
    Jeremiah C. Wolf v. The State of Ohio.
    1. It is sufficient, in an indictment for manslaughter, to charge the crime in accordance with the provisions of the 92d section of the Code of Criminal Procedure. That section is not repugnant to. the constitution of the State.
    2. Where an officer, authorized by statute to make arrests without a warrant, finds a person in the act of committing a criminal offence, it is not necessary to the lawfulness of an attempt to arrest him to first inform him of the charge upon which the attempted arrest is made, where the officer and the cause of arrest are known to the offender.
    3. In a prosecution for manslaughter against such officer for killing the deceased while in the attempt to arrest him without a warrant, and it appearing that the deceased, knowing the officer and the cause of arrest violently resisted the arrest, it is error to charge the jury that it was unlawful for the officer to use force in return to make the arrest, or to defend himself from the attack of the offender, without notice to him of the cause of arrest, or of the abandonment of the attempt to make the arrest.
    Error to the court of common pleas of Muskingum county.
    The facts are sufficiently stated in the opinion of the court.
    
      Imams P. Marsh fox plaintiff in error:
    I. The indictment is insufficient. It is under section 92 of the criminal code. 66 O. L. 301.
    , This section only dispenses with the necessity of averring the specific manner and means of killing, and the second part of the section provides, that as to these, “ it shall be sufficient to charge? etc. There are other necessary averments in an indictment for manslaughter, which the pleader has here omitted, on the assumption that the section makes it a sufficient indictment to aver “ that the defendant did un lawfully kill and slay the deceased; ” and the indictment was therefore bad.
    To establish this proposition it is necessary to show, —
    (1) There were averments heretofore necessary, and herein omitted; and,
    (3) The section in question has not dispensed with the necessity of setting them out.
    (1) Manslaughter is an unlawful killing in a sudden quarrel, or while the slayer is in the commission of some unlawful act. It was necessary to aver a time, place, assault, a hilling, the manner and means, and'that it was felonio%t,sly done; or if it came under the second clause of the statute creating the offence, it was necessary to set out the unlawful act the slayer was in the commission of. 2 Bishop’s Crim. Procedure, sec. 503 et seg. None of these are here averred, except the time,place, and the killing.
    If the legislature intended to dispense with all these averments, except “ did unlawfully hill and slay? why didn’t they say so and say no more; why did they specify the “ manner and means? and say “ it shall not be necessary to set them forth” ? The construction contended for by the State gives the entire section the same meaning the last half has standing alone — makes the first half of the section iinmeaning, unnecessary. Where a statute is open to two constructions, and one will give effect to the whole, and the other will destroy a part, the former must always be adopted. Pruden v. Pruden, 14 Ohio St. 251.
    (2) If the section in question, fairly construed, makes it sufficient, in any indictment for manslaughter, to aver that “ the defendant did unlawfully kill and slay the deceased,” if no other information need be communicated to the accused in the indictment, and the State on the trial may prove any killing which would be unlawful, at any time, in any place, in any manner, by any means, or while the slayer was in the commission of any unlawful act, then the section is in conflict with "sec. 10, art. 1, of the constitution. No person shall be put upon trial, etc., except upon an “ indictment; ” and he shall be entitled “ to demand the natv/re and ea/ase of the accusation agai/nst him, arid to have a copy thereofP
    
