Volume 187 — Indiana Reports

From Lake Circuit Court; Henry A. Steis, Special Judge. Action by Thomas F. Lillis against John O. Bowers and others. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Criminal Law. — Sufficiency of Indictment. — Motion to Quash. —Failure to Move. — Waiver of Defect. — Statute.—Under §348 Burns 1914, Acts 1911 p. 415, providing that certain objections, when not appearing on the face of the complaint, may be taken by answer, and that if not taken by demurrer or answer shall be deemed waived, except only the objection to the jurisdiction of the court, an objection that an indictment for selling intoxicating liquors without a license did not state the price for which the liquor was sold was waived where defendant failed to present such objection to the trial court by a motion to quash, the alleged defect in the indictment not going to the jurisdiction of the court, p. 16.</p> <p>2. Criminal Law. — Evidence to Establish Alibi. — Incriminating Others. — Relevancy of Evidence. — In a prosecution for selling intoxicating liquors without a license at a chicken show, to which charge an alibi was interposed as a defense, it being claimed that the sales were made by one S and that the defendant was not present, where there was evidence to the effect that shortly before the sale charged S was seen on the premises with a bottle of whisky and a quantity of bottled beer and that the accused was not present at the time and place of the alleged sale, testimony that sortie four hours before the sale in controversy a stranger, a spectator, was seen to take beer and whisky resembling that sold from a grip was properly excluded as being too remote and as being irrelevant, there being no evidence that the stranger sold or offered to sell the liquor, or that he and S were the same person, nor evidence descriptive of the stranger, S, or the accused, from which the jury might draw the inference of mistaken identity on the part of the prosecuting witness, pp. 17, 19.</p> <p>3. Criminal Law. — Alibi.—Burden of Proof. — Where, in a criminal prosecution, an alibi is relied upon as a defense, it is incumbent on the state to prove beyond a reasonable doubt the presence of the accused at the time and place the crime was committed, p. 19.</p>

<p>From Laporte Circuit Court; James F. Gallaher, Judge.</p> <p>Proceeding before the Public Service Commission by the board of commissioners of St. Joseph county against The Chicago, Lake Shore and South Bend Railway Company and others. From a judgment sustaining the order of the commission, The Chicago, Lake Shore and South Bend Railway Company appeals.</p>

<p>From Huntington Circuit. Court; Samuel E. Cook, Judge.</p> <p>Action by Effie Clark, by her next friend, Martin Nicholson, against Thomas Clark and wife. From a judgment for plaintiff, the defendants appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).</p>

<p>1. Criminal Law. — Instructions.—Requests.—The refusal of a requested instruction that was fully covered by instructions given presents no just reason for complaint, p. 34.</p> <p>2. Criminal Law. — Appeal.—Harmless Error. — Instructions.— In a prosecution under §8351 Burns 1914, Acts 1907 p. 689, an instruction that the jury, before it could convict the defendant, must find that he kept, owned and operated a place and that “someone” at that place sold, bartered or gave away liquor unlawfully, though subject to technical objection, was not prejudicial error under evidence showing that the word “someone” could apply only to employes of the place, p. 34.</p> <p>3. Intoxicating Liquors. — Unlawful Sale. — Keeping Place.— The gravamen of the offense defined by §8351 Burns 1914, Acts 1907 p. 689, is the keeping, running and operating of a place where liquor is sold unlawfully; and where the evidence shows that the defendant, a proprietor of a licensed saloon, received profits from liquor sold in a separate room in violation of the act with knowledge of the conditions under which it was sold, there can be no application of the rule announced in Boos v. State, 181 Ind. 562 — that to support the conviction there must be a showing that the sale was made by the defendant in person or that it was made, with his express or implied authority,— since such rule is based on a statute that makes the sale the gravamen of the offense defined, p. 35.</p> <p>4. Criminal Law. — Harmless Error. — Instructions Assuming Facts. — Although an instruction may be subject to criticism for assuming certain facts, it does not present, reversible error if the assumed facts are admitted or established by undisputed evidence; nor-does such an instruction present reversible error where, as in this- case, the evidence is of such a nature that the jury would undoubtedly have found the assumed facts under a prope'r instruction, p. 36.</p>

<p>From Huntington Circuit Court; Robert Van Atta, Special Judge.</p> <p>Proceeding by D. W. Zintsmaster and others to establish a public drain, opposed by John P. McCleery and others. From a judgment establishing the drain and overruling their motion for new trial, objectors appeal.</p>

<p>From Marion Criminal Court (46330) ; H. C. Austill, Special Judge.</p> <p>Prosecution by the State of Indiana against Frank Barry. From a judgment of conviction, the defendant appeals.</p>

