
    Knight et al. v. The State.
    Indictment— Ven-ue an essential element of section 7315, Rev. Stat.— Trial of county commissioners for entering into corrupt contract —Evidence of corrupt offer by defendants at another time, not competent.
    
    1. Venue is an essential requisite of an indictment. And where, in an indictment, there is a defect in failing to allege that the offense was committed at the county where the indictment is found, such defect is not cured by section 7215, Revised Statutes, which provides that “no indictment shall be deemed invalid * * * for want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; * * * nor for want of averment of any matter not necessary to bo proved ; nor for any other defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ’ ’
    2. Upon the trial of hn indictment charging that defendants, as ■ county commissioners, did, on the 3^ day of May, 1893, unlawfully, knowingly and corruptly, make a contract with certain architects for the making by said architects of plans and specifications for the erection of a court house, it is not competent for the state to give evidence of an offer made by defendants to another architect, April 8, preceding, to let to him the architect’s work on condition that he should pay them a money consideration therefor.
    [Decided March 31, 1896.]
    Error to the Circuit Court of Wood county.
    At the February term, 1891, of the common pleas of Wood county, an indictment was presented against the plaintiffs in error, Samuel Knight and James Gibson, and one Jacob Stahl, containing two counts, the first of which is as follows:
    
      “The State of Ohio, Wood county, ss.-
    “In the court of common pleas, Wood county, Ohio, of the term of February, in the year of our Lord one thousand eight hundred and ninety-five.
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Wood, impanelled, sworn and charged to inquire of crimes and offenses committed within the said county of Wood in the name and by the authority of the state of Ohio, on their oaths do find and present that Jacob Stahl, Samuel Knight and James Gibson, late of said county, on the 3d day of May, in the year of our Lord one thousand eight hundred and ninety-three, in said county of Wood and state of Ohio, were then and there the county commissioners in and for said county, having been duly and legally elected and duly qualified to perform the duties of said office of county commissioner during the term of office to which they had been severally elected, as aforesaid; that said Jacob Stahl, Samuel Knight and James Gibson had for a long time before said 3d day of May, A. D. 1893, been and for a long time thereafter continued to be the count}?- commissioners in and for said county, duly elected and qualified as aforesaid, and the said Samuel Knight and James Gibson still continue to be, and now are, county commissioners in and for said county, and are acting in that official capacity; that said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said Wood county, Ohio, acting in their said official capacity, did on said 3d day of May, 1893, resolve upon and declare their intention to erect a new court house in and for said county of Wood and state of Ohio, under and by virtue of the provisions of an act of the general assembly of the state of Ohio, entitled, ‘An act to authorize the commissioners of Wood county, Odio, to build a court house, ’ which said act was passed and took effect on the 2d day of February, A. D. 1893.
    “That thereupon on said 3d day of May, A. D. 1893, said Jacob Stahl, Samuel Knight and Janies Gibson, as such county commissioners of said county as aforesaid, did unlawfully, wilfully, knowingly and corruptly make and enter into a certain contract with a partnership then and there doing business under the firm name and style of Yost & Packard, whereby they employed the said Yost & Packard to make the plans and specifications for and supervise the erection of said new court house; that prior to said last named date, to wit: on the 28th day of February, A. D. 1893, the judges of the circuit court in and for said county of Wood, and state of Ohio, had duly and legally appointed Earl W. Merry, Frank A. Baldwin, Edward B. Beverstock and John Ault as the building committee, under and in accordance with the provisions of the aforesaid act of the general assembly of the state of Ohio, to act and vote with the aforesaid county commissioners in procuring, making and approving plans, estimates and specifications for said court house and in determining all questions in connection with the erection of said court house, all of which the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county, as aforesaid, unlawfully, knowingly, wilfully and corruptly failed, neglected, omitted and refused to act with the aforesaid building committee in the procuring of said plans and specifications for said court house, and unlawfully knowingly, wilfully and corruptly refused to permit the aforesaid building committee to' act with or to vote with them, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners of said county as aforesaid, in procuring the said plans and specifications for said court house, and in making the aforesaid contract therefor and unlawfully, knowingly, wilfully and corruptly prevented the aforesaid building committee from in any manner acting or voting or participating in the procuring of said plans and specifications for said court house and in providing for the supervision of the erection thereof, and they, the said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners, as aforesaid, in the manner and by the means herein-before stated, and without the co-operation therein by the aforesaid building committee, did unlawfully, knowingly, wilfully and corruptly make and enter into the aforesaid contract with said firm of Yost & Packard, and caused the aforesaid plans' and specifications for said court house to be made by the said firm of Yost & Packard, and did commence and proceed with the erection of said court house, and did cause the work of the erection and construction of said court house to be done under the supervision of said firm of Yost & Packard.
    “And so the jurors aforesaid, on their oaths aforesaid, do find and say that the said Jacob Stahl, Samuel Knight and James Gibson, being county commissioners, as aforesaid, are guilty of misconduct in office in the manner and form aforesaid.
    “Contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.”
    A motion to quash, a plea in abatement, and a demurrer to each count having-been overruled, a plea of not guilty was entered, a trial had, and a verdict of guilty on the first count returned, consideration of the second count having been withdrawn .from the jury. Sentence followed, which, as to the plaintiffs in error, was affirmed by the circuit court; the judgment as to the defendant Stahl being reversed. A reversal is asked by plaintiffs in error. >
    
