
    Jesse Jones v. The State of Ohio.
    The mere failure of an inferior court to instrhet a jury upon a particular point of law arising in a case is not erreonous.
    To make such failure a ground of error, the court should have been requested to instruct upon the point.
    The judgment of an inferior court can not be reversed for matter not apparent upon the record, and if the errors assigned have any reference to the facts of a case, those facts should be made part of the record by bill of exceptions. 
    
    The act of March 12, 1845, to regulate the judicial courts and the practice thereof,” 43 Ohio L. 80, does not take from the Supreme Oourt the criminal court in overruling his motion for a new trial, and his bill of exceptions was allowed, sealed, and made part of the record, as follows:
    Be it remembered, that on the trial of the above cause, etc., there was no evidence that the said John Brasher, who was a day-watch, had a warrant to arrest the said Jesse Jones, and there was evidence tending to prove that said Brasher had, on the day previous to the alleged killing, arrested, without warrant, and discharged the said Jesse Jones, and, at the time of the killing, was attempting to arrest the said Jesse Jones without any warrant» but only upon the charge and suspicion that the said Jesse had committed a crime; that, on the facts, it was material matter of law to determine whether a constable or watchman had the right to arrest without warrant, and the court being divided in opinion as to the law upon that point, so told the jury, and said that they could not charge them whether a warrant was necessary or not, and did not charge the jury upon that point of law ; and, also, that the prosecutor commented injuriously upon the character of the prisoner, when the same had not been put in issue, and the prosecutor claimed it as a matter of just inference, for which, and other reasons assigned on motion of a new trial, the court refused to grant a new trial, and overruled the same, to which ruling and determination the counsel for the prisoner excepts, and prays that this bill of exceptions be signed and sealed as a true bill, and that the same be made part of the record in this case.” .
    This writ of error is prosecuted to reverse the sentence and judgment of the Supreme Court. The errors assigned are :
    I. That the court erred in not charging the jury that a warrant issued in due form of law, by a magistrate or other officer legally authorized, was necessary to enable an officer to effect a legal arrest, except upon actual view of the commission of an offense.
    II. That the court erred in not charging the jury that a difference of opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocense of the accused, was a reasonable doubt to be construed in the prisoner’s favor.
    III. That the court erred in permitting the prosecutor to *comment upon and denounce the character of the plaintiff in error as corrupt, vicious, and criminal, when the said plaintiff had not put his chai’acter in issue.
    IT. That the court erred in admitting the testimony of persons who were entitled to a reward upon the condition that the said plaintiff, in error should be convicted.
    T. That the verdict is unwarranted by the evidence.
    TI. That the court erred in overruling the motion for a new trial.
    VII. That the. judgment should have been in favor of the plaintiff in error.
    N. C. Bead and James T. Worthington, for the plaintiff:
    Mr. Worthington submitted a lengthy argument, in which he made the following points :
    1. An arrest can not be made in Ohio without a special warrant) showing probable cause, supported by oath or affirmation, except upon actual view of the commission of an offense.
    2. The authority of watchmen of the city of Cincinnati, in matters of arrest, extends only to offenses committed in their actual view; and day watchmen of the said city have no official authority in the night season. 1
    3. The equal division of opinion of the Supreme Court upon a material question of law, raises a doubt which should be considered beneficially to the defendant.
    4. The prosecutor can not go into any inquiry in regard to the defendant’s character, unless the same has been put in issue by the defendant himself.
    5. Persons having a pecuniary interest in the result of the trial, and depending upon the conviction of the defendant, are not competent witnesses.
    6. The Supreme Court has no jurisdiction in criminal cases.
    