<p>1. Constitutional Law. — Franchises.—Contracts.—Obligations. —Where only the rights and interests of the city and a public utility are being considered, their franchise contracts granting to the latter the right to use the city streets are, generally speaking, valid, binding and mutually enforceable; ,and, unless required by public welfare, the legislature has no power to impair the obligations thereof, p. C3. .</p> <p>2. Municipal Corporations.- — Streets.—Rights of State. — Franchises. — Since the streets and other highways of municipalities are a part of the general highways of the state, a municipality in granting a franchise for the use of its streets to a public utility, in so far as the public welfare is aifected, acts as the agent of the state; and the municipality, to the extent that the interests involved are not purely local, has only such authority over its streets as is delegated by the state and not waived, the limitations of which authority are known to all, as they are reservations by virtue of the police power of the state, p. 59.</p> <p>3. Corporations. — Police Power. — Grant.—The element of government known as the police power, which the state may exercise for the general welfare and protection- of its citizens, as it applies to the regulation and control of public utilities, may be abandoned by the state to such utilities by granting directly to them in charters, or by franchises, freedom from the exercise thereof; but such grant of freedom is in derogation of common right, is never presumed, and if doubt exists as to the abandonment of the power it must be resolved in favor of the state, pp. 60, 72.</p> <p>4. Municipal Corporations. — Franchises. — Presumption. — The state may authorize municipalities to grant a franchise to a public service corporation free from the exercise of the state’s power of regulation; but such franchises are never construed as being free of such power, unless the state’s grant of authority and the municipality’s grant in the franchise are clear and positive, p. 61.</p> <p>5. Municipal Corporations. — Franchises.—Ratification.—A state may ratify a franchise granted by a municipality exempting the grantee from the exercise of the state’s power of regulation, though the municipality had no power to so exempt at the time of granting the franchise, p. 61.</p> <p>6. Corporations. — Police Power. — Regulation.—The state may, for the public good, regulate the acts and conduct of public service companies, except where it has irrevocably divested itself of the right to exercise its police power in their regulation; this rule applies to their charges for service, the underlying principle of which is that such charges shall be fair and rea'sonable. p. 61.</p> <p>7. Constitutional Law. ¿ — Impairment of Contracts. — What Amounts to.- — Unless the state — by charter or in the authority to a municipality as its agent or by ratification' — has divested itself of the power to regulate public utilities, the power is by implication written into the franchise contract; hence the action of the state in regulating them is not an impairment of the contract, but an exercise of a right provided in the contract. p. 62.</p> <p>8. Municipal Corporations. — Franchises.—Authority.—The act of 1867 as amended in 1891 (Acts 1891 p. 122, §3623 Burns 1894), giving the common council of a city exclusive power over the city streets, etc., for certain purposes, is broad enough to authorize a city to make a valid contract for user of its streets, as between it and the company; but the act does not authorize the city to bar or curtail the right of the state to exercise its police power to regulate, the word “exclusive” being used to define the agency and not to bar the state from exercising reserved authority, p. 63.</p> <p>9. Municipal Corporations. — Franchise.—Authority to Grant.' —Although §§93, 253, Acts 1905 p. 219, §§8696, 8938 Burns 1914, empower a city to authorize telephone companies to use its streets, alleys or public places; to contract for public service for the convenience and welfare of the people; to provide by ordinance all necessary regulations for the placing of telephone poles, etc.; and to impose the payment of “reasonable license fees or other compensation” to the city for the franchise rights, these provisions cannot be' construed as allowing the city to grant franchises to public service companies that would prevent the state from the exercise of its police power in the regulation of such companies, p. 64. »</p> <p>10. Municipal Corporations. — Franchises.—Authority.—Where a city had granted the use of its streets to a telephone company under a franchise,- defective' in no respects except that the city had power to provide for only reasonable fees or compensation, the provisions in §8938 Burns 1914 (§253, Acts 1905 p. 219)— declaring “that where any city has heretofore granted, a franchise to any * * * corporation to use its streets °* * * such franchises are hereby in all respects legalized or made valid and shall be as valid as if granted under the provisions of this act” — did not make the franchise between the city and the company more binding or effective than one granted under the act, nor ratify as reasonable the particular terms specified therein, p. 66.</p> <p>11. Municipal Corporations. — Franchises.—Statutes Granting Authority. — -Statutes which grant, or give to cities the power to grant, franchises are strictly construed, p. 67.</p> <p>12. Telegraphs and Telephones. — Authority of State. — Discrimination. — Discrimination by a public service company is contrary to public interest; and the provision in a franchise contract, between a city and a telephone company, that the city should have free service, in so far as it necessitated a greater charge to other patrons to make up the needed revenue, was a matter of public interest and the state had the power to modify or to declare void such provision, pp. 67, 70.</p> <p>13. Telegraphs and Telephones. — Franchises.—Construction. —Where a franchise contract between a city and a telephone company was granted under an ordinance declaring the granting and the enjoyment of it to be subject to “all laws passed or which may be passed by the legislature for the regulation or control” of such companies, the state had express supervisory power under the franchise, p. 67.</p> <p>14. Constitutional Law. — Class Legislation. — The state may regulate public service companies by direct legislation, but such legislation must apply alike to all companies of a class, p. 68.</p> <p>15. Constitutional Law. — Separation of Power. — Public Service Commission. — Invasion of Judiciary.- — The act creating the Public Service Commission and giving it power to use methods similar to those of a judicial tribunal in eliciting facts and making orders concerning applications of public service companies is not an invasion of the judiciary, p. 69.</p> <p>16. Constitutional Law.- — Charges. — Due Process. ■ — ■ Administrative Proceedings. — Where a'telephone company had surrendered a franchise granted to it by a city and was operating under an intermediate permit from the Public Service Commission, an ordgr by the commission raising the rates higher than provided for in the franchise, in a proceeding brought by the company in which the city was notified and appeared as a party, was not objectionable as being without due process, since the state, through the commission, had power to fix rates under the police power, and the act in so doing was not that of the company but that of the state after a hearing, p. 69.</p> <p>17. Telegraphs and Telephones. — Power of Public Service Commission. — Statute.—The restriction in §7 of the act creating the Public Service Commission (Acts 1913 p. 167, §10052g Burns 1914) — which declares, in reference to rates, that the charge made shall be reasonable and just, but that a public utility, during the remainder of the term of any franchise under which it may be acting, shall not charge for any service in excess of the maximum rate fixed — is a restriction on the public utility and not on the commission; and the commission had the right under the police power of the state to authorize a telephone company that had surrendered its franchise and was acting under an intermediate permit to charge a higher rate than that fixed in the franchise, p. 71.</p>

