shou'd be apportioned according to the period during which it exercised its corporate franchise. The Comptroller claims that a fraction of the year cannot be considered in imposing the tax, and that the exercise by the relator of its corporate franchise for any part of the year subjects it to a tax the same in amount as if it had been engaged in business during the entire year.

The tax under consideration is not imposed upon property, but upon a privilege. It is not imposed upon the privilege of becoming a corporation, for that would be an organization tax, payable but once for the entire period of corporate existence. It is imposed "for the privilege of exercising" the corporate franchise, and is measured by the value of the investment made and used in carrying on the corporate business. It is an "annual" tax, imposed "annually," as the statute expressly provides, for the privilege of exercising, not of possessing, a corporate franchise. This privilege was used by the relator for only 6 days during the fiscal year In question. It could not exercise its franchise for the entire year, because the state did not bring it into existence until the year had nearly expired. The consideration for the tax is the privilege of carrying on business, yet the relator, according to the requirement of the Comptroller, was compelled to pay for a privilege that it did not have and could not exercise during the greater part of the period for which the tax was laid. It used the privilege for only 6 days, but it is taxed for using it 365 days, during 359 of which it did no business and enjoyed no privllege. An annual tax is a tax reckoned by the year, the same as annual rent or annual interest. An “annual" tax imposed "annually" means a tax that is imposed once a year, computed by the year. If a trust company does not commence business until 6 days before the fiscal year ends, or if it ceases to do business 6 days after the year begins, the tax for doing business by the year requires apportionment. While the Legislature did not so provide in express terms, it is a fair and reasonable implication from the words used that such was its intention. When, by section 182 of the tax law, it imposed an anral tax, payable annually, upon every corporation of a certain class, to be computed upon the basis of the amount of its capital stock "employed within the state" during the year, it did not say expressly that the assessment should be determined by the average amount of capital so employed, but we held that this was what was necessarily meant. People ex rel. Brooklyn Rapid Transit Co. v. Morgan, 57 App. Div. 335, 68 N. Y. Supp. 21, 168 N. Y. 672, 61 N. E. 1132. Adopting the opinion below, we said: "This is not a tax pon property, but a tax upon the business done. It is an annual tax to be measured by an annual business done, or, in other words, by the appraised value of capital employed during an entire year. The capital must

have been employed, or else there is no tax. It must have been employed within the state. All the data going to fix the amount of the tax must be past transactions. Time of employment and amount employed are essential data to fix the amount of an annual tax upon a business with any degree of fairness.

Section 187a does not fix the date when the capital stock, surplus, and undivided profits shall be taken, although they are variable quantities, of which an average can be made for the year, the same as an average of the capital stock employed by the year was used in the Case of the Brooklyn Rapid Transit Company, and with as much reason. In pronouncing judgment in that case, we relied in part upon People ex rel. Tiffany & Co. v. Campbell, 144 N. Y. 166, 38 N. E. 990, and People ex rel. New England Loan & Trust Co. v. Roberts, 25 App. Div. 16, 49 N. Y. Supp. 10; Id., 156 N. Y. 688, 50 N. E. 1120; and we distinguished People v. Spring Valley Hydraulic Gold Co., 92 N. Y. 383, the main reliance of the learned Attorney General in the case in hand. In the latter case, as an examination of the record shows, the question of apportionment was raised neither by the pleadings nor at the trial, but was suggested for the first time in this court, which did not consider it, and could not consider it, because it was raised by no exception. That appeal was heard upon the judgment roll only, none of the evidence having been returned. The only exceptions were to the conclusions of law as found by the trial judge, and they did not suggest the question. Moreover, the statute in that case differed in many important particulars from the one now before us, although the words "annual" and "annually" appeared therein. The question there was not as to the amount of the tax, but as to the constitutionality of the act, and whether the company was liable for any tax whatever. Here the question of apportionment was distinctly raised in the petition for the writ, as well as, but less distinctly, before the Comptroller. It is the only debatable question in the case, and the only one considered by the Appellate Division. The meaning of a statute imposing a new kind of tax is seldom settled by one adjudication, but there is a gradual growth as new questions occur to counsel in its progress through the courts, and authorities under one statute frequently fail in analogy to cases under another statute relating to a similar subject, but differing in many essential respects. We do not consider the decision in the case relied upon by the respondent as controlling in this.

