Opinion of the Court.

THE STATE OF OHIO V. BORN.

Trial for manslaughter-By running automobile in crowded portion of city-Contrary to municipal ordinance Ordinance not competent proof, when-Sections 12604 and 12608, General Code.

Where a person is on trial for manslaughter, by running an automobile in a business and closely built up portion of a municipality at a greater rate of speed than is permitted by the statute (General Code, Section 12604), it is not competent to prove such fact by an ordinance of the municipality defining what are the business and closely built up portions thereof (General Code, Section 12608).

(No. 13174-Decided February 6, 1912.)

EXCEPTIONS to the Court of Common Pleas of Cuyahoga county.

The defendant was indicted for manslaughter. He was charged with driving an automobile on a street in Cleveland, at a greater rate of speed than is allowed by law, within a district which was defined by ordinance as a business and closely built up portion of the city, and while so driving the automobile, ran down and killed one H. C. Cornelius.

Mr. John A. Cline, prosecuting attorney, and Messrs. C. H. Olds, Ezra Brudno, Thos. E. Greene and W. E. Minshall, assistants, for the exceptions.

Mr. W. H. Boyd, contra.

DAVIS, C. J. On the trial of this case the state offered to prove, by an ordinance of the city of Cleveland, which was enacted by virtue of Section

Opinion of the Court.

12608, P. & A. Anno. G. C., and which declared that the locality where the automobile driven by defendant killed Cornelius, was a "business and closely built up portion" of the city, that the defendant was running his automobile at a greater rate of speed than was authorized by Section 12604, P. & A. Anno. G. C. The court ruled out the ordinance; and we think that the ruling was clearly correct. Whether the locality concerned was or was not a business and closely built up portion of the city, is a material fact to be determined upon the issue raised on the charge in the indictment, that the defendant unlawfully killed the deceased. The defendant had the right to have that fact determined by the jury upon evidence, and not by the declaration by the city council, however lawfully enacted, nor however effective it might be for some purposes, that the place was within such a district as described in the statute. Exceptions overruled.

SHAUCK, PRICE and JOHNSON, JJ., concur.
SPEAR and DONAHUE, JJ., dissent.

MEMORANDA

OF

CASES DECIDED AND REPORTED WITHOUT OPINION, DURING THE PERIOD EMBRACED

IN THIS VOLUME.

De

No. 11831. KUHNS ET AL. V. LEIHGEBER. cided October 3, 1911. ERROR to Circuit Court of Montgomery county. Messrs. McMahon & McMahon, for plaintiffs in error. Mr. Charles H. Kumler and Messrs. Young & Young, for defendant in error. Judgment affirmed. SPEAR, C. J., DAVIS, PRICE and JOHNSON, JJ., concur.

ERROR to

No. 12417. THE CITY OF CINCINNATI V. MILDNER ET AL. Decided October 3, 1911. Circuit Court of Hamilton county. Mr. Charles H. Urban, police prosecutor, for plaintiff in error. Mr. David Davis, for defendants in error. Judgment affirmed. SPEAR, C. J., DAVIS, SHAUCK, JOHNSON and DONAHUE, JJ., concur.

No. 12779. THE OHIO GALVANIZING Co. v. SZENYEI. Decided October 3, 1911. ERROR to Circuit Court of Trumbull county. Mr. T. I. Gillmer and Mr. T. H. Gillmer, for plaintiff in error. Mr. W. R. Stewart, for defendant in error. Judgment of the circuit court reversed and that of the common pleas affirmed. Grounds stated in journal entry.

433

Cases Reported

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed for error in reversing and in not affirming the judgment of the court of common pleas of Trumbull county in the cause of Daniel Szenyei v. The Ohio Galvanizing Co., this court finding that the record does not show affirmatively that the requests to charge complained of were in fact given by the court to the jury.

It is further considered and adjudged that the said judgment of the court of common pleas in such cause be and the same is hereby affirmed. SPEAR, C. J., DAVIS, SHAUCK and JOHNSON, JJ., concur.

No. 12803. THE CAMBRIDGE COLLIERIES Co. v. SPAID. Decided October 3, 1911. ERROR to Circuit Court of Guernsey county. Mr. Charles S. Turnbaugh and Mr. R. T. Scott, for plaintiff in error. Mr. John P. Turner and Mr. J. H. Mackey, for defendant in error. Judgment affirmed. SPEAR, C. J., PRICE, JOHNSON and DONAHUE, JJ.,

concur.

No. 12856. THE CITY OF DAYTON 7. HUBER. Decided October 3, 1911. ERROR to Circuit Court of Montgomery county. Mr. Frank S. Breene; Mr. Albert J. Dwyer and Mr. John Roehm, for plaintiff in error. Messrs. Young & Young, for defendant in error. Judgment affirmed. SPEAR, C. J., DAVIS, SHAUCK, PRICE, JOHNSON and DONAHUE, JJ., concur.