<p>From Washington Circuit Court; William H. Paynter, Judge.</p> <p>Prosecution by the State of .Indiana against David Torphy. From a judgment of conviction, the defendant appeals.</p>

<p>Lewdness. — Cohabitation.—Evidence, Sufficiency. — On a charge, under §2353 Burns 1914, Acts 1905 p. 690, that the accused cohabited in a state of adultery with C, a married woman, on or about December 16, 1916, and at divers times thereafter; evidence showing that, on December 9, 1916, the accused and a woman described, but not positively identified, as C registered as man and wife and spent the night at a hotel, and that on three other occasions within the following month he and C were seen together on the streets, was insufficient to convict; since it not only failed to show that either was married on the date alleged, or that the accused and his companion were not married on the date proved, but failed also to show cohabitation, proof of which must show a dwelling together for a period of time as distinguished from transient interviews for unlawful, illicit intercourse.</p>

<p>1. Mandamus. — Construction.-—Words Having Common . Meaning. — Writs of Mandate. — Since the words “writs of mandate” have a well-recognized meaning at common law, the presumption is that the words were used in their common-law sense in §1, Acts 1915 p. 207, which authorizes the issuance of such writs by the Supreme Court to lower courts to compel the performance of duties enjoined by law. p. 81.</p> <p>2. Mandamus. — To Court. — Change of Venue. — Construction of Statute. — Mandamus is an extraordinary writ issued only to compel the performance of a clear legal duty that is not dependent on the exercise of discretion or on judicial action: hence it is not the proper remedy to compel the trial court to grant a change of venue under §1, Acts 1915 p. 207, where the court construes §422b Burns 1914, Acts 1913 p. 348, as not allowing the change in the trial of an issue tendered by exceptions to the final report of an administrator, as the act of construction was judicial; the remedy is by appeal, pp. 81, 83.</p> <p>3. Appeal. — Parties.—Mandamus.—Change of Venue. — Review. —The denial of a change of venue in a pending proceeding between adversary parties on the ground that it is not allowed under §422b Burns 1914, Acts 1913 p. 348, is not reviewable in an original action in the Supreme Court by one of the parties to mandate the judge to grant the change, since only one of the parties is before this court and the rights of the other would be affected, p. 82.</p>

