
    Kerr v. The State.
    1. The act of 1877 (74 Ohio L. 239, § 9 ; Bev. Stats. § 7079), making it punishable to convey land without title, applies as well to instruments purporting to convey lands situated beyond our territorial limits as to those purporting to convey lands situated within this state.
    2. The provisions of that section are not repugnant upon the ground that by their terms it is made an offense to eonwy land,where the party conveying has no title. To execute lo another an instrument in the form of a conveyance of land, with intent to defraud, is the crime inhibited in the section.
    8. In an indictment under that section, for conveying land, it is not essential that a copy of the deed be set forth ; nor is it necessary, where the instrument purports to convey land situated in another state, to aver in the indictment, in terms, that (he deed was in the form of a proper conveyance of land under the laws of such state. It is sufficient if it be averred in the indictment that the conveyance was by deed of general warranty.
    4. Where, in an indictment under that section, it is charged that the accused sold and conveyed the land, such indictment is not subject to the objection that two offenses arc charged therein.
    5. An objection that it does not appear in the record that the indictment found by the grand jury was ‘ ‘ presented by the foreman to the court, ” in accordance with the revised statutes, § 7210, is waived hy the plea of not guilty, where there was no motion to quash. Rev. Stats. §§ 7249, 7253.
    6. Where the record shows that the jury for the trial of a criminal case was duly sworn to do the only thing required of its members by the statute (Rev. Stats. § 7281), that is, to well and truly try and true deliverance make between the state and the accused, the fact that the record does not contain the invocation, “so help you God,” which is provided for at the conclusion of such oath, affords no ground of reversal.
    7. A bill of exceptions in a criminal case taken under Revised Statutes, §.§ 5302, 7304, cannot bo regarded as a part of the record, unless it appears from the journal of the term at which the cause was tried and terminated, that such bill was signed during that term or within thirty days , thereafter.
    Error to the Court of Common Pleas of Miami County.
    At the October term of said court, 1880, J. Manford Kerr, charged in an indictment with selling and conveying land without title, was convicted and sentenced to the penitentiary; and, on his application, leave has been granted to file in this court a petition in error to reverse the judgment.
    
