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kills another, except as provided in the last three sections, is guilty of manslaughter."

This word has been construed by our Ohio courts in a number of cases to which I shall hereafter refer.

Some of the text-writers and a number of the courts have adopted the view that one of the essential elements of assault and battery is that the striking or wounding shall be done without the consent or permission of the injured person; and that if he consents to the blow, either by his own act or by agreement and actual permission, the striking or wounding is not such an unlawful act as will constitute a battery. Thus McClain, Crim. Law Sec. 249, adopts the dictum in the following Ohio case, Smith v. State, 12 Ohio St. 469 [80 Am. Dec. 355]:

"An assault implies force upon one side, and repulsion, or at least want of assent, upon the other. An assault, therefore, upon a consenting party would seem to be a legal absurdity."

But the Supreme Court explains that case in Barholt v. Wright, 45 Ohio St. 180 [12 N. E. Rep. 185; 4 Am. St. 535], and limits the application of the former decision to the peculiar circumstances of that particular controversy, quoting and approving Cooley, Torts, in which the statement is made that:

"The rule of law is therefore clear and unquestionable that consent to an assault is no justification."

The court in Barholt v. Wright, supra, 181, referred to one of the decisions cited by plaintiff in error in this case in the following words:

"Neither is the case of Champer v. State, 14 Ohio St. 437, at variance with the principle upon which the plaintiff below seeks a recovery. The case seems to have been somewhat misapprehended by the courts of some of the states, as well as by some text-writers. By the statutes of this state a distinct offense is made of an affray or agreement to fight; and the effect of the holding is that where such an offense is committed, the indictment must be for an affray, and not for an assault and battery."

The Champer case referred to is as follows, Champer v. State, supra:

Fishwick v. State.

"Held, an indictment against A for an assault and battery upon B is not sustained by evidence that A assaulted and beat B in a fight at fisticuffs, by agreement between them.

"An assault and battery and an affray are distinct offenses under the statute, punishable by different penalties."

Outside of the fact that this was a per curiam decision, it is clear that it had reference to the character of the evidence offered to sustain the charge, rather than the right of the state to maintain either an action for an affray or an action for assault and battery.

But even if we concede that the explanation of the Champer case contended for by plaintiff in error is correct it has no application to the case at bar. The affray statute prior to the recent recodification was R. S. 6890, reading as follows:

"Gen. Code 12803 (R. S. 6890). Any two persons who agree, and willfully fight or box at fisticuffs or engage in any public sparring or boxing exhibition without gloves or with gloves of any kind, shall be deemed guilty of an affray."

The most casual inspection of the two sections, Gen. Code 12802 and 12423 (R. S. 6890 and 6823), shows that they create distinct offenses and, as in the Champer case, the court would be justified in holding that the evidence showing an affray would not be sufficient to support an indictment for an assault or vice versa.

But a still stronger diversity exists between the statute regulating the speed of automobiles and the assault and battery statute, and one can not be a substitute for the other.

The former makes the mere speeding at the prescribed rate an offense, whether any person is injured by reason of its violation or not; the latter requires that some injury, however slight, shall have resulted from its violation.

The following two contingencies might arise, which are not in this case and which may be eliminated from consideration:

1. The speed statute may be violated but no one injured as a result. A prosecution may be had under 91 O. L. 541, Sec. 14, but not under Gen. Code 12423 (R. S. 6823).

2. The speed statute may not be violated but a person in

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jured by the negligence of the auto driver; then unless the injury was intentionally and maliciously caused, no action could be had under either section.

But the case we have in hand presents the third contingency, viz.:

3. Where the speed statute is violated and as a natural or probable result a person is injured. There is no doubt that a prosecution would lie under 91 O. L. 541, Sec. 14. But the question raised here is "may a prosecution also lie for violating Gen. Code 12423 (R. S. 6823), under the circumstances of this case?

Since the decision in the Johnson case, it is settled in this state that a criminal prosecution can not be maintained for manslaughter arising from negligence unless the accused was at the time engaged in the violation of statutory laws. The syllabus in that case and extracts from the opinion of the court are as follows, Johnson v. State, 66 Ohio St. 59 [63 N. E. Rep. 607; 61 L. R. A. 277; 90 Am. St. Rep. 564]:

"In a prosecution for manslaughter, wherein the state relies for conviction on the ground that the deceased was killed unintentionally, while the slayer was in the commission of an unlawful act, it must be shown that the alleged unlawful act is prohibited by law; and it is not sufficient to establish that such act so engaged in, was a crime at common law, or one of gross and culpable negligence."

