Cuyahoga County Circuit. dence of subsequent transactions, the court's attention should have been seasonably called to the omission. The evidence of the unlawful conversion by the plaintiff in error of twenty bonds on January 25, 1907, is perfect and complete. It consists essentially of documents whose authenticity is conclusive in view of the papers produced by the plaintiff in error himself and introduced by him in connection with the cross-examination of the state's witnesses. Unless, therefore, some other elements of the crime of embezzlement as charged in the indictment, remain unproved, the alleged misconduct of court and prosecuting attorneys in the trial of the case becomes of little moment so far as the accused is concerned. We do not at all approve of the persistence of the state's attorneys in demanding letters and documents of the accused across the trial table and in the presence of the jury, especially after the court had specifically, repeatedly and correctly ruled against their right to do so. True, the accused was not thereby compelled to give evidence against himself and hence his constitutional right was not invaded. But his statutory right to exemption from comment upon his failure so to do would have been seriously invaded if his guilt were not incontestable and the court's cautions to the jury had not therefore sufficed to cure the errors thus .complained of. Sisson v. State, not reported, deIcided by the circuit court of Lorain county December, 1909. And the same is true of certain inflammatory appeals of the state's attorneys in their argument to the jury. The public prosecutor may appeal to the consciences of the jurors but not to their prejudices. He may argue upon the facts as disclosed by the evidence in the case on trial, but not upon the demands of public opinion that the jury shall at all hazards convict persons accused of particular classes of crime. There remains for consideration the contention that the contract of December 22, 1906, was an agreement of partnership between Bracey and Hayes & Son. We do not so construe it. True, it contemplates a certain sharing of profits and a mutual contribution to the subject-matter of the enterprise. Hayes v. State. But these are often incident to contracts of employment or agency, such as this undoubtedly was. There is nothing else in the agreement that is at all characteristic of a partnership. It is further claimed that Bracey was not the real party in interest, but that the railroad was at the outset his un⚫ disclosed principal and the real owner of the bonds, and that its status as such was fully revealed and acknowledged before the alleged embezzlement took place. The fact is that Bracey was the owner of the stock of the railroad and was expressly given plenary authority by the corporation to handle and dispose of the bonds for construction purposes. He testifies moreover that the bonds were his and the contract so recites. He had at least a qualified ownership, and this as the court properly charged, is sufficient to support the allegation of the indictment that he was the owner. State v. Kusnick, 45 Ohio St. 535 [15 N. E. Rep. 481; 4 Am. St. Rep. 564]; State v. Tillett, 173 Ind. 133 [89 N. E. Rep. 589; 140 Am. St. Rep. 246]; State v. Spaulding, 24 Kan. 1. Upon the remaining assignments of error it is sufficient to observe that conviction under this indictment is a bar to conviction of the plaintiff in error under any other indictment for the embezzlement of any of these bonds or the proceeds thereof prior to August 7, 1907. Nor was the state required to elect under this indictment which of the various transactions prior to that date it would rely upon for conviction. Sec. 6842 R. S. (Sec. 12467 G. C.); Brown v. State, 18 Ohio St. 497; Gravatt v. State, 25 Ohio St. 162. It would unnecessarily prolong this opinion to enter upon discussion and analysis of the cases cited in support of these views. Suffice it to say that we deem these decisions to be controlling, and the judgment is affirmed. Marvin and Winch, JJ., concur. Cuyahoga County Circuit. JUDGMENTS AND DECREES. [Cuyahoga (8th) Circuit Court, February 21, 1905.] Marvin, Winch and Henry, JJ. John C. Keefe v. James W. Evenden. Proof Required In Action to Set Aside Judgment by Default. In an action to set aside a judgment on the ground that defendant had not been served with summons, the evidence must clearly show such want of service. Appeal. J. P. Dawley and F. A. Beecher, for plaintiff. HENRY, J. The action below was begun June 14, 1904, to enjoin the collection of, and to vacate a judgment by default obtained December 12, 1898, in a previous action begun in the same court October 15, 1898, wherein the plaintiff here was defendant and the defendant here was plaintiff. It is alleged by Keefe that the return of service of summons in that action is erroneous, and that summons was in fact