      Cyrus EhMng and Parker c& Frier, for plaintiffs in error.
    The only allegation of venue in the indictment is, that the defendants were at the county of Wood the duly elected and qualified county commissioners.
    There is absolutely no attempt to lay a venue for this offense, and venue lies at the basis of every indictment, for venue determines the jurisdiction of the court. Nor can this defect be cured by any provision of law defining the duties and powers of the county commissioners, for in this matter they cannot be presumed to have followed the law, as they are expressly accused of violating it. The rules of criminal pleading require that the words “then and there,” be repeated before' every issuable fact where venue is once laid, or demurrer lies. State v. Finch, 3 W. L. M., 82. Nor has this rule of pleading been superseded by the statute. Ellars v. State, 25 O. S., 385; Lamberton v. State, 11 O. S., 282.
    There is no allegation in the indictment as to where the defendants did the acts constituting the alleged offense. That they were commissioners of Wood county; that they were acting upon contracts pertaining to the building- of a court house in Wood county, etc., is stated with great precision; but when it comes to the acts constituting the alleged offense, i. e., the employment of the architects, etc., there is not the slightest reference to the place where the acts were done, either by a “then or there” or otherwise. It will not do to infer that it was done where the commissioners should act when acting officially, and lawfully. Obliging the defendants to go to trial did not deprive them of the right to insist upon' this point, though the proofs showed that the act was done within the jurisdiction.
    Again, if the acts were done in another county •the offense (if any) would consist of a mere attenvpt to make a contract or to employ architects, which miscarried because the commissioners could not make a lawful contract except at the office of the auditor in their own county. Whether they were to be put on trial on a charge of such abortive attempt, or for doing the act effectively (so far as their authority went), they had a right to know. Rev. Stat., 7215. 1 Arch. Crim. Proc. & Pl. pp. 280, 281 and notes. 1 Bish. Crim. Proc., sections 407, 408, 414. Wharton’s Crim. Proc. & Pl., sections 120, 131, 132, 133, 134, 146, 150. 12 Allen, 145. The rules require that the time and place of every act essential to the crime shall be stated. The indictment states that the acts were corruptly done. This is doubtless necessary. Hatch v. Sheriff, 2 C. C., 163.
    But there is no act óf corruption or fact from which a conclusion that the act was corrupt, charged in the indictment.
    Exceptions to admission or rejection of evidence.
    The crime charged here is (1), that the defendants made this contract knowing they had no legal right to do so, and (2), that they did so with a corrupt motive. It cannot be claimed that this evidence is of part of the res gestae. It is as separate a transaction as the attempted shooting of a person on April 8, and the actual shooting of another person on May 3. Nor is it competent as showing intent or motive. In this view it could only reflect on a motive which is corrupt by its terms. If one kill another with a deadly weapon, is it competent to prove he killed another with the same weapon in order to prove he knew it was deadly ? If one accept a bribe, is it necessary to prove he knew it was wrong, or competent to prove it by showing other bribe takings ? Barton v. State, 18 O., 221. Cable v. State, 31 O. S., 100. Farrer v. State, 2 O. S., 54. Snurr v. State, 4 C. C., 393.
    “The principal act in this case, the corrupt bargain with Yost & Packard, must be first proved in order to admit the illustrative act.” Wharton Criminal Evidence, par. 45 and notes. Stephens on Evidence, part 1, 'chap. 3.
    We contend that leaving out the Weary evidence, or limiting it to any proper office it may have in the ease, there is such an entire absence of evidence of guilt as entitle the defendants to a reversal. Walley v. Stanley, 39 O. S., 354. Turner v. Turner, 17 O. S., 449. Potter v. Potter. 27 O. S., 84. Ford v. Osborn, 45 O. S., 1.
    The general rule that evidence must be confined to the issue, and fact that reasons for strict enforcement are stronger in criminal than in civil cases — stated. Bradner on Ev., p. 9. Rule and apparent exceptions (which are shown to not be exceptions, but within the rule), stated. Green-leaf, Ev., sections 51 to 53, inclusive Wharton’s Crim. Ev.. sections 29 to 48, inclusive.
    
