
    The State of Ohio v. Vaughn.
    (Decided February 24, 1936.)
    
      Mr. Louis J. Schneider, Mr.. Carson Hoy and Mr. Loyal S. Martin, for plaintiff in error.
    
      Mr. Bert H. Long and Mr. Milton M. Bloom, for defendant in error.
   Boss, P. J.

This is a proceeding in error to revers'e a judgment in favor of Dillard Yaughn, the plaintiff in the Court of Common Pleas of Hamilton county, wherein that court overruled a demurrer to the petition, and the defendant, the state of Ohio, not desiring to" plead further, judgment was entered.

The parties will he referred to as they appeared in the trial court.

The plaintiff, Dillard Yaughn, set forth in his petition that he had been convicted of the crime of assault with intent to rape. The prosecutrix was a little girl. The verdict of the jury was, in the opinion of this court, sustained by the evidence produced at the trial, and the judgment of sentence upon the verdict was sustained in proceedings in error heretofore prosecuted in this court to reverse such sentence.

It is alleged that a great amount of this evidence was false and untrue and constituted perjured testimony, induced by the parents of the girl, who fraudulently sought to use the' criminal prosecution as a means of securing financial benefit from the defendant in the criminal case. It is further alleged that the facts, showing that the testimony upon which the plaintiff in the instant case was convicted was false, untrue and' perjured, did not come to the knowledge' of the plaintiff or hi's counsel until more than 120 days after the verdict; and that, therefore, this plaintiff has no adequate remedy at law. There can be no doubt that this is true, and the demurrer admits that the facts show that such is the case. As far as the pleadings are concerned, and we are dealing alone with these and are not concerned with the nature of the evidence which may be introduced in support of them, an innocent man has been convicted of a most serious' offense, and the law offers no opening through which this grievous wrong may be reached and righted.

Section 13449-2, General Code, provides in its second paragraph as follows:

“Motions for new trial on account of newly discovered evidence shall be filed within one hundred and twenty (120) days following the day upon which the verdict was rendered.”

This is' a definite statute of limitations and is directly applicable to criminal cases. It must be admitted that the Legislature in passing this limitation knew that evidence which would be mandatory in requiring a new trial, if offered within 120 days of the verdict, would thus be made completely unavailing if offered on the 121st day. It must also be admitted that all the consequences to an innocent man must have also been considered. With the wisdom of slick an attitude we have no concern. It is a matter wholly within the province of that arm of the government of the state in which the people have reposed the power to create appropriate law. This court cannot legislate.

"While one maxim of equity recites that equity will not suffer a wrong to he without a remedy, another maxim states that equity follows the law, and these maxims must be considered together. The books are full of cases- where equity, although in s’ome instances curtailing the period of the statute of limitations in its application of the doctrine of laches, has persisted in not extending the period beyond that fixed by the law.

But the plaintiff asserts, and with reason, that he has not been guilty of any neglect. That as soon as the facts came to his knowledge he immediately sought the aid of the chancellor. But still equity is faced with the period determined by the law-making body of the state as sufficient for securing such new evidence. The Legislature has in effect said that if within four months such new evidence has not been secured the responsible party is charged with neglect. May the chancellor find otherwise in the face of the legislative conclusion expressed in the statute? Reluctantly, we conclude that in such a case the chancellor is helpless. If the Constitution and the statutes may be set aside by a court of equity because in the opinion of the chancellor such expressions of law are in contravention of natural justice, then one branch of the government will be rendered a nullity as a result of the opinion of another. Such is not the conception of government as found expressed in our basic law.

Counsel for the plaintiff have with great diligence presented to us an exhaustive treatise upon the history of equity jurisprudence. Nowhere appears, however, nor are we able to find anywhere, any controlling authority in which a court of equity has intervened between the state and one found guilty by due process of a violation of its' statutes defining a crime against the people.

