convicting of murder in the first or second degree, or manslaughter. And where the verdict is returned for a lower grade of homicide than murder in the first degree, a new trial should be granted, where it appears from the evidence that a verdict of acquittal might have been rendered had the jury been properly instructed.

Error to the Court of Common Pleas of Fairfield County.

The plaintiff in error, Joseph J. Dresback, in April, 1881, was indicted for the murder of his wife, Emily Dresback, in September, 1874, by the administration of poison. The evidence given in support of the charge, was circumstantial and tended to show that the death of the wife was caused by strychnine. It appeared from the evidence that the day before her death, the accused obtained from Doctor Turney, three powders and some pills for his wife; and evidence was given tending to show that instead of the medicine thus obtained, he had given his wife strychnine to be taken by her as the medicine sent by Doctor Turney. The defendant gave evidence tending to prove that the same powders and pills which he obtained from Turney he gave to his wife to be taken by her; and that if the same contained strychnine, it was due to negligence of Turney in preparing the medicine.

On the trial, at the October Term, 1881, after the defendant had rested his case, the state to rebut evidence introduced by the defendant, introduced the evidence of certain witnesses, tending to show that Doctor Turney was not addicted to the use of intoxicating liquors, and was a careful and prudent physician and well skilled in the use of medicines; and among other witnesses in that behalf, called John L. Krimmel, who testified that he had been in the drug business in Circleville for nineteen years; that Doctor Turney was a customer at his store, and that his standing was that of a good and careful physician, and that he had never known him to be under the influence of liquor, and that he had filled prescriptions for him very often.

Thereupon the defendant by pertinent questions, on cross-examination, offered to prove by said witness, that said Turney had sent prescriptions to him at his drug store to be filled, in the year 1874, and other years before and after, which if they had been filled as therein directed, would have killed the patient; and that he had returned them to Turney for correction because the same contained mistakes and were improper; and that said Turney admitted said mistakes and corrected said prescriptions. To which said questions and testimony the prosecuting attorney objected and the court sustained the objection. To which ruling the defendant excepted.

The bill of exceptions embodies all the evidence as well as the charge of the court.

The court among other things charged the jury as follows:

"The State of Ohio, in order to make out its case against the defendant must show:

"1. That Emily was killed at or about the time specified in the indictment, or at least some time before the finding thereof by the Grand Jury.

"2. That the defendant killed her.

"3. That the defendant killed her purposely and maliciously:"

"4. By purposely administering to her, or causing her to take poison with intent to kill her.

"These four elemental and material propositions must be proven and established to the satisfaction of the jury. ****

"Now, if you are satisfied beyond all reasonable doubt that Emily Dresback was killed then you have reached the first elemental and necessary conclusion in the direction of a conviction of the defendant, for if you are satisfied that she is not killed, that would be the end of your deliberations and you would have to render a verdict of not guilty.

"2. What do you say on your oaths as to whether the defendant killed Emily Dresback? and (3.) whether he did it purposely and maliciously? and (4.) by administering poison, or causing it to be administered, purposely and with intent to kill? And these three latter propositions, as well as the first, must be established affirmatively, and beyond all reasonable doubt, before the state is entitled to a verdict; and failing in any one of them, your verdict must be for the defendant."

The court also told the jury, they might find the defendant not guilty of murder in the first degree, but guilty of murder in the second degree, or of manslaughter merely.

The conclusion of the charge was as follows: "If you find the defendant guilty of murder in the first degree, you will say, we, the jury, find the defendant guilty of murder in the first degree as he stands charged in the indictment.

"If you do not find him guilty of that degree of murder, but guilty of murder in the second degree, you will say, we, the jury, find the defendant not guilty of murder in the first degree, but we, on our oaths, find him guilty of murder in the second degree.

"If you find him not guilty of either of the degrees of murder, but guilty of manslaughter, then say so in your verdict.

"If the state wholly fails, you will say simply, not guilty."

The jury returned the following verdict: "We, the jury impanneled, sworn and charged in the above entitled cause, upon our oaths do find the defendant, Joseph J. Dresback, guilty of murder in the second degree

and not guilty of murder in the first degree, as he stands charged in the indictment."

