Harrison v. State

• Decision Date: 21 April 1925
• Docket Number: 18780
• Parties: Harrison v. The State Of Ohio.
• Court: Ohio Supreme Court

147 N.E. 650

112 Ohio St. 429

Harrison v. The State Of Ohio.

No. 18780

Supreme Court of Ohio

April 21, 1925

Criminal law - Depositions - Section 13668 et seq., General Code constitutional - Application and order for depositions of witness beyond state - Unnecessary to show attendance could not be had at trial - Fraudulent statement as to financial condition of corporation - Section 18175, General Code - Indictment alleging statement false and willfully exaggerated sufficient, when - Exaggerated" and "false" synonymous - Oral statements included within statute - Evidence - Contract and good faith not proved by communications and documents - Real issue whether stock less in value than represented - Adverse admissions by accused in civil suit competent, when.

1. Sections 18668, 13668-1 and 13668-2, General Code, are valid legislative provisions pursuant to the authority conferred by section 10, Article I, of the Ohio Constitution, as amended September 3, 1912.

2. Where an application Is made by a Prosecuting attorney for an order to take depositions on behalf of the state in a jurisdiction beyond the boundaries of the state, and an order of the court is made upon such application, it is not necessary that the application should show or that the order should find that the attendance of the witness can not be had at the trial. The residence of the proposed witness beyond the jurisdiction of the state dispenses with the necessity of showing that the attendance of the witness can not be had at the trial.

3. In a prosecution under Section 13175, General Code, an allegation In the indictment that a statement made by the accused is "false" and "willfully exaggerated" is sufficient to advise the accused of "the nature and cause of the accusation against him."

4. The word "exaggerated" in that section is not vague or uncertain of meaning and is synonymous with "false."

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Depositions 18 C.J. 4, 23;

Id., 18 C.J. 86, 111;

Fraud 27 C.J. 275;

Id., 27 C.J. 273.

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5. It is not necessary, to constitute a violation of Section 13175, General code, that the "statement" therein referred to should be either written or printed. A false or wilfully exaggerated oral statement is Included within the purview of that section.

6. In a prosecution under Section 13175, General Code, where the existence or non-existence of a contract is the issue letters, telegrams and other communications and documents passing between parties who are seeking to negotiate such contract do not tend to prove the existence of such contract, and do not tend to Prove the good faith of the accused in representing the existence of a contract, or want of intent on the part of the accused to deceive. All such communications are therefore immaterial to the inquiry.

7. In a prosecution under Section 13175, General Code, the real value of the shares of stock of a corporation, concerning which an alleged false statement has been made, is not in issue. The real issue is whether the stock was less in value at that time than the false statements represented it to be.

8. Upon the trial of an accused under an indictment, testimony of adverse admissions made by the accused under oath while testifying voluntarily in a civil suit concerning the same matters, is competent, and does not transgress the constitutional prohibition against being compelled in a criminal case to be a witness against himself.

The facts are stated in the opinion.

Mr. Smith W. Bennett; Messrs. Mattern, Brum- baugh & Mattern, and Mr. Robt. R. Nevin, for plaintiff in error.

Mr. John R. King, prosecuting attorney; Mr. Joseph A. Godown, and Mr. C. C. Crabbe, attorney general, for defendant in error.

MARSHALL C. J.

Dwight Harrison was indicted and tried by the court of common pleas of Franklin county for violation of Section 13175, General Code, as follows:

Whoever knowingly makes or publishes, or permits or causes to be made or published, a book, prospectus, notice, report, statement, exhibit or other publication of or concerning the affairs, financial condition or property of a corporation, joint stock association, copartnership or individual, containing a statement which is false or willfully exaggerated and intended to deceive any person as to the real value of any shares, bonds, or property or part thereof, of said corporation, joint stock association, copartnership or individual, shall be fined not less that one hundred dollars nor more than ten thousand dollars or imprisoned in the penitentiary not less than one year nor more than. five years, or both."