Statutes should receive a reasonable construction unless the language used prevents it. Here we have an act which does not expressly provide for the case before us. It imposes annually an annual tax for doing business, but does not say whether, if business is done for only part of a year, the tax

shall be fixed in accordance with the time business is done, or for the entire year, including that part when not only no business was done, but there was no right to do any. It would be unreasonable to hold that a tax on doing business covers the whole year, when business was done for only six days. A tax is presumed to be laid by the state in return for some proportionate value received by the taxpayer, and the Legislature, in imposing an annual tax for the privilege of doing business, intended, as we think, that it should be based upon the period that the privilege was extended and enjoyed.

We may assume that the question is not free from doubt, for we cannot unite in judgment upon it, but serious doubt in a case of taxation should be resolved in favor of the taxpayer. Matter of Harbeck, 161 N. Y. 211, 217, 55 N. E. 850; Matter of Fayerweather, 143 N. Y. 114, 119, 38 N. E. 278; Powell v. Tuttle, 3 N. Y. 396, 401. A statute which levies a tax is to be construed most strongly against the government and in favor of the citizen. The government takes nothing except what is given by the clear import of the words used, and a well-founded doubt as to the meaning of the act defeats the tax. Sutherland on Statutory Construction, 458; Black's Interpretation of Laws, 326; Cooley on Taxation, 200.

We think the construction adopted is fair to the government and just to the citizen, for it gives the former full payment for the time the franchise was exercised, and takes from the latter nothing but what it impliedly agreed to pay when it accepted the franchise. We therefore reverse the order of the Appellate Division and the determination of the Comptroller, with costs, and remit the matter to the Comptroller for adjustment in accordance with the rule laid down.

BARTLETT, J. (dissenting). The relator trust company received from the Superintendent of Banks a certificate of authorization to do business on the 6th day of June, 1901, and did actually commence the transaction of business on the 24th day of June, 1901. It had, therefore, been in business six days when a report was due to the Comptroller as to its condition, etc. No such report was made, and on the 30th day of August, 1901, the Comptroller imposed the assessment and tax now under review.

The counsel for the relator insisted at our bar and in the courts below that the company was not liable to any tax for the year 1901, and that its first report to the Comptroller was not due until June 30, 1902. It was also argued that, if the company was assessable at all, it was only on its capital stock and surplus, spread over 12 months; that is on 6/365 of $360,000, and the tax would be 6/365 of $3,600, or $59.18.

It is conceded that the Legislature did not provide in express terms for the apportionment that is now to be allowed by the deci

sion of this court, but that it may be reasonably implied when seeking for its intention. When taxes are imposed upon corporations, to be computed upon the basis of the capital employed by them within the state, and the amount of that capital varies from time to time during the fiscal year, apportionment is, of course, necessary. In the imposition of a franchise tax no such situation is presented. Section 187a, under which this tax is assessed, expressly states that it is for the privilege of exercising a corporate franchise, or carrying on the business of the corporation. This tax is imposed upon the amount of the capital stock without regard to its actual value. It may be quoted at two or three times its par value, and yet the tax is assessed only upon the amount of the capital stock. Tax Law, § 187a. In considering this new form of taxation affecting trust companies, we are to keep in mind that it is accompanied by several valuable concessions to them. Section 202 of the tax law, as amended by chapter 132, p. 316, Laws 1901, and chapter 172, p. 461, Laws 1902, provides that a trust company is not only released from taxation on its personal property for state purposes, but is exempt from assessment and taxation for all purposes. In addition to this is the provision that the holder of stock of a trust company is not liable to be taxed thereon. In view of the nature of the tax and these valuable concessions, I am of opinion that the section under construction should be enforced as it stands, and that there is no occasion to read into it the supposed intention of the Legislature.

I vote for affirmance.

PARKER, C. J., and O'BRIEN, HAIGHT, CULLEN, and WERNER, JJ., concur with VANN, J. BARTLETT, J., dissents.

Order reversed, etc.

LINDSEY v. STATE.

(Supreme Court of Ohio. Nov. 17, 1903.) CRIMINAL LAW-PLEA IN ABATEMENT-SUFFICIENCY-JUROR-COMPETENCY-CHALLENGE-MURDER-INDICTMENT.

