Page:The Green Bag (1889–1914), Volume 22.pdf/745

 Latest Important Cases $7,000 on account of counsel fees and ex penses of litigation, which also marks a new step in such matters. Procedure. Acqm'ttal on Technicalitics Proof that Various Names in Indictment Purporting to Refer to Some Person D0 in Fact Mean One and the Same Person Essen tial. O. The decision in Goodlove v. State, 82 Ohio St. 365, has been the subject of some sen—

sational press comment, Collier's Weekly remarking that “the Ohio Supreme Court has recently turned another alleged murderer loose on a technicality." James F. Goodlove was indicted for shoot ing, with intent to kill, "one Percy Stuckey, alias Frank McCormick." The defendant was convicted of manslaughter and sentenced by the Court of Common Pleas to ﬁfteen years imprisonment at hard labor, the circuit court aﬁinning the judgment. In his appeal, among other assignments of error, he alleges that the trial court should not have overmled his motion to direct a verdict of not guilty. The Supreme Court of Ohio, in a decision rendered by Crew, J., held this error fatal, on the ground that no evidence was intro duced to show that Percy Stuckey and Frank McCormick were one and the same person. To quote:— "In the case now before us not only is there a total absence of evidence that Percy Stuckey and Frank McCormick were one and the same person, but there is not in this case

from beginning to end a scintilla of evidence even tending to show, or that would suggest, that any such person as Percy Stuckey ever had an existence. There was, therefore, in this case a total failure of proof as to an essential allegation and material part of the oﬁense charged in the indictment, and such defect not being one of mere variance that is excused or rendered harmless by the curative provisions of section 7216, Revised Statutes, it was and is necessarily fatal and the motion to direct a verdict in this case should have been sustained." There was no dissenting opinion, Summers, C.J., and Davis, Shauck, and Price, JJ., concurring. It is difficult, nevertheless, to see any justiﬁcation for the decision. The contingency of double jeopardy would seem too remote and fanciful to deserve serious consideration. Counsel for the appellant properly argued“that an acquittal of the

711

charge of killing of John Brown would not be a bar to a prosecution for the killing of James Brown. But this was an instance of John Brown alias James Brown, something very diﬁerent. See Juries. Professional Misconduct. Impeding and obstructing Administration of justice. N. Y. The respondent in Matter of Sanford Robin son, decided by the New York Appellate Division in October, upon consideration of the peculiar facts and circumstances disclosed in the case, was subjected to the penalty of suspension for one year from the practice of law by the decision of the Court, rendered

by Ingraham, R]. It was held that where an attorney advised a person to avoid the service of a subpoena issued out of a court of the United States and the latter thereupon refused to see the marshal and subsequently departed for Canada and the subpoena was not served, the facts that thereafter the said attorney was indicted by a federal grand jury under sections 5398, 5399 of the U. S. Revised Statutes, was tried, convicted and

Sentenced to pay a ﬁne as punishment, were

relevant in determining what discipline should be imposed for the offense. N. Y. Law journal, Oct. 27.) Real Property.

(Reported in

See Conveyances.

Waters. "Scenic Beauty" Case-Esthetic Enjoyment Only Without Physical Taking Held a "Beneﬁcial Use"'—flppropriation. U. S. Judge Robert E. Lewis, in the United States District Court at Pueblo, Colo, granted the Cascade Town Company a permanent injunction Oct. 4 prohibiting the Empire Water and Power Company from using water for the purpose of generating power, where the water formed the chief

scenic attraction of the mountain canon at the mouth where the town is situated. Cascade lies at the base of Pike's Peak. The town company resisted the power company on the ground that in playing its part in making scenic beauty, the water is already being put to beneﬁcial use within the meaning of the law, and therefore is not

subject to condemnation proceedings.

This

contention was sustained by the court, of the defendant, that there could be no beneﬁcial

use where there was in fact no use, the water not being handled and used, being overruled.