The indictment alleges that Harrison was an officer of the R. L. Dollings Company, an Ohio corporation handling stock of certain subsidiary corporations, and that as such officer offered for sale to the general public in Franklin county that preferred stock of the Phoenix Portland Cement Company, another Ohio corporation, and a subsidiary of the R. L. Dollings Company, and that the R. L. Dollings Company, through its officers and agents, sold to the general public stock of said subsidiary corporation in the amount of $2,253,660.

The indictment further alleges that the said Harrison, within said county and state, from the 22d of September, 1922, and at divers other times between September 22, 1922, and March 31, 1923, as an officer and agent of the R. L. Dollings Company, and for the purpose of promoting the sale of the preferred stock of said subsidiary corporation, "did then and there unlawfully and knowingly make, publish, and permit, and cause to be made and published, orally and in print, certain false statements, to wit, that the Phoenix Portland Cement Company, subsidiary corporation, a.s aforesaid, then and there owned a certain cement manufacturing plant at Nazareth in the state of Pennsylvania, and a certain cement property at Birmingham in the state of Alabama, whereas, in truth and in fact the said the Phoenix Portland Cement Company, subsidiary corporation as aforesaid, did not then and there own a certain cement manufacturing plant at Nazareth in the state of Pennsylvania or any cement property at Birmingham in the state of Alabama, which said statements as to the ownership of said plant and property were false and intended to deceive purchasers of said preferred stock of said the Phoenix Portland Cement Company, subsidiary corporation as aforesaid, as to the real value of said Preferred shares of stock and said statements did then and there deceive one Lena L. Shadrach as to the true value of said preferred stock," and that thereupon she purchased a portion of said stock.

The indictment contains a further count differing from the former only in omitting to allege that the statements were false, and containing the allegation that they were willfully exaggerated.

The defendant was adjudged to be guilty in the trial court, the judgment was affirmed in the Court of Appeals, and a motion for leave to file petition in error in this court was allowed.

The first of the legal questions presented for determination in this court relates to the taking and use on behalf of the state of the deposition of one L. C. Morton, of Philadelphia. Upon this point it is urged, first, that the statute providing, the procedure for taking a deposition in a criminal case is unconstitutional, as being in violation of the Fourteenth Amendment of the federal Constitution, being a denial of due process and the equal protection of the laws; second, that the court in ordering the deposition to be taken and in providing the procedure therefor has not followed the mandates of the statute, in that it was not made to appear that the attendance of the witness whose deposition was to be taken could not be had at the trial.

Upon the first of these contentions it is sufficient to say at this time that, in the case of Morton v. State, 105 Ohio St. 366, 138 N. E., 45, it was decided that an amendment to the existing statutes was attempted, and that the amendments were unconstitutional and void, and was further decided that the repealing clause of the amendment was unconstitutional, and therefore inoperative, the effect of which was to leave the original enactment as valid provisions relating to the taking of depositions in criminal cases. That question having been recently decided by this court, we do not feel impelled at this time to further review the validity of that statute, but on the contrary will sustain the validity of those sections upon inferences which may be logically drawn from the second syllabus of that case.

Upon the second contention it is only urged that the dissenting opinion of Wanamaker, J., in the Morton case argues that a deposition may not be taken or used unless there is a finding of the court that the witness cannot be had at the trial. While no issue was taken upon that point by other members of this court, it does not appear that the dissenting opinion had any support among the other members, and that dissenting opinion cannot therefore be a potent authority for the conclusions reached. Our answer to this proposition is that, inasmuch as it appears by the application of the prosecuting attorney that the witness whose deposition was to be taken resides out of the state of Ohio and in the state of Pennsylvania., all courts in Ohio will take judicial notice that compulsory attendance of such witness cannot be obtained in any case, civil or criminal, in the state of Ohio. It therefore sufficiently appears, not only in the application, but also in the entry of the court ordering the deposition to be taken, that the said Lindley C. Morton is a material witness in behalf of the state, and that he resides without the state.

The record discloses that, when the deposition of Morton was taken in...