1. A plea in abatement to an indictment, while not required to be worded with the strictest technical and verbal accuracy, yet the matter pleaded therein must be clearly and distinctly stated, and must embrace facts as distinguished from conclusions. Hence a plea which states that the defendant was required, against his will, to take an oath and give testimony before the grand jury concerning a case then being investigated against the defendant and his codefendants, but which does not state how he was thus compelled to take an oath, nor that he refused to take it, nor that he claimed his privilege of refusing to testify, and which fails to show what he testified to, or that his testimony was material concerning any fact necessary to be proven by the state to justify the finding of an indictment, or that there was not testimony other than that of defendant before the jury sufficient to justify such indictment, is bad on general demurrer.

2. A juror being examined on his voir dire, stated that from what he had talked and read about trials of codefendants he had formed an opinion against the defendant which it would require testimony to remove, although he had nothing personally against him, and that the fact that the defendant had been indicted would have weight with him unless defendant proved himself not guilty, and as the case stands would require the defendant to prove his innocence; but it did not appear that he had talked with or read the testimony of any witness, or had talked with any one claiming to have knowledge of the facts, and it was shown on further examination that his opinion rested principally on the suspicion that the defendant was one of the gang that committed the crime, but that he did not assume to know that to be a fact; and that if the court should instruct that he need not consider the fact that the defendant had been indicted he could lay aside that fact, and not consider it in evidence against him; and, finally, that, notwithstanding any previous bias, opinion, or prejudice, he could render a fair and impartial verdict according to the law and the evidence, and the court, so believing, overruled the defendant's challenge for causeheld, that the facts do not show an abuse of discretion in so overruling the challenge. McHugh V. The State, 42 Ohio St. 154, and Goins v. The State, 21 N. E. 476, 46 Ohio St. 457, approved and followed.

3. An indictment, which charges in proper form an attempt to commit a robbery, and then avers that the defendant, with others, in such attempt did unlawfully and purposely, by means of a revolver loaded with gunpowder and a leaden bullet, shoot the deceased, with intent to unlawfully and purposely kill and murder him, and did, by means of the shooting, strike, penetrate, and wound him, with intent unlawfully and purposely to kill and murder him, thereby giving him a mortal wound from which he instantly died, and that by these means they did unlawfully, purposely, and in an attempt to perpetrate a robbery, kill and murder the deceased, sufficiently charges murder in the second degree, although the word "malice" is not employed in the indictment in describing the act.

4. It is not error in such case for the court, in connection with proper instructions with respect to the several degrees of murder and as to assault and battery, to charge, if the facts proven warrant it, as follows: "Has the state established by clear, convincing, and satisfactory evidence beyond a reasonable doubt, that the defendant is guilty as charged in the indictment, or of some other degree of murder or manslaughter, or it may be assault and battery, or assault merely? Otherwise your verdict should be 'Not guilty.''

Burket, C. J., and Crew, J., dissenting. (Syllabus by the Court.)

Error to Circuit Court, Wyandot County. Marsh Lindsey was convicted of murder, and brings error. Affirmed.

property of great value of him, the said William C. Johnson, and then and there the said William C. Johnson to rob, and the money and personal property aforesaid to steal, take, and carry away; and that the said defendants (naming them) then and there did attempt unlawfully, forcibly, and by violence, and by putting him in the fear, to take from the person and against the will of said William C. Johnson the money and personal property of great value of him, the said William C. Johnson, with the intent thereby then and there the said William C. Johnson to rob, and the moneys and personal property aforesaid, to take, steal and carry away; and that the said defendants (naming them) a certain revolver then and there loaded and charged with gunpowder and one leaden bullet, which said revolver they the defendants (naming them) in their right hands then and there had and held, then and there unlawfully and purposely. and whilst engaged in said attempt to perpetrate a robbery in and upon the said William C. Johnson as aforesaid, did discharge and shoot off against and upon the said William C. Johnson, with the intent the said William C. Johnson unlawfully and purposely to kill and murder; and that the said defendants (naming them), with the leaden bullet aforesaid, so as aforesaid by them, the said defendants (naming them), by force of the gunpowder aforesaid then and there discharged and shot out of the revolver aforesaid, then and there unlawfully, purposely, and whilst engaged in said attempt to perpetrate a robbery in and upon the said William C. Johnson, as aforesaid, did him, the said William C. Johnson, strike, penetrate, and wound, with intent him the said William C. Johnson unlawfully and purposely to kill and murder, thereby then and there giving to him, the said William C. Johnson, in and upon the abdomen and into the body of him, the said William C. Johnson, one mortal wound, from which the said William C. Johnson then and there instantly died. And so the jury aforesaid, upon their oaths and affirmations aforesaid, do say that the said defendants (naming them) him, the said William C. Johnson, in the manner and by the means aforesaid, unlawfully, purposely, and in the attempt to perpetrate a robbery, did kill and murder, contrary to the statute, etc.