      Definition of term “relevant.” Reynold’s Steven’s, Ev., p. 5. Rules and Illustrations, pp. 18, 19. Farra v. State, 2 O. S., 54, 72, 73, 74, 75, 76. Cable v. State, 31 O. S.,100. Barton v. State, 18 O., 221.
    
      A. B. Murphy, prosecuting attorney, for defendant in error.
    The venue being once laid, repetition is unnecessary. R. S., section 7225, Stat. of Jeofails. The only place this act complained of could be performed by the commissioners, was in Wood county, Ohio. The indictment charg’es that at the time they made this contract for the employment of the architect and the supervision of the work, they were the duly elected, qualified and acting county commissioners of Wood county, Ohio, and made the contract as such acting commissioners. The only possible place where they could make it was in Wood county, Ohio. R. S., sections 846-7-8-9 and following, provide where and how the commissioners shall proceed. By every reasonable rule of construction, saying nothing about the statute of Jeofails and the preliminary statement of time and place, the indictment charges that the act complained of was done in .Wood county, Ohio.
    The “Weary Evidence” was proper to show motive. The contract about which the commissioners were talking to Weary was the same contract which they soon afterwards let to Yost & Packard. The state sought to show the reason why the commissioners ignored the building committee and refused to act and vote with them. What could show their motive better than to show that they had tried to sell out this contract for a bribe? Suppose that they had gone to various architects just previous to the letting of the contract to Yost & Packard and solicited bribes for the contract, would it not furnish a very lucid explanation of why they wanted to get rid of the building committee? It most certainly, it seems to us, would be proper evidence as to their reason and motive in not desiring to act with the building committee. Because the state proves but one such solicitation, does not render the evidence less competent. We contend that the Weary evidence shows the real reason why the commissioners violated the special act and ignored the building committee, as the indictment charges that they did. It shows a motive in their own minds for desiring the seclusion of their own number rather, than the company of the building committee. The state did not claim that the contract, made with Yost & Packard was fraudulent, in that the commissioners received a bribe from Yost & Packard, but only that it was fraudulent because made without permitting and while refusing to permit the building committee to take part in the making as provided in the special act. But the state did claim that it was with corrupt intentions that the commissioners took this contract into their own hands without the knowledge or consent of the building committee, and the Weary evidence was offered to show that such was the case. If they had solicited a bribe from Yost & Packard, for this contract evidence of that solicitation would have been competent to show the reason for their desire to get rid of the committee. Because the bribe was solicited from another renders the evidence no less competent. Suppose that upon Monday the commissioners, saying nothing to the building’ committee, had gone with this contract to an architect and offered to let him have it if he would pay them three thousand dollars, and he had refused, and upon Tuesday they had gone to another with the same proposition and the same result, and so on for five days of the week, and upon Saturday, having concluded that it was impossible to sell it, they had gone to Yost & Pack- and let it to that firm, would not 'evidence of these transactions of the week be competent to show their purpose in saying nothing to the buildingcommittee? 15 Am. & Eng. Ency. Law, 936, 3d Rice on Evidence, 459-4 and notes. Stephen on Evidence, page 43, article 2d, and notes.
   Spear, J.

