Court Procedure.

COURT PROCEDURE - Continued.

Common pleas to approve compensation of deputy superintendent
of banks in liquidating bank, when. See State, ex rel. Knecht,
v. Hall, 487.

In action for fraudulent representations, evidence inadmissible
as to receipts after sale of moving picture theatre-Evidence
inadmissible as to suits on purchase notes-Measure of dam-
ages. See Gray v. Gordon et al., 490.

Directed verdict upon failure to support material averments of
petition. See Burke v. Mich. Cent. Rd. Co., 496.

No issue as to employment in interstate commerce, when-An-
swer to interrogatories attached to pleading, determinative,
when. See Burke v. Mich. Cent. Rd. Co., 496.

Under Section 4530, General Code, mayor of city not having
police court may impose imprisonment sentence, when-Habeas
corpus-False entry on mayor's docket. See State, ex rel., v.
DeMuth, 519.

Burden of proof to establish item of valuation by public utilities
commission. See Cincinnati v. Pub. Util. Comm., 554.
Allegation that automobile in custody of garage owner, sufficient
to convict for operating same without owner's consent, under
Section 12619, General Code-Variance. See State v. Shoe-
maker, 570.

Facts to be pleaded in quo warranto by claimant to office-
Giving bond. See State, ex rel. Symons, v. Rice, 574.
Continuing jurisdiction of juvenile court over delinquent or neg-
lected children-Mandamus to compel hearing of application
to modify commitment. See State, ex rel., v. Bristline, 581.
Submission of cause to two judges of court of appeals waives
assignment that judgment against weight of evidence. See
Schmidt v. Schopmeier, 586.

Court of appeals to remand for new trial when reversing on
weight of evidence. See Emig v. Toledo, 589.
Dismissal by supreme court because no final judgment rendered
by court of appeals. See Cincinnati v. Cormany, 596.
Dismissals by supreme court because no constitutional questions
involved. See Hayes v. H. V. Ry. Co., 598; Kammann v. Kam-
man, 600, and Cin. Trac. Co. v. Cincinnati, 602.

Right to jury trial and jurisdiction of mayor to commit for
unlawful sale of intoxicating liquors. See Rigot v. East Liver-
pool, 601.

Courts of Record - Criminal Law.

COURTS OF RECORD-

Mayor's court of a municipality is a court of record, when. See
Heininger v. Davis, Mayor, 205.

COVENANTS-

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1. Building restrictions — Purchaser not chargeable with notice
-As to restrictions in other deeds, when — The purchaser of
a lot in an allotment whose deed contains restrictions as to
the use of the lot is not chargeable from that fact alone with
notice that like restrictions are contained in the deeds to other
purchasers of lots in the allotment. Kiley v. Hall, 374.
2. Building restrictions — Injunction by one lot owner-To en-
force conditions in deed of another - A lot owner cannot
maintain an action to enforce by injunction the observance of
restrictions contained in the deed of another lot owner where
it does not appear that the latter purchased his lot with notice
of a general plan for the improvement of the lots of the allot-
ment in accordance with the restrictions contained in his deed,
or with notice that such restrictions were inserted in his deed
for the benefit of the owners of the other lots in the allotment.
Ib.

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3. Building restriction-As to "dwelling"-Does not include
"business block," when A restrictive covenant in a deed that
"no dwelling shall be erected on said above premises herein
conveyed containing less than six rooms; said dwelling to be
located not less than twenty-four feet from the street line not
including porches," does not prevent the erection of a business
block, and the provision relating to the location of a dwelling
does not apply to the location of a business block. Ib.

CRIMINAL LAW —

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1. Former jeopardy — Acquittal of larceny —Indictment for con-
spiracy Where the accused has engaged with another in a
criminal conspiracy or plan having for its purpose the larceny
of specific automobiles belonging to separate owners, and in
pursuance of such plan the confederate steals such automobiles
at divers times and places, each theft constitutes a distinct and
separate offense, and an acquittal of one does not place him
twice in jeopardy on the trial of the other. Patterson v. State,
90.

2. Evidence-Conspiracy - Theft of automobiles- Admissibility
of acquittal of specific larceny - Upon the trial of the accused

Criminal Law.

