
    Burke v. The State of Ohio.
    T. Where the charge is burglary by breaking into the car of a railroad company, designated by its corporate name, but the indictment contains no averment that the company was incorporated, the accused can not avail himself of the defect, if defect it be, in view of the code of criminal procedure. (66 Ohio L. 301, sec. 90; 14 Ohio L. 334.)
    '2. If it be alleged that a burglary was committed in the car of a railroad company, the corporate character of the company is sufficiently shown by proof that it was, at the time of the burglary, a corporation defacto.
    
    Error to the Court of Common Pleas of Hamilton ■county.
    William Burke was convicted in the Court of Common Pleas of Hamilton county, at the January term, 1876, on an indictment in which he was charged with burglarly by breaking “ into a certain railroad car of the Pittsburg, Cincinnati .and St. Louis Railroad Company,” on the night of November 23, 1875. There was no allegation in the indictment that the company was a corporation. Evidence having-been given tending to show that, at the time of the alleged burglary, the company was incorporated, the counsel for Burke asked the court to charge the jury, that if they .found that fact established by the evidence, there must be ■,a verdict of not guilty. The court refusing so to charge, 'Burke, by his counsel, excepted. And at the request of the prosecuting attorney, the court charged the jury as follows: “ It is not necessary for the state to prove the articles of association or charter of the Pittsburg, Cincinnati and St. Louis Railway Company, but it is sufficient to prove by reputation that there was, at the time when the crime is alleged to have been committed, a corporation known by that name, operating such road, and carrying goods, stock, and passengers for hire in its cars running along said company’s road. A defacto existence of the corporation is only necessary to be shown.” To which instruction Burke, by his counsel, excepted.
    The defendant was convicted and sentenced to the penitentiary. The errors relied on for the reversal of the judgment are the charge refused and charge given.
    
      Blackburn &j Shay, for plaintiff in error.
    It was necesssary to aver in the indictment the corporate character of the railroad company. Cohen v. The People, 5 Parker’s O. C. 330; Wallace v. The People, 63 Ill. 451; 2 Wharton’s C. L. § 1828; 2 Russell on Cr. 100.
    
      Isaiah Pillars, attorney-general, and C. W. Baker, prosecuting attorney, for the state:
    1. The allegation of ownership was unnecessary. 69 Ohio L. 10; 74 Ohio L. 248; Ducher v. The State, 18 Ohio, 308. 2. The defect, if any existed, as to the incorporation of the company, was not available to the defendant below. Criminal Code of Procedure, § 90, 66 v. 301; 74 v. 334. 3. Under the former practice the allegation was unnecessary. Rex v. Patrick, 1 Leach, 263; 2 East’s P. C. 22, 87; 2 Russ, on Cr. 99; 3 Chitty’s C. L. 949; 1 Roscoe’s Cr. Ev. 319, 586; 1 Bishop’s Cr. Pro. 682; Com. v. Dedham, 16 Mass. 141; Com. v. Phillipbury, 10 Mass. 78; State v. Waters, 3 Brevard, 507; Smith v. State, 28 Ind. 321.
   Okey, J.

That it would have been essential, previous to the passage of the code of criminal procedure, to have alleged, in an indictment for an offense like this, that the company was incorporated, is a proposition sustained by the authorities cited by counsel for the plaintiff in error,, and by others. People v. Schwartz, 32 Cal. 160; State v. Mead, 27 Vt. 722; Jones v. The State, 5 Sneed, 346. And see Roscoe’s Cr. Ev. (7th Am. ed.) 662; Reg. v. West, 1 A. & E. (N. S.), 826; Rey. v. Frankland, Leigh & Cave’s C. C. 276. But, as applied to corporations like this, the opposite-view seems to be quite as well supported. In addition to-the authorities cited by counsel representing the state, the-following are referred to. Fisher v. The State, 40 N. J. (L.), 169 (1878) ; The State v. Van Hart, 2 Harrison, 327; Lithgow v. Com., 2 Va. Cas. 297; People v. McCloskey, 5 Parker’s C. C. 57; Ib. 334; 2 Wharton’s Cr. L. 1489; 1 Wharton’sEv. §§ 294, 317; 11 Ohio, 280; 1 Ohio Railroad Com. Rep. 337-349. It is unnecessary to determine in this conflict of cases — apparently irreconcilable — precisely what the rule-was under the former practice.

A great' advance has been made in the laws relating to-crimes, punishments, and criminal procedure. The fact is-unquestioned that there was a time when felonies, which at common law -were few in number, embraced, by parliamentary enactments, more than two hundred offenses;, when-acts were punishable with death, which, if committed in this state, at this day, would not be-punishable at all;, when one charged with felony was not permitted to have a, copy of, or even to examine the indictment, to call witnesses in his defense, or to have the assistance of counsel;. when no instance could be found in which a jury, in a criminal ease, had failed to render a verdict on the same day it was impaneled; when jurors were fined for refusing to return a verdict of guilty; when the ordinary course was to sentence-as soon as a verdict of guilty was rendered, and cause the accused to be executed on the following morning. It is not strange that in such.a state of the criminal law, humane judges, infavorem vitce, would determine cases upon technicalities which at this day would be regarded as frivolous. But all this is changed. Now, the tendency is, on the one hand» to disregard that which is merely formal and technical; on the other, to preserve, in every stage of the case, all matters of substance, and afford the accused a trial as full, fair, and impartial as can reasonably be desired, with the presumption of innocence effectual for his protection, until his guilt is proved beyond reasonable doubt.

In harmony with this reformation is our code of criminal ■procedure, which is to be construed not strictly in all its parts, but according to its manifest spirit. It contains this provision: “No indictment shall be deemed invalid, nor ¡shall the trial, judgment, or other proceedings be stayed, .arrested, or in any manner affected,” for any “ defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” 66 v. .801, sec. 90; 74 v. 334. In holding that by force of it, this .defect, if it be a defect, is one of which Burke could not avail himself, we think a proper construction is given to •the statute.

There was no error in the charge of the court, that the ■corporate character of the party injured might be proved by reputation, and that it was only necessary to show a corporation de facto. Calkins v. The State, 18 Ohio St. 336, and cases there cited.

Judgment affirmed.  