    The nomenclature of the constitution has been and should be construed according to the meaning of the-terms therein when it was adopted. The term “jury” and the word “white” have been held to mean what was then understood by those terms. The term “ indictment ” should be held to mean such form of accusation by a grand jury as was then known as an “ indictment,” with all its essential requisites. It is the substance and not the name which the constitution guarantees, and therefore the legislature may not emasculate it, and merely preserve the name. It was intended for the substantial benefit of a party accused. It was not from a desire to-favor the guilty, but from a tender regard for the innocent, which led to its incorporation in the constitution; and it should be so regarded upon a question of violating the provision. It was intended by the framers of the constitution to leave the security of the citizen in this behalf with the law as they then found it. Then, it was necessary to set forth the facts constituting the crime, so that the accused might know what acts of his he must explain or deny; and the acts complained of must have been so specifically set forth that a limit was circumscribed within which the State must be confined, and beyond which it might not go. The indictment must have been so specific, that the court applying the law to the facts charged could say whether a crime and what crime had been committed; so that the accused might plead guilty, or demur, and claim the judgment of the court whether the facts stated constituted a crime.
    A copy of the nature and cause of the accusation in this case, so far from meeting these requirements, is only a mockery. The accused is only informed, he only has notice that he is charged with one thing, he hilled Lee. It is true the indictment charged that it was unlawfully done, and any facts, any state of case, which would make an unlawful kill ing, may be proved on the trial. To predicate of the killing “ unlawfully” is to aver the conclusion of the grand jury from facts -which are not stated. It is not like predicating of the killing that it was purposely, maUeiously, or feloniously done : these severally affirm the animus of the defendant. Arch. Crim. Plea (*42), *52, 55; Lamberton v. State, 11 Ohio, 284; Fouts v. State, 8 Ohio St. 113; Dillingham v. State, 5 ib. 280.
    As to the nature and effect of this constitutional guaranty, I refer to 1 Bishop’s Grim. Procedure, sec. 403.
    II. The court erred in instructing the jury.
    The parties indicted were police officers in the city of Zanesville, and as such, on the occasion referred to, were seeking to arrest Lee for keeping a house of ill-fame. 1 S. & O. 819. The authority to make the arrest without a warrant is found in O. L. vol. 66, p. 113, see. 142 ; p. 184, sec. 210 ; p. 291, sec. 21. ' These authorize such arrests, “ upon view,” or persons “ in the aet of committing,” or persons “found violating ” etc.
    In the charge of the court there is no qualification of the main proposition, that an officer in making an arrest without a warrant, to make the arrest or the attempt to arrest legal, must first notify the person upon what charge the arrest is made, and that such notice must be of the actual crime he was then committing, though the accused made no demand of the cause of the arrest; though he knew the officers and knew the cause of the arrest without being told; though he resisted or fled, and gave the officer no opportunity to tell him on what charge the arrest was made ; and though the officer may have merely failed to accurately discriminate between adultery, fornication, keeping a house of ill-fame, and the “ act to prevent the amalgamation “ of the white and colored races ” (S. & S. 251), he is in the commission of an unlawful aet, and liable in manslaughter if he cause the death of the party therein and thereby.
    If the right belongs to the party to be notified of the charge upon which the arrest is made, before the arrest is legal, and he may resist till so notified, the right belongs to him, whether the officer has a warrant and has the charge in writing or not. Gwynne on Sheriffs, 97-8; Arch. Crim. Practice (7th ed.), 112; 1 Bishop’s Crim. Procedure, secs. 615, 647-8-9; Rex v. Howarth, 2 British Crown Cases, 207; State v. Kirby, 2 Iredell, 201; Commonwealth v. Field, 13 Mass. 324; Arnold v. Steeves, 10 Wend. 514.
    Is it the law that an officer, who mistakenly omits to notify a party he seeks to arrest of the charge upon which he makes the arrest, may be fired upon by the party, and has no right to defend himself till he ceased the attempt, and till he gives reasonable notice of that fact? So soon as the officer ceases the attempt, the party firing upon him does so at his peril, and the officer may act in the defensive and return the fire, if he is in such danger as justifies the use of firearms. A person only apprehending an arrest may not'resort to the use of firearms to defend himself; and if he do so, the officer may at once defend himself by the use of such means as the danger to be apprehended would justify.
    
