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Opinion, per DONAHUE, J.

The court of appeals therefore erred in dismissing this petition in error for this reason. But that error does not necessarily require a reversal of the judgment, if the court of appeals should have sustained the motion of defendant in error to dismiss the petition in error for the reason that the plaintiff in error had not complied with Section 12263, General Code, requiring him to file either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or a transcript thereof, as are required to exhibit the error complained of.

The plaintiff in error did file with his petition in error a bill of exceptions, and all the original papers in the case, but a transcript was not filed because the mayor, acting upon the advice of the law department of Cleveland, believed he had no right to make such record or to certify such transcript. Mandamus proceedings were instituted by the plaintiff in error to secure the transcript. It was secured and filed before the hearing of the case.

If under the statute authorizing this proceeding in error it is necessary to file such transcript with the petition in error at the time the petition in error is filed, the refusal of the mayor to deliver such transcript upon demand and tender of fees therefor would be sufficient excuse for not filing the same, provided the plaintiff in error promptly brought and diligently prosecuted an action in mandamus to compel the making and delivery of such transcript.

The motion also asks the court to dismiss the proceedings in error for the further reason that plain

Opinion, per DONAHUE, J.

tiff in error did not furnish security for cost before filing petition in error, as required by Section 6166, General Code. Counsel evidently did not rely upon this branch of the motion, for no reference is made to it in the briefs. It appears from the transcript of the docket and journal entries in the court of appeals that security for cost was furnished shortly after the petition in error was filed, and many days before the motion was made to dismiss.

The judgment of the court of appeals is reversed, and the cause remanded to that court with directions to overrule the motion to dismiss, and for further proceedings according to law.

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Nichols, C. J., WANAMAKER, NEWMAN, JONES, Matthias and JOHNSON, JJ., concur.



Manslaughter - Killing by automobile - Allegations of indictment

sufficient, when - Section 13583, General Code - Act unlawful by more than one statute - Effect of not proving an alias Unreasonable operation of motor vehicle Validity of Section 12603, General Code - Evidence Proximate cause of death - Charge to jury - Criminal law.

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1. Manslaughter is the unlawful killing of another without malice,

either upon a sudden quarrel or unintentionally, while the slayer is in the commission of an act made unlawful by a valid

statute. 2. In an indictment for manslaughter such unlawful act need not

be pleaded in the indictment. The short form of indictment provided in Section 13583, General Code, is not in conflict with the constitutional guaranty that the accused shall be advised of

"the nature and cause of the accusation against him." 3. Such unlawful act relied on by the state as the basis for the

charge of manslaughter may be made unlawful by more than one statute. In such case it is error to compel the state to elect upon which statute it relies for a conviction. (Bailey v.

The State, 4 Ohio St., 440, approved and followed.) 4. Where an indictment for manslaughter charges the defendant

with having "unlawfully killed Adelbert Chaky, sometimes otherwise known as Buley Csaki,” and there is no evidence tending to prove the alias, or that both names were the names of the same erson, such failure is not a fatal variance, because it is not prejudicial to the merits of the case and the substantial rights of the defendant. (Goodlove v. The State,

82 Ohio St., 365, disapproved.) 5. Section 12603, General Code, prohibiting the operation of a

motor vehicle "at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the prop

erty, life or limb of any person” is a valid statute. 5. Where all the evidence clearly and conclusively shows that the

unlawful act relied upon by the state directly caused the killing, and there is no evidence to the contrary, the failure of the court to charge on assault or assault and battery is not error. (Marts v. The State, 26 Ohio St., 162, and Dresback v. The

Statement of the Case.

State, 38 Ohio St., 365, approved and followed. So far as the case of Lindsey v. The State, 69 Ohio St., 215, is in conflict

with the two foregoing cases, said Lindsey case is disapproved.) 7. The unlawful act relied upon as the predicate for manslaughter

must be the proximate cause of death. If death resulted from any other cause, or there be a reasonable doubt as to the unlawful act being the proximate cause of death, the jury should acquit. But where, upon the undisputed facts, it clearly and conclusively appears to a moral certainty that the unlawful act complained of was the proximate cause of death, a failure to so charge, especially where there was no request to SO

charge, is not reversible error. 8. In a prosecution for manslaughter under Section 12603, General

Code, the court should charge the jury that the standard of conduct required of the defendant in the operation of his car is that of an ordinarily careful and prudent person, and that if he did not operate the car "at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of such road or highway, or so as to endanger the property, life or limb of any person,” as would appear to such ordinarily careful and prudent person in the then situation, he was not guilty of manslaughter.

(No. 15439 — Decided April 17, 1917.)

ERROR to the Court of Appeals of Lake county.

The defendant in error was found guilty of manslaughter by a jury in the court of common pleas of Lake county. A motion for new trial was overruled. Error was prosecuted in the court of appeals of Lake county, which court reversed the judgment of the court of common pleas and remanded the cause for a new trial. Error is prosecuted to this court to reverse the judgment of the court of appeals and affirm that of the common pleas.

Opinion, per WANAMAKER, J.

Mr. George C. von Beseler, prosecuting attorney, and Mr. Harry E. Hammar, for plaintiff in error.

Mr. Homer Harper and Messrs. Alvord & Blakely, for defendant in error.

WANAMAKER, J. Realizing the great importance of the questions arising in this case, both to the public for its safety of life and limb in the public streets and highways and to automobilists as to their rights in the use of the public streets and highways, unusual care and consideration has been given this case and the law applicable thereto.

Now, what are the facts of this case so far as necessary for its intelligent and just determination?

The state claimed that on the second day of August, 1915, in broad daylight, at about 5:30 P. M., the defendant in error, E. E. Schaeffer, was driving a touring car at from twenty-five to thirty miles an hour in a southerly direction, on the left side of one of the principal streets, known as High street, in the village of Fairport, having a population of about 3,000, and that he then and there and thereby ran over and fatally injured Adelbert Chaky, "sometimes otherwise known as Buley Csaki,” a boy less than three years of age; that this was a thickly-settled community and that a large number of children were accustomed to play on this part of the street and were so playing at the time of the killing; and that said children were then and there seen, and were admitted to be seen, by the defendant.

The state further claimed that such high and

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