The iniquitous results of such procedure, in addition to those already noted, seem to us most obvious. The door thereby would be thrown wide open to grievous fraud, and many criminal trials would be but preliminaries to those proceedings of review now permitted by law, and would be further attacks upon the convictions in courts of equity. The chancellor would thus sit in review upon the appellate courts', and be the final arbiter of the justice of every conviction. Such has not been the province of courts of equity. Neither sound reason nor regard for full and ample justice requires that this province should be so extended.

Let us now look at some of the Ohio decisions wherein have been considered the maxim “equity will suffer no wrong to be without a remedy. ’ ’

In Michael v. American Natl. Bank, 84 Ohio St., 370, 95 N. E., 905, 38 L. R. A. (N. S.), 220, at 384 of the opinion, the court says':

“The mischief of endless litigation in which nothing is finally determined, is a thing more to be dreaded than an occasional miscarriage of justice. If by allegation in a bill in equity, that false testimony had been given, or forged documents introduced or new evidence discovered, controversies which had been regularly adjudicated could be opened up, there could be no assurance of the conclusive effect of final judgments.”

This' was the court’s attitude toward setting aside a judgment in a civil action.

In Morningstar v. Selby, 15 Ohio 345, at 366, 45 Am. Dec., 579, the court says:

“Again, it is further said that the remedy must be in chancery because the- statute has pointed out ho mode of proving a spoliated will; and we are asked if there can be so great a wrong as the destruction of a paper divesting another of title, and vesting it in the fraudulent spoliator, without a remedy? In general, it may be said that there is no wrong without a remedy; and were we to say that this case was not without a 'remedy, it would not follow that this is that remedy. It may be that the Court of Common Pleas, by the grant of power in Article 3, Section 5, of the Constitution, is clothed with general powers adequate to give the appropriate relief; if not, the Legislature can clothe those courts with ample power. It is sufficient for us to say that, in either event, this' court will not have appellate jurisdiction, as from a Court of Probate, to revise their decision. Nor- till after the will shall have been proved, approved, and admitted to record, can this court act in any manner touching or concerning its validity, and then only in the manner prescribed by statute. That mode of proceeding will not have for its object to establish the will, but to determine whether it may or may not have been improperly established by a competent court.”

In McCammon v. Cooper, Trustee, 69 Ohio St., 366, 370, 69 N. E., 658, the court says:

“But the proviso cannot be aided or enlarged by the application of any equitable rule. As held in Patterson v. Lamson, 45 Ohio St., 77, ‘the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law,’ and in Hutchings v. Davis, 68 Ohio St., 160, ‘courts cannot, by reason of any real or imagined equities limit; qualify or annul rights granted by legislative enactment. ’ In other words, the General Assembly must be held to have intended to express its entire meaning by the natural import of the words used.”

In Hulse, Montellius & Fuller v. Wright, Wright’s Report, 61, at page 65, Judge Wright stated the limitations of chancery jurisdiction, as follows:

“While, the general chancery jurisdiction in Ohio is as broad as that exercised by courts of chancery in England, it is not, either there or here, without other limit of what is right or wrong than the will or discretion of the chancellor. In that country, and in this, chancery jurisdiction is as clearly defined as that of courts of law, and the chancellor has no more right to enlarge his power than a judge of a court of law. It is true, public exigencies, and the ingenuity that accompanies the infinite variety of human transactions, sometimes call for a new application of an old principle, and gives occasion for the remark, that the law expands with the exigencies of society, and the mind of the judge. In general, it is safer to leave it to the Legislature, to enlarge the jurisdiction so as to meet ingenious fraudulent contrivances to effect injustice, than for the judges to grasp at new jurisdiction and power. We will not reject any power conferred upon us, or refuse to do our duty, on account of consequences; yet, we cannot enter an entire new field, in exercising our jurisdiction, without a clear case, or very urgent necessity.”

It is to be observed here also that “equity will not do a vain thing.”

