1. To authorize a change of venue in a criminal case, on the motion of the defendant, he must prove, by clear, explicit and convincing evidence, that a fair and impartial trial in the county where the indictment was found, can not be obtained.

2. Newspaper denunciations of the defendant and of his alleged crime, are not alone sufficient to warrant a change of venue.

3. It is no abuse, but may be a wise exercise, of the discretion conferred by the statute, for the court to postpone, or overrule, for the time being, the motion, till it is ascertained by an examination of jurors whether a constitutional trial can be had.

ON motion for change of venue.

PUGH, J.

The defendant moves the court to change the place of trial from this to some adjoining county. He insists that there is bias and prejudice existing against him in this county which will prevent him from obtaining a fair and impartial jury to try the case. The constitution guarantees to him a fair and impartial trial. That means that the court and jury which try him will be governed alone by the law and evidence, and that they will not be swayed by passion, prejudice or ill will against him. It also means that the verdict and judgment must not be the "reflex of the clamor of the populace." Without these elements his trial would be a mockery of justice, a judicial farce.

I see by some of the newspaper extracts in evidence that there were some advocates of the application of the New Orleans Method to this case. In a state like this, where bribery of juries and miscarriages of justice by subornation of witnesses and officers are rare, the person who advocates lynch law is just as disloyal to law; he is just as flagrant a violator of law as the man whom he would have lynched. It is the duty of the court to see that the defendant gets a fair and impartial trial. "The spirit and tone of the court must be the spirit and tone of the people at their best moments," Mr. Bryce has well said. It is the duty of the defendant to establish by the evidence that there is such a deep and intense prejudice pervading the county against him that a fair and impartial jury cannot be impaneled, or that a fair and impartial jury could not dispassionately weigh the evidence and render a verdict, or that his witnesses would be prevented from testifying freely and fearlessly. Either of these conditions of facts would entitle him to a change of venue. Another rule is that the state should, by affidavits, negative, clearly and explicitly the grounds upon which a change of venue is sought.

In all the affidavits filed by the defendants, except possibly his own, there is only one ground for a change stated, namely, that there is a prejudice against him which will prevent the impaneling of a fair and im

*For opinion of common pleas on motion for new trial see post 333. The judgment of the common pleas was affirmed by the Supreme Court, unreported. January 19, 1892. Bradbury and Minshall, JJ, dissented, on the grounds. (1) That the defendant was not tried by an impartial jury within the meaning of the constitution of the state, and (2) That the court erred in not allowing the motion for a change of venue.

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partial jury. The other grounds are not relied upon. None of the affidavits for the state deny the existence of the prejudice; they simply deny, in an affirmative way, the claim that a fair and impartial jury cannot be impaneled. But an analysis of the affidavits for the defendants, except his own and those of Squire Gallaghers, Innis and Burns, shows that no facts are detailed. They do allege that the affiants have heard people express opinions about the case and about the defendant; but they utterly fail to say what the opinions were; whether they were all of one kind, or how many were adverse, and how many were favorable to the defendant.

These affidavits, therefore, only state opinions. The existence of a prejudice is a fact, but the conclusion of the affiants that it exists, may not be warranted by the facts. It must be remembered that there are nearly 130,000 people in this county. No one man, or a dozen men, can exactly say what the sentiment of even a majority of the people is on a given subject, unless they are deeply moved by it. If this was a small county, where some men would know nearly every man in the county, it would be reasonable that some men could accurately say what the prevailing opinion was in regard to the case.

The affidavits of the defendant, and of Gallagher, Innis and Burns, state an additional fact, namely, that the publication of the adverse testimony of the witnesses under oath and not under oath, in the newspapers, has created a prejudice against the defendant. The publications are not made parts of the affidavits, but it is assumed they allude to the publications which were put in as separate evidence. At least these are all the court can consider. I have carefully examined these extracts submitted by the defendant. Most of them are only ordinary newspaper accounts of the alleged crime, of his arrest, of the examination of witnesses at the inquest, and of statements of persons who saw the transaction. They contain no denunciations, invectives, appeals to passions, or efforts to excite prejudice. If they did create prejudice it is simply because the matters stated are not popular in this county. It does not follow that because these ex parte statements were made, that a jury could not make a calm and impartial inquiry into the case, and could not weigh the defense that the defendant may have to make.

I have said that the most of the contracts submitted by the defense were of this character. Some of them, I am sorry to see, are of a different character. There are denunciations and invectives in these, and some of them tended clearly to create prejudice. The extracts from the Dispatch, Post, News and Herald are free from this criticism, but those from the other papers are not. There is no justification for such publications, but some palliation. It must be remembered that the defendant's version of the affair and the version of his witnesses had not been heard, and have not yet been heard. The papers told the story as the witnesses for the state related it. Upon this story they denounced the defendant's conduct.