      C. H. Blachburn, for plaintiff in error:
    1. The record does not show that the indictment was ever presented to the court, or any judge thereof, by a grand jury. This is contrary to the provisions of section 1210 of the revised statutes,'and was error. Mackey v. State, 3 Ohio St. 62: Wharton’s Crim. Plea. & Prac. 372; State v. Brown, 81 N. C. 516 ; Hancock v. State, 42 Ind. 393; Sattler v. People, 59 Ill. 68; Crookham v. State, 5 W. Va. 510; Fitzcox v. State, 53 Miss. 585 ; Terrell v. State, 41 Texas, 463; Rasberry v. State, 1 Texas Ap. 664; Coen v. Cawood, 2 Va. Cas. 529; State v. Glover, 3 Iowa (Greene), 249; State v. Davidson, 2 Cold. (Tenn.) 184; State v. Cox, 6 Ired. 440; Rainey v. People, 3 Gilm. 71; Chappell v. State, 8 Yerg. 166; Brown v. State, 7 Humph. 155.
    2. The record does not show that the jury were sworn or affirmed according to law. Palmer v. State, 41 Ala. 416; Abram v. State, 25 Miss. 589; State v. Connor, 5 Blackf. (Ind.) 325 ; Connor v. State, 19 Ind. 98; Springer v. State, 19 Ind. 180; Springer v. State, 18 Ind. 428; State v. Wareham, 25 Ohio St. 601; Bartlett v. State, 28 Ohio St. 669; Patterson's Case, 2 English, 59; State v. Rollins, 2 Foster (N. H.) 528.
    3. Do the provisions of section 7092, 2 Rev. Stats, apply to lands out of the state of Ohio ? If so, do they apply to lands iñ the state of Missouri, where the conveyance is made and executed in Ohio, and not in the manner required by the lawu of said state uf Missouri ? To both questions we say no. See Foster v. State, 19 Ohio St. 415.
    The legislature never contemplated, nor does this act of legislation contemplate, lands, other than those situate in the state of Ohio.
    1. Because they had no power to legislate concerning lands in another state.
    2. Because they were evidently desirous of protecting our own land-holders against assaults of this kind. These views are fortified by the consideration, that it is but fair to conclude that our legislators framed and passed this and other acts in the light of recognized authority. That authority admonished them, that .crime could only be punished where consummated. That it could only be consummated at the place or situs of the object of the crime. 1 Whart. Cr. L. (8 ed.) 288; Ham v. State, 4 Tex. App. 670; Foster’s Crown Law, 349; 1 Chit. Crim. Law, 191; Whart. Crim. Law, 115 ; 4 East, 164; 8 Am. Jur. 69; 6 East, 583 ; 7 S. & R. 477; 1 Bish. Cr. Pro. (2 ed.) § 553; 1 Bish. Crim. Law, §§ 109, 110, 112, 556.
    4. The court below had no jurisdiction of the pretended crime charged. I claim that the facts alleged constitute no offense against any law of which the court below had jurisdiction. The place of reception, or the situs of the object of the crime, has jurisdiction, and no other place has. This view is strengthened by the accepted doctrine that an act designed in one state, and consummated in another, exposes the perpetrator to an action of damages only, where the act is unlawful in the place of execution. 1 Whart. Cr. L. (8 ed.) 288, § 288 ; Rex v. Jones, 1 Denio, C. C. 551; T. & M. 270; State v. Chappin, 17 Ark. 565 ; Ham v. State, 4 Tex. App. 670; Commonwealth v. Smith, 11 Allen, 244; People v. Adams, 3 Denio, 190; People v. Griffin, 2 Barb. 427; United States v. Davis, 2 Sumn. 482; People v. Rathburn, 21 Wend. 500.
    Under this point, I also desire to submit, the act of the general assembly, upon which the accusation is predicated, is void.
    1. Because it is unconstitutional.
    2. Because it is repugnant.
    3. Because it is uncertain.
    4. Because it is vague.
    5. Because it is indefinite.
    6. It is an attempt to give the laws of Ohio extra-territorial effect.
    5. ££ The pretended indictment, and the allegations therein, are not sufficient to charge any offense against any law of Ohio.
    This point may, in all respects save one, be considered in connection with the argument and authorities cited in support of the third proposition. In addition, however, I claim that if the court should find that the law applies to the ££ sale or conveyance ” of lands lying in another State, the indictment is fatally defective, and the judgment must be reversed.'
    1. Because no copy of the deed or other instrument of conveyance is set forth in the pretended indictment. Manor’s Criminal Law, 307; Ham v. State, 4 Tex. App. 670; Wharton Plea. & Prac. (8 ed.) 167; Bonnell v. State, 64 Ind. 498; 2 East, 238; 2 E. P. C. 976; 1 Leach, 77; 1 Leach, 145 ; 1 Mass. 54, 62; 1 Cush. 46, 66; 3 Halst. 333 ; 2 South. 749; 7 S. & R. 469 ; 10 S. & R. 173; Wright, 173; 2. Hawks, 248; 65 Ind. 86; 7 Hump. 63; 2 McCord, 248.
    2. Because there is not even such a description of such deed that it could be identified and considered. Dord v. People, 9 Barb. 671; People v. Galloway, 17 Wend. 540; People v. Williams, 4 Hill, 9.
    3. Because it is not alleged in the indictment that the prosecutor owned or had any interest in the lands in question. Dord v. People, 9 Barb. 671.
    The rule of pleading in this ease is, I submit, the same as in forgery, lottery, libel, sending threatening letters, &c., in all of wbicli tlie paper, whatever it is, must be set forth. Lamberton v. State, 11 Ohio, 282, is a very important authority on the subject, and one that I think reflects great light thereon.
    