<p>1. Appeal. — Bill of Exceptions. — Presumptions.—Where a bill of exceptions is signed and filed on the same day, it is presumed that the signing of it by the judge preceded the filing with the clerk, p. 85.</p> <p>2. Schools and School Districts. — Compulsory Attendance.— Statute. — Construction.—Compulsory education statutes, such as §6675 Burns 1914, Acts 1913 p. 616, do not invade the right of a parent to govern the child; and they are to be given a reasonable interpretation, that the best interests of the child and the state may be served, p. 86.</p> <p>3. Schools and School Districts. — Compulsory Attendance.— Completion of Course. — “Common Schools.” — “Public Schools.”— Statute. — Section 6675 Burns 1914, Acts 1913 p. 616, requiring the regular attendance of any child between the ages of seven and fourteen at a public, private or parochial day school during each year for a period not shorter than that of the “common schools” of the school corporation where the child resides, applied to a child who completed the course of study in the grade schools at the age of twelve and during the following year studied music with private teachers instead of attending a high school within three miles of her home, as the terms “common schools” and “public schools” are synonymous and include high schools by virtue of §6583 Burns 1914, Acts 1907 p. 323; and the parent of the child was subject to the penalty provided in the amendatory'act, Acts 1915 p. 151, in the absence of proof bringing himself within an exception, p. 86.</p> <p>4. Criminal Law. — Exceptions to Statute. — Burden of Proof.— In a prosecution under the compulsory education act, §6675 Burns 1914, Acts 1913 p. 616, as amended in 1915, Acts 1915 p. 151, the burden was on the defendant to show that he was within one of the exceptions, p. 88.-</p>

<p>Original action by the State of Indiana, on the relation of Herbert F. Jones, .against Joseph W. Williams, as special judge of the Knox Circuit Court, for a writ of-mandate.</p>

From Wayne Circuit Court; Daniel W. Comstock, Special Judge. Action by Charles T. Wolford against the Terre Haute, Indianapolis and Eastern Traction Company. -From a judgment for plaintiff the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).

<p>1. Intoxicating Liquors. — Keeping Place. — Nature of Offense. —Under §8351 Burns 1914, Acts 1907 p. 689, the keeping, running or operating of a place where intoxicating liquors are sold in violation of law is a continuing offense, p. 95.</p> <p>2. Intoxicating Liquors. — Keeping Place. — Gravamen of Offense. — Proof.—Under §8351 Burns 1914, Acts 1907 p. 689, the keeping and operating of a place where intoxicating liquor is sold in violation of the laws of the state is the gravamen of the offense; hence evidence of all kinds of unlawful sales is admissible in support of the charge and no specific sale, nor the violation of any specific statute, need to be charged or proved, p. 96.</p> <p>3. Intoxicating Liquors. — Sale Near Military Home. — Gravamen of Offense. — Under §2498 Burns 1914, Acts 1905 p. 723, the keeping of the place where intoxicating liquor is sold within one mile of a military home is the gravamen of the offense, and a sale at a place kept or .operated within the prescribed area would necessarily be in violation of the law of the state, p. 96.</p> <p>4. Criminal Law. — One Prosecution as Bar to Another. — Test.— When the facts necessary to convict on a second prosecution would necessarily have convicted on the first, a final judgment on the first will be a bar to the second; but if the facts necessary to convict on the second prosecution would not necessarily have convicted under the first, the first prosecution will not be a bar to the second although the offenses charged may have-been committed by the same state of facts, p. 97.</p> <p>5. Criminal Law. — One Prosecution as Bai* to Another. — A prosecution for opérating a place where intoxicating liquors were sold in violation of the laws of the state, under §8351 Burns 1914, Acts 1907 p. 689, was a bar to a second prosecution based on §2498 Burns 1914, Acts 1905 p. 723, since the proof, under the second charge, that the accused kept a place where intoxicating liquors were sold within one mile of a military home would have sustained, without other proof, a conviction in the first prosecution, p. 98.</p>