      FT. A. Guille, also for plaintiff in error:
    The case of Lougee v. The State, 11 Ohio, 68, decides that the legislature, in the act creating the offence, may provide that the indictment shall be sufficient if it set forth the of-fence in the language of the act defining it.
    The court there reluctantly hold this, and say that although the legislature may thus prescribe the form,, it ca/nnot dispense with the mdictment; and, as we say, it cannot emasculate that indictment, and withdraw the substance.
    The whole legislation of Ohio, since that decision, has gone to this extent, and no more : they have confined themselves, in prescribing forms, or rather, in dispensing with allegations in indictments, to the acts in which they define the offence; and then they have only dispensed with matter merely redundant, or of technical description, which might lead to a variance in proof of matters not essentially necessary to a correct description of the offence; e. g., “ An act for the more effectual protection of enclosures,” S. 293 (144); Injuring trees, etc., S. 295, sec. (153) : Sec. xiii. of the liquoi law, so called; Sec. xi., crimes act, in relation to perjury. If there are any exceptions, they are matters of definition, etc., immaterial.
    This leads me to conclude that the legislature, in the act referred to, when they say, “ it shall be sufficient to charge, that the defendant did unlawfully kill, etc.,” meant simply to dispense with such allegations as, the instrument was “ held in the right hand,” or, “ was loaded with gunpowder and a leaden ball,” etc., — mere matters of redundant description, and not matters essential to constitute or describe the crime of manslaughter as defined by the statute, and.as construed by pur courts.
    
      A. P. Blocl&som>, also for plaintiff in error,
    called the attention of the court to questions not reached in deciding the case.
    
      F. B. Pond, attorney-general, for the State:
    1. As to the constitutionality of sec. 92 of the Crimina Code, under which the indictment in question was framed:
    There must be an “ indictment,” and it must show tha nature and cause of the accusation” against the accused But the legislature has as full power to prescribe tbeform oi an indictment, as it has to declare what acts shall he criminal (Lougee v. The State, 11 Ohio, 68), provided it show the accused the nature and cause of the accusation v\ith certainty to a common intent. Stoughton v. The State, 2 Ohio St. 562.
    The indictment in question does this. It notifies the accused that he is to meet the charge of Manslaughter (as defined by the statute), for causing the death of Lee.
    2. The charge of the court ought to be sustained.
    In view of the law, as I find it applicable to this country it appears to me that the attempt to arrest the deceased waa illegal; that the plaintiff in error ought hot to be allowed ta protect himself by his position as an officer of the city; that to allow him to do so would be establishing a precedent that would be injurious to the peace and quiet of law-abiding citizens, and an encouragement to those enjoying a brief term of official position to wreak with impunity their malice upon those they dislike.
    As to arrests without warrant, see Halley v. Mix, 3 Wend. 353; 1 Chitty's Crim. Law, 15; 2 Hawkins' Pleas of the Crown, chap. 13, sec. 11; Samuel v. Payne, Doug. 359; Commonwealth v. Carey, 12 Cushing, 246; Same v. McLaughlin, 12 Cushing, 615; Pord v. Beckner, 3 Ind. 475; Wharton's Am. Law of Homicide, p. 52 et seq.
    
   Day, L

At the January term, 1870, of the court of common pleas of Muskingum county, Jeremiah C. Wolf was indicted (with two others) for manslaughter, and on a separate trial was convicted and sentenced.

It is sought to reverse the judgment of that court for error in overruling a motion to quash the indictment and a motion in arrest of judgment, and for error in the charge to the jnry.

The motion to quash and that in arrest are based on the alleged insufficiency of the indictment.

The indictment, omitting the caption and conclusion, is as -follows: Jeremiah C. Wolf, on--, at -, one Samuel Lee, then and there being, did unlawfully kill and slay.”

The indictment is in accordance with the 92d section of the Code of Criminal Procedure, which is as follows :

“ In an indictment for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.”

But it is claimed that this section is repugnant to the 10th section of the 1st article of the constitution of the State, which provides that no person shall be held to answer for crimes of this grade, unless on presentment or indictment of a grand jury,” and that the accused shall be allowed “ to demand the nature and cause of the accusation against him, and to have a copy thereof.”

The grounds of objection are, that an accusation in the form prescribed by the statute would not be' an indictment” within the meaning of the constitution, and that a copy thereof would not inform the accused of “ the nature and cause of the accusation against him.”

It is claimed that the term indictment ” is used in the constitution in the sense in which it was understood when that instrument was framed, and that, therefore, it requires such form of accusation as met the requirements of an indictment at that time. The real question, then, is, not whether the legislature may provide for the prosecution of crimes without the intervention of a grand jury, but whether it may prescribe the forms of indictments, and dispense with the formalities requisite when the constitution was framed.

