offered in evidence and rejected should be made a part of the bill of exceptions in order to have the question of its admissibility tested in the reviewing court. See also Cincinnati Iron Store Co. v. Trustees Cincinnati Southern Railway, 9 C. C., N. S., 103.

Under the present state of the record we are bound to sustain the trial court in excluding the time book of The Hulse Manufacturing Company. There is no sufficient showing upon which a reviewing court could hold that its exclusion was prejudicial.

It is also claimed that the cross-examination of Mrs. Stergle, a witness for the state, was unduly restricted, and that the cross-examination of the defendant Bandy and his witness Mrs. Skinner was unduly enlarged, and the direct examination of said witness unduly limited, and that in the case of Mrs. Skinner the court improperly reprimanded her as to her manner of giving testimony in certain respects. Upon consideration of the record we are unable to find that the trial court abused its discretion in these respects. The testimony as to what the alleged priest said and did at the home of Mrs. Skinner was competent so far as it tended to explain the presence of the various articles in the room of Bandy and in the home of Mrs. Skinner. We think the trial court did not err in refusing to follow this incident into its collateral bearings or to go beyond the purpose for which it was admitted.

Objection is made to the introduction in evidence of the examination of Bandy before the chief of police. This evidence was offered in rebuttal. A

proper foundation for its admission was laid in the cross-examination of Bandy and we think his statement before the chief of police was competent in rebuttal.

Some twenty-one special charges were filed with the clerk and requested before argument. These were all refused and a general exception was noted.

There is no request for the giving of these charges separately. Some of them were clearly erroneous and some were repetitious. These facts would justify the trial court in refusing the entire series. French v. Millard, 2 Ohio St., 44; Walker v. Lessee of Devlin, 2 Ohio St., 593; Cincinnati & Harrison Turnpike Co. v. Hester, 12 C. C., 350, and American Steel Packing Co. v. Conkle, 86 Ohio St., 117.

An additional instruction was also asked before argument, but was, in our judgment, properly refused. The recital therein, that the evidence tending to show guilt was circumstantial, was misleading, because it was not entirely so. The dying declaration of Day in connection with the identification of the parties was direct rather than circumstantial evidence.

We have carefully read and examined the general charge. We have heretofore discussed the court's charge in respect to the grade of the offense. There are other objections made to the general charge, principally in relation to the trial court's statement of the law of reasonable doubt and of the presumption of innocence.

While the law of reasonable doubt is not stated in the exact phraseology of the reported cases we find no essential difference.

We think the charge as a whole contains no prejudicial error.

Counsel for plaintiff in error particularly object to the cautionary instruction of the court in respect to agreement, when the jury was brought in from its deliberations. It is claimed that the statements of the trial court tended to coerce the jury into a verdict.

The main portion of the court's remarks, including those relating to the expenses of the trial to both parties, was in our judgment unobjectionable. Some inference is drawn by counsel from remarks relating to the failure of the trial court to obtain quarters for the jury over night. It is claimed that there is a suggestion, or possibly inference, that the jury might be compelled to remain in the deliberation room over night. Assuming all that might be claimed for this by counsel for plaintiff in error the record shows that the jury were at 11:30 P. M. quartered in the Hartman Hotel for the night, and returned at 8 A. M. and continued in deliberation until about 9 A. M., when the verdict was reached and returned. We think under the circumstances there was no prejudicial error in such statement. The jury were not held in deliberation an unreasonable period, and the fact that they did not agree until the following morning is a clear indication that the possibility of their being kept in the deliberation room over night should not be held to have had a tendency to coerce the verdict or operate as a restraint over the free deliberations of the jury.

This is an important case. The question has been very fully and ably presented by the prosecuting attorney and his assistants as well as by the attor

Rogers v. Cincinnati.

[13 Ohio

neys for the accused. Counsel for the defense are especially to be commended for their very earnest and painstaking and conscientious defense of their client.

We have carefully considered the record in connection with the points made in argument and brief and have reached the conclusion that there is no prejudicial error in the record and that the verdict of conviction is not contrary to the manifest weight of the evidence.

Judgment affirmed.

FERNEDING and KUNKLE, JJ., concur.

ROGERS, A TAXPAYER. V. THE CITY OF CINCINNATI.

Municipal corporations - Waterworks - Sections 3957 and 3958, General Code-By-laws and regulations - Powers of public service director - Assessment of water rents-Survey and meter systems - Pleading - Injunction.

1. Where a petition in an action to enjoin a city from carrying out certain regulations establishing a method of charging for water alleges that it is an unlawful discrimination to require part of the users of water to pay by one system and part by another, an answer setting forth later regulations, prescribing but one method by which the city charges for water, is good against demurrer.

2. Sections 3957 and 3958, General Code, vest in the director of public service power to make such by-laws and regulations as he deems necessary in the management of the waterworks and the collection of water rents, and the courts have no power to control such discretion where there has been no abuse of it.

(Decided August 2, 1920.)

APPEAL: Court of Appeals for Hamilton county.

App.]

Rogers v. Cincinnati.

Messrs. Crosley & Rogers, for plaintiff.

Mr. Saul Zielonka, city solicitor, and Mr. Dennis J. Ryan, assistant city solicitor, for defendant.

CUSHING, J. Plaintiff's action in the court of common pleas was to enjoin the city of Cincinnati from carrying out the regulation made by its service director, establishing a method of charging for water. For many years two methods were usedfor residences, what was known as the survey system, and for business houses, the meter system. On May 1, 1917, the service director promulgated bylaws and regulations with reference to the use and charges for water. On May 12, 1917, an amendment to the regulation was adopted.

Plaintiff filed his action February 12, 1919. He set out in full the regulation of May 1, 1917, but did not include the amendment of May 12, 1917. The petition charged that it was arbitrary, unreasonable and unlawful to charge part of the users of water by the survey system and others by the meter system; that it was an unlawful abuse of corporate power to require a part of the users of water to install and repair meters, as a means of measuring water, while others escape that expense; and that it was unlawful to require any of the users of water to install and keep in repair meters as a means of measuring water.

To this petition the city filed an answer admitting the adoption of the regulation set out in the petition, and added the amendment of May 12, 1917, that all service now supplied by the survey assessment shall be metered within a period of two years from and after May 12, 1917. The answer