It has been suggested that this suit was at least prematurely brought, in that this court has' not handed down its judgment in the error proceeding before referred to. This defect, of course, can be remedied by this court at any time, and for the purpose of this case such will be considered to have been done. However, what then is the position of the court of equity? The decree sought will vacate the judgment of a sentence and order the Common Pleas Court to grant a new trial. But this’ court, taking as done that which should have been done, affirms the judgment of the Common Pleas' Court and sends down its mandate ordering execution of the judgment. Does the decree of the court of equity vacate the judgment of this court also? Which order is the trial court to obey? On the one hand, a court of concurrent jurisdiction orders a new trial; on the other hand a court of review directs its refusal. That no judgment has here been entered is conclusive against., the plaintiff, as his remedy at law has not been exhausted. As was just stated, we refrain from predicating our conclusion upon this ground. Again, if the decree of the chancellor is not obeyed—how will such decree be enforced? Upon what officers and by what means ? Has the state consented to be sued in this action? We find nothing to so indicate.

In Snedaker v. King, 111 Ohio St., 225, 145 N. E., 15, plaintiff sought to enjoin the defendant from alienating the affections of her husband. At page 229 of the opinion the court says':

“Such extension of the jurisdiction of equity to regulate and control domestic relations, in addition to the legal and statutory remedies already provided, in our opinion is not supported by authority, warranted by sound reason, or in the interest of good morals or public policy. The opening of such a wide field for injunctive process, enforceable only by contempt proceedings, the difficulty if not impossibility of such enforcement, and the very doubtful beneficial results to be obtained thereby, warrant the denial of such a decree in this case, and require a modification of the judgment in that respect. ’ ’

The annotation in 2 L. R. A. (N. S.), 631 et seq., notes many decisions indicating the refusal of courts of equity to interfere in criminal prosecutions. We quote also from Sullivan v. San Francisco Gas & Electric Co., 148 Cal., 368, 372, 83 P., 156, 3 L. R. A. (N. S.), 401:

“Every person is subject to the chance that he may be prosecuted for some offense of which he is not only not guilty, but as to which there is no reasonable or probable cause to believe him guilty. The prosecution must of course be in some court having jurisdiction of the offense. In that court he has1 an opportunity to make his defense to the charge, to" rebut the evidence, against him, and introduce evidence in his favor. The presumption that such court will give him a fair trial and decide justly in his case is as strong as the presumption that a court of equity will fairly try and justly decide Ms application for an injunction involving the same facts. There is1 no rule which permits a person to substitute a court of equity for the courts of law in the decision of such matters of fact, and, by anticipatory action therein, take from the regularly constituted criminal courts their jurisdiction of the particular offense in question. All persons must submit to the due process of law in the courts vested with lawful jurisdiction of legal offenses charged against them, and the fact that such courts may give an erroneous decision is no ground for relief in a court of equity by way of injunction to prevent them from acting at all, or to interfere with their judgments when made. As was said in Davis v. American Society, 75 N. Y., 362: ‘An innocent person, upon an accusation of crime, may be arrested and ruined in his character and property, and the damage he thus sustains is damnum absque injuria, unless the case is -such that he can maintain an action for malicious' prosecution or false imprisonment. He is exposed to the risks of such damage by being a member of an organized society, and his compensation for such risks may be found in the general welfare which society is organized to promote.’ ”

It is our conclusion, therefore, that wMle the jurisdiction of a court of equity will be exercised in a proper case created by new conditions incident to tbe ever changing conditions in society,- the exercise of such jurisdiction will be, as it always has been, predicated upon the established principles of equity jurisprudence as found in the decisions of the chancellors. To hold otherwise is to destroy jurisprudence itself and. relegate it to the realm of conjecture, whim and -caprice.

The judgment of the Court of Common Pleas is1 reversed and the petition of the plaintiff will be dismissed.

Judgment reversed and petition dismissed.

Matthews and Hamilton, JJ., concur.  