The same question was made in the case of Lougee v. The State (11 Ohio, 68), upon a construction of a clause in the constitution of 1802, which was substantially the same as the one under consideration contained in the present constitution. It was said in the opinion delivered in that case, that “ this clause in the constitution has nothing to do with the particular forms of indictments. These forms will vary according to the nature of the criminal acts prohibited. The legislature have the power to declare what acts are criminal, and they have the same power to prescribe the forms of indictments for the commission of such criminal acts. They cannot dispense with the indictment itself, but they can dispense with some of its technical formalities.”

This clause in the old constitution having received a judicial construction before it was adopted in the one now in force, it is but reasonable to presume that the framers of the present constitution understood and used it in the sense that had been thus given to it in the instrument from which it was substantially copied.

An indictment, then, within the meaning of the constitution, is nothing’ more than what it is defined to be by Blackstone (4 Com. 302), — “a written accusation, of one or more persons, of a crime or misdemeanor, preferred to, and presented by, a grand jury, upon oath.” A written charge against the accused, presented by a grand jury, upon oath, in the form prescribed by the section of the code under consideration, would contain an accusation of the crime of manslaughter, and would, therefore, be an indictment within the meaning of the constitution.

Nor do we think the section is in conflict with the constitutional provision that the accused may “ demand the nature and cause of the accusation against him ; ” for an indictment in the form prescribed therein would set out the crime laid to his charge, and thereby exhibit “ the nature and cause of the accusation against him.” The manner in which the crime was committed is entirely apart from the nature and cause of the accusation.” Cathcart v. The Commonwealth, 37 Penn. St. Rep. 108.

Since, then, this section of the criminal code is not repugnant to the constitution, and the indictment was drawn in strict conformity with its provisions, it follows that the court did not err in overruling the motions attacking the validity of the indictment.

The chief objection to the charge to the jury is made upon what the court gave as the law relating to arrests by an officer without a warrant. The alleged crime was committed by the accused, it was claimed, while in the attempt to arrest the deceased, without a warrant, for the crime of keeping a house of ill-fame, or for a violation of the statute against amalgamation. It was essential for the prosecution to show that the accused was in the commission of some unlawful act ” when he killed the person charged to have been slain. It was also material for the defence to justify the transaction in which the accused was engaged when the fatal result occurred. It therefore became material that the jury should be informed by the court as to what the law is, in relation to arrests for crime by officers without a warrant.

The record does not purport to show all the evidence given at the trial, but enough is disclosed to show that the charge complained of was material and.necessary. Of the truth of the facts claimed, of course, we cannot judge, nor is it necessary that we should. It is sufficient that the record shows that the evidence tended to prove that- the accused was marshal of the city of Zanesville, where the alleged crime was committed; that the deceased was in the commission of an act made criminal by statute; that the accused (with other officers) was attempting to arrest him for such crime; that the official character of the accused was- known to the deceased; that he knew the cause of the attempted arrest, though the officers gave him no notice thereof; that he forcibly and by means of firearms resisted the arrest; that the deceased was shot and killed by the accused while he was attempting to apprehend him. Evidence was also given by one side or the other tending to rebut many of the foregoing points.

The charge, so far as material to the question to be considered, was, that the officers might “ arrest tqq, first notifying him for what purpose they claimed to arrest him ; ” that if they attempted to arrest him, “ without his having notice for what offence they proposed to arrest him, he had a legal right to protect his premises from intrusion, and his person from arrest;” that if he was guilty of an offence, “such resistance by him would be illegal, so soon as- they notified him that they proposed to arrest him for the actual crime he was then committing; ” and that, “ if he was guilty, he might legally resist arrest until notified of the charge upon which they claimed to arrest him, and if not guilty of the charge made and notified to him by them, he might legally continue-his resistance, and the attempt to arrest him would be unlawful.”

The point especially urged as error is, that the attempt to-arrest the deceased was unlawful, unless he was notified of the charge upon which the officer claimed to arrest him. It is noticeable that no qualification was made to this point in the charge, though it- should be found that no demand was made for the cause of the arrest, that the cause was-known to the deceased, and that he resisted, and gave no opportunity for stating why the arrest was about to be made.