<p>1. Appeal. — Review.—Excessive Damages. — The claim that the damages are excessive cannot be sustained unless the amount is so large that it cannot be explained on any reasonable hypothesis other than prejudice, passion, partiality, corruption or that some improper element was taken into account, p. 101.</p> <p>2. Appeal. — Review.—Extent of Injuries. — Evidence.—Weight. ■ — Where the jury evidently believed the evidence most favorable to the plaintiff concerning the extent of his injuries, to the exclusion of other evidence, the Supreme Court, under the authorities prohibiting it from weighing the evidence, could not substitute its judgment for that of the- jury. p. 101.</p> <p>3. Master and Servant. — Liability for Injuries. — Defective Scaffold. — The act of M!arch 6, 1911 (Acts 1911 p. 597), which provides (§§1, 4, 5, §§3862a, 3862d, 3862e Burns 1914) that every employer or person managing or conducting any business. or work of the character therein mentioned, is, for the purposes of the act, conducting a dangerous occupation; that it shall be the duty of all owners, contractors, or persons whatsoever engaged in the construction, repair or alteration of any building to see and require that all scaffolding be amply, adequately and properly constructed to bear all weight and adapted to perform the services and to meet the requirements for which it is designed or used, etc.; and that any person violating the act shall be subject to certain penalties: hence, where the jury found under the evidence that the appellant was an employer or contractor conducting the work of erecting and altering a store front, the appellant, under the provisions of the act, was “conducting a dangerous occupation,” and was charged with a-specific duty to see that all scaffolding was carefully selected, inspected and tested, and such duty did not rest upon the appellee, who worked as an employe upon the scaffold, p. 104.</p> <p>4. Master and Servant. — Defective Scaffold. — Liability Under Statute. — Although the act of March 6, 1911, Acts 1911 p. 597, §3862a et seq. Burns 1914, does not specifically authorize a civil action for damages on account of its violation, the violation of its provisions placing specific duties upon employers constitutes negligence, p. 105.</p> <p>5. Master and Servant. — Liability for Injuries. — Contributory Negligence. — Assumption of Risk. — In an action under §8020a et seq. Burns 1914, Acts 1911 p. 145, providing that an injured employe shall not be held to have assumed the risks of the employment when the injury is caused by the employer’s violation of a statutory duty, where the evidence favorable to the appellee showed, and the jury evidently found, that appellee was an employe within the meaning of §3862a et seq. Burns 1914, Acts 1911 p. 597, and that he was injured by reason of the employer’s violation of the statute in the negligent construction of a scaffold, a recovery was not defeated by the fact that the employe knew, or by the exercise of ordinary care could have known, of the unsafe condition of the scaffold, pp. 105, 106.</p> <p>6. Damages. — Questions for Jury. — Impairment of Earning Capacity. — In an action for injuries, where there was evidence describing injuries and their effect on the use of plaintiff’s arm and on his ability to work as plasterer and brick mason, and showing that for eight weeks after the injury he carried his arm in a sling; that at the time of the trial he was unable to raise his arm above his shoulder without severe pain; and that at the time of the injury he was earning $5 per day, the court was warranted in submitting to the jury the question of loss from physical' impairment as an element of damage, though more definite evidence as to such impairment might have been introduced, p. 106.</p>

From Marion Superior Court (126a) John J. Rockford, Judge. Suit by William W. Knight against the Board of Election Commissioners of the city of Indianapolis and others. From a decree for complainant, the defendants appeal.

From the Gibson Circuit Court; Simon L. Vandeveer, Judge. Action by Charles W. Wittenbraker, administrator de bonis non with the will annexed of the estate of Christopher Dremstett, deceased, against Fred Dremstett. From a judgment for defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).

<p>From Marion Criminal Court; (45526) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Julian C. Wiggam. From a judgment quashing the affidavit, the state appeals.</p>

From Monroe Circuit Court; Robert W. Meirs, Judge. Action by the State of Indiana, on relation of David Hughes and another against Ben F. Adams, Jr. From a judgment for defendant, the relators appeal. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).

From Spencer Circuit Court; Ralph E. Roberts, Judge. Action by Fannie T. Yoakum, as administratrix of the estate of Fred Yoakum, against the J. Wooley Coal Company. From a judgment for the plaintiff, the defendant appeals. On the death of the plaintiff administratrix during the pendency of the appeal, Leander C. Tevault was substituted as administrator de bonis non. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Evidence. — Best and Secondary. — Since the law requires the best evidence unless a necessity is shown for the introduction of secondary evidence, it is error to permit the introduction of a copy of an original book of „entry without a showing that the original cannot be produced, p. 202.</p> <p>2. Trial. — Instruction Cured by Withdrawal. — An erroneous instruction is not cured by the giving of a contradictory instruction properly stating the law, as such error can be cured only by withdrawing the erroneous instruction and directing the jury not to consider it. p. 204.</p> <p>3. Trial. — Exclusion of Improper 'Evidence. — When illegal evidence has been admitted by the court against objection, nothing except a direct and unequivocal charge can cure the error of its admission, it being the duty of the court to see that no mischief is done and that the illegal evidence be wholly withdrawn for every purpose, p. 204.</p> <p>4. Trial. — Exclusion of Improper Evidence. — In an action on an oral contract employing the plaintiff to purchase hay, the admission in evidence, over the defendant’s objection, of. a copy of an original account or memorandum, with no showing of inability to produce the original, was not cured by a statement of the court in ruling on the objection that such copy was not to be considered as evidence of the truth of the plaintiff’s claim, but merely as constituting a detailed statement of such claim, the paper having been offered as evidence to sustain the issues when the court and jury were engaged in hearing evidence for that purpose, and the record disclosing that, to have reached the verdict rendered, the jury necessarily considered the paper as evidence, to the prejudice of the defendant. p. 204.</p>

