
    Cone and O’Dell v. Bright.
    
      Trial by jury — Section 5190, Revised Statutes — Presentation of written instructions — If requested by either party — Refusal by court cause for error — Court proceedings.
    
    On the trial of a cause to a jury, if a party thereto presents written instructions to the court on matters of law, and requests the same to be given to the jury before argument is commenced, as provided for in subdivision 5 of Section 5190, Revised Statutes, which is done, and such party, at the close of the general charge, asks the court to permit the jury to take the written instructions so given, in their retirement, or send the same to the jury during its deliberations, as provided for in subdivision 7 of said section, a refusal by the court to grant the request is. error, for which a judgment against the party making the request will be reversed.
    (Decided June 16, 1903.)
    Error to the Circuit Court of Hancock county.
    The defendant in error, John Bright, brought his action in the court of common pleas to recover of the plaintiffs in error a considerable sum of money which, he alleges, he lost to them during the month of February, 1899, while dealing in margins at their place of business conducted in Findlay, Ohio. He alleges •that the dealings with the defendants below were in 'their nature, wagers or bets, on the prices of commodities for sale in the markets at Chicago and other cities, and therefore in violation of the statutes of this state, which authorize a recovery hack from the owner of money lost on such wagers or bets.
    The plaintiffs in error denied all the allegations of the petition made against them respectively.
    The case was tried to a jury; numerous exceptions were taken on the introduction of plaintiff’s testimony by O’Dell, and at the close of the testimony, and before the beginning of arguments of counsel to the jury, the defendants, now plaintiffs in error, each requested the court to give certain written instructions in their behalf before the arguments commenced. The instructions presented by Cone were given as requested. Some of the- instructions asked by O’Dell were given before argument, and others were refused. There was no request that the general charge of the court should be reduced to writing and it was not a written charge. O’Dell excepted to the charge, and thereupon requested the court to send the special instructions which were given before argument to the jury room during their deliberations. This was objected to by the plaintiff on the ground “that the charge is not in writing, and the special instructions should not be sent to the jury unless a written charge be sent therewith.”
    The court sustained this view and refused to send the instructions so given to the jury, to which O’Dell excepted. Cone made no such request, and took no exceptions on the subject.
    The jury found against both Cone and O’Dell and assessed the recovery at $3,888.14. A motion for new trial was overruled and judgment was entered on the verdict. The circuit court affirmed the judgment, and error is prosecuted here, to reverse the judgments of both courts.
    
