaughter.

Reasonable Doubt Inures to Benefit Accused in Determination of Crime by Court and Jury.

The reasonable doubt rule inures for the benefit of the defendant where the degree of crime is to be determined by the court as well as where it is left to a jury.

3. Malice and Purpose to Kill Implied from Extraordinary Brutal and Atrocious Acts.

4.

Extraordinary cruel, brutal and atrocious acts on the part of the defendant in connection with the commission of the crime warrant an inference of implied malice and a purpose to kill. Rule of Reasonable Doubt in Case of Two Attacks Separated by Short Interval making Uncertain Which Attack Caused Death, Requires Conviction for Second Degree Murder.

Where the victim was killed by blows and kicks, inflicted in two attacks separated by a short interval of time, and it is uncertain whether the fatal blow was inflicted during the first or second attack, and the only evidence of a purpose to kill was a threat uttered during the interval between the attacks, an application of the reasonable doubt rule requires that the crime be fixed at murder in the second degree.

[Syllabus approved by the court.]

Robert P. Duncan and Hugo N. Schlesinger, for plaintiff.