The indictment is founded on section 6915, Revised Statutes, which reads as follows: “Whoever, being a county commissioner, is guilty of any misconduct in office, shall be fined not more than four hundred dollars, and forfeit his office, ”

Many questions arise upon the record, but we find it necessary to consider only that relating to the sufficiency of the indictment, and two of those relating to the competency of testimony.

1. The indictment. Is venue sufficiently alleged?

The indictment shows that it. was found by the grand jury of Wood county, and presented to the court of common pleas of that county; that the jury had been empanelled, sworn and charged to inquire of crimes and offenses committed within that county; and that the defendants, late of that county, were on the 3d day of May, 1893, then and there county commissioners in and for that county, duly elected and qualified, etc. Then follow allegations to the effect that defendants, as such commissioners, on the 3d day of May, 1893, declared their purpose to erect a new court house in and for the county of Wood, etc., and that “thereupon, on said 3d day of May, A. D. 1893, said Jacob Stahl, Samuel Knight and James Gibson, as such county commissioners as aforesaid, did unlawfully, wilfully, knowingly and corruptly make and enter into a certain contract with a partnership then and there doing business under the firm name and style of Yost & 'Packard, whereby they employed the said Yost & Packard to make plans and specifications for and supervise the erection of said new court house,” etc. Nowhere in the instrument is there any allegation that the offense was committed in the county of Wood. Indeed, every allegation of the indictment might be fully proven as stated, had the entire transaction occurred outside the limits of the county, and for that matter the state.

It is elementary, we suppose, that an indictment, in order to be sufficient, must aver, with reasonable certainty, all the material facts necessary to a conviction. Nothing is to be left to intendment or inference which is necessary to prove in order to make out the crime. State v. Philbrick, 31 Maine 401; U. S. v. Hess, 124 U. S. 483 ; Am. Eng. Enc. of Law, vol. 19, p. 566, and authorities cited.

Venue is one of the essentials of an indictment for a number of reasons. One is that it must appear that the court to which the indictment is presented has jurisdiction of the offense. Another that the defendant may be informed of the charge in this respect so that he may be prepared to meet it. A third is that the judgment may be pleaded in bar to any second indictment for the same offense. The State v. Cotton, 4 Foster, 143; Bishop’s Crim. Proc., p. 225. And that the prosecution must be had in the county where the unlawful act was committed, was held by this court in the recent case of The State v. Knight et al., 35 W. L. B., 175.

It is insisted by counsel for the state that venue suffiicently appears, and that whether it does otherwise or not, it must be inferred that the criminal acts were committed in the county of Wood because it is charged that the defendants made the contract as county commissioners, and the only possible place where such a contract could be made was within the county of Wood. If it were conceded that the commissioners could not legally make such a contract outside the limits of Wood county, yet it would not follow as a legal conclusion that the transaction did not occur outside the county, for manifestly the acts were such as it was possible to commit without the county; especially does it not follow in view of the character of the prosecution. As pithily observed by counsel for plaintiff in error: “ They 'cannot be presumed to have followed the law, as they are expressly accused of violating it. To infer that they acted lawfully in this respect in order to support a charge that they acted unlawfully in another respect would be a strange application of legal presumptions. ’ ’

But, be'this as it may, the claim cannot be maintained for, as already stated, the indictment must be explicit, and leave nothing to mere inference. Am. & Eng. Ency. of Law, vol. 10, p. 567; Phipps et al. v. The State, 22 Md., 380; The State v. Seay, 3 Stewart (Ala.), 123; Smith v. The State, 21 Neb., 552; U. S. v. Morrissey, 32 Fed. Rep. 147.