A motion for a new trial having been overruled, sentence was pronounced on the verdict; and the present petition in error is prosecuted to reverse the judgment.

Brasee & Drinkle; Martin & McNeill, and J. G. Reeves for plaintiff in error.

W. J. Gilmore, and B. H. Bostwick for defendant in error.

WHITE, J.

In the numerous assignments of error in this case there are only two that we find well founded.

The first is as to the refusal of the court to allow the cross-examination of the witness, Krimmel, by the accused. The witness on the part of the state had in effect testified that Doctor Turney had been a customer at his drug store; that he had very often filled prescriptions for him, and that he was a good and careful physician. It was proposed by the cross-examination to show to the jury the value of the testimony in chief, by showing that the dealings with the doctor, to which the witness had referred in chief, did not justify the professional character for care and skill that the witness had given him.

This testimony we think the accused had a right to introduce to the jury on the issue upon which it was intended to bear. Martin v. Elden, 32 Ohio S. 282.

The second assignment relates to the charge as to the duty of the jury with respect to the different degrees of homicide. The charge in effect told the jury that their duty would be fulfilled, in case they found the accused guilty, by returning a verdict for murder in the first or second degree, or for manslaughter. The evidence against the accused, tended to prove that he purposely killed his wife by administering to her, poison; and it tended to prove no other grade of offense. If the jury found him guilty, it was their duty to find him guilty of murder in the first degree; but if the charge was not proved, he was entitled to an acquittal. The court however, instructed the jury that they might, consistently with their duty, find him guilty of murder in the second degree or of manslaugh

ter.

This instruction is sought to be justified by the ruling in Robbins v. The State, 8 Ohio S. 131.

As was said by this court, in Adams v. The State, (29 Ohio S. 415), "It was not intended by the ruling in Robbins' case, to deny, that it is the right and duty of the court to instruct the jury upon all questions of law arising before them in the case; nor to

relieve the jury from the duty of receiving the law as given to them by the court.

"The principle of the ruling is that the jury must not be imperatively required to render a verdict for a particular degree of homicide; nor must the instruction be such as to deny to them the power of rendering such verdict as their judgment and conscience dictate, after being fully instructed as to their duty."

The charge in question in Robbins' case, was held to be an invasion of the province of the jury; while instructing them as to their duty upon a given state cf fact in a case, is no such invasion.

It is claimed that the accused was not prejudiced by the erroneous charge. We have all the evidence before us and can not say so. The evidence was wholly circumstantial and we are unable to say that the jury might not have acquitted him had they been properly instructed. As to this point, see Pliemling v. The State, 46 Wis. 516, 523; The State v. Mahly 68 Mo. 315, 318.

Judgment reversed, new trial granted, and cause remanded.

[To appear in 38 O. S.]

CIVIL SERVICE REFORM-POLITICAL

ASSESSMENTS.

U.S. CIRCUIT COURT-S. D. NEW YORK.

UNITED STATES v. CURTIS.

Act of Congress, prohibiting "all executive officers or employes of the United States not appointed by the President, with the advice and consent of the Senate," from "requesting, giving to or receiving from any other officer or employe of the Government, any money or property or other thing of value for political purposes, is constitutional.

Defendant, in this case, was convicted under an indictment for violating the provisions of the act of Congress of March 15, 1876, and his motion for new trial denied.

WALLACE, J.

While we have not overlooked the several rulings upon the trial which are impugned by the defendant, our principal attention has. been directed to the point most strenuously pressed upon the argument, relating to the constitutionality of the Act of March 15, 1876, npon which the indictment proceeds.

The act prohibits "all executive officers or employes of the United States, not appointed by the President, with the advice and consent of the Senate," from "requesting, giving to, or receiving from, any other officer or employe of the Government, any money or property or other thing of value for political purposes."

