
    Hamilton v. The State of Ohio.
    1. In an indictment for burglary by breaking into the office of a railroad company, there was no allegation that the company was incorporated. Held, that this is not’ a sufficient ground for sustaining a motion to quash. Burke v. The State, ante, 79, followed.
    :2. Where a convict, who has been in the penitentiary two years, is taken therefrom to testify as a witness, and does so testify, it is competent for the adverse party to prove that his reputation for truth and veracity was bad, at the time of and previous to his conviction, at the place where he then resided.
    ;3. In order to justify the reversal of a judgment on the ground that the court below refused to permit certain evidence to be given, it is incumhent on the party complaining to show affirmatively that he was entitled to offer such evidence for some purpose stated in or manifest from the record.
    4. On the trial of a criminal case, it is error to permit the state to prove hy cross-examination of a witness called hy the defendant, that the accused stands indicted for other offenses.
    Error to the Court of Common Pleas of Greene county.
    John Hamilton, Jr., was indicted in the Court of Common Pleas of Greene county, convicted, and sentenced to the -penitentiary, at the January term, 1878, for burglary. The offense, it is alleged, was committed by breaking into the office of the Pittsburg, Cincinnati and St. Louis Railway Company, in the night of October 28, 1874. There was no allegation in the indictment to show whether the injured party was a corporation or a partnership. A motion was filed by the defendant below to quash the indictment for that defect, but it was overruled, and his counsel excepted.
    The principal witness for the state was David Murphy. He was convicted of robbery in Greene county, and sentenced to the penitentiary in November, 1875, for the term ■of eight years, and was brought to Xenia, from the penitentiary, to testify in this case. After the state rested, the defendant called Dr. J. L. Steinberger, who testified that he resided at Yellow Springs, in Greene county, and was .acquainted with Murphy at the time of his conviction, and that he (Murphy) then resided at Yellow Springs. Counsel for defendant then inquired of the witness whether he had the means of knowing Murphy’s reputation for truth and veracity while he resided there. But counsel for the state objected, on the ground that Murphy had then been confined in the penitentiary at Columbus for two years and four months, and hence there could be no reputation as to his truth and veracity at Yellow Springs. The court sustained the objection, and the defendant below excepted. There is no .statement in the record that Hamilton expected to prove by the witness that he was acquainted with the reputation of Murphy in any respect, nor does the record disclose, in any form, an offer by Hamilton to prove that Murphy’s reputation for truth and veracity was or had been bad.
    The record contains all the evidence, as appears from a statement in the bill of exceptions. No evidence was offered by Hamilton as to his character. Erank Hafner was called and testified as a witness for the defendant below. The record contains the following as to his testimony :• “ On cross-examination, the state, by ,the prosecuting attorney, asked the witness if he did not stand indicted in this court in several other cases for burglary and larceny,. jointly with the defendant, and for shooting at with intent to kill, etc. To which question the defendant, by his counsel, objected; but the court overruled said objection, and permitted said question to be answered, and the same was answered by the witness in the affirmative. To which action of the court, in overruling said objection, and permitting the testimony to go to the jury, the defendant, by his counsel, excepted.”
    
      Little § Shearer, for plaintiff in error:
    1. The indictment was fatally defective for want of an averment that the injured party was a corporation. Ducher v. The State, 18 Ohio, 318; Afele v. Wright, 17 Ohio St. 242, commented on.
    2. The court erred in excluding evidence of Murphy’s reputation for truth and veracity. Sleeper v. Van Middlesworth, 4 Denio, 431; Rathburn v. Ross, 46 Barbour, 127; People v. Abbott, 19 Wendell, 192; Com. v. Billings, 97 Mass. 405; Parkhurst v. Ketchum, 6 Allen, 406; Keator v. The People, 32 Mich. 484; Home v. Stabler, 17 Ill. 453; Graham, v. Chrystal, 2 Keyes, 21.
    3. The court erred in permitting Hafner to testify that. Hamilton stood indicted for other crimes.
    
      Isaiah Pillars, attorney-gen eral, and Horace Sabin, prosecuting attorney, for the state.
   Okey, J.

1. Burke’s ease, ante, 79, is decisive as to the .■sufficiency of the indictment. There the objection that the indictment contained no averment of the incorporation of the injured party, was not taken, as in this case, by motion to quash, but the decision was placed on grounds which require us to sustain such an indictment, in whatever form •that objection may be made.

2. If the court entertained the opinion that the testimony of Steinberger, as to the truth and veracity of Murphy, was incompetent for the reason that Murphy had then been confined in the penitentiary for more than two years, "that opinion was erroneous. Possibly some objection might have been made to the weight of the evidence, as it related to a period more than two years before the witness was called to testify. But there is a general principle that when a condition of things is once shown to exist, it is presumed to continue until the contrary is shown; and that principle would seem to be peculiarly applicable in this case. It is claimed that Hamilton proposed to show Murphy’s reputation for truth and veracity down to the time he was sent to the penitentiary for a robbery, and that he was still a convict. In that penal institution, where silence is enforced, it is difficult to see .how that reputation could materially change. To be sure, penitentiaries are erected with a twofold object — first, to protect .■society; and, secondly, to reform criminals; and confinement is, furthermore, punishment to the convict. But it is painful truth that the second object is; in many cases, .never attained. While confinement in the penitentiary does not necessarily affect the convict’s reputation for truth —as, for instance, where the conviction is for manslaughter —there is certainly no presumption that a man who, at the time of his conviction for a robbery, has a tarnished reputation for truth, improves in that particular during his confinement. On the contrary, the former state of things is presumed to continue; and we see no reason why it was not ¡competent, in this case, to show what Murphy’s reputation was, in that particular, prior to his conviction.

"We are of opinion, however, that the objection to this; ruling is not presented in snch form as to be available to-Hamilton. There is no statement in the record that he proposed or expected to prove that the reputation of Murphy for truth and veracity was bad. We may believe that such was his object, but that is not sufficient. The rule on the subject was thus strongly but correctly stated by Gholson, J., in Gandolfo v. The State, 11 Ohio St. 114-116: “ It is incumbent on those who insist upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them. The Philadelphia and Trenton Railroad Co. v. Stimpson, 14 Peters, 448-460; Bain v. W. & F. Junction R. Co., 3 H. L. Cas. 1—16.” It does not clearly appear that Hamilton was injured by the ruling.

3. In permitting the counsel for the state to cross-examine-the witness Hafner, for the purpose of eliciting the fact that indictments were pending against him, there would have been no error, if the inquiry had been limited to that fact. Wroe v. The State, 20 Ohio St. 460. But the inquiry was not so confined. The question was, whether the witness was not indicted for burglary and larceny jointly with the defendant. The defendant might have offered evidence as to his general character, but he did not do so. Until lie-offers such evidence, the prosecution is not permitted, to offer testimony on that subject. Griffin v. Ihe State, 14 Ohio St. 55-63. A fortiori, the state, under such circumstances, can not' offer evidence of particular facts for the-purpose of affecting character. Barton v. The State, 18 Ohio, 221; Reg. v. Rowton, Leigh & Cave, C. C. 520; s. c., 10 Cox C. C. 25. And the better opinion is that the state-can not prove particular facts, for such purpose, even in-rebuttal. 1 Wharton’s Or. L., § 637; 1 Wharton’s Ev.,.. § 49. For error of the court in permitting evidence that other indictments were pending against Hamilton, the-judgment will be reversed, and the cause remanded to the. court below for a new trial.

Judgm.ent reversed.  