charged in the indictment herein filed, he was required by the state of Ohio, and by writ of subpoena duly issued by the clerk of this court, upon a præcipe for that purpose filed by the prosecuting attorney of said county, to appear before said grand jury, and was, against his will, required to and did take an oath as a witness, and was, against his will, required to and did appear before said grand jury, and before them he was required, against his will, to give testimony in this case concerning the charge against him. Defendant says he did not, neither was he permitted to, have counsel to advise him concerning his rights herein; that he was by the prosecuting attorney and sheriff of said county required to dress himself, against his will, as the person or persons who committed the crime for which he stands charged were dressed or appeared to be dressed by those who saw them at the time said crime was committed; and while so dressed this defendant was, against his will, required to walk, talk, and exhibit himself in the presence of the prosecuting witness and other witnesses for the state to enable them to testify before the grand jury as to whether or not this defendant was the person who committed the crime with which he now stands charged; and certain witnesses, after having so seen this defendant so disguised as aforesaid, appeared before said grand jury, and gave testimony against him as to his identity in this case-all of which is, as he believes, in violation of the rights of this defendant, who is a citizen of the United States and of the state of Ohio." A demurrer to this plea in abatement was sustained. A plea of not guilty was then entered, and trial had. Divers exceptions were taken during the impaneling of the jury, which are considered in the opinion. The jury returned a verdict of guilty of murder in the second degree and not guilty of murder in the first degree. Motion for new trial being overruled, sentence followed. On error to the circuit court the judgment and sentence of the common pleas was affirmed, and the prisoner brings error here.

E. T. Dunn, W. H. Hare, and John W. Winn, for plaintiff in error. Benjamin Meck, pros. atty., for the State.

SPEAR, J. (after stating the facts). 1. First in natural order come the questions arising on the motion to quash and the plea in abatement. These may be treated together. A motion to quash may be made when there is a defect apparent upon the face of the record, and a plea in abatement may be made when there is a defect in the record which is shown by facts extraneous thereto. It is not, however, now seriously urged that the indictment is defective in form, and it is practically conceded that the motion to quash was properly overruled. It was the judgment of the courts below that the plea in

abatement was insufficient on two grounds: One, that it was bad for indefiniteness, in that it alleges conclusions rather than facts; and another that it fails to show that the defendant was in any wise prejudiced by the facts alleged.

We are of opinion that the courts were right on both grounds. It is not necessary to hold that facts relied upon in a plea in abatement should be worded with the strictest technical and verbal accuracy, as is held in many cases; yet it is the rule that the facts must be pleaded, as held in Wagner v. The State, 42 Ohio St. 537, with exactness, and the plea is to be strictly construed. The reason is apparent. It is a dilatory plea. The rule is given in Bishop's Criminal Procedure, § 327, thus: "In these such as pleas in abatement and the like-it is necessary to employ extreme certainty. An excellent work on pleading (Gould's Pl. p. 84) states that this superlative certainty 'requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment or construction; and on the other no supposable special answer unobviated.' It is a rule, not of construction only, but also of addition; that is, it requires the pleader not only to answer fully what is necessary to be answered, but also to anticipate and exclude all such supposable matter as would, if alleged on the opposite side, defeat his plea." The plea in this case avers that the defendant was required to and did take an oath as a witness, and was required to and did appear before the grand jury, and was required against his will to give testimony in this case concerning the charge against him. But the plea does not state that he refused to take an oath, nor in what manner nor by what means he was required against his will to take an oath; nor does it allege that the defendant, when before the grand jury, claimed his privilege, or refused to answer any question, or in any manner objected to appearing as a witness and to testifying. There is no law that could compel the witness to testify to matters which would incriminate himself, or to punish him for refusing. If he did not object, how could there be compulsion? For all of any statement of fact which appears, he took the oath voluntarily and testified voluntarily. Where a privilege to refuse exists, and the witness testifies without objection, the natural inference is that he testifies voluntarily. Indeed, the only feature which, according to the facts stated, is shown to have been involuntary, was the appearance in obedience to the subpœna. That would, in and of itself, be regarded as compulsory process.