We cannot profess to be ignorant that this law was enacted in order to interdict practices which had become a topic of extended an

imadversion. But although it may have been aimed at the suppression of the practice which has prevailed among party organizations, of soliciting contributions for party purposes from their office-holding members, or exact ing them by a moral coercion, and although its provisions may be well calculated to effect this object, it does not follow that it can be sustained as a legitimate means to that end. No person can be indicted under it for any other act than the one precisely designated. Whatever may have been the attendant circumstances, and however they may have qualified the moral complexion of the transaction, the person indicted can only be tried for doing the thing which the statute prohibits; and unless this of itself, isolated from all its concomitants, can be competently made a crime by Congress, the statute is nugatory. It is insisted for the defendant that it is not within the constitutional power of Congress to make the giving or requesting or receiving of a voluntary contribution for political purposes by a subordinate Government official, a criminal offense. It is to be observed, however, that the prohibition applies only when there is concerted action between officials in this behalf. The question, then, is whether it is competent for Congress to prohibit cooperation between officials in the raising of funds for political purposes. Undoubtedly, it is lawful for Congress to prescribe all needful regulations for the discipline of Government officials, and to declare what infractions of discipline shall be treated as criminal offenses. The power to prohibit acts of officers or employes which are incompatible with the proper discharge of their duties, or which impair the efficiency or tend to demoralize the public service, is essential to promote the end and object of Government; and this power resides in the legislative department of the Government.

In executing this power Congress must of necessity exercise its judgment and discretion in determining what acts are and are not of such a pernicious character and tendency. This legislative discretion embraces a large field, and its boundaries cannot always be readily located. It is only when Congress has palpably transgressed the limits of its discretion that the judicial department will intervene. Such a case might arise if Congress should attempt to prohibit an act of a nature pertaining so exclusively to the sphere of private conduct that it could not by any implication impinge upon official deportment or official discipline. We are not able to say that the acts prohibited by the present statute are of such a character. We cannot affirm that Congress transcended its discretion in prohibiting transactions be

tween officials which create the relation of donor and donee and introduce party interests into the public service; nor that Congress erred in assuming that the influences springing from this relation and these interests should be discouraged as liable to deflect the independence and impartiality which must rule official intercourse. Many instances may be found in the laws of Congress where this legislative discretion has been exercised. It suffices to refer to one contained in the act of February, 1870, which prohibits any officer or clerk in the employ of the Government from making any gift or present to an official superior. It is not necessary to maintain that the co-operation of officials in raising funds for political objects is essentially demoralizing to the public service or subversive of discipline. It is sufficient to justify the exercise of the legislative discretion if the prohibited acts tend to introduce interests which disturb the just equipoise of official relations. If it is suggested that it is the right and the duty of every good citizen to aid in promoting such political objects as he deems to be wise and beneficial, and that Congress has no constitutional power to abridge that right, the answer is that no citizen is required to hold a public office, and if he is unwilling to do so upon such conditions as are described by that department of the Government which creates the office, fixes its tenor and regulates the incidents, it is his duty to resign. In reaching the conclusion that the statute is not obnoxious to the objections which have been suggested, we have given force to the presumption in favor of its constitutionality which it is the duty of the judiciary to apply to all legislative enactments. This presumption should prevail in all conflicts of interpretation and all doubtful implications of constitutional power so as, if possible, to sustain the validity of legislative action.

We have examined the minor points raised upon the argument and presented in the brief of counsel relating to the ruling upon the trial, but do not deem it necessary to discuss them to be without merit. Motion denied.

Digest of Decisions.

MICHIGAN.

(Supreme Court.)

POST v. SPRINGSTED. Oetober 4, 1882.

Power of Attorney.-A power of attorney which purports to specify the power conferred does not give the attorney the right to assign a mortgage held by

his principal unless it expressly states that he may do so; and he certainly cannot assign it to himself.

A tender of the amount due on a mortgage must be open, fair and reasonable, and made at the right time and place and to the proper person; and the refusal of such a tender must be without justifiable excuse to warrant the forfeiture of the mortgage security.

Where the defense to the foreclosure of a mortgage depends on new matter by way of avoidance the defendant must allege it circumstantially and prove it as alleged.

