Opinion, per WANAMAKER, J.

doubted cases of murder, has been overworked to the great prejudice of the state, to the lessening of confidence in the judgments of our courts and juries, and to the undermining of the safeguards provided by law for the security and protection of human life.

The only case of murder brought to our attention where a contrary doctrine is held is that of Lindsey v. The State of Ohio, 69 Ohio St., 215. In that case, however, the question was as to whether or not there could be a valid conviction of murder in the second degree under the charge of murder in the first degree. The question of assault and battery was not raised.

We approve and adhere to the doctrine laid down in the cases of Marts v. The State, supra, and Dresback v. The State, supra, as the sounder and safer doctrine, and to the extent that the Lindsey case modifies that doctrine upon a charge of assault and battery the same is disapproved.

This assignment of error is not well taken and the court of appeals was right in so holding.

The fifth assignment of error urges that the statute, Section 12603, General Code, is unconstitutional and void for the reason that it does not observe the constitutional guaranty of sufficiently advising the defendant of the nature of the accusation against him, in that the statute is too indefinite and uncertain in its terms.

It is claimed that the words "reasonable" and "proper" are so general, comprehensive, and variable, that it would be impossible for the defendant to know, or for the jury to fairly de

Opinion, per WANAMAKER, J.

termine, what was a violation of the statute; that juries in one case would hold a speed to be reasonable, while the same speed under the same circumstances might be held by another jury in the same county, at the same term, to be unreasonable. In short, it is urged that the statute should definitely fix what is a reasonable speed and a proper operation of a car.

The constitutional guaranty is in very broad terms. It is the defendant's right "to demand the nature and cause of the accusation against him, and to have a copy thereof."

The degree of particularity and specification required in the indictment is not fixed by the constitution, but rather is fixed by the decisions of our courts. There can be no violation of the constitutional provision in this respect, by reason of the generality and indefiniteness of any averment set forth in the statute, so long as the indictment does advise the accused of the "nature and cause of the accusation." Yet courts have nullified statutes because the language was too uncertain and too indefinite to ascertain the meaning of the legislature, and also because the language did not in any wise advise the public as to what was or what was not an offense under it.

The legislature, however, in this instance, saw fit to fix no definite rate of speed for the car, except to require that the car should not be operated 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."

Opinion, per WANAMAKER, J.

In short, the legislature wrote into the statute what has become known as the "rule of reason" ever since the Standard Oil and Tobacco Trust cases were decided by the supreme court of the United States. (221 U. S., 1, and 221 U. S., 107.)

In those cases the supreme court of the United States read into the statute the so-called "rule of reason," holding that the anti-trust act really was not a denial of all restraint of trade, but only a denial of unreasonable restraint of trade.

It would hardly be suggested that the supreme court of the United States read into the statute something that made the statute unconstitutional; or read into the statute something that made it so indefinite and uncertain that it was incapable of advising the public as to what was or was not an offense under it, or that made the statute practically unenforceable. And yet, by parity of reason, it is claimed in this case that the legislature, which wrote into the statute the same "rule of reason,' thereby in effect nullified such statute, because of the indefiniteness and uncertainty of its terms. The contention is not sound.

The suggestion that juries on the same state of facts may hold one way in one county, and another way in another county, indeed that in the same county upon the same state of facts one jury may hold one way and another hold another way, is no argument against this contention. That is inevitable under any system of jurisprudence on any set of facts involved in a criminal transaction. Courts differ in their judgment, juries differ in their judgment, but that is no reason for the abolition of

Opinion, per WANAMAKER, J.

either, or for denying them jurisdiction sufficient to enforce the administration of statutes like the one in question.

In our whole criminal procedure, even in capital and the most atrocious cases, where a man's life and liberty for life are involved, it is made the special province and duty of juries to determine what is "reasonable," and whether or not there is a "reasonable" doubt of the defendant's guilt. Of course that is a conclusion-almost incapable of precise and specific definition. What one jury might hold to be a reasonable doubt, another jury would hold the contrary; and still there is no way other than to leave the question to the jury to determine what is and what is not a "reasonable doubt."

Again, one of the most common defenses interposed in prosecutions for murder is that of selfdefense. It is the settled law of this state, as in most others, that if the defendant at the time of the killing bona fide believed himself to be in danger, whether he was or not, and had "reasonable" grounds for so believing, and used force pursuant to such situation, it is excusable homicide; and yet it is for the jury to put themselves in the situation of the parties, particularly that of the defendant, and determine from the evidence as to whether or not the defendant had "reasonable" grounds. And so it is throughout our entire criminal jurisprudence.

Our statute is much like the Massachusetts statute enacted in 1909, which reads:

"Every person operating a motor vehicle * * *

Opinion, per WANAMAKER, J.

shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public." Acts, 1909, p. 829.

Nebraska has a very similar statute, which has been upheld by the supreme court of that state in Schultz v. State, 89 Neb., 34.

A contrary doctrine has been held in Hayes v. The State, 11 Ga. App., 371, which principle was affirmed in Strickland v. Whatley, 142 Ga., 802, and also in Sloan & Billings v. Pasche, 153 S. W. Rep., 672, by the Texas Civil Appeal.

We feel the Massachusetts and Nebraska doctrine is much more conducive to public safety and the needs of all the varying situations in public travel than is the doctrine laid down by the courts of Georgia and Texas.

The first Ohio statute enacted using similar language was passed in 1906 (98 O. L., 320). The body of that act reads:

"No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable or proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property."

We are not advised as to the number of automobiles in the state of Ohio at that time, but the situation created by their operation on the public highways was of such a dangerous nature that the legislature in the exercise of its police power thought it desirable, if not imperative, to enact some such legislation.