From Marion Superior Court (94,509); W. W. Thornton, Judge. Action by Catherine Rohr against Rudolph C. Aufderheide, doing business under the name and style of the State Loan Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Statutes. — Construction. — Drawing Juries. — Section 544a Burns 1914, Acts 1909 p. 103, providing for the filling of vacancies in the regular panel of juries, is of broad application and is intended to apply to the selection of grand as well as petit juries: p. 214.</p> <p>2. Grand Jury. — Filling Vacancies. — Statute.—Construction.— Section 544a Burns 1914, Acts 1909 p. 103, relative to the filling of vacancies in the regular panel of juries, construed in connection with §1668 Burns 1914, Acts 1913 p. 15, relative to the drawing of grand and petit jurors, requires that when a member of a regular panel of any jury is excused from service for the term of court, his successor must be selected in the same manner as required for the selection of the original panel; and a judge has no authority to fill a vacancy in such case, when the grand jury is assembled to be charged and sworn, by ordering the bailiff to summon a named person, p. 214.</p> <p>3. Criminal Law. — Sustaining Demurrer to Plea in Abatement. —Reversible Error. — The sustaining of a demurrer to a plea in abatement showing that a vacancy in the grand jury which returned the indictment was filled by the judge in violation of §544a Burns 1914, Acts 1909 p. 103, and §1668 Burns 1914, Acts 1913 p. 15, was reversible error, p. 215.</p> <p>4. Grand Jury. — Indictment and Information. — Indictment by Jury Improperly Organized. — Plea in Abatement. — An indictment found by a grand jury which was not organized in accordance with the statute is void, and the objection may be presented by plea in abatement, p. 215. o</p>

<p>From Morgan Circuit Court; Nathan A. Whitaker, Judge.</p> <p>Action by Eva F. Thomas against Hattie M. Meadows. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590).</p>

<p>1. Homicide. — Intent to Kill. — Use of “Deadly Weapons.” — Inference. — A thirty-eight-caliber revolver from which the accused fired two shots at the deceased, inflicting wounds that caused immediate death, was a dangerous and “deadly weapon,” and its use authorized the inference, in a prosecution for voluntary manslaughter, of the essential element of unlawful intent. p. 221.</p> <p>2. Criminal Law. — Homicide.—Jury Question. — Self-Defense.— Verdict. — Review.—The weight of the evidence and the inferences to be drawn therefrom are questions entirely within the province of the jury and, upon a motion for new trial, are to be reviewed by the trial court; hence in a prosecution for voluntary manslaughter, the question whether the accused established his plea of self-defense was a question for the jury, and there being evidence to support the jury’s .verdict finding the defendant guilty, the court on appeal will not interfere and set aside the judgment-based upon the verdict, pp. 221, '223.</p>

<p>1. Pleading. — Facts or Conclusions. — Negligence of Fellow Servant. — In an action under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914) for injury to plaintiff while reloading logs on a car, an allegation that plaintiff’s fellow servants “carelessly and negligently cut, unfastened and loosened the wires holding the logs on the car, thereby causing the logs to roll,” was sufficient as against the objection that it stated a conclusion, where other allegations clearly showed the plaintiff to be at work in the course of his employment under conditions which required "that his coworkers should dó no act tending to cause his injury, in view of §343a Burns 1914, Acts 1913 p. 850, relative to the construction of allegations in pleadings, and especially is this true in the absence of a motion to make the allegations more specific, p. 226.</p> <p>2. Master and Servant. — Employers’ Liability Act.- — Contributory Negligence. — Jury Question. — Whether the plaintiff, while assisting in reloading logs on a car, worked so close to the car that he was in danger of being struck by the rolling logs, was a question of fact for the jury under §7 of the Employers’ Liability Act, Acts 1911 p. 145, §8020g Burns 1914. p. 226.</p> <p>3. Trial. — Requests for Peremptory Instruction. — Waiver.—The error, if any, in denying the motion for a peremptory instruction made at the close of plaintiff’s evidence was waived by the defendant’s subsequent introduction of evidence in its own behalf. p. 227.</p> <p>4. Trial. — Instructions.—Defects Supplied. — The objection that an instruction failed to require proof of the plaintiff’s injury as an element necessary to a recovery is of no avail, where the omitted element was properly included in other instructions, p. 227.</p> <p>5. Appeal. — Harmless Error. — Failure to Instruct. — Where the fact of injury was not disputed, an instruction failing to require proof of the injury could not have harmed the defendant, p. 227.</p> <p>6. Trial. — Requested Instructions. — Given Instructions. — Requested instructions were properly refused where they were covered in their substance by the instructions given, p. 227,</p> <p>7. Trial. — Instructions. — Evidence. — Eequested instructions shown by the record to rest on a false premise as to the facts in issue were properly refused, p. 227.</p> <p>8. Appeal. — Questions of Fact. — Evidence.—Objections to the sufficiency of the evidence to sustain the general verdict and certain answers to interrogatories returned therewith present questions of fact determined by the judgment of the trial court, p. 228.</p>

From the Gibson Circuit Court; Simon L. Vandeveer, Judge. Petition by Joseph Hussey and others before the board of commissioners for a local option election. Held: and Cushman appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Marion Superior Court (92,782) ; W. W. Thorm ton, Linn D. Hay, Vincent G. Clifford, John J. Rockford and Theophilus J. Moll, Judges. ■ Proceedings for elevation of railroad tracks.