never served on him. The answer of the defendant here denies this allegation. The return of summons in the former case showed upon its face that summons was served on him personally. Upon the trial he testified that he was not personally served, and that he had no notice of the pendency of the action until he procured an abstract of title to certain of his real estate which he desired to encumber or sell, and found that the judgment was a lien thereon. His testimony is not, however, clear as to when he first learned of the judgment. In one portion of his evidence he declares that it was six months after judgment was obtained. Later on he testified that it was not until about a month before this suit was brought. He produces other evidence to confirm his own testimony relative to the want of personal service, and his want of knowledge of the Keefe v. Evenden. pendency of the action. But this evidence is all either negative in character, or, at all events, insufficient to corroborate his claim. The defendant produces as a witness George F. Arnold, deputy sheriff, who served the summons in the primary action. Arnold testifies that in making the service he knocked at the side door of Keefe's residence; that, apparently, in response to his knock a man came from behind the house, and in answer to his question said that he was John Keefe, and thereupon Arnold handed the summons to this man personally. Other witnesses for the defendant testify that various letters were written to Keefe within the next three years, requesting that he pay the judgment, and that in April, 1903, Keefe called twice about the matter at the office of the firm with which Evenden was connected. Upon the whole case we are not satisfied that the evidence shows with such degree of clearness as equity requires in an action of this sort, that the averments of the petition are true. A decree will, therefore, be entered for the defendant, dismissing the petition at plaintiff's costs. Marvin and Winch, JJ., concur. CORPORATIONS—INSURANCE. [Cuyahoga (8th) Circuit Court, February 21, 1905.] Marvin, Winch and Henry, JJ. Merchants Insurance Co. v. Marcus M. BROWN AND MAYFIELD HEIGHTS REALTY CO. Recovery of Insurance Denied Realty Company Insuring Property Sold by the President of such Company as Personal Owner. An owner of an allotment of real estate, for the purpose of holding the title and facilitating the sale thereof, having organized a corporation of which he owned all the stock and acted as president and sole manager of its business, entering Into a land contract with a purchaser to whom he personally contracts to convey a certain house and lot in the name of the corporation, the "unconditional and sole ownership" upon which a policy of insurance is issued, vests in the vendee in possession under Cuyahoga County Circuit, the land contract and notwithstanding the application statement designating the realty company as having the unconditional and sole ownership thereof, the realty company is not entitled to recover any part of the proceeds of such policy from the insurance company in an action by the latter to foreclose the mortgage assigned to it on payment of the mortgagee's interest therein. Appeal from common pleas court. Garfield, Howe & Westenhaver, for plaintiff. HENRY. J. A decree of mortgage foreclosure was granted in the court below. The evidence and the undisputed averments of the pleadings show that the defendant, Marcus M. Brown, being the owner of a real estate allotment, organized a corporation, the Mayfield Heights Realty Company, defendant herein, to hold the title and facilitate the sale thereof. Of this corporation, Brown himself owned, in effect, the entire capital stock. He was the president of the corporation, and he alone managed its business. In contracting for the sale of lots Brown made contracts in his own name rather than in the name of the corporation, in order that such contracts might not cause embarrassment relative to the mortgage indebtedness upon the property, or otherwise injuriously affect the record title by reason of their pendency, or in case of breach by purchasers. Of this sort was a certain contract which was entered into on July, 1899, between Brown and one Wylie for the purchase by the latter of a house and lot. Wylie entered into possession of the premises so purchased, and continued therein during all the period under consideration. In. September, 1899, Brown, in the name of his corporation, took out a policy of fire insurance upon the house, stipulating that loss, if any, should be payable to the mortgagee of the premises, one Rollin C. White, as his interest might appear. No mention in the policy was made of the outstanding contract for the sale of the premises to Wylie, but on the contrary it was stipulated that the interest of the insured in the said premises was that of "unconditional and sole ownership." |