Newspaper denunciations of the defendant and of his alleged crime are not, in themselves, sufficient to warrant a change of venue. Reading newspaper accounts of an alleged crime or even sworn evidence published in the newspapers, does not, as matter of law, constitute actual bias, or an absolute disqualification, which renders the reader unfit to be a juror. As such disqualification, it was abolished by the Pruden law, enacted in 1884. 81 Ohio Laws, 53.

See

There was not in this case sufficient evidence of public expressions to prove that the newspapers have unduly affected public opinion. People v. Sharp, 5 N. Y., Crim. Rep., 155.

Again, after giving all the significance to these publications that the counsel for the defendant attach to them, it is obvious from the extracts from newspapers published in Madison, Pickaway and Licking counties, submitted by the state, that the defendant would encounter the same prejudice in those counties. The same causes would produce the same effect there as here. The papers there have been as hostile as the papers here.

I am sustained by high authority in saying that a change of venue in many criminal cases has been "a positive disadvantage to the defendNot infrequently an impression is created unfavorable to the defendant from the fact that he felt it necessary to ask for a change, and this impression accompanies the case into the county to which the change is made." The remedy is, in many cases, a thorough sifting of the jury.

Concluding on these branches of the subject, the court is of the opinion that while the affidavits tend to show that it will be difficult to impanel a jury, still they do not prove that it will be impossible.

But the ruling will not be rested entirely on these considerations. The power vested in the court is discretionary. There is a line of authorities which establish the rule that the court may in such a case prudently postpone or overrule, for the time being, such a motion till it is ascertained by the examination of jurors whether a fair and impartial jury can be impaneled. It is not an abuse of discretion for the court to do that, even when the affidavits for the defendant make a showing that would justify a change of venue. The court would be guided by these authorities even if the defendant's affidavits showed cause for a change. State v. Gray, 8 Pac. Rep., 456; State v. Millain, 3 Nev., 433; People v. Plummer, 9 Cal., 299; People v. Mahoney, 18 Cal., 181.

It was charged that the affiants for the state were enemies of the defendant, but as that is unsupported by the evidence the court cannot regard it as of any weight. The motion is overruled.

FORECLOSURE OF MORTGAGE.

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*CINCINNATI HOTEL Co. v. CENTRAL TRUST AND SAFE DEPOSIT Co. [Superior Court of Cincinnati, General Term, April 9, 1891.]

1. A service of summons on a corporation "by delivering a true copy of this writ with all the endorsements thereon to J. H. B, secretary of the company, no other chief officer being found," is a compliance with the statute which prescribes the manner of service on a corporation when its chief office is not found in the county.

2. It is the spirit as well as the language of the code that all pleadings shall be liberally construed, with a view to substantial justice between the parties, and it is a sufficient ailegation of the execution and delivery of certain bonds when it *Motion for leave to file petition in error, allowed by Supreme Court, and another motion for leave to file a petition in error was overruled, June 9, 1891, the decree of the court below modified, by striking out of it the provisions requiring the plaintiff in error (Hotel Co.) to pay the expenses and commission of the trustee, and cause remanded for a resale in default of payment by plaintiff in error, within a short day to be named by the court below. of the amount due on the mortgages, and costs of suit, and for further proceedings; April 28, 1891.

Superior Court of Cincinnati.

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is averred that they were issued, and also that they were secured by certain mortgages then outstanding. When such bonds and coupons have been issued, i. e., put into circulation, there is no presumption of law that they were not signed, nor is there any such presumption of fact.

3. The allegation of presentation and offer to surrender of such bonds and coupons is unnecessary unless made so under the conditions of their issue, and the averment of a failure to pay is a sufficient averment of a breach; nor is it necessary that the petition should allege that bonds and coupons were presented for payment at the place where they were payable if the terms of the bonds and mortgages are specifically set forth in the petition, and there is the further averment of non-compliance with the terms and the breach of the obligation.

4 Safe deposit and trust companies contemplated by secs. 3821a and 3821b of the Rev. Stat. of Ohio have power to receive and hold money and property in trust, and can act as trustees under a mortgage in a case germain to the purposes of their incorporation. The Fidelity Safe Deposit and Trust Company, organized under the act of the general assembly, passed April 17, 1882 (Ohio L., vol. 79, p. 191), had corporate power to take the mortgages described in the petition, and to act thereunder as trustee.

5. A stipulation in a mortgage that in case of the default in the payment of any of the quarterly installments, and that interest should remain unpaid for sixty (60) days from the date the same became due, etc., the principal of each and every one of said bonds might be declared by the trustee, by the trustee for the time being, or a majority in interest of the holders of all bonds outstanding, to be due, and the same should thereupon become due and payable, notwithstanding the time limited for the payment thereof had not elapsed, which declaration should be made by an instrument in writing under seal, and a copy served on the party of the first part, is a valid one; and the finding of the court below that the principal became due and payable on the declaration made by the trustee, the party being in default, is a finding which the court had a right to make upon the facts alleged in the petition and the proof to support it, and will not be reversed on error.

