Sterling v. Drake.

writ of error they shall order the prisoner to be discharged, a new trial to be had, or appoint a day certain for the execution of the sentence. Criminal Code, sec. 200, These are substantially the equivalents of the power of English justices to reprieve.

3. If a female convict sentenced to the punishment of death appear to be pregnant, a jury of six persons shall be summoned to try the fact; and if, by the finding, it shall appear that such female convict is with child, the sheriff shall suspend the execution of her sentence, and transmit the finding to the governor, who, on being satisfied that such woman is no longer pregnant, shall issue a warrant appointing a day for her execution. Criminal Code, secs. 190, 191.

Sections 187, 188, and 189 of this code provide, in substance, that if any convict sentenced to the punishment of death shall appear to be insane, the question of insanity shall be tried by a jury of twelve; and if it be found that the convict is insane, the execution of the convict shall be suspended, and the governor notified thereof, who shall, as soon as he is convinced that the convict has become of sound mind, issue a warrant appointing a time for his execution.

Thus it will be seen that, with such modifications in form as were necessary to adapt them to our systems of government and jurisprudence, we have adopted and incorporated into our constitution and laws the spirit of the laws of England in reference to reprieves.

But it is contended that the governor had no power to reprieve Sterling without his consent, under section 214 of the criminal code, which provides: "Whenever the governor may deem it expedient and proper to reprieve any person under sentence of death, under any condition whatsoever, the condition upon which such reprieve is granted shall be specified in the warrant, and the person accepting such conditional reprieve shall subscribe such acceptance upon the warrant," etc. The object sought to be accomplished by this section would, in my opinion, constitute a pardon instead of a reprieve upon conditions. It would

1

Sterling v. Drake.

clearly have been so at common law. 4 Bla. Com. 401; Chitty's Cr. L. 773. But be this as it may, we are all of opinion that this is not a reprieve upon condition within the meaning of the section, which evidently contemplates a punishment other than the execution of the person under sentence of death, and he is required to accept the modification on the theory that a punishment different from that imposed by the sentence of the court, can not be thrust upon him by the governor without his consent. The reprieve in the case before us was unconditional. It suspended the execution of the sentence for a specified interval of time, and it has already been said that the governor had power to grant such a reprieve, and the consent of the prisoner thereto was not necessary.

Next it is claimed that the governor had no authority to order the execution to take place on a day other than that fixed by the court.

Although I can find nothing in the books bearing upon the point, it is probable that in England, when the king reprieves one under sentence of death, for a specified interval of time, and permits this time to elapse without further commands on the subject, that the execution of the sentence of the court takes place as a matter of course. For myself, I can not see why this would not be the proper practice in Ohio. The reprieve does not annul the sentence, but merely delays or keeps back the execution of it, for the time specified. In other words, it substitutes a day other than that fixed by the court for the execution, and when that day arrives, it is by virtue of the sentence of the court, and not the command of the governor, that the execution takes place. A majority of the court, however, are of the opinion that the governor properly commanded the execution to take place on the day named in the warrant. We all agree that the execution took place in pursuance of law. The command of the governor's warrant authorized the sheriff to execute the prisoner on the day named, without the further order of the court.

From the constitutional power to reprieve, and thus sus

Sterling v. Drake.

pend the execution of the sentence by the governor for an interval of time, the power to do whatever might be necessary to make the sentence again effective at the expiration of the time specified, would necessarily be implied.

Without this power, the governor would not dare, in any case, to use the power of reprieve with which he is clothed, for fear that he might thereby cause an entire failure of justice. The power is intrusted to the governor for merciful and beneficent purposes, and no construction should be put upon this constitutional provision that will prevent him from freely using the power of reprieve for the purposes intended.

