Isley v. Railway.

struction, his supposed knowledge of the condition of the track and of the incompetency of the fireman, may have come to him so recently as to have afforded him no opportunity to make objection or complaint. Besides, even if he had the supposed knowledge, it was a question for the jury whether or not under the circumstances, he ought to have attempted to make the coupling, and in so doing was himself negligent, or to be considered as having voluntarily assumed the risk of his act. The question was essentially one of contributory negligence, and the instruction should have been so framed as to leave it to the jury." (Citing cases.)

Haynes, J.

It follows that the judgment will be reversed and the cause remanded for a new trial.

Hull, J., concurs.

CRIMINAL LAW-JUDGMENTS AND DECREES.

[Franklin (2nd) Circuit Court, 1905.]

Wilson, Sullivan and Dustin, JJ.

FRANK SCHAEFER V. STATE OF OHIO.

POWER OF POLICE JUDGE TO REVOKE SUSPENSION OF SENTENCE NOT IMPAIRED BY PASSING OF TERM.

In the absence of statutory enactments to the contrary, the power of a police judge to revoke the suspension of the execution of a sentence is not impaired or limited by the passing of the term in which such suspension is made.

ERROR to Franklin common pleas court.

C. D. Saviers, for plaintiff in error:

Upon the question as to whether or not a judge or court has a right, after the expiration of the term of court at which a sentence was pronounced against a prisoner, to order the same carried into execution. Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. 472]; Brown, Jurisdiction (2 ed.) Sec. 13a; Church, Habeas Corpus Sec. 378; Williams, Ex parte, 26 Fla. 310 [8 So. Rep. 425]; United States v. Wilson, 46 Fed. Rep. 748; Commonwealth v. Mayloy, 57 Pa. St. 291; State v. Gray, 37 N. J. Law (8 Vroom) 369; Weaver v. People, 33 Mich. 296; State v. Voss, 80 Iowa 467 [45 N. W. 898; 8 L. R. A. 767]; People v. Cummings, 88 Mich. 249 [50 N. W. Rep. 310; 14 L.

Franklin County.

R. A. 285]; People v. Blackburn, 6 Utah 347 [23 Pac. Rep. 759]; People v. Morrisette, 20 How. Pr. 118; Webb, In re, 89 Wis. 354 [62 N. W. Rep. 177; 27 L. R. A. 356; 46 Am. St. Rep. 846]; Neal v. State, 104 Ga. 509 [30 S. E. Rep. 858; 42 L. R. A. 190; 69 Am. St. Rep. 175]; People v. Allen, 155 Ill. 61 [39 N. E. Rep. 568; 41 L. R. A. 473]; People v. Barrett, 202 Ill. 287 [67 N. E. Rep. 23; 95 Am. St. Rep. 230].

DUSTIN, J.

It having been established in Ohio that a court may, in indefinite terms, suspend the execution of a sentence in a criminal case, State v. Allen, 68 Ohio St. 516 [67 N. E. Rep. 1053], we think it follows that the same judge may revoke the suspension, on his own motion, at any time even after term.

But even if the conditional suspension cannot extend beyond the term, the sentence is not thereby invalidated and can be carried into execution at any time.

The views of Judge Dillon on this question, in the Lee case, seem to us to be sound.

The judgment of the common pleas court is therefore affirmed.
Wilson and Sullivan, JJ., concur.

Richter v. Building & L. Co.

TRIAL CONTRACTS-COMPOUNDING FELONY.

[Lucas (6th) Circuit Court, February 27, 1905.]

Hull, Haynes and Parker, JJ.

HENRY RICHTER V. PHOENIX BLDG. & LOAN CO.

1. WHERE BOTH PARTIES MOVE FOR VERDICT, COURT OCCUPIES STATUS OF JURY. Where both the plaintiff and the defendant, at the close of the evidence, respectively move for a verdict in their favor, the court thereupon assumes or occupies the status of a jury.

2. CONTRACT IS NOT ONE COMPOUNDING A FELONY WHEN PARTY INJURED DOES NOT AGREE TO REFRAIN FROM PROSECUTING, ETC.

A contract is not illegal on the ground that its purpose is to compound a felony unless it appears that there was an agreement on the part of the party injured not to institute a criminal prosecution. The mere hope that it may have such result is not sufficient.

