foretbefirst trial of the cause, showing thefrling of a written walV'eroif ·the jury and a submission of the case for trial to the Of that order, in connection with other matters which are clearly irrtHevant to the questions now-presented, the plaintiffs in error have'presented a properly certified copy, and ask that by direct order or by writ of certior31'i it· be made a part of the record. The formal writ under the circumstances is not necessary, and the clerk will cause the order as certified to be printed as a part of the record, and will also attach to the transcript the original writ Df error. While this disposes of the motion to dismiss and of the counter motions of the plaintiffs in error, we deem it proper here, besides calling attention to the remarks of the Chief Justice in Railway Co. v. Stewart, 95 U. S. 279, in respect to what should be contained in a transcript, to say that the words "all proceedings in the case," as used in the first clause of rule 14 of this court (21 C. C. A. cxv., and 78 Fed, cxv.), are to be interpreted with reference to the words "all the papers, exhibits, depositions, and other proceedings which are necessary to the hearing in this court," found in the third clause of the rule.. It is not intended that irrelevant papers, proceedings, or orders shall be certified; and, that the clerk may not be left in doubt, he may well require of the counselor attorney of the appellant or plaintiff in error in a' cause a prrecipe stating specifically what the transcript shall contain, and, attaching a copy of the llrrecipe to the transcript, certify that it is a true and correct transcript according to the prrecipe. The motion to dismiss is over. ruled.
MISSOURI. K. & T. RY. CO. v. HA!1L. (CircUit Court of Appeals, Eighth Circuit. April 18, 1898.)
Where the. testimony would not compel every reasonable man, with tall' .. and Jmpartlal judgment, who hears It, to come to .the .same conclusion In . . respect to' a material fact In Issue,' It Is not error to refuse to take the case from' the jury. 2. CARnIEns-,AcTION FOR INJURY TO LIVE STOCK-DAMAGEB-EvIDENCE. Testimony of oDe accustomed to handling cattle, that certain cattle, after being ina railroad collision, failed, to gain properly, by reason of which they were damaged in value a certain sum per head, is admissible In an action to recover damages resulting. from collision. .
TRIAL-DIRECTION OF VERDTCT.
In Error to the Circuit Court of 'the United States for the District of Kansas. T.N. Sedgwick, for plaintiff in error. John C. Gage, Sanford 'B. Ladd, Charles E. Small, Mr. Lane, and Mr. Hicks, for defendant in error. Before SANBORN and THAYER, Circuit Judges, and PHIUPS, District Judge.
MISSOURI, K. &; T. RY. CO. V.,HALL.
SANBORN, Circuit Judge. While the Missouri, Kansas & Texas Railway Company, the plaintiff in error, was transporting a train load of cattle for John J. Hall, the defendant in error, it ran an engine into the rear of the train, and, as the defendant in error claims, knocked down and killed some of the cattle, and injured others. He sued the company for the loss which he alleged that he had sustained from this collision. The case was tried by a jury, which returned a verdict against the company. It is assigned as error that the court refused to dismiss the case at the close of the evidence for the defendant in error, and that it refused to direct a verdict for the company at the close of all the evidence. But the collision was undisputed, and the only question was whether any damage to the cattle was caused thereby, and, if so, how much. Upon that question the testimony was conflicting. Some of the witnesses testified that the collision tore off one end of the caboose, and knocked down all, or nearly all, of the cattle; that from 30 to 41 of them were taken out dead 21 miles beyond the place of the accident; that many of them had ribs broken in, or horns torn off, or hips broken down; that within three days after the collision 97 of them died, and that those that lived were so injured that they would not thrive or take on flesh. On the other hand, witnesses testified, in effect, that all this loss was the result of the poor and weak condition of the cattle when they were shipped, and that the collision was so gentle and trivial that it did not injure them. The testimony to the injury to the cattle was, however, so positive and substantial that we are not satisfied that every reasonable man who heard it with fair and impartial judgment would be compelled to