      Mr. Harlan F. Burket; Messrs. Shay & Gogan and Mr. George H. Phelps, for plaintiffs in error.
    There were a number of objections on behalf of W. J. O’Dell as to the admissibility of testimony in. the case as against him, all of which may be practically argued under the one head, namely; that there was no sufficient foundation laid by which O’Dei? coulc? be held responsible for tbe acts, declarations and conduct of the defendant, Cone.
    It is claimed on bebalf of O’Dell that tbe acts and declarations of Cone were admitted without any proof of agency or federation existing as between Cone and O’Dell. Under tbe rule laid down in Roberts v. Briscoe, 1 Circ. Dec., 323; 1 C: C. R., 577, followed and approved in Roberts v. Briscoe, 44 Ohio St., 596, all of this testimony so adduced, we claim, was clearly error.
    In tbe aforementioned cases tbe following was laid down as tbe rule: Acts and declarations of a conspirator are admissible only when it is proven: (1) That a conspiracy existed; and (2) That it was in furtherance of tbe conspiracy and under no other circumstances.
    It must be proven before such acts and declarations can be considered that they were done in furtherance of tbe common purpose, with common intent and with knowledge and consent. Patton v. State, 6 Ohio St., 467; Fouts v. State, 7 Ohio St., 471; Goins v. State, 46 Ohio St., 457; Clawson v. State, 14 Ohio St., 234; Ruffer v. State, 25 Ohio St., 474.
    But this mass of testimony was permitted to go to tbe jury against tbe protest of tbe defendant O’Dell, and without any limitation, qualification or consideration on tbe part of tbe court in its. charge or at tbe time tbe same was permitted to go to tbe jury.
    There was not a scintilla of testimony in tbe case showing that O’Dell at any time bad any knowledge, connection or dealings with Cone, or with bis acts in relation to tbe defendant Bright.
    It is claimed on bebalf of O’Dell that there was not a particle of evidence to warrant tbe case going to tbe jury as against him; that there was no proof that he engaged' in the unlawful enterprise; that there was not the slightest proof that he was the winner of any money whatsoever from Bright.
    Clearly under Section 4270, Revised Statutes, no recovery can be had except from the winner. It gives no right of action against anybody except the winner. It can not be claimed that the writings or statements attached as exhibits containing the names of W. J. O’Dell, or W. J. O’Dell & Co., furnished any evidence of any act or declaration by W. J. O’Dell and W. J. O’Dell & Co.
    There was no proof that W. J. O’Dell had any knowledge thereof, or the contents thereof, or that the same was ever brought to his knowledge for approval or disapproval, or that he had any knowledge of the existence of the same, and the court clearly should have excluded them as far as W. J. O’Dell or W. J. O’Dell & Co. were concerned, from the consideration of the jury, without such proof having been adduced.
    Upon what theory he is held liable we are at a loss to understand. Surely it must be proven that he had furthered the unlawful enterprise and was the winner of the money, before he can be held liable. The court erred, therefore, in not granting the motion of O’Dell to dismiss him, or render a judgment in his favor at the conclusion of the testimony.
    If the plaintiff entered into a solemn written agreement with Cone, which appeared upon the face to be a lawful transaction, and that written agreement was not changed or varied by any verbal agreement subsequently made by the parties where either party had the right to compel a performance of the contract at the time, or at any time subsequent thereto, it is not the privilege of the plaintiff below, after he has found that he had lost money in a lawful transaction to declare it a gambling transaction.
    However, that phase was eliminated from the jury by the refusal of the court to give this charge, and under the rule in the case of Kahn, Jr., v. Walton et al., 46 Ohio St., 195, this was error.
    We are not cognizant of any section of the code that prevents the defendant from demanding'a charge upon any matter of law at any time either before or after argument, or even after the court had charged the jury.
    It was the duty of the court, if the charge requested was good law, at least to give it in connection with, his general charge. If not in the language of the-charge requested, then in some other appropriate language sufficient to advise the jury of the law pertaining to the point in question.
    While the order of time may be regulated by statute we know of no statute or rule of law which denies to the defendant the right to have a charge given on matters of law to the jury at any time before fiuflT submission. Griffin v. State, 34 Ohio St., 304. This principle is clearly laid down in the case of Lytle v. Boyer, 33 Ohio St., 506.
    The court refused to give the special charges to the jury, that is, to allow them to go to the jury room because his charge was not made in writing. This was clearly error, and such error as for which the judgment should be reversed. The statute is entirely different from the code as decided in Griffin v. State, 34 Ohio St., 299; Blackburn v. State, 23 Ohio St, 147; Hardy v. Turney, 9 Ohio St., 400.
    Section 7 of 5190 is mandatory. All written charges and instructions shall be taken by the jurors in their retirement. This rale is clearly laid down in Caldwell v. Brown, 6 Circ. Dec., 694; 9 C. C. R., 691; Foy v. Street Railway, 6 Circ. Dec., 396; 10 C. C. R., 151.
    Clearly this was the denial of the substantial right guaranteed by statute, and surely is prejudicial in itself, and such error as for which the judgment must be reversed.
    To lay the foundation for a recovery under Section 4270, Revised Statutes, it must appear that the defendant by playing at some game, or by means of some bet or wager, won money from the plaintiff, and that such money was paid to, and received by the defendant as winnings upon such game, bet or wager. Vincent v. Taylor, 60 Ohio St., 309; Revised Statutes, Sec. 4270.
    The most that can be spelled out of the petition is, that -plaintiffs in error were brokers running a bucket shop in violation of the criminal statute; that defendant in error through their agency lost money in this transaction, but to whom he lost it and upon what wager, if any, nowhere appears, and much less is it alleged or pretended that the plaintiffs in error won this money, or that it was paid to them as winnings.
    Tnere is abundant authority for the proposition, that an action under section 4270, and kindred statutes, by whicn the loser of money in games and on wagers is authorized to recover such losses from the winner, will not lie against the broker who merely handles the money for his principal, no matter how illegal the business itself may be. Roulstone v. Moore, 10 Re., 275; 19 Bull., 387; White v. Barber, 123 U. S., 392; Higgins v. McCrea, 5 O. F. D. 497; 116 U. S., 671.
    