Where a mortgage permits the mortgagor to make payment before the debt falls due, at his option, he must distinctly and affirmatively elect to do so, and if he relies upon such election in defending against a foreclosure, he must not only prove it but allege it in his answer.

Courts will hesitate to enforce the forfeiture of mortgage security for the refusal of a tender when its apparent purpose is to force the mortgagee to accept it at once and with no opportunity to determine whether it is the proper amount.

SUPREME COURT RECORD.

[New cases filed since our last report, up to Oct. 31, '82.]

1324. Robert C. Lucas v. Benjamin F. Scott. Error to the District Court of Jackson County. Moore & Atkinson for plaintiff; Hutchins & Davis for defendant.

1325. Commercial Bank of Union City v. James Steel. Error to the District Court of Darke County. S. R. Bell, J. B. Ross and Anderson for plaintiff.

1326. James R. Groghan v. William Keller. Error to the District Court of Hocking County. J. R. Groghan for plaintiff.

1327. Margaret R. Parmelee v. The City of Youngstown et al. Error to the District Court of Mahoning County. Siduey Strong for plaintiff.

1328. Samuel N. Misner v. Martha J. Misner. Error to the District Court of Jackson County. W. H. Enochs for plaintiff.

1329. Lawrence S. Megginson et al. v. Jacob Keller et al. Error to the District Court of Erie County. King & Sloane and Homer Goodwin for plaintiffs; Lemmon, Finch & Lemmon for defendants.

1330. Hamilton Green v. The Township Board of Trustees of Paint Township, Fayette County et al. Error to the District Court of Fayette County. Maynard & Hadley for plaintiff.

1331. Elisha Teeters et al. v. Levi L. Lamborn. Error to the District Court of Stark County. James Amerman and J. J. Parker for plaintiffs.

1332. Ohio ex rel., John A. Meyer v. Edwin Henderson, city clerk. Error to the District Court of Hamilton County. S. A. Miller and Geo. B. Okey for plaintiffs.

1333. James H. Patton v. T. S. Patton et al. Error to the District Court of Highland County. Hart & Hough for plaintiff; S. F. Steel for defendants.

1334. Elijah B. Hall, Treasurer, v. The First Presbyterian Church of Toledo. Error to the District Court of Lucas County. Everett & Cone for plaintiff; J. R. Seney for defendant.

1335. Elijah B. Hall, Treasurer, v. James T. Southard, et al. Error to the District Court of Lucas County. Everett & Cone for plaintiff; J. R. Seney for defendants.

1336. Elijah B. Hall, Treasurer, v. Charles West, et al. Error to the District Court of Lucas County. Everett & Cone for plaintiff; J. R. Seney for defendants.

SUPREME COURT OF OHIO.

JANUARY TERM 1882.

Hon. JOHN W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. GEO. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

Tuesday, October 31, 1882.

GENERAL DOCKET.

No. 168. P. C. & St. L. Railway Co. v. William Smith. Error to the District Court of Greene County.

LONGWORTH, J. Held:

1. Under the act of April 18th, 1874, (71 O. L. 85), a railroad company, which has neglected to keep a fence at the side of its track in sufficient repair, is liable to the owner of live stock injured by reason of such neglect; notwithstanding the fact that the owner pastured such live stock on adjacent lands with knowledge of the insufficiency of the fence.

2. By the terms of the statute, the duty of maintaining the fence in sufficient repair is imposed upon the company, and it cannot escape responsibility by showing that it had no notice of the actual condition of the fence. Judgment affirmed.

184. Jacob D. Delaplane v. James Smith. Error. Reserved in the District Court of Pickaway County. LONGWORTH, J. Held:

1. Under Section 85 of the "act to provide for the settlement of the estates of deceased persons," (1 S. & C. 585) an action to charge an executor not required to give bond upon a claim against the estate of his testator can only be brought within four years from the time of his appointment as such executor, where due notice of such appointment has been published as required by law.

2. The last will of R. F. was probated in 1869, and letters testamentary issued to the executors named therein. Due notice of their appointment was published within three months and they entered upon the discharge of their trust. The will provided that no bond should be required of them and none was given.