6. When a court orders a sale subject to certain leases, it will not be presumed that the court in special term, with all the evidence before it, directed a sale to take place which would injure the legal rights of any party to the action, nor will such decree be set aside on the claim that it grants relief not prayed for in the petition, in ordering the sale of the property involved, subject to certain incumbrances mentioned, but not specifically described in the petition 7. A recital in a mortgage making the bonds payable upon default in interest at the election of the trustee or the bond holders, does not cut down the interest upon the principal after such precipitated maturity to six per cent., but leaves the interest to run at the promised rate, and such rate may be computed by force of the Rev. Stat.. sec. 3179 and 3180, as interpreted in the case of the Hydraulic Co. v. Chatfield, 38 Ohio St., 575. 577.

8. The reversal of a judgment in error will not be justified unless the record affirmatively shows, not only that error has intervened, but that such error was prejudicial to the party seeking such reversal. Scovern v. The State, 6 Ohio St., p. 288.

9. The decision of a court is the judgment; the entry by the clerk is evidence of it. One is a judicial, the other a ministerial act. The judgment is as final when pronounced by the court, as when it is entered and recorded by the clerk. And if it appear satisfactorily to the court that an order was actually made at a former term, and omitted to be entered by the clerk, the court may at any time direct such order to be entered upon the records, as of the term when it was made.

HUNT, I.

This is a proceeding to vacate a judgment of the superior court of Cincinnati, entered at the December special term, 1890. The petition on which the decree was founded was filed May 21, 1889. The allegations of the petition were not put in issue by any pleading on the part of the plaintiff in error. A motion was also filed by the defendant below on January 12, 1891, to vacate the entry of judgment and order for sale for

375

Cincinnati Hotel Co. v. Central Trust and Safe Deposit Co.

mistake, neglect and omission of the clerk and irregularity in obtaining said judgment and order, in that the entry of judgment and order was not made until after the close of the December term, A. D., 1889. It is also the understanding of the court that the motion will be considered in connection with the petition in error. It should be stated that the name of the Fidelity Safe Deposit and Trust Company, of Cincinnati, Ohio, was changed to the name of The Central Trust and Safe Deposit Company of Cincinnati, Ohio, by a decree of the court of common pleas for Hamilton county, Ohio, in case No. 82,585 at the November term, 1888.

The plaintiff in error, the Cincinnati Hotel Company, on the twentyfifth day of February, 1888, issued three hundred (300) mortgage bonds for five hundred dollars ($500) each, numbered one (1) to three hundred (300), inclusive, bearing date the first day of March, 1888, payable to the Fidelity Safe Deposit and Trust Company, of Cincinnati, Ohio, trustee, or bearer, all of which bonds were payable on the first day of March, A. D. 1898, and bore interest from and after the first day of March, A. D. 1888, at the rate of seven (7) per cent. per annum, payable quarterly: said bonds having each of them coupons attached for the interest, payable quarterly on the first day of June, September, December and March of each year, but reserving the right or the part of the Hotel Company to pay each and all of the bonds at any time after five years from their date, all of said bonds to be of equal priority and without preference among the holders thereof.

Each of said bonds further contained the provision that it would become secured by the mortgage hereinafter referred to, when the certificate endorsed on said bond was signed by The Fidelity Safe Deposit and Trust Company, as trustees under said mortgage. There is a finding by the court that each of said bonds to the number of three hundred (300) was duly certified by said trustee.

In order to secure the payment of the bonds and the interest coupons, without any preference or priority of one bond over another, the Cincinnati Hotel Company, on the twenty-fifth day of February, 1888, duly executed and delivered to The Fidelity Safe Deposit and Trust Company, as trustee, its mortgage deed of the same date, conveying certain premises fully described in the first and second causes of action in the petition, with certain conditions; and on the sixth day of March, 1888, at 8 o'clock, A. M., this mortgage was left for record at the recorder's office of Hamilton county, Ohio, and was duly recorded in book 551, page 226 of the Mortgage Records of said office, and afterwards, on the seventh day of May, 1889 the mortgage was again duly left for record at the recorder's office of said county, and was again duly recorded in hook 575, page 160 of the Mortgage Records of said office.

The trusts created in and by said mortgage were duly accepted by The Fidelity Safe Deposit and Trust Company.

There were certain express conditions in the mortgage that if the Cincinnati Hotel Company, its successors and assigns, should well and truly pay or cause to be paid unto the holders of the bonds to be issued, the principal and interest to become due thereon, to said holders at the times and in the manner stipulated in the bonds and interest warrants according to the true intent and meaning thereof, and should cause to be promptly and fully performed all and singular the other obligations, covenants and conditions thereof, then these presents, and the estate and rights granted should cease, determine and be void, otherwise to be and remain in full force.

5 LB 17