      Craighead c& Craighead, for defendant in error :
    To the claim that the-record does not show that the indictment upon which Kerr was tried and convicted was ever found or returned into court by a grand jury, we say that the record clearly shows that there was a grand jury, and that grand jury found and returned the indictment set out in the record, ana upon it the plaintiff in error was tried by a jury; and as to the other objections suggested in' this connection, we say, that the way to have reached such objections was by challenge. Huling v. State, 17 Ohio St. 583.
    If there are formal defects apparent upon the face of this record — in the indictment or elsewhere — the way to have reached them was by motion to quash. Rev. Stats. § 7249; Carper v. State, 27 Ohio St. 574; Baatertlet v. St, 28 Ohio St. 669.
    The defendant below having pleaded the general issue, without having interposed any challenge as to any of said grand jurors, or any motion to quash the indictment, or any plea in abatement thereto, he must be held to have waived all such defects 'and irregularities as could have been reached in either of said ways. None of such questions can be presented for the first time on error. Rev. Stats. § 7253; Davis v. State, 32 Ohio St. 24; Picket v. State, 22 Ohio St. 405 ; State v. Easter, 30 Ohio St. 549 ; Carper v. State, supra ; Bartlet v. State, supra.
    
    The record may not be as full and distinct as it should be in showing that the petit jury was sworn according to law; but we sirbmit, in view of the holdings of this court, that it is sufficient. Wareham v. State, 25 Ohio St. 601; Bartlet v. State, 28 Ohio St. 669.
    II. There is no bill of exceptions that can be considered here. It is true there is a paper attached to the transcript, having the form and similitude of a bill of exceptions; but it is shown by the record that said paper was not signed or sealed by the judge until some time after the term at which said cause was hied and disposed of. The record shoyvs that said cause was tried at the October term of said court for 1880 ;'tliat said term ended January 3, 1881; and that said paper purporting to be a bill of exceptions was not signed or sealed by the judge, or filed by the clerk, until the 17 th day of January, 1881.There was no consent that it might be filed within thirty days or at any time after the close of the term; nor was the allowance and signing thereof entered upon the journal as of said October term; nor was said journal kept open for that purpose; and, therefore, as we claim, it cannot in law be regarded as a bill of exceptions. Rev. Stats. § 5302; Hill v. Bassett, 27 Ohio St. 597. This, we submit, disposes not only of said paper, but also of objection 3, for without a bill of exceptions the matters to which they refer are not to be found in the record. Goodin v. State, 16 Ohio St. 344.
    III. The indictment meets all the requirements of the statute defining the offense charged. It cannot be necessary that an exact copy of the fraudulent deed should be set out in the indictment. Under section 7220 of the revised statutes it ■would have been sufficient to have charged merely that the conveyance by Kerr to Overton was by “ deed o£ general war-l'anty.” In case of another prosecution for the same offense, there will be no trouble in showing exactly what Kerr has been prosecuted for under this indictment — for that may be shown outside of the record. Rev. Stat. § 7258; 30 Ohio St. 264; 19 Ohio, 423. Nor is it essential that this deed should have been so exactly in accord with either the laws of Ohio or of Missouri as to have conveyed a perfect title to Overton, if Kerr had really owned the land when he pretended to convey it. It was sufficient if it was an instrument that so resembled a deed as to be likely to impose on persons of ordinary intelligence. Hess v. State, 5 Ohio, 14; 1 Whart. Cr. L. (8 ed.) § 695 ; 8 Ohio St. 630, After verdict and judgment below,, this court, on error, will not say it was not such an instrument. On the contrary, it will presume that the jury found the fraudulent conveyance to have been made as charged in the indictment — by “ deed of general warranty.” The rule which formerly required, in cases of forgery, &c., that a literal copy of the instrument should be set out in the indictment no longer exists in Ohio. Rev. Stat. §§ 7218,7219. It never had any application to a case of this kind. It only applied where — as in forgery — “ the words of a document were essential ingredients of the offense charged.” Wharton’s Pl. & Pr. (8 ed.).§ 171. In such cases it required the instrument to be set out in words and figures, so that the court could see whether it was, in law, the subject of forgery. But there is nothing of that kind in this case.
    Is the offense charged in said indictment an offense against the laws of Ohio ? The. indictment show's that the land, which is charged to have been sold and conveyed in the county of Miami and state of Ohio, is situate in Butler county, in the state of Missouri.
    Section 7079 of our revised statutes, defining this offense, reads as follows: “ "Whoever knowingly sells or conveys any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written contract or deed of conveyance, with intent to defraud, shall be imprisoned in the penitentiary not more than seven years nor less than one year.”
    Now, if it had been the purpose of the legislature, in enacting this section, to have limited prosecutions under it to lands situate within this state, it would probably have said so. But it has not said so ; nor do we believe it was the purpose of the legislature that such prosecutions should be so limited. There is no reason why they should be. The fraudulent sale and conveyance having been made in Miami count}7, Ohio, it makes .no difference, so far as the criminality of the transaction is concerned, where the land is. The crime is complete in the county of this state in which a person so sells and conveys land, without reference to whether the land is located in this state or not. There are no doubtful jurisdictional questions here. This is not a oontimoing offense — commencing in Ohio and ending in Missouri; nor is it an offense, in its entirety, against the laws of the latter state, so far as we are advised. If it were, it would make no difference, because, the defendant below being first prosecuted in Ohio, our jurisdiction becomes complete and exclusive. Whart. Cr. L. (8 ed.) § 293; Exp. Bushnell, 8 Ohio St. 599.
    