It is further argued that, even though the indictment might not he good at common law, yet it is saved by section 7215, Revised Statutes, called the statutes of Jeofails. The clauses of that section which bear relation to this question are these: “No indictment shall be deemed invalid * * * for want of an allegation of the time or place of any material fact, when the time and place have been once stated in the indictment; * * * nor for want of averment of any matter not necessary to be proved; nor for any other defect which does not tend to the prejudice of the substantial rights of the defendant upon the merits. ”

The proposition is not tenable. If allegation of place of the offense had “ once been stated in the indictment,” then by proper incorporation of “then and there” at other places where allegation of place is wanting, the requirement of certainty might have been assumed, but we have found that the instrument is barren of any allegation of place. Now, can it be said that the place of the offense, i. e., the county, was not necessary to be proven, for how could a conviction be sustained without it? Neither can it be said that the question of [place did not affect the substantial rights of the defendants, for how, if not alleged, could they intelligently prepare their defense, or how could the record serve the defendants as a bar to a second prosecution for the same offense ? In general terms it may be said as to this defect that the indictment fails to aver' all the material facts necessary t<? a conviction. Lamberton v. The State, 11 Ohio, 282. And such failure is fatal, as well since the statute as at common law. Ellars v. The State, 25 Ohio St., 385. The demurrer to the indictment should have been sustained. It was error to overrule it.

2. Evidence. Against objection and exception by defendants, the state was permitted to introduce testimony tending to show that on the 9th ' day of April, 1893, at Akron, in Summit county, the defendants, Knight and Gibson, proposed to one Weary, an architect, to let the architect’s work on the proposed court house to him for a money consideration to be paid by him to the defendants. If made out, this was a violation of section 6900, Revised Statutes, which makes it an offense for an officer to solicit a bribe. In other words it was - an attempt to prove a distinct offense, committed at .another time, in no way connected with the charge in the indictment.

This charge, the trial court assumed, was naturally separable into two phases respecting the motive inducing the conduct of the commissioners into making the contract with Yost & Packard. One involved the element of corruption from a hope or expectation of personal g’ain; the other the element of culpable, narrow-headed stubbornness. The first was practically eliminated by the charge as will be shown more fully further on; and to the other the court charged the jury as follows: “If a law which charges a duty upon a public officer is disobeyed and violated by him from passion or prejudice, or from a spirit of wilful, improper opposition, that is just as corrupt as if he had in violation of existing law, acted from a money consideration. ” The contention of the state is that the testimony was relevant to the latter theory; that it tended to make manifest the motive of the commissioners in dealing with Yost & Packard; to illustrate and give color to their acts; while the claim of the plaintiff in error is that it was not competent as applied to either phase of the case.

It is fundamental, as a general proposition, that proof of one offense is not competent in order to prove that the party committed another distinct, unrelated offense. Such facts are regarded as collateral.. A reason for the rule excluding testimony of collateral facts is given by Prof. Greenleaf, volume 1, section. 52: That such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it. ” And yet there are cases where such evidence is admissible, although it may tend to prove the commission of another crime, being in the nature of exceptions to the general rule. One frequently met with in practice is that of admitting such testimony where proof of scienter is necessary, as in the case of passing other counterfeit money in order to show that the party knew the money, the subject of the crime, was counterfeit. Another instance is where the occurrence charged and the one sought to be proven were parts of a single crime, connected by unity of plot and design, and thus in effect one transaction. So, too, such testimony is sometimes admitted in order to show a motive in the mind of the accused inducing the crime charged, as in case of murder by a husband of his wife, proof of adultery with a paramour is admissible in order to show motive prompting the guilty party to get rid of the victim; although in such case it would hardly be claimed that evidence of the killing of a former wife could be admitted to show a tendency on the part of the accused to kill his wives. Other exceptions are recognized, but it is not necessary to pursue the inquiry further in that direction here. The subject is discussed more or less in the following text books and cases: Barton v. The State, 18 Ohio, 221; Farrer v. The State, 2 Ohio St., 54; Brown v. The State, 26 Ohio St., 176 ; Coble v. The State, 31 Ohio St., 100; Commonwealth v. Tuckerman, 10 Gray, 173; The State v. Lapage, 57 N. H., 245; The People v. Sharp, 107 N. Y., 427; Wharton’s Crim. Ev., par. 45 and notes; Commonwealth v. Campbell, 7 Allen, 541.