The same may be said with regard to the complaint that he was required to dress. walk, and talk, and exhibit himself so dressed before persons who afterward testified before the grand jury. Facts are not stated which

show that this was compulsory. The averment, also, that he was not permitted to have counsel to advise him concerning his rights is equally a conclusion. It does not appear that he desired to have counsel, or was in need of counsel, nor that he was at the time upon trial for any crime or offense.

But, aside from the foregoing, how stands the case? The proposition of the plaintiff in error is that the indictment should have been held bad because a constitutional right of the defendant had been violated; that is, the grand jury and the prosecuting officer should be rebuked for improper practice, without regard to whether the defendant had been thereby prejudiced or not. We are not commending the practice of subpoenaing persons suspected of crime as witnesses before a grand jury which has been summoned to inquire respecting that crime; indeed, we do not hesitate to characterize it as improper practice. But the question is what effect that mere fact ought to have in a test of an indictment otherwise regular and valid. It is of importance to note that this plea does not show that the defendant testified against himself, or that he testified to any fact material to the inquiry, or that the testimony he gave was of consequence in the deliberations of the jury, or that there was not other testimony before the jury upon which the indictment might have been properly found. On the contrary, for all that appears in this plea, there was abundant competent evidence, by competent witnesses before the jury, and the jury in fact found the indictment wholly upon such other competent testimony. Speaking more specifically, the plea does not show that some one material fact, and what material fact, was testified to by the defendant without which an indictment could not have been found, which fact was not testified to or established by other witnesses. The statement simply is that he was required "to give testimony in this case concerning the charge against him." A like test shows the insufficiency of the plea that he was required against his will to dress and exhibit himself before persons who afterwards testified before the grand jury against him as to his identity in this case. Suppose this to be just as stated. For all that appears, witnesses other than the ones referred to gave testimony to the grand jury as to identity abundantly supporting the charge. It results that, so far as this inquiry is concerned, the case stands just as it would had Lindsey not testified before the grand jury. Why, then, should the indictment be held bad, and the proceedings in the courts below go for naught? Our statute (section 7252, Bates' Ann. St.) provides that upon an adjudication in favor of the accused on a plea in abatement he may be committed or held to bail for appearance at the next term. It would follow, simply, that another grand jury would be summoned, impaneled, and the testimony other than that given by Lindsey be pre69 N.E.-9

sented in all respects like the one on which the trial was had. So that again the court would be precisely where it was when the trial was entered upon. How could such circumlocution aid the cause of justice? How would the people gain, or the citizen be more secure in his rights, by all this needless delay and expense? We think it quite unnecessary to consider further the much discussed question of the constitutional right and privilege of the citizen arising under section 10 of our Bill of Rights. No case is made on the facts calling for such discussion. Other allegations appear in the plea, but they are irrelevant, because contradicting the record, and need not be further noticed.

2. Exceptions were taken to the overruling of challenges made to several of the petit jurors on the ground of previous opinion and prejudice. The instance of Louis Cross is a sample. He was questioned by counsel for defendant, and answered: "Q. From all you have talked and read about these other trials, state whether you have at any time formed any opinion in your mind as regards the guilt or innocence of the defendant. A. I think I did have an opinion. Q. Is that opinion with you still? A. Yes, sir. Q. I want to inquire if it would require any testimony to remove the opinion you have now formed? A. Well, yes; I think it would. Q. And the opinion that you now have is against the defendant, is it not? A. I have nothing that would decide against that I know of. I have nothing against him at all. Q. The question now is whether the opinion you think you have is against the defendant? A. Yes, it would be against him. Q. It would take sworn testimony to remove that opinion, would it not? A. It would take some testimony, yes. Q. So when you start into the investigation of this case you would not begin exactly fair and even between the state and defendant, would you? A. Well, I think I could start about even with this man in this case. Tell us how you could start in even with an opinion against the defendant in the jury box? A. Well, my opinion is if he was in the gang that murdered Mr. Johnson, I would have some opinion of him. Q. Yes, so would everybody. A. That is all I would have against him; that is all I could say against this man now, because I don't know. I don't know what he may do or prove. Q. But I understand you to say it would take testimony to remove the opinion you now have? A. Well, of course, it would. Q. Your opinion is against the defendant; that he was possibly one of the gang? A. Yes, sir. Q. That is what you think about it? A. Yes, sir. Q. And it would take sworn testimony to remove that conclusion of yours? A. Yes, sir. Q. Then when you start into this jury with the notion that this defendant is one of the gang, to that extent you would be prejudiced against him? A. That far I would. Q. You are aware that the grand jury has returned an indictment against this

Q.