      George K. Nash, attorney-general, and M. B. Earnhea/ri, also for defendant in error.
   Okey, J.

A large number of alleged errors are- relied on as grounds of reversal; but, as I will presently explain, many of them are not before us on the record. This opinion will be coniined to the consideration of the supposed errors which the record presents.

The indictment charges that Kerr, on January 21,1879, in the county of Miami, with intent to defraud William Overton, knowingly sold and conveyed to him, by deed of general warranty of that date, certain lands (described in the indictment) situated in Butler county, state of Missouri, he, said Kerr, not having title to said lands, in law or equity, by descent, devise, deed of conveyance or written contract.

The indictment was found under the act of 1877 (74 Ohio L. 289, § 9; Rev. Stats. § 7079), which provides: “Whoever knowingly sells or conveys'any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written contract, or deed of conveyance, with intent to defraud, shall be imprisoned in the penitentiary not more than seven years nor less than one year.”

The same provision, in nearly the same words (2 Ohase, 1203, § 29,1333, § 31; Ohase, 1728, § 32; 1 Curwen, 194, § 33), has been in force for more than half a century, but no case has arisen in this court which called for its construction. It is insisted on behalf of the plaintiff in error:

J. That the statutory provision does not, and constitutionally cannot, extend to the sale or conveyance of lands which lie beyond the territorial limits of this state. Upon grounds of public policy, it may not be competent for the legislature of this state to provide that acts committed wholly in another state, with respect to property situated therein, shall be punishable in this state; but nothing of the sort is contemplated by the statutory provision under consideration, which provides for the punishment of frauds committed within this state. The place where the land may be situated is wholly immaterial. This case is within the letter as well as the reason and spirit of the enactment.

2. Moreover, it is said that the statute is repugnant and void, in that it punishes one who conveys land which he did not own. But the crime inhibited is giving to an instrument the form of a conveyance of land, with intent to defraud. The objection is clearly untenable. ,

3. The indictment, it is said, is insufficient, because the deed is not set forth therein. Counsel insist that the court should be enabled to say, looking to the face of the indictment, whether the deed would have been of any legal force or effect if Kerr had been the owner of the land. We do not find it necessary to determine whether it is essential, in order to constitute the crime inhibited, that the deed should be in such form as to convey the land in case the grantor had been the owner. Of course, the form of the conveyance must be determined from the law of Missouri, but what the law of Missouri may be is a question of fact. Ingraham v. Hart, 11 Ohio, 255 ; Smith v. Bartram, 11 Ohio St. 690; Niagara Co. Bank v. Baker, 15 Ohio St. 68. Even if the deed had been set forth at large in the indictment, the court would have been unable to legally determine whether it was in compliance with the law of Missouri. An averment that the deed was in proper form under the laws of that state would still have been necessary. We are satisfied that neither of these things is required in an indictment under the provisions of our statute relating to criminal procedure; and that, if it is necessary in order to constitute the offense here charged, that the deed should be in the form of. a proper conveyance under the laws of Missouri, the matter is one of proof and not averment. Whart. Cr. Pl. &Pr. §§114, 182, 183.