      First. The first and principal point presented, is as to the authority of a watchman to make an arrest without a warrant. U . S. Constitution, art. 4 of amendments; Constitution of Ohio, art. 8, sec. 5 ; 2 Hill, 296; 3 Burr. 1743; 1 Black. 555; 2 Hawk. P. C., ch. 13, see. 10; 1 Hale’s P. C. 580; 4 Black. Com. 291.
    The American doctrine, then, in the first place, is that general warrants arc illegal and void. 3 Cranch, 458, 453; U. S. Constitution, 4th amendment; Constitution of Ohio, art. 8, sec. 5. If this be the true interpretation of the constitutional provisions upon this topic, but two other modes of effecting an arrest can be inferred, either by special warrant, or without any warrant, but simply virtute officii. It is conceded that an officer can make an arrest for an offense committed in his actual view and presence, but beyond this he can not move a single step without a warrant legally issued. 2 Black. Com. 293; 2 Hawk. P. C., ch. 13, sec. 8; 1 Chitty’s C. L. 17; 1 Hale’s P. C. 587; Rawle on Constitution, 124.
    In Ohio, a magistrate is authorized to cause arrests only in two ways; either on view of a criminal offense, or on complaint made on oath or affirmation. Swan’s Stat. 537, sec. 1; 3 Binn. 38 ; Constitution of United States, 4th amendment; Constitution of Ohio, art. 8, sec. 5 ; 3 Story on Constitution, 748; Rawle on Constitution, 124; 3 Cranch, 448, 453 ; 4 Crunch, 75 ; 3 Wend. 350 ; 1 Bald. C. C. 571; 4 Black. Com. 292; 2 Iredell, 201.
    Under what circumstances are watchmen empowered to make arrests virtute officii?
    
    No act can be performed virtute officii, which the power of the government is incompetent to authorize, and if the preceding construction of the organic law of the land be correct, the state government can confer no authority upon its officers beyond the limits therein prescribed; or, in other words, no arrest can be made by an officer virtute officii, except on actual view. A constable (and a fortiori a watchman) has no more authority to make an arrest than a private person has, by virtue of his office alone. 2 Hawk. P. C., ch. 13, sec. 7; 1 Chit. Crim. Law, 18. Even the 'old common-law rule, that *a constable, when a felony has actually been committed by some one, may arrest a person upon reasonable cause of suspicion, can .have but little, if any effect, in aiding us in the determination of this question.
    Has a constable any authority in any matter beyond that which the statute expressly confers upon him? We maintain that he has not. Swan’s Stat. 541, see. 25; 12 Com. Law R. 266.
    
      Second. But the officer who attempted to make the arrest in this case was a day-watchman of the city of Cincinnati.
    The office of watchman is the creation of the city charter, and although his authority could not extend beyond that of a constable, it does not follow that it equals it. Let us inquire, then, what authority the city of Cincinnati has power to confer upon watchmen, and what authority she has attempted to invest them with. The city is authorized, by its charter, to establish a city watch, “ prescribe its duties, and define its powers, in such a manner as will most effectually secure the inhabitants thereof from personal violence, and their property from fire and unlawful depredation.” 32 Ohio L. 244, sec. 9.
    But let us examine what action the city council have taken, and what authority they have attempted to confer upon watchmen. Several ordinances, at different periods, have been ordained, under the charter, and the one in force at the time the alleged offense was committed, entitled “an ordinance to organize, prescribe'the duties, define the powers, and fix the compensation of the city night-watch,” was passed April 9,1845. Ord. City Cin., vol. 2, p. 84. A. prior Ordinance, passed May 27,1842, entitled “ an ordinance to establish a day-watch” (and amended August 30, 1848, only increasing the number of watchmen—Ord. Cin., vol. 5, p. 23), and still in force, confers the same powers upon the day-watch, while on duty, as are conferred on the night-watch. Ord. City Cin., vol. 1, p. 205. By reference to the ordinance of April, 1845, it will be found that the fifth section thereof invests night-watchmen with the power to arrest in the night season, and *take before the mayor, for trial, any person or persons who shall have committed, or be in the act of committing, any criminal offense; and under a preceding section of the same ordinance, they are invested with the same powers, for the enforcement of the city ordinances, etc., as are conferred upon constables ; and they are required* in “the night season to arrest and apprehend all persons committing, or who shall have committed, any criminal offense,” etc. If the ordinance referred to is intended to confer any authority in matters of arrest, beyond the fact of commission in actual view, any such arrest becomes not only “ unreasonable ” and “ unwarrantable,” but such delegated authority is general authority to arrest, and must operate as a general warrant, which is expressly unconstitutional. 4th Amend. U. S. Const.; Ohio Const., art. 8, sec. 5; Rawle on Const. 124; 3 Story on Const. 748; 3 Binney, 38; 3 Crunch, 448; 4 Cranch, 75 ; 4 Black. Com. 291; 3 Burr. 1743; 1 Black. 555; 1 Hale’s P. C. 580; 2 Hawk. P. C., ch. 13, sec. 10.
    In attempting to arrest Jones, Brasher acted solely in the capacity of a day-watchman, appointed under the ordinances of May 27, 1842, and August 30,1848, which conferred upon him the same powers that are conferred upon night-watchman, only while on duty.
    