The court says, page 69:

"In our judgment the unlawful act, the commission of which gives color and character to the unintentional killing, is an act prohibited by law, and that such is the natural meaning of the term or clause when used in the parlance of criminal jurisprudence."

The unlawful act referred to must undoubtedly be one prohibited by statute and not by mere ordinance of a municipality. On this point I think the reasoning of Judge Kinkead in the Collingsworth case, decided a little over a year ago, is conclusive. He said in State v. Collingsworth, 19 Dec. 557 (8 N. S. 383):

"To constitute manslaughter under Gen. Code 12404, the

Fishwick v. State.

act of the accused, causing death, must be in violation of some state law; hence, a prosecution for manslaughter cannot be predicated upon a violation of a municipal ordinance as such."

The court says, page 558:

"By way of illustration, for instance, we may consider the violation of the state laws now regulating automobiles. If a man in running an automobile violates a state law, and, by reason of such negligent violation, runs into another and causes his death, in my judgment that would be an illustration of manslaughter within this statute, as defined by the appellate courts.

"In the crime of manslaughter as it existed in common law, there were two classes of acts, malum in se and malum prohibitum. The unlawfulness of the act in law supplied the intention, and while we so frequently say as a general proposition, that no crime can be committed unless there has been an intent, it does not mean that there shall be an actual intent. The example mentioned of the violation of the state law regulating the rate of speed of an automobile, is an illustration of that rule. The unlawfulness of the act supplies the intent."

Can any good reason be shown why this argument and the holdings of the two courts in the two cases just cited shall not apply equally to such a condition as arises in the present case? The words unlawful acts are found in both the manslaughter and the assault and battery statutes and are we think used in the same sense, viz., the violation of a penal statute. And if the unlawfulness of the act supplies the place of the actual intent required to sustain a charge of manslaughter the same words should, by any fair construction, equally raise the presumption of intent required in the case of a charge of assault and battery. The Indiana courts seem to have arrived at the same conclusion as to civil liability in the case of Mercer v. Corbin, 117 Ind. 450 [20 N. E. Rep. 132; 3 L. R. A. 221; 10 Am. St. Rep. 76].

"There may be an actionable assault and battery although there is no actual or specific intent to commit that offense.

"One who rudely and in such a reckless manner as to show a disregard of consequences rides his bicycle against a person

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standing upon a town sidewalk is liable for an assault and battery, the intent being implied.

"A bicycle is a vehicle within the meaning of the law and therefore under Sec. 3361 Rev. Stat. 1881, its use upon a public sidewalk is unlawful and its rider liable for an injury inflicted upon a footman although the act be unintentional."

The court says, page 455:

"If we are right in holding that the appellant, while riding his bicycle along the sidewalk was engaged in the performance of an unlawful act, another important element is added to the appellee's case making the right of recovery entirely clear, for a man who does an unlawful act is liable for the consequences, although they may not have been intended." Citing Peterson v. Haffner, 59 Ind. 130 [26 Am. Rep. 81]; Hood v. State, 56 Ind. 263 [26 Am. Rep. 21]; Binford v. Johnston, 82 Ind. 426 [42 Am. Rep. 508], and Weick v. Lander, 75 Ill. 93. See, also, Palmer v. Railway, 112 Ind. 250 [14 N. E. Rep. 70].

We must be particular to discriminate between an intent implied from mere recklessness or wantonness, not violating a penal statute, and the intent implied from doing an unlawful act as just defined. We have no common law offenses in Ohio, and can predicate a criminal liability only upon statutory provision. Hence mere negligence, recklessness or wantonness alone can not in this state raise the implication of intent which is required to sustain a charge of assault and battery.

True there are in other states decisions and there are opinions of text-writers, based upon the common law or statutes of those states, which support the view that a charge of manslaughter or a charge of assault and battery may be prosecuted where the acts are solely those of negligence, recklessness or wantonness, as, for instance, Welch v. Durand, 36 Conn. 182, 185 [4 Am. Rep. 55]; 1 Bishop, Crim. Law, Chap. 20, Sec. 313; People v. Keefer, 18 Cal. 638; People v. Raher, 92 Mich. 165 [52 N. W. Rep. 625; 31 Am. St. Rep. 575]; Malone v. State, 77 Miss. 812 [26 So. Rep. 968]; State v. Nash, 86 N. C. 650 [41 Am. Rep. 472]; Cowley v. State, 78 Tenn. (10 Lea.) 284; Hughes, Crim. Law Sec. 2469.

But such decisions and statements have no controlling ef