      
      Mr. James A. Bope; Mr. E. V. Bope and Mr. E. Y. Dunn, for defendants in error.
    We understand the rule to be that instructions to the jury before argument, under paragraph 5 of section 5190, Revised Statutes, must embody general rules, not only correct in the .abstract, but so covering the case as not to give a one-sided view to any particular theory of counsel or attach undue importance to particular items of evidence. Railway Co. v. Whidden, 13-23 O. C. C., 86.
    If this be the correct rule, then the court might well have refused these special requests, as they failed to comply with the rule, but by the provisions of that paragraph, the court had a right to give or refuse, and, therefore, it follows, we think, necessarily, that these special requests could not properly be given to the jury.
    Paragraph 7 of section 5190 provides that after the argument is concluded, the court shall charge the jury, but if either party, before the argument commences, requests that the charge shall be reduced to writing, this charge or instruction, when so reduced to writing, together with the written instructions, shall be taken by the jurors to the room. No request was made in the case at bar, either before argument or at any time, that the charge should be reduced to writing, nor does the record show that any such request was made. The charge was not reduced to writing, nor does the record show that it was, so that there was no charge which could have been taken by the jurors into the jury room, and conceding all the plaintiff in error claims, the special requests made before the argument could not be sent into the jury room, unless the written charge was sent with them.
    
      We think the testimony brings the rooms where these transactions were had clearly under the provision of section 6934a-l, and that the place where this gambling was done was a “bucket shop”; and also clearly within the provision of section 6934a-4, defining the words “bucket shop” and. “margin”; and therefore the action properly brought under the provision of section 4270.
    The petition in this case was modeled closely after the pleadings shown in case of Lester v. Buel, 49 Ohio St., 240, and the testimony warrants the verdict under the rules and intimations and opinions of the court in that case.
   By the Court.

While the record shows that Frank Cone, one of the defendants in the court of common pleas, joins O’Dell in the petition in error, it is quite evident that he has no ground of complaint. The.evidence against him was not only competent, but was sufficient in weight to justify the verdict against him. The court gave the special instructions he requested and he took no exception to the general charge. An affirmance of the judgment against him naturally follows.

The record as to O’Dell is not so clear. He interposed numerous objections to the evidence of the plaintiff, which consisted mostly of his own testimony, and struggled against its admission where the plaintiff testified to the statements and declarations of Cone, his codefendant. The reason wliich he presented and urged repeatedly against the admission-of such statements by Cone appears to be, that they were not made in the presence of O’Dell, and that it was not shown that they were jointly interested in the transaction through which the money.was lost, nor that there was a combination or conspiracy on their part to perpetrate the wrongs complained of.

In order to properly decide upon the competency of such evidence we have looked carefully into the record, and the result of our investigation is, that the facts against O’Dell are rather meager and frail. But there is some evidence coming from his own lips which, if true, indicates that at the close of the unfortunate investments of the plaintiff, O’Dell was personally interviewed and appealed to for some relief from the losses plaintiff had sustained, whereupon he informed the plaintiff that he had no. more goods to sell him, was out of the commodities in which plaintiff had been dealing, etc. This remark is significant as implying a knowledge of and connection with what had preceded, and his part in'it, and the statement, when coupled with a few other facts against him, furnishes some basis, although weak it is, for the finding of the jury and also for the refusal of the .court to rule out the evidence objected to.

The court gave certain instructions asked by O’Dell to be given before argument, and refused others; but we perceive no error in such refusal. Nor do we find reversible error in the general charge.

After this charge, O’Dell requested the court to send to the jury room during the deliberations of the jury, the special instructions given before the argument to the jury commenced. The court denied this request for the stated reason, that the general charge was not in writing. O’Dell excepted to the ruling of the court, and this exception presents the most substantial question in the case.

Subdivisions five and seven of Section 5190, Revised Statutes, provide:

“5. When the evidence is concluded, either partv may present written instructions to the court on matters of law, and request the same to he given to the jury, which instructions shall he given or refused by the court before the argument to the jury is commenced.”
“7. The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

The instructions referred to were, beyond doubt, in writing. They appear in the record, each one bearing its respective number, and only written instructions are recognized by subdivision five. They had a physical existence, for the court was asked to send them to the jury room. Therefore, had the court any discretion to refuse the request? We think not.

The purpose, in part at least, of having proper instructions given before argument, is that counsel for each party may know in advance of argument to the jury, what the law of the case is, on certain, or all the questions of law involved. They become a guide by which counsel may regulate and govern their arguments, and having this important part to play, they become a part of the papers of the case and they “shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

These special instructions, oftentimes, cover about all questions in controversy, so that, when given to the jury, little, if any, further charge becomes necessary. And the fact that the general charge is not in writing does not release the court of the duty imposed by statute as to written instructions which have been presented and given before argument to the jury. The request of O’Dell directed the attention of the court to this duty, and the -refusal to perform it, is error for which the judgment as to O’Dell must be reversed.

The judgment as to Frank Cone is affirmed; but the judgment against W. J. O’Dell is reversed and the cause is remanded for further proceedings according to law.

Judgment against W. J. O’Dell reversed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.  