    The language of the ordinance of May, 1842, is, “and the persons selected by the city council to act as day-watch, shall, whilst on duty, have the same powers as are now, or may hereafter be conferred on the night-watch ” (City Ord., vol. 1, p. 205) ; and that of the ordinance of August 30,1848, “ that the said day-watchmen shall perform the same duties, be clothed with the same powers, be governed by the same rules and regulations, and receive the same compensation, as the night-watchmen elected under the ordinance to which this is. an amendment. City Ord., vol. 5, p. 23.
    In attempting, therefore, to arrest Jones in the night season. Brasher acted solely as a private citizen, without any color of legal authority.
    
      *Third. The court were equally divided in opinion as to the necessity of a warrant to effect a legal arrest, and on this point did not charge the jury.
    This division of opinion of the Supreme Court of the state certainly implied a doubt of the law, the benefit of which should have been given to the plaintiff in error. 1 Greenl. Ev. 97; Roscoe Crim. Ev. 15; Wright’s S. C. 20, 392, 617; Ohio Const., art. 8, sec. 6; 11 Ohio, 424.
    The jury are the judges of the facts, both in civil and criminal cases, but they are not the judges of the law in either. 2 Blackf. 151. The maxim, ad queestionem juris non respondent juratores, is as old as the common law. Co. Lit. 155, b.
    
    In Ohio, in cases of writs of error in prosecutions, the punishment whereof is capital, or by imprisonment in the penitentiary, upon an equal division of opinion in the court in bank, the judgment is reversed. 42 Ohio Stat. 53, sec. 2. This statute clearly determines that where doubts of the law arise in the minds of the court, and there is a division of opinion upon the law, the doctrine in this state is, that the person on trial is to receive the benefit arising from those doubts and opinions.
    
      Fourth. The bill of exceptions also discloses the fact that the prosecuting attorney was permitted to comment upon the character of the plaintiff in error, denouncing it as vicious, corrupt, and criminal, when the said plaintiff had not put his character in issue. It is a well-settled principle that the character of a person charged with crime can only be put in issue by himself, and unless he does 60 voluntarily, the prosecutor has no right whatever to refer to that character, or introduce evidence in regard to it. McNally’s Ev. 324; Whart. C. L. 172; 1 Chit. C. L. 574; Roscoe’s Crim. Ev. 89; Peake’s Ev. 9; Bull. N. P. 296; 2 Mass. 318; 14 Wend. 111; State v. O’Neal, 7 Iredell, 250.
    