3. CRIMINAL AND CIVIL LIABILITY OF EMBEZZLER OF FUNDS.

A secretary of a building and loan association who defaults with the association's money incurs both a criminal and civil liability, the former to the state, and the latter to the association.

4. CONTRACT TO CONTRIBUTE MONEY TO Settle DefalcaTIONS NOT ILLEGAL, WHEN. A contract between individuals, some of whom are stockholders and directors of a building and loan association, under which they agree to raise sufficient funds among themselves to make up the defalcations of the secretary, is not illegal as being a contract to compound a felony, in the absence of a promise or agreement on the part of the association not to institute or cause to be instituted criminal proceedings against such secretary in consideration of its receiving such money; and where one of the parties to the contract, in execution of his part of the agreement, voluntarily cancels an indebtedness due him from the association, and the amount thereof is credited to the amount of the secretary's shortage, he cannot thereafter repudiate such cancellation and recover the amount of such former indebtedness from the association.

5. EXECUTED ILLEGAL CONTRACT NOT SET ASIDE BY COURTS.

Where an illegal contract, such as one compounding a felony, has been executed by the parties, the court will not assist either party in recovering back what he has parted with, but will leave all of them where it finds them.

ERROR to Lucas common pleas court.

J. P. Manton and J. P. Hanley, for plaintiff in error:

May the illegal purpose of a contract be shown? 9 Cyc. 465 and cases cited; Kusworm v. Hess, 7 Dec. Re. 224 (1 Bull. 315); Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425; 4 Bull. 1067); Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dec. 266]; Whetstone v. Bank, 9 Ala. 875; Ralston v. Boady, 20 Ga. 449; Reynolds v. Nichols, 12 Iowa 398; 9 Cyc. 562; Brogden v. Mariott, 3 Bing. (N. C.) 88; Robertson v. Robinson, 65 Ala. 610 [39 Am. Rep. 17]; Buffandeau v. Brooks, 28

Lucas County.

Cal. 641; Clark v. Pomeroy, 86 Mass. 534; Nellis v. Clark, 20 Wend. 24.

When the promisor knows of the illegal purpose, promise void. Goodrich v. Tenney, 144 Ill. 422 [33 N. E. Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Tatum v. Kelley, 25 Ark. 209 [94 Am. Dec. 717]; Buck v. Bank, 27 Mich. 293 [15 Am. Rep. 189]; Cannon v Brice, 3 Barn. & Ald. 179; McKinnel v. Robinson, 7 L. J. Exch. 149; Viser v. Bertrand, 14 Ark. 267; Emerson v. Townsend, 73 Md. 224 [20 Atl. Rep. 984]; White v. Buss, 57 Mass. (3 Cush.) 448; Raymond v. Leavitt, 46 Mich. 447 [9 N. W. 525; 41 Am. Rep. 170]; Hall v. Costello, 48 N. H. 176; Cutler v. Welsh, 43 N. H. 497; Staples v. Gould, 9 N. Y. 520; Critcher v. Holloway, 64 N. C. 526; Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dec. 266]; Kusworm v. Hess, 7 Dee Re. 224 (1 Bull. 315); Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425: 4 Bull. 1067); Standard Furniture Co. v. Van Alstine, 22 Wash. 670 [62 Pac. Rep. 145; 51 L. R. A. 889; 79 Am. St. Rep. 960].

Courts will not give recognition to a promise or agreement tainted with illegality. 9 Cyc. 481, 500; Weber v. Shay, 56 Ohio St. 116 [46 N. E. Rep. 377; 37 L. R. A. 230; 60 Am. St. Rep. 743]; Plumer v. Smith, 5 N. H. 553 [22 Am. Dec. 478]; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Schofield v. Railway, 43 Ohio St. 571 [3 N. E. Rep. 907; 54 Am. Rep. 846]; Crawford v. Wick, 18 Ohio St. 190 [98 Am. Dec. 103].

Parties in pari delicto. Goodrich v. Tenney, 144 Ill. 422 [33 N. E. Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Brown v. Bank, 137 Ind. 655 [37 N. E. Rep. 158; 24 L. R. A. 206]; Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Reed v. Johnson, 27 Wash. 42 [67 Pac. Rep. 381]; 57 L. R. A. 404.

Promises, agreements and acts connected with illegal transactions are void. Nash v. Monheimer, 20 Ill. 215; Armstrong v. Toler, 24 U. S. (11 Wheat.) 258 [6 L. Ed. 468]; Barton v. Plankroad Co. 17 Barb. 397; Rose v. Truax, 21 Barb. 361; Woodworth v. Bennett, 43 N. Y. 273 [3 Am. Rep. 706]; Jones v. Surprise, 64 N. H. 243 [9 Atl. Rep. 384]; Buckingham v. Fitch, 18 Mo. App. 91; Webster v. Sturges, 7 Ill. App. 560; Sturges v. Bush, 5 Day 452; Henderson v. Palmer, 71 Ill. 579 [22 Am. Rep. 117]; Comstock v. Draper, 1 Mich. 481 [53 Am. Dec. 78]; Beach, Mod. Contr. Sec. 1422; Wharton, Contracts 339; Luce V. Foster, 42 Neb. 818 [60 N. W. Rep. 1027]; Tracy v. Deatrick, 6 Circ.

Richter v. Building & L. Co.

Dec. 427 (10 R. 111); Tracy v. Dietrich, 56 Ohio St. 770 [49 N. E. Rep. 1118].

A party in pari delicto may recover what he parted with under illegal contract, if he does not base his right on the illegal contract. Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666]; Ware v. Curry, 67 Ala. 274; Den v. Shotwell, 23 N. J. Law 465; Martin v. Hodge, 47 Ark. 378 [1 S. W. Rep. 694; 58 Am. Rep. 763]; Allebach v. Godshalk, 116 Pa. St. 329 [9 Atl. Rep. 444]; Olson v. Sawyer-Goodman Co. 110 Wis. 149 [85 N. W. Rep. 640; 53 L. R. A. 648]; Hall v. Costello, 48 N. H. 176; Jones v. Building Soc. L. R. 1 Ch. 173.

Promise made for benefit of third party. Beach, Mod. Contr. Sec. 201; Dunning v Leavitt, 85 N. Y. 30 [39 Am. Rep. 617]; 9 Cyc. 386; 7 Am. & Eng. Enc. Law (2 ed.) 109; Beveridge v. Railway, 112 N. Y. 1 [19 N. E. Rep. 489; 2 L. R. A. 648]; Wheat v. Rice, 97 N. Y. 296; Wright v. Terry, 23 Fla. 160 [2 So. Rep. 6]; Trimble v. Strother, 25 Ohio St. 378.

Plaintiff relied principally on Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571].

A. B. Capel and Southard & Southard, for defendant in error: Upon the question of the legality of the contract in question. Provident Sav. Life Assur. Soc. v. Edmonds, 95 Tenn. 53 [31 S. W. Rep. 168]; Swope v. Insurance Co. 93 Pa. St. 251; Barrett v. Weber, 6 N. Y. Sup. 434; Butterly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513-15-19-24; Walbridge v. Arnold, 21 Conn. 423; Godwin v. Crowell, 56 Ga. 566; Hatch v. Collins, 34 Hun 314; School District No. 61 v. Alderson, 6 Dak. 145 [41 N. W. Rep. 466]; Kellogg v. Larkin, 3 Chand. (Wis.) 133; Armstrong v. Express Co. 63 Tenn. (4 Baxt.) 376; Cass Co. Bank v. Bricker, 34 Neb. 516 [52 N. W. Rep. 575; 33 Am. St. Rep. 649]; Gregory v. Wendell, 40 Mich. 432; Hoover v. Wood, 1 Kan. 509; Bothwell v. Brown, 54 Ill. 234.

Courts will not lend their aid to effect contracts whose consideration is illegal, immoral or such as are against public policy; if the agreement be executory, the court will not aid in its enforcement, and if it be executed the court will not rescind it. Butterly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513-15-24; Souhegan Bank v. Wallace, 61 N. H. 24; Thompson, Trial Ev. Sec. 615; Hooker v. De Palos, 28 Ohio St. 251; Jacobs v. Mitchell, 46 Ohio St. 601 [22 N. E. Rep. 768]; McQuade v. Rosencrans, 36 Ohio St. 446;