come to the conclusion that the cattle were not injured by the collision, and in this state of the case the court properly refused to withdraw the case from the jury. Railway Co. v. Jarvi, 10 U. S. App. 439, 451, 3 C. C. A. 433, 438, and 53 Fed. 65, 70; Drake v. Stewart, 40 U. S. App. 173, 178,22 C. C. A. 104, 107, and 76 Fed. 140, 143. For the same reason there was no error in the refusal of the court to dismiss the case at the close of the evidence for the defendant in error, since the testimony to the injury to the cattle had then been introduced. The defendant in error testified that he had been engaged in raising and in handling cattle for more than 20 years, that he saw these on the day of the collision and frequently thereafter for four months, and that those that were not killed failed to thrive and take on flesh, so that they were lessened in value five dollars a head by the collision; and the court submitted this evidence to the jury under an lnstruction that, before they could allow any damages on this ground, they must be satisfied that the failure of the cattle to thrive was caused by the injuries they received in the collision, and not by their journey, and that they should exercise a great deal of care and consideration in coming to their conclusion upon this part of the case. An objection to this testimony was interposed that it was incompetent, irrelevant, and immaterial; that it called for a conclusion of the witness, and that he was not a competent witness; and it is insisted that the court erred in overruling this objection, and submitting this testimony to the jury. The contention cannot be sus-
tained. The questions it presents were carefully considered by this court in Railway 00. v. Edwards, 49 U. S. App. 52, 24 C. C. A. 300, and 78 Fed. 745, and for the reasons stated in the opinion in that case there was no error in the ruling of the court here. A motion was made to strike out certain of the assignments of error in this case, but it is unnecessarv to consider it, because we have arrived at the same result upon the merits that we should have reached if we had granted it. For this reason the motion is denied without a consideration of its merits. The judgment belOW is af· firmed. -GARDES v. UNITED STATE8.' GIRAULT v. SAME. (CIrcuit Court of Appeals, Fifth Circuit. No. 646. Aprn 19, 1898.)
CRmINAL PROCEDURE-INDICTMENT-SEVERAL COUNTS.
Where an Indictment consists of ,numerous counts, the trial court may, In the exercise of sound judicial discretion, require the government to elect certain counts upon which It will ask conviction; but where the COUiltS are all for transactiolls connected together, or of the same class, their joinder is proper, under Rev. St. § 1024, and the exercise of the court's discretion will not be disturbed, except In a clear case of improvidence or abuse. Where, during the trial, a juror becomes disqualified, and the court adjudges a mistrial, a plea of former jeopardy is not good on a second trial, even though all parties were willing to proceed with 11 jurors.
SAME-READING Oil' INDICTMENT.
Where defendants have been arraigned, and have waived reading of the indictment, they may not subsequently complain if the whole indictment is not read at the trial, but such parts of it are read, and such explanatlons made of the other parts, as may give the jury the clearest comprehension of it.
Where the jury find accused guilty upon all counts of an indictment, "Guilty as charged," without specifying the counts, is a proper form of verdict. Where the verdict is sustained by one good count in the indictment, it must stand, even if all the other counts are bad.
SAME-COUNT TO SUSTAIN.
Where, after mistrial, and before a new trial, amendments are made to purely formal parts of certain counts of an indictment, and the defendants are not rearralgned, even if the irregularity is material it can affect only the counts so amended, and the error is cured by arrest of judgment on such counts. 'Where the statute under which a prisoner Is sentenced provides for im· prisonment, but not at hard labor, the words "at hard labor" should not be inserted in the sentence, even if hard labor is a part of the discIpline of the prison at which the sentence is to be served.
In Error to the Circuit Court of the United States for the Eastern District of Louisiana. J. R. Beckwith, for plaintiff in error Gardea. Girault Farrar and A. D. Henriques, for plaintiff in error Girault. J. Ward Gurley, for the United States. .
denied May 24, 1898.