      Fifth. It is also claimed that tho court erred in admitting tho testimony of persons who were entitled to a reward, upon the express condition that the plaintiff in error should be convicted.
    *A reward was offered for the “ arrest and conviction of Jesse Jones,” and witnesses on the trial, who had made the arrest, and received a part of the reward, were permitted to testify, which was objected to upon the ground of direct interest in the result, but the objection was overruled. 1 Greenl. Ev. 326, 327, 386; 3 Stark. Ev. 1729; 1 Phil. Ev. 45 ; McNally’s Ev. 59 ; Bull. N. P. 283 ; Roscoe’s Crim. Ev. 126; 1 Chit. C. L. 596.
    
      Sixth. But one more question remains. It is the question of tho jurisdiction of the Supreme Court in criminal cases. We claim that it has none.
    Whatever jurisdiction the Supreme Court has in criminal or other cases was conferred by tho act passed February 7, 1831, entitled “an act to organize tho judicial courts. Swan’s Stat., 222. Under section 2 of this act, the Supreme Court derived its jurisdiction in criminal cases, and under the authority thereby conferred, solely has the court tried capital cases. This section of the act provides “that the Supremo Court shall have original jurisdiction of all offenses, the punishment whereof is capital.” But section 9 of an act entitled “ an act to regulate the judicial courts, and the practice thereof” (43 Ohio Stat. 80), passed March 12, 1845, is as follows: “ Section 2 of an act entitled an act to organize the judicial courts, passed February 7, 1831, except so much thereo f as gives the Supreme Court original and appellate jurisdiction in proceedings in chancery, together with all acts and parts of acts inconsistent herewith, are repealed.”
    By the act of March 7, 1831, entitled “ an act directing the mode of trial in criminal cases” (Swan’s Stat. 724), it is enacted, that “ when any person charged with the commission of an offense, the punishment whereof is capital, hath been indicted and arraigned before the court of common pleas, ho or she, before pleading thereto, shall be at liberty to declare whether he or she elect to bo tried in the Supreme Court;” and although there is no law repealing this provision in express *terms, yet it is claimed that if jurisdiction is taken away, the right to elect ceases, ex necessitate rei.
    
    J. MoCoRMtCK, attorney-general, for the state:
    I do not deem it necessary to reply to the elaborate argument on constitutional law, presented by counsel for the plaintiff, and correct the error into which he has fallen, in applying the principle contained in provisions intended to guard the citizen against the operation of general search-warrants, to the case at bar, in which a known criminal was arrested upon the charge of having committed a known crime. Halley v. Mix, 3 Wend. 350; Wakely v. Hart, 6 Binney, 316 ; Commonwealth v. Deacon, 8 S. & R. 49. If an innocent person is arrested upon suspicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the person arrested; but if no felony be committed, and a private individual arrest without warrant, such arrest is illegal; an officer, however, would be justified if he acted upon information from another, which he had reason to rely on. An arrest of a felon may be justified by any person without warrant, whether there be time to obtain one or not, if a felony has in fact been committed by the person arrested. 3 Wend. 350; Wrexford v. Smith, 2 Root, 171.
    When one not generally known as an officer makes an arrest, he must show his authority, if demanded, or he may be lawfully resisted; but it is otherwise of a known officer. The State v. Curtis, 1 Hayward, 471; Arnold v. Stevens, 10 Wend. 514.
    The right, however, to demand of one not generally known as an officer, to produce his authority, is where the party submits himself to the arrest, not where he immediately resists, and by his own wrongful act prevents the officer from doing his duty. Commonwealth v. Field, 13 Mass. 321. Parties thus resisting do it at their peril. The rule deducible from the foregoing decisions appears to be, that when a well-known officer arrests *a party he need not produce his warrant for so doing, even if demanded after a voluntary surrender, and certainly not when the arrest is made by violence, either when the party attempts escape, or resists the arrest by force.
    It is perhaps unnecessary to notice the other questions discussed, except that raised as to the ineompetency of witnesses on the ground of interest. The interest which disqualifies must be direct and immediate, not contingent and remote. The conviction •in this case did not entitle the witnes's to the reward, but only to recover the reward, provided he brought himself within the conditions annexed to the offer thereof. The interest being contingent and remote, only goes to affect his credibility, which is a proper question for the jury. Irvine v. Lumberman’s Bank, 2 Watts & Serg. 190; Clark v. Robinson, 5 B. Mon. 55; Smith v. White, 5 Dana, 376.
    The statement of facts made by counsel for plaintiff in error, is dehors the record, but did they appear on the record the results would not be changed, or it would be in the power of any party accused of crime, for whose conviction a reward was offered, to defeat justice and public policy, and disqualify the witness of his crime, by procuring to be offered and paid a private reward for his own conviction.
    