CRIMINAL LAW - Continued.

upon an indictment for the larceny of W's automobile, where
the state relies for conviction upon proof of such criminal
plan to steal various automobiles, belonging to W, C, and
others, and offers evidence of such criminal plan and the
larcenies of cars other than charged in the indictment, the fact
that the accused at a former trial had been acquitted of the
larceny of C's car does not conclude the state from proving
that such plan embraced the larceny of C's car, although the
evidence offered at such second trial was substantially the
same as that produced by the state on the former trial which
resulted in a verdict of acquittal. Nor can the record of such
former acquittal be offered by the accused either as a bar to
the offense charged in the second indictment or as an adjudica-
tion of fact that the accused was innocent of the theft of C's
car, and that the criminal plan did not embrace the larceny
thereof. Ib.

3. Evidence Trial and acquittal of prior larceny - Competency
- Where evidence relating to the larceny of C's car committed
in pursuance of such criminal plan is offered by the state, such
evidence is competent. And where the accused objected to
such evidence solely because he had been tried and acquitted
of such larceny but made no objection otherwise and made
no request that the same should be limited to the purpose of
proving such plan, he cannot in a court of error complain that
the trial court erred in not limiting such evidence to the pur-
pose stated. Ib.

4. Indictment-Defects to be challenged, how-The defendant
in a criminal cause who desires to object to an indictment be-
cause of defects apparent upon the face of the record, relat-
ing to the form or manner in which an offense is charged,
must do so by a motion to quash. State v. Schultz, 114.
5. Indictment-Waiver of defects by pleading - By demurring,
pleading in bar, or by pleading to the general issue, he is held
to have waived the defects which might be taken advantage
of by a motion to quash. Ib.

6. Indictment — Duplicity — An indictment that charges in the
same count both receiving and concealing property, knowing
the same to have been stolen, is not bad for duplicity. (Hale
v. State, 58 Ohio St., 676, approved and followed.) Ib.
7. Indictment-Surplusage-Receiving and concealing stolen
property-In an indictment wherein the defendant is legally
charged with receiving and concealing stolen property, know-

Criminal Law.

CRIMINAL LAW-Continued.

ing the same to have been stolen, which allegations are fol-
lowed by the language "and so the jurors aforesaid upon their
oaths and affirmations aforesaid, do say that the said Harvey
Schultz then and there in manner and form aforesaid, unlaw-
fully did conceal, take and carry away the said personal prop-
erty," such latter allegation is wholly irrelevant and ineffectual
to either help or hurt the former charge of the indictment.
It is at most a legal conclusion and should be regarded as
surplusage under and by virtue of Section 13581, General Code.
Ib.

8. "Manslaughter" defined - Manslaughter is the unlawful kill-
ing 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. State v. Schaeffer, 215.
9. Manslaughter - Indictment-Short form sufficient — In an in-
dictment 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." Ib.
10. Manslaughter — Indictment — Election by state - Statute vio-
lated 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. State, 4 Ohio St., 440, approved and followed.) Ib.
11. Manslaughter-Indictment-Alias-Proof-Variance-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 per-
son, 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.) Ib.

12. Motor vehicles-Operation at unreasonable speed-Section
12603, General Code, constitutional-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 roads or
highway, or so as to endanger the property, life or limb of
any person," is a valid statute. Ib.

Criminal Law.

CRIMINAL LAW - Continued.

13. Charge to jury-Lesser offenses-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 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.) Ib.

14. Manslaughter-Unlawful act-Proximate cause of death-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. Ib.

15. Charge to jury-Manslaughter-Unlawful operation of auto-
mobile-In a prosecution for manslaughter under Section 12603,
General Code, the court should charge the jury that the stand-
ard 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 per-
son in the then situation, he was not guilty of manslaughter. Ib.
16. Larceny Operating automobile without consent—Indictment—
Sufficiency-An indictment that alleges ownership of an auto-
mobile in the name of the garage owner, or other lawful cus-
todian, is sufficient under the requirements for an indictment
under the larceny statute, as well as under favor of Section
12619, General Code. State v. Shoemaker, 570.

17. Indictment-Variance-Owner or bailee-Where the evidence
discloses such qualified ownership in the garage owner or other
bailee and further discloses the name of the legal owner of
the automobile; this does not constitute a variance in law to
the prejudice of the defendant. Ib.