Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1868-03-06
sUPsREmE CoUR r OF oHio. di'

20 S2Gioo s s..i a.uul. laiioMt 5si
sUPlHBlEmE: CoU1iar OF oHio. i'od
|afi9 -<I7F1frAT1 SLL-sf4teST ai3 a1ot
lofieial Report-sugsryissdb BY the Supreme Court
TUESDAY. Feb. Is, 1865.
wShis Chief JgstissILuthsr pay: Jastisss.Wls% ~
Scott Reporter-L. J. CIitcbf field ssAUdA
.s4-,4t p GENERAL DOCKET. II
Mo- 232. Thomas O'Meara VS.. TIE State
of Ohio. Error to the Common Pleas of
HaWlIton WnI ce county, q GE0IfiIo
"a A second Indictment for the same crime
or offense, found during the pendency nof
the first, but before afraignment thereon.
is not anullity, and the prosecuting attor-
ney)may elect to proceed upon either..s
An attempt to carnally know and abuse
female child under ten years of age, with
her consent, is not an indictable offense in
An Indictment for assault with intent to
commit a rape need not allege the age of
the female, although she be in fact under
the age of ten, years. sre,.,brf-sfr3 .-s.i>s1.
The presumption of the law is, that fe-
male child under the age of ten years is in
capable of giving consent to an act of car
nal knowledge, or of an assault with intent.
to commit the act; but the presumption
may be rebutted by proof that she under
stood the nature of the act commited or in
tended osapsT-.sid9 al arai,5igs s-is=5..Is5.i
A preponderance of evidence is sufficient
to rebut such presumption, and iC is. there
fore, error Co charge the jury that the re-
butting evidence in such case must show
the females capacity beyond a reasonable
doubt. ! .oiao II s1il327' ~ u ai y'tzsa.
,Insa criminal case, as well as in civil
action. 1t may be assigned for error, that
the court overrufed motion for new
trial predicated upon the ground that che
verdict was against the weight of the eyi-
dence, and iud gment NAV be revised upon
that ground. ''-'9'l .
Judgment reversed and cause remanded
for new trial. e'>- sl'.'N q INST
No. IA William C. Davis and Franklin
P.Davis, partners, &C.. VS.. Charles NJ. Gray.
Error to the Superior Court of Montgomery
county. sEz1,11i.. l..-.---ri. Vi 4y.s & 5fs
:, BRINKERHOFF, :: 7yy.rrsrs5 si,.7ss,,,ti 4
Where a party, claiming and repre-
senting himself to be, under letters patent
granted by the United States, invested
with the exclusive right to make and sells
certain machine within a given territory,
enters into contract with another party
purporting to grant to the latter the ex-
elusive right to manufacture and sell such
machine within said territory, in consider
alton whereof the latter agrees to pay the
former specified patentfee for each ma
chine which he snail manufacture and sell;
and after number of such machines have
been manufactured and sold, a promissory
mer for the amount of fees accrued, Held:
| L. In an action on such note by the payer
against the maker, an answer simply aver
ring, in substance. that certain third par
ties named claimed that the manufacture
and sale of said machine by the maker of
the note was was an infringement Of prior
the action and bad on general demurrer. !,
| 2. A paper, certified under the hand
and official seal OF the Commissioner OF
Patents to be "a true copy from the
record of that office, of the specifications
in the matter of the Letters Patent granted
H. g. March 2lst, 1854" unaccompanied
| by duly authenticated copy of the Let
ters Patent referred to, is not Of itself
Icompetent evidence either OF the existence,
or of the contents, of any Letters Patent.
8. Where a party, claiming to be the
owner of patent right for machine. IL
censes another to make and sell such ma
chine within q certain territory, and in
i consideration OF such license the latter
lagrees to paw the former given sum BY
i way of ROYALTY on each machine byzhifn
manufactured and sold; and a large mum Der
OF machines being manufactured, ID part, of
| which are sold and part remain on hand;
/ the parties enter into compromise aSree5
i ment whereby the licensee executes to the
4 'llicensor his promissory note tor the amount
iIldue under the former contract 70. the
llmachines sold, but largely reducing
tne royalty payaDiejor the machlnes re-
hainlng on hana: anu snose To- oe tnereal-
oHaru nr;v;Iaaa s,S mbioh te T;os,,S os
every prlVlleSe WnIcn the license pufports
~ a! .allt, py oWneis ~ fYn- Yn
liGtlbS patsnSs VI WISE, snu aiIer an ~
pIe tlne ana opportunity Ior tesltlng tne
maSnlne. heIu:
al "A nlat, lat, u ae action ny tns Payee galhst
tne lnaher VI tiie hoIe, TIE ialIer is estoppes
tooeny a cohsioeraGion !or saiq note, eigne1
on tne grounu OF the lnutiiiCy OF, or INT
WautoI novelGy IN saiu machine,e1a Drod
II Judgment amrmeo: .ss'',5'
i NO. I54. william Moore VS., Inc state OF
T ONO. sEfror 70 t4e ConHen Iieas OF TICK
awayncounIy. heserVeu IN Che OisGrict
COurI.ias =, sni ~ 2s'hipals tsAfr. 2
WELcH. J.- .alia9o 1i-.i y nolia.a,5I9 q
"A physician eannoS, as Wleness' pe az
:oweu SO 10 express MS proIt ssional opin-
ION as necessarily 70 imply ms oeiief OF
Siie eAistehce oe tnaCeriaI iacIs -o9es!ue "
nls aII oI p1oIesslop. anu nos w.lnin I'D! ~!
own anu ,s q, auS ~ .'ieH
naT9ie I'M ~ 81 Mon Ipnrlo u Th
ans ausri Wardner SOgIS vi ndrto a. 81 Tnr
sot ~, xs ,t X =, hs H.
So ..o ;s'a1'.i;y
~, ~ ~
sne 6 ~ s.e y, Sno Ie,enu-
anus anu cause Ieu1anueu. :,' m NJ iulCher re-
p,tes u az .ne = So" wiz i-tsi po @ ~
.se, la -, MO MOTION DOCKET. ss,l-,r b.
! No. 76 Adam Bell Administrator o1
Margaret Bell VS.. Joseph n. Wilson. Mo-
| ton to file petition in error. n: d.. ar
? BY THE CoURT--The action below was
brought by the administrator of the payee
of a promissory note, against the makers,
other surety. The principal made no de-