      
       On a writ of error, nothing is examinable but what is set forth in the record. 7 Ohio, 212, pt. 1.
    
   Hetchcock, C. J.

Before proceeding to the consideration of the specific errors assigned in this case, it is proper to remark that the bill of exceptions is very defective. It discloses no. part of the evidence in the case, so that it is impossible to determine upon some of the errors assigned, whether the court did or did not err.

The first error assigned is “ that the court erred in not charging the jury that a warrant issued in due form of law, by a magistrate or other officer, legally authorized, was necessary to enable an officer to effect a legal arrest, except when on actual view of the commission of an offense.”

Whether it was the duty of the court to charge upon this point at all, must depend upon the facts which had been disclosed *upon the trial; because, if there was no evidence relating to the point, the court could not properly charge upon it.

What is stated in the bill of exceptions is as follows: “ Be it remembered, that on the trial of the above cause, there was no evidence that the said John Brasher, who was a day-watch, had a warrant to arrest the said Jesse Jones, and there was evidence tending to prove that said Brasher had on the day previous to the alleged killing, arrested without warrant, and discharged the said Jesse Jones, and at the time of the killing was attempting to arrest the said Jesse Jones without any warrant, but only upon the charge and suspicion that the said Jesse had committed a crime, and that on the facts, it was material matter of law to determine whether a constable or watchman have the right to arrest without warrant; and the court being divided in opinion as to the law upon that point, so told the jury, and said they could not charge them whether a warrant was necessary or not, and did not charge the jury upon that point.” According to this part of the bill of exceptions, it seems that the court hearing the case, was of opinion “ that on the facts,” this “ was a material matter of law to determine.” This, howover, is not sufficient. This is a question for this.court, acting as a court of errors, to determine, and it can not be determined but upon a disclosure of the facts in the bill« of exceptions.

But what, in reality, is the error complained of? Not that the court refused, upon request of the party, to instruct the jury upon a particular point of law arising in the case. Not that the court violated any principle of law, in the instructions given, but that the court neglected, or forbore to instruct upon one point of law, which is said to have been material in the case.

Suppose, after the testimony and ax-guments of counsel are closed, the court submits the case to the jux-y without any instructions whatever; would this be error, for which the judgment subsequently rendered could be reversed? I apprehend not, fori know of no rule of law which requires a court, of its *own mere motion, to instruct or charge a jury at all; and perhaps those who hold—and there are many such—that in criminal cases the jury are the judges of the law, as well as of the facts, would hold that it was erroneous for the court, in such cases, to give any instructions at all. It is customary for our courts, as a general rule, to charge or instruct juries; but I am not aware of any law which, as a matter of course, imposes any such duty upon them. If it would not be erroneous to neglect to give any instructions whatever, it certainly can not be erroneous to neglect to instruct upon a particular point which may arise in a case. But if the parties to a case, or either of them, request the court to instruct the jury upon the whole case, or upon particular points which may be involved, it is the duty of the court to do it, and if the law is mistaken by the court, it is error.

The rule of law upon the subject I suppose to be this : If the court, in its instruction to the jury, mistakes the law of the case, or if the court is requested to instruct upon a point of law involved in the case, and refuses such instruction, it is error.