4. Furthermore, it is urged that two offenses are charged in the indictment, that is, a sale and a conveyance. But a conveyance under this statute includes a sale, and hence the indictment is unobjectionable in form. In holding this objection to be untenable, we are supported by the principle of vrell considered cases. Thus, in Mackey v. State, 3 Ohio St. 362, it was held that an 'indictment under the act of 1835, charging that the accused uttered a “false, forged, and counterfeited bank note,” was not bad for repugnancy. And see Stoughton v. State, 2 Ohio St. 562; Bailey v. State, 4 Ohio St. 440.

5. Objection is also made, that the indictment found by the grand jury was not “ presented by the foreman to the court,” as required by Rev. Stats. § 721 Ó. But there was no motion to quash. “ A motion to quash may be made in all cases when there is a defect apparent upon the face of the record” (Rev. Stats. § 7249), and the accused, by pleading not guilty, without filing such motion, waives all defects that might have been reached by such motion. Rev. Stats. § 7253.

6. Further objection is made that the jury impaneled for the trial of the cause was not properly sworn. The record shows that a jury came (the names being set forth), “who were duly sworn well and truly to try and true deliverance make between the state of Ohio and the defendant at the bar, J. Manford Kerr.” The statute provides: “ When all challenges have been made, the following -oath shall be administered: ‘You shall well and truly try and true deliverance make between the state of Ohio and the prisoner at the bar (giving his name): so help you God.’ ” Rev. Stats. § 7281.

Johnson v. State, 47 Ala. 62, is cited as an authority in support of the objection to this oath. Ye deem it unnecessary to enter into an examination of the difference in the statutory provisions regulating practice in criminal cases in that state and this state. This record shows that the jury was sworn to do the only thing required of its members by the statute, that is, to well and truly try and true deliverance make between the state and the accused. The supposed defect is the omission from the record of the invocation, “ so help you God.” But, under the practice in this state, the omission of those words from the record is not a substantial defect for which we would be warranted in reversing the judgment; certainly we should not do so where it is stated, as it is in this record, that the jury was “duly sworn.”

7. Divers errors, it is said, are shown by a bill of exceptions. The record contains a paper called a bill of exceptions, but we are not at liberty to consider it. The cause was tried, verdict rendered, motion for a new trial overruled, and sentence pronounced at the October term, 1880. In fact, the case was finally terminated at that term; but there was no entry made during, or as of that term, showing the signing of any bill of exceptions. The only entry of signing a bill of exceptions, was made in the minutes of the $anuary term, 1881. The statute (Rev. Stats. § 7304), provides for bills of exception in criminal cases, and that “ the taking of all bills of exception shall be governed by the rules established in civil cases.” In civil cases, the bill may be allowed and signed, during the term, or, where the party taking the exception consents, such bill may be allowed and signed at any time within thirty days after the term; but where the bill is signed after the term, “ the journal must be kept open, and the allowance and signing thereof entered thereon as of the term.” Rev. Stats. § 5 302. In this case it is true that the bill was signed, and entered on the journal of the court within thirty days after the expiration of the October term, but, as already stated, it was not entered in the minutes of, or as of that term; and, according to the principle of cases decided by this court, we are not permitted to disregard such omission. Unless the statute is complied with, a bill of exceptions cannot legally be regarded as part of the record. See cases cited in 2 Rev. Stats. 1290.

We find no error in the record which will warrant a reversal of the judgment.

Judgment affirmed.  