We think the com-t erred in instructing the jury, without qualification, that the accused was in the commission of an unlawful act, if he attempted to arrest the deceased without first notifying him of the cause of the attempted arrest.

The 142d section of the municipal code (66 O. L. 113) provides that the city marshal shall arrest any person in the act of committing any offence against tire laws of this State or the ordinances of the corporation, and forthwith bring such person before the mayor or other competent authority, for examination or trial.” The next section provides that, in the discharge of his proper duties, he shall have like .powers as sheriffs and constables. It is also provided by the 21st section of the criminal code, that “ every sheriff, deputy .-sheriff, constable, marshal or deputy marshal, watchman or .police officer, shall arrest and detain any person found violating any law of this State, or any legal ordinance of any •city or incorporate village, until a legal warrant can be obtained.” 66 O. L. 291.

Here is ample statutory power conferred upon the officers named, to arrest, without warrant, persons “ in the act of committing an offence against,” or “ found violating,” the laws of the State. Nor is the power thus conferred expressly confined to any grade of offences.

Whatever may be thought about the power to arrest, without a warrant, for the crime of keeping a house of ill-fame, !by reason of the necessarily continuous character of that of-fence, or of the want of evidence in the case tending to prove that crime, there was at least evidence tending to prove that .Lee was- “ found violating ” the “ act to prevent the amalgamation of the white and colored races; ” and, if that were so, ihe might be lawfully arrested by the proper officer, without ta warrant.

But the question turns upon the mode of arrest: that is ¡not prescribed by statute. Nor are there any preliminary conditions prescribed, other than that the offender must be it£ in the act of committing an offence against,” or be found .violating,” the law.

There would seem to be no reason for requiring other preliminaries to the exercise of this statutory power where the ¡office]’ is known, for, from the existence of the circumstances which authorize the arrest, its cause must be known, as muck as if especially stated to the offender.

But if the manner of the arrest is to be determined by the recognized rules of the common law, where the arrest is expressly authorized by statute, the result will be the same. Nor is there any good reason, so far as the offender is concerned, for any distinction in the mode of the arrest, whether it be for a felony or a crime of a less grade. The object of the notice of the authority and of the charge upon which the arrest is made, is chiefly to give the party an opportunity to desist from his illegal conduct, and peaceably to surrender to the official authority. When both the official character of the party making the arrest, and the charge upon which it is made, are known to the party arrested, notice would be an idle form, and is not required, at least, without demand. 1 Bish. Crim. Proc., secs. 647, 648, 649.

In Rex v. Woolmen (1 Moody, 334) it was held by a majority of the English judges, that a watchman whose official character was known, without a warrant, could legally arrest the prisoner without saying that he had a charge of robbery against him, though the prisoner had' in fact done nothing to warrant the arrest.” It was also held by the same tribunal, that an arrest for a misdemeanor under the vagrant act, which conferred power to arrest those who shall be found offending against the act,” was legal, where the circumstances were such that a man must know why he is about to be apprehended, and that in such case it was not necessary that he should be told. Rex v. Howarth, 1 Moody, 207.

We are therefore constrained to hold, that the court erred in instructing the jury, without qualification, that if the deceased was found violating the law, the attempt to arrest him was unlawful, unless he was first notified of the charge upon which the attempted arrest was made.

The charge of the court consists with the supposition that Lee was guilty, and that the attempted arrest was unlawful without such notice, even though the cause of arrest and the official character of the officer were both known to him.

It follows that the court also erred in charging without qualification, that without such notice Lee might resist the attempted arrest, and that if, in such resistance, Lee fired upon the defendant, the defendant could not legally return the fire until he entirely desisted from the attempted arrest, in such manner that Lee could have reasonable notice that the illegal attempt to arrest him was abandoned.”

This charge is based entirely on the assumption, that express notice of the cause of arrest must in all cases be first given by the officer; and that without such notice it would be unlawful for him to use the force necessary to defend himself from the violence of the party resisting the arrest.

It follows that the judgment must be reversed, and the cause remanded for a new trial.

Beinkerhoff, O.J., and Scott, Welch, and White, JVT., concurred.  