Opinion Per Curiam.

charge should have been given in view of the testimony disclosed. While the testimony relating to the overt act on the part of Graham is not very strong, we are unable to say in this case that the charge was prejudicial.

In its general charge to the jury the court gave the defendant the benefit of the law relating to self-defense. It is now claimed that in this the court erred for the reason that the defendant denied the act of firing the shot that killed Latona. It is therefore claimed that the injection of the question of self-defense impliedly admitted that the defendant may have fired the shot that killed the decedent, and was therefore prejudicial error. While it is true the defendant denied the killing, several of the state's witnesses gave testimony tending to show that he fired the shots that killed the decedent. It also appears, both from the crossexamination of the state's witnesses and from the defendant's witnesses, that whatever was done by Graham and his associates on that occasion was done in the lawful defense of their persons. Under that phase of the case, it became the duty of the court to charge the right of self-defense. When the defendant entered his plea of not guilty, he could avail himself of all the defenses which the evidence disclosed. It would be perfectly proper for him to say (a) I did not fire the shot; (b) Whatever I did, I did in my own self-defense. The mere fact that defendant does not admit the killing does not preclude him from this right. Indeed, the defendant may not take the stand at all or offer any evidence in defense. The evidence of self

Opinion Per Curiam.

defense may come wholly from the state; but whether the evidence comes from the defense, or from the state supporting his lawful right of selfdefense, it is the duy of the court to charge that feature of the law. The rule is stated as follows in 13 Ruling Case Law, page 813: "If the defendant denies the killing and there is no evidence adduced by either party which tends to show that the killing might have been in self-defense, although other evidence shows quite conclusively that the defendant committed the crime, it is not the duty of the court to instruct as to self-defense; but if the evidence tends to raise the issue of selfdefense although the defendant denies the killing, it seems that an instruction based on the theory of self-defense is proper and should be given." That the instruction relating to self-defense was properly given is supported by the overwhelming weight of authority. State v. Jackett, 81 Kans., 168; Frazier v. Commonwealth, 114 S. W. Rep., 268, and State v. Sloan, 149 Ia., 469.

Misconduct of counsel for the state on the trial is also urged as reversible error. The record discloses that these remarks were exceedingly censurable, and of such character that their effect could hardly be avoided by any exception that might have been taken at the time. But the bill of exceptions does not disclose that the misconduct was excepted to on the trial, but was brought into the case only by affidavit attached to the motion for a new trial. This affidavit was made a part of the bill of exceptions. The procedure took the same character as in the case of State v. Young,

Statement of the Case.

77 Ohio St., 529, which holds that erroneous misconduct of this character cannot be made available by affidavit in support of a motion for a new trial.

Judgment affirmed.

NEWMAN, JONES, MATTHIAS and JOHNSON, JJ.,

concur.

Wanamaker, J., concurs in the judgment.

THE STATE, EX REL. DOERFLER, PROS. Atty., v. OTIS ET AL.

THE CITY OF CLEVELAND, BY ETC., v. NEAL, DIRECTOR OF FINANCE, ET al.

Municipal corporations-Home rule — Cleveland charter-Powers granted — Rapid transit commission — Validity of ordinance.

1. Under the provisions of Sections 1 and 2 of the charter of the city of Cleveland, authority is reserved to that city to exercise any power now or that may hereafter be conferred upon the municipalities of this state by the laws of Ohio.

2. Initiated ordinance No. 45222 of the city of Cleveland, Ohio, entitled: "An ordinance to provide for the appointment of a Rapid Transit Commission," is not in conflict with the provisions of its charter, but is a valid and subsisting ordinance under and by the terms of which the mayor is lawfully empowered to appoint a Board of Rapid Transit Commissioners for that city.

(Nos. 15853 and 15854- Decided April 2, 1918.)

IN QUO WARRANTO.

Statement of the Case.

ERROR to the Court of Appeals of Cuyahoga county.

Under the authority conferred by Section 7, Article XVIII of the Constitution of Ohio, as amended September 3, 1912, the city of Cleveland, on the first day of July, 1913, adopted a charter for the government of that city. Under the provisions of this charter, an ordinance was duly initiated by petition, which ordinance was rejected by the city council on the fourth day of September, 1917.

It was then submitted to a vote of the electors of the city of Cleveland, at the general election held November 6, 1917, and received a majority of the votes of the electors voting on the question of its adoption. This initiated ordinance is as follows:

"ORDINANCE No. 45222.

"Section 1: It is hereby declared to be essential to the interests of the City of Cleveland that a Rapid Transit Commission, with the powers and duties prescribed in Sections 4000-16 to 4000-28 of the General Code of Ohio, and to be known as the Board of Rapid Transit Commissioners of Cleveland, be appointed by the mayor.

"Section 2: Be it further ordained that this ordinance shall take effect and be in force at the earliest period allowed by law."

In compliance with the provisions of this ordinance, the mayor of the city of Cleveland appointed the defendants, Clarence J. Neal, Charles

Statement of the Case.

A. Otis, M. A. Bradley, Fielder Sanders, and Charles E. Adams, as members of The Board of Rapid Transit Commissioners of the City of Cleveland, Ohio.

Each of the above cases involves the question of the constitutionality of Sections 4000-16 to 400028, inclusive, General Code (106 O. L., 286), the validity of the initiated ordinance No. 45222, and the authority of the mayor of the city of Cleveland to appoint the members of The Board of Rapid Transit Commissioners under the terms and provisions of that ordinance. These cases were heard and submitted together.

In Cause No. 15853, State, ex rel. Doerfler, Pros. Atty., v. Otis et al., a petition in quo warranto was filed in this court, averring that the appointment of the defendants as members of The Board of Rapid Transit Commissioners of the City of Cleveland is wholly illegal and void, and that the defendants are holding and exercising this office without warrant or authority of law, and praying that they may be ousted therefrom.

In the second case, No. 15854, an action was brought on behalf of the city of Cleveland by W. S. FitzGerald, as director of law of that city, in the common pleas court of Cuyahoga county, Ohio, asking that an injunction issue restraining the defendants, The Board of Rapid Transit Commissioners of the City of Cleveland, from incurring any indebtedness on behalf of that city, and praying that Clarence J. Neal, as director of finance, be restrained from approving or paying any obligations incurred by that board.