One thing is apparent in the case before us.. The testimony was, on its face, open to thé objection that its admission would violate the well-established sanction of the law already adverted to. Therefore it was incompetent unless it should be brought clearly within one of the recognized exceptions.

It is difficult to see how the conversation with the witness Weary, as bearing upon the .ease on trial, tended to show more than a desire to be bribed. Equally difficult is it to perceive why evidence of any other like dishonest act would not have the same effect, and would not have been equally competent. The natural inference drawn by the jury would be that these persons, being shown to be of evil mind, probably committed the offense charged, and. this would be clearly inadmissible. How, in reason, could the testimony be said to bear upon their knowledge that their acts in entering into the contract with Yost & Packard were unlawful? Or, would the temptation to accept a bribe be stronger when presented in the making of a contract which the parties knew they had not authority to make than it would be when connected with a contract otherwise lawful? And how, we inquire, unless this were so, could the testimony serve to illustrate or give color to the charge of passion, prejudice or a spirit of wilful opposition, since it tended to disclose a state of mind apparently in no way related to this condition and purpose? At best, the relevancy of this testimony is matter of very serious doubt. In such an aspect of the question it is always safer to exclude; A majority of the court is satisfied that the testimony did not fall within any recognized exception to the general rule, and should not have been admitted.

But if there should remain doubt as to the claim of error in admitting the testimony for some purpose, there seems no room to doubt that it was left to the jury in a way to be used for an improper purpose. Both counsel for the state, and the court, informed the jury that there was no claim that Yost & Packard were in any way guilty of wrong-doing, the lauguage of the court on that point being: “It has already been stated in the trial, by counsel for the prosecution, and very properly under the evidence submitted, that it is not claimed by the state that the contract made between the defendants and Yost & Packard was corrupt,” etc. Logically, this left the transaction with Weary to bear alone upon the other phase of the case. But this the jury might not, and probably would not, understand. It was, therefore, the duty of the court, having admitted the testimony for the purpose, as argued, “of showing motive in their own minds for desiring the seclusion of their own number rather than the company of the building committee,” to limit it to that consideration in the charge to the jury. This was not done. In the charge this language appears: “Incase you find the defendants did act unlawfully as charged in the indictment, then whether the same was done knowingly, wilfully and corruptly, the jury, must determine from all the evidence and circumstances found in the case;” and this is in no way qualified in other parts of the charge. This left it to the jury to make use of the Weary incident that in their judgment was proper; to conjecture, if they were so minded, that the defendants had made a corrupt arrangement with Yost & Packard for a similar unlawful reward, and in general to treat it as tending to prove the commission of the offense charged. This could not fail to be prejudicial to the defendants. Whether or not this omission, had the testimony been competent for any purpose, would be error which the defendant could take advantage of, not having requested a charge limiting the effect of the testimony, is not important, as a judgment of reversal must follow in either view.

Against objection and exception there was admitted, and read to the jury, a protest, dated July 27, 1893, signed by three members of the building committee, and entered on the auditor’s journal, declaring the action of the commissioners illegal, and protesting against it. This action of the committee, having occurred long after the alleged offense of the commissioners, could have had no proper bearing upon the question of their guilt or innocence, and its admission, though. probably not of much consequence as evidence, was clearly erroneous.

For the foregoing errors the judgments below will be reversed and the cause remanded to the court of common pleas with direction to sustain the demurrer to the indictment and for further proceedings according to law.

Reversed.  