<p>From Allen Circuit Court; J. W. Eggeman, Judge.</p> <p>Action by Peter Boegli against the Western Union Telegraph Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Criminal Law. — Review.—Identity of Accused. — Conflicting Testimony. — In a prosecution for larceny, where there was a sharp conflict in the evidence as to the identity of the defendant, the finding of the jury will not be disturbed, p. 255.</p> <p>2. Larceny. — Oivnerskip of Property. — Necessity of Allegations. —Possession.—Where the affidavit in a prosecution for 'larceny alleged a named person to be the owner of the property taken by the defendant, and the evidence showed such person to be in possession of the property as consignee, there was no variance or failure of proof, p. 255.</p> <p>3. Larceny. — Evidence.—Oivnerskip.—Possession.—In a prosecution for larceny, proof of possession of the property taken is sufficient proof of an allegation of ownership, p. 255.</p> <p>4. Larceny. — Property Subject of La/rceny. — Gambling Devices. —Property illegally held or used for gambling purposes may be the subject of larceny, p. 256.</p>

From Hamilton Circuit Court; James M. Berryhill, Special Judge. Proceedings to probate the last will of John Puckett, deceased, in which objections .were filed by Olive A. Folsom. From a judgment for the objector, James M. Jackson and others appeal.

<p>1. Judges. — Disqualification. — Affidavits. — Sufficiency. — In a criminal prosecution, an affidavit for change of venue from the judge under §2074 Burns 1914, Acts 1905 p. 628, alleging directly and positively bias and prejudice, was not rendered insufficient by an additional allegation of bias upon the belief of the defendant, p. 265.</p> <p>2. Judges.— Disqualification. — Affidavits.— Discretion. — An affidavit for change of venue from the judge that follows the language of the statute (§2074 Burns 1914, Acts 1905 p. 628) is sufficient, and upon the filing of such affidavit the court has no discretion, but must grant the change, p. 265.</p> <p>8. Criminal Law. — Appeal.—Change of Judge. — Affidavits.— Presumptions. — Where the record showed that an affidavit for change of venue from the judge was filed twenty-four days before the day of trial, the court on appeal, in the absence of any further showing, must regard the affidavit as presented in time. p. 265.</p> <p>4. Criminal Law. — Appeal.—Review.—Rules of Trial Court.— A reasonable rule of a trial court relative to the time for filing an affidavit for change of venue will be recognized by the court on appeal, p. 266.</p> <p>5. Criminal Law.— Appeal.— Record.— Contents.— Presenting Questions. — Where a rule of court is relied on as rendering harmless the action of the court in denying a change of venue from the judge, on the grounds that the affidavit was not filed in time, the record must show the existence of the rule. p. 266.</p> <p>6. Judges. — Bias.—Change of Venue. — Time to File Affidavit.— Where a defendant seeks a change of venue from the judge on the- grounds of bias and it appears in his affidavit that he learned of the bias and prejudice on the same day that the affidavit was filed, the showing is sufficient excuse for not filing at an earlier date, even though the affidavit was not filed within the time prescribed by a rule of court, p. 266.</p>