Now apply this principle to the case before this court. How does it stand, so far as the first error assigned is concerned? The judges of the court before whom this case was tried, differed upon, a point of law, which, in their opinion, was involved in the case. They so stated to the jury, and for this reason neglected to instruct upon that point. Neither the plaintiff in error nor his counsel made any objection to this action of the court, nor requested any instruction ujion the particular point. Having failed to do this, it is now too late to compilain. Had the plaintiff in error, or his counsel, requested the court to instruct the jury that the law upon this particular point was as they now allege it to be, and had the court refused, the foundation for a writ of error would have been laid, and this court would have been called upon to settle the law upon the subject.

Such, however, is not the state of case, and we do not feel that it would be proper for us to undertake to settle the principal ^question, which has been elaborately and ably argued by counsel. That question, in substance, is, whether a ministerial officer, without process, has any better right to arrest a man suspected of (¡rime than has a private citizen. ¥e are aware that it is a question upon which there is a great contrariety of opinion, and it will be soon enough for the court to decide it when a case is presented rendering it necessary.

The second error assigned is, “that the court erred in not charging the jury that a difference of opinion between the judges composing the Supreme Court, upon a principle of law necessary to be decided in the determination of the guilt or innocence of the person accused, was a reasonable doubt, to be construed in the prisoner’s favor.”

There is the same difficulty with respect to this assignment of error as with respect to the first. It is a mere allegation that the court failed so to instruct, not that there was any refusal of the court so to instruct, when requested. There is also this additional difficulty : the bill of exceptions does not show whether there was or was not any such charge, nor whether any such charged was requested. All that appears in the record is, that this was assigned by counsel as one of the reasons why a new trial should be granted.

The third error assigned is, “that the court permitted the prosecutor to comment upon, and denounce the character of, the plaintiff in error, as corrupt, vicious, and criminal, when said plaintiff had not put his character in issue.”

Upon this point the bill of exceptions contains this statement: “ The prosecutor commented injuriously upon the character of prisoner, when the same had not been put in issue; and the prosecutor claimed it as matter of just inference.” There is nothing to show that there was any action of the court upon this subject at all. All that appears is, that the counsel for the prosecution commented upon the character of the accused, and claimed that he had a right so to do. Whether he had such right was not a question made to the court. Possibly he may have been too severe in his remarks. But this is nothing *uncommon. Counsel frequently take great, and, in fact, unpardonable liberty in commenting upon the character of j>arties, and more especially of witnesses. It does not conduce to the ends of justice. It is a bad practice; and the members of the bar who are addicted to it, from respect to themselves, and to the courts in which they practice, should abandon it. But we should bo unwilling to reverse judgment because the court in which it was rendered had not interfered to prevent improper remarks of counsel.

The fourth and fifth errors assigned are, “ that the court erred in admitting the testimony of persons who were entitled to a reward upon condition the said plaintiff should be convicted,” and “that the verdict is unwarranted by the evidence in the case.”

As to these errors, it is sufficient to say that the record does not show that such persons wore admitted as witnesses, nor does it show what evidence was before the court and jury. The bill of exceptions is silent upon the subject.

The sixth error is, that the court overruled the motion for a new trial; and the seventh, that the judgment was against the plaintiff in error, when it should have been in his favor.

Nothing appears in the record to lead this court to the conclusion that a new trial should have been granted; and, if not, it follows, of course, that the judgment is correct.

Another point is made in the argument of plaintiff’s counsel, which is not noticed in the assignment of errors. It is claimed that by the act of March 12, 1845, “to regulate the judicial courts and the practice thereof” (43 Ohio L. 80), all previous laws conferring criminal jurisdiction upon the Supreme Court were repealed. Such is not the construction which has been put upon the statute by this court. True, the question has never been decided by the court in bank, but it has frequently been agitated upon the circuit; and upon the circuit the court have uniformly exercised the same criminal jurisdiction as before the enactment of the law of 1845.

*In the whole case we discover nothing erroneous. The sentence and judgment of the Supreme Court is affirmed.  