In a note to the case of Gardiner v. The State, Wright, 404, there is a precedent for a reprieve and subsequent execution of the prisoner on the day named in the governor's warrant. The warrant in that case differed from that in the case before us in this, that it required the prisoner to subscribe and acknowledge his consent to the reprieve, in pursuance of the act of January 27, 1818 (Chase Stat. 1036), the first section of which has been adopted as section 214 of the code of criminal procedure above cited. There was no question made as to the legality of the governor's action in that case. Notwithstanding Governor Lucas must have regarded the reprieve as conditional, and therefore required the prisoner's assent thereto, we are clearly of the opinion that the reprieve was unconditional in that as in this case.

Besides, the constitution of 1802 (art. 2, sec. 5), unlike the present, did not provide for conditional pardons and reprieves. In the absence of such a constitutional provision, it may be doubtful whether the executive was authorized to grant conditional pardons or reprieves at all. Commonwealth v. Fowler, 4 McCall, 35.

VOL. XXIX-30

Motion overruled.

Farmers' Ins. Co. v. Frick.

THE FARMERS' INSURANCE COMPANY v. JOSEPH K. FRICK.

In an action against an insurance company to recover the amount of a fire policy, a defense on the ground that the insured failed to make and furnish the insurer with the preliminary proofs of loss in the manner and within the time required by the policy, is not waived by setting up and relying upon other defenses not inconsistent therewith.

MOTION for leave to file petition in error to reverse the judgment of the Superior Court of Cincinnati.

The action was brought in the superior court by Frick to recover of the insurance company the amount of a fire policy, alleging a total destruction of the property insured.

The company set up and relied upon several separate and distinct defenses, the sixth of which was, in substance, that Frick had failed to give notice in writing of the loss and cause of the fire, and had also failed to present to the company proof of his loss by the fire, in the manner and within the time required by the terms of the policy.

On the trial, the insurance company introduced testimony tending to sustain each of its defenses, including the sixth. In reference to this sixth defense, the court charged the jury as follows: "The defendant can not avail itself in this case of the fact that the preliminary proofs were not furnished within a reasonable time, because having gone to trial upon other grounds of defense set up in the answer, as well as upon the ground of want of preliminary proof, it must be held to have waived its right to insist upon the want of such proof as a defense to this action, or to have estopped itself from asserting it. If it defends on that ground, it must defend on that ground alone." This charge was excepted to and is assigned for error on this application for leave to file a petition in error to reverse the judgment that was rendered in favor of Frick in the court below.

Matthews, Ramsey & Matthews, for the motion, cited Un

DeCamp v. Hamma, Ex'r.

derwood v. Ins. Co., 57 N. Y. 500; Home Ins. Co. v. Lindsey, 26 Ohio St. 348; May on Ins. 568, sec. 465; Flanders on Ins. 523, 526; 6 Cush. 342; 34 Barb. 213; 6 Phil. 252; 3 Gill, 176.

J. H. & C. Bates, contra.

BY THE COURT. The defendant had a right to set forth in its answer as many consistent grounds of defense as it had. If the plaintiff below had failed to make and furnish the defendant below with the preliminary proofs of loss, in the manner and within the time required by the policy, such failure constituted a defense to the action. Home Ins. Co. v. Lindsey, 26 Ohio St. 348. By going to trial on other grounds of defense set up in the answer, as well as upon the ground of want of preliminary proof, the defendant did not waive its right to insist upon the want of such proof as a defense, there being no inconsistency between the defenses. Motion granted. Judgment reversed, and cause remanded for a new trial.

A. & W. F. DECAMP V. ANDREW HAMMA, EXECUTOR OF ZACHARIAS HAMMA.

In an action against the maker, by an indorsee of a negotiable promissory note, who purchased the same for a valuable consideration, before maturity, and without notice of any fraud or infirmity as between the original parties, the defendant is not liable where it is shown:

1. That at the time of signing and delivering the note, he was induced, by fraudulent representations as to the character of the paper, to believe that he was signing and delivering an instrument other than a promissory note.

2. That his ignorance of the true character of the paper was not attributable, in whole or in part, to his own negligence in the premises.

ERROR to the District Court of Greene county.