<p>1. Indictment and Information. — Intoxicating Liquors. — Statute.- — An affidavit that follows the statute (§8351 Burns 1914, Acts 1907 p. 689) in charging that the accused, on a certain date and in a named county of the .state, ran and operated a place where intoxicating liquors were then and there sold in violation of the laws of the state, is sufficient, p. 269.</p> <p>2. Indictment and Information. — Affidavit.—Filing Prior to Quashing of Indictment. — The fact that an affidavit was in the possession of the clerk for a day or two previous to the court’s ruling sustaining a motion to quash an indictment against the defendant for the same offense, is not conclusive evidence that the affidavit was filed prior to such ruling, p. 269.</p> <p>3. Criminal Law. — Appeal.—Review.—Pendency of Indictment. —Burden of Proof. — The defendant, charged by affidavit with operating illegally a place where intoxicating liquors were sold, had the burden of proof under his answer in abatement alleging that a prosecution by indictment for the same offense was pending against him at the time of the filing of 'the affidavit. p. 271.</p> <p>4. Criminal Law. — Appeal. — Review.—Filing of Affidavit.— Finding. — Where the evidence does not clearly show whether the affidavit charging the defendant with operating a place where intoxicating liquors were illegally sold was filed before or after an indictment for the same offense was quashed, the finding of the trial court that it was filed later cannot be disturbed. p. 271.</p> <p>5. Criminal Law. — Credibility of Witnesses. — Jury Question.— The jury was not bound to believe the defendant’s testimony to the effect that persons occupying a room of a building in which liquor was sold illegally were his subtenants in good faith and were conducting the place on their own account, if, from the other evidence and circumstances disclosed at the trial, such testimony was not regarded worthy of belief, p. 272.</p> <p>3. Landlord and Tenant. — Sublease.—Violation of Lease. — The subletting by a tenant of a part of the premises held by him under a lease providing against subletting without the lessor’s consent, was valid as between the tenant and the subtenant, since the provision against subletting was for the protection of the lessor, pp. 272,273.</p> <p>7. Intoxicating Liquors. — Prosecution. — Instruction. — In a prosecution for operating a place where intoxicating liquors were illegally sold, where the defendant testified that the room in which the evidence showed' that the liquor was found was in the possession and control of third parties who held it as subtenants, and on cross-examination testimony was elicited showing that the lease between the defendant and his lessor provided against subletting without the lessor’s consent, and testimony was introduced showing that the defendant sublet the room without such consent, the defendant had the right to have explained the phase of the law that, if the room was so sublet by the defendant in violation of his lease, the contract of subrental, as between him and his subtenants, was valid, and that so long as the principal lessor did not assert his rights under the lease, the sublessees could exercise control over the room as against the defendant and all others, p. 273.</p> <p>8. Intoxicating Liquors.— Prosecution.— Instruction.— Reference to Other Crime.■ — In a prosecution of a defendant for operating a place where intoxicating liquor was illegally sold, an instruction that referred to gaming in connection with, or as an element of, the crime charged against the defendant was erroneous, p. 274.</p> <p>9. Intoxicating Liquors. — Prosecution. — Instruction. — In a prosecution for operating a place where intoxicating liquors were illegally sold, the court instructed that if the defendant sublet a room to others for the purpose of gambling and the unlawful sale of intoxicants and such business of gambling and illegal selling of liquor was conducted therein by the sub-lessees with the defendant’s knowledge and consent, and if the sublessees were in any manner encouraged, aided or abetted in the conduct of the illegal business by the defendant, then the defendant’s conduct in subletting the room for gambling and the illegal sale of liquor, and in aiding and abetting such business, if he did so aid and abet the same, made him guilty the same as if he conducted the business himself: this instruction was erroneous, since it gave the jury the right to understand that the acts and conduct referred to amounted to aiding and abetting the illegal business, though the leasing of property to be used for the illegal sale of intoxicants is not made punishable by statute, p. 274.</p> <p>10. Intoxicating Liquors. — Prosecution.—Instruction.—Under a charge that the defendant operated a place for the illegal sale of liquor as defined by the second provision of §8351 Burns 1914, Acts 1907 p. 689, an instruction stating the law governing a prosecution for sales without a license as defined in the first section of the act was prejudicial, p. 275.</p>

From the Delaware Circuit Court; William, H. Eichhorn, Special Judge. Action by the State of Indiana, on relation of John D. Lee and others, against Ralph H. Clark and others. From a judgment in part for the relator, the defendants Clark and Mansfield appeal.

<p>1. Appeal. — From Board of Commissioners. — Perfection of Ap peal. — Dismissal.—A motion in the circuit court to dismiss an appeal from the board of commissioners on the ground that the appeal was perfected by only one of the parties and that he was not shown to be interested, was properly overruled, where the record shows that such party, although designated as the principal in the appeal bond, was not the only appellant and that some of his coappellants were affected by the proceeding. p. 289.</p> <p>2. Highways. — Public Utility. — Failure of Engineer to Report. “Viewer.” — Although it is the duty of the engineer to file a written report of his conclusions in a proceeding for the establishment of a free gravel road under §7712 et seq. Burns 1914 (Acts 1905 p. 521, as amended, Acts 1913 p. 418), his failure to file such report could not affect the report of the two viewers that a proposed highway would not be of public utility, since the engineer is not a “viewer” within the meaning of the statute, p. 290.</p> <p>3. Highways. — Report of Majority of Body. — Validity.—The report of two viewers that a proposed establishment of a highway would not be of public utility was not affected by the failure of the engineer to report as to his conclusions, since a report concurred in by a majority of any body is valid in the absence of legislative provision to the contrary, p. 290.</p> <p>4. Highways. — Establishment.—Report of Viewers. — Dissent of Engineer. — Statute.—Since the statute relative to the establishment and construction of highways under §7712 et seq. Burns 1914 (Acts 1905 p. 521, as amended, Acts 1913 p. 