In a proceeding to contest the validity of the will in the court of common pleas it was declared, in 1876, not to be the will of the testator. Thereupon, the probate court appointed an administrator of the estate to whom plaintiff, for the first time, presented a claim against the estate for allowance, and, the same being disallowed, brought suit within six months.

Held: Plaintiff's claim is barred by the provisions of Section 85 of the act of March 23d, 1840. (1 S. & C. 585.)

Judgment reversed and cause remanded.

182. Baldwin C. Carpenter et al v. Frederick Warner. Error to the District Court of Pickaway County. MOILVAINE, J. Held:

1. In an action on the bond of a justice of the peace for neglecting to issue an execution as required by law, the amount of the judgment is prima facie the measure of damages.

2. Such damages may be reduced by showing that the judgment debtor did not possess property, subject to levy and sale, sufficient to satisfy the judgment.

3. The burden of proving facts, in mitigation of damages, rests on the defendants.

4. Personal property which becomes exempt from execution only when selected by the judgment debtor, is, until such selection be made, subject to levy and sale.

5. There is no presumption of law, that a judgment debtor has selected or will claim to hold any

particular item of personal property as exempt from execution, in lieu of a homestead, although he may not own any other property from which selections might be made.

6. Where a court is requested, under the statute, to find and state the facts and law separately, and no objection is made at the time to the sufficiency of the facts found, a party cannot avail himself of a defect in the findings, in a court of error; but must submit to such judgment as the facts found require. Judgment affirmed.

White and Longworth, J. J., dissented from the judgment.

113. Isaac Robb v. Henry Brachman. Error to the District Court of Highland County.

WHITE, J., Held:

In an action by a part owner of a partition fence, against another part owner, to recover half the value of the fence awarded by the township trustees, an objection that one of the trustees making the award was a son-in-law of the plaintiff, is waived, where the defendant knowing such relationship, made no objection until after the award was made.

Judgment of the district court and that of the common pleas reversed; demurrer to the reply overruled, and cause remanded for further proceedings.

164. Joseph Stoppel v. Adolph Woolner, et al. Error to the District Court of Cuyahoga County. Judgment reversed, for error in admitting in chief the evidence of Wm. D. Ellis, touching the declarations of A. A. Stoppel, as to the fraudulent character of his conveyance to Adolph Rettberg, after such conveyance had been consummated, on the authority of Ohio Coal Co. v. Davenport, 37 Ohio St. 194, and cause remanded to the court of common pleas for new trial. There will be no further report.

185. James Ramer, et al. v. James L. Chase. Error to the District Court of Lucas County. Judgment affirmed, with penalty of $50.00, and attorney fee of $25.00. There will be no further report.

186. John M. Fernean v. A. Gibbons, et al. Error to the District Court of Clark County. Judgment affirmed. Plaintiff in error adjudged to pay defendant in error $25.00 penalty and $25.00 attorney fee. There will be no further report.

188. James M. Brown v. Ronald T. McDonald, et al. Error to the District Court of Lucas County. Dismissed for want of prosecution, under Rule 4, at costs of plaintiff in error.

196. Oliver Anderson, et al. v. Ira P. Sperry, et al. Error to the District Court of Summit County. Dismissed, under Rule 4, for want of prosecution, at costs of plaintiffs in error.

1077. Alfred Shorten v. The Mowry Car and Wheel Co. Error to the District Court of Hamilton County. Dismissed at costs of defendant in error, by agreement of parties.

MOTION DOCKET.

No. 158. Robert J. Turnbull v. Horatio Page. Motion to stay execution of judgment of district court, and counter motion to dismiss the cause. Motion to dismiss overruled, and motion to stay granted. The plaintiff in error to execute an undertaking to defendant in error in the sum of $1,500.00, with security to the approval of the clerk, conditioned to pay all costs and damages, if judgment be affirmed

162. The State of Ohio on relation of G. W. Drake v. Joseph B. Casey. Motion to take cause No. 1308 on the general docket, out of its order for hearing. Motion granted.