Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1859-01-27
snnreme cou1r of Ohio.

SATURDAY, Jan. ~, lo0S- ]
John Kahn vs. the State of Ohio. In error
to the Court of Common Pleas of Hamilton
county. Sutlif, S, delivered the opinion OF
the Court Held:
LIST. That in an Indictment for murder under
the statute of this State, it is necessary to aver
the purpose to kill; such purpose being an es-
sential element of the crime, as dehned by the |
statute. Il
"a An averment, merely that the accused |
"purposely and of deliberate and premeditated
malice, did strike, penetrate and wound" the
deceased. sspiving to- him = = one
mortal wound and that the deceased "of the
mortal wound aforesaid died, is not sufficient;
the "purpose" being predicated of the assault
and wounding, but not of the killing.
Sd. Where the purpose to kill is not averred
| in the stating part of the Indictment, the de-
feet is not cured by the formal concluding part
| in which it is averred: "And SO the jurors
= do say that the accused "in the man
ner and by the means aforesaid"
"purposely and of deliberate and premeditated
malice, did kill and murder" the deceased
Such,averment being conclusion of law and
not of the existence of facts. And although IN
dictments may have been occasionally drawn
| in the common law form since the change IN
the statutory crime of murder in this State, by
the word 'ipurposely" in the existing statute,
such practice has not been uniform, and has
never been approved by this Court in any ad-
Publication upon the question presented for con-
si1eration.
4th The decision of the case of Fouts VS..
The State, decided at the last term, approved
and followed.
swan and Brinkerhoff, ], J.. dissented, hold
ing that the purpose to kill is a necessary IN
gredient of murder in the first and second de-
s2ree and must be alleged and proved; and that
the indictments in this case and the case OF
Fonts VS. State conforms in this respect to the
practice and preeedents of indictments tor
murder in this State; and to indictments which
upon specific assignment of error as informal
and unsubstantiaI'' have been pronounced by
this Court as Sufficient" Moore VS.. State, :
Ohio St. Rep, 5O2, 5O7.
TUESDAY, Jan, "a, 1855.
Trustees of sec I6 V. P. Odlin. In error
, From Superior Court of Montgomery CO.
J. R. Swan, j., delivered the opinion OF the
Court
Held: lst Where the petition, in an actor
for rent. alleges as the bail of the amount trent
; an appraisement, ''duly and illegally made, an'
: the answer instead of stating in what particula
the appraisement is Illegal, alleges that "the aP
praisement was not legally and duly made, " th'
Z answer NAV be subject to motion under sec. III
: ofthe Code, on account of indefniteness; but !
the parties proceed to trial on the issue, the OBJ
lection is waived.
e ID. Where the issue made by an answer in
wolves deduction or conclusion OF law, 1t Is no
bad on error, if the language of the allegation
according to its ordinary meaning, contains
fact constituting defense.
3D. Where two leases of school lands unde
: the act of 1917, Chase Stat 1926, vest by as
i sgnment in one person, the two tracts canno
J be appraised as one entire tract or farm: tn
, trustees bein entitled to the benefit of any en-
: hanced value arising from the original severance
l. and the assignee to the benefit OF any enhance
= value arising from the two lots having bee
. united into one entire farm or tract.
= . Judgment affirmed
Il Lewis Becker V. the State of Ohio. Motto
n for writ of error to the Court of Commo
u Pleas of Miami county. Barley, c. J. Held
Is Ist. That in an indictment for violation
the first section of the act of May lst, 1854, st
provide against the evils resulting from the sal
of intoxicating liquors in the State of Ohio
h is not necessary to perfect description OF th
q defense as defined by the said first section, thi
- the indictment should contain an averment ths
the liquor sold was not "wine manufactured I
Of the pure juice of the grape cultivated IN th
State of Ohio, or beer, ale or cider, as specit
is ed in the proviso at the end of the eighth SCI
!: ton of each act.
! ID. That said proviso forms no part Of II
D. description of the ofense of violating said fir
s section, that the Indictment section, being col
+. tained in distinct section of the act fixing tn
penalty for such offense; and the benefits Of sa
+ proviso must be taken advantage of by the a
lie cused in making his defense upon the facts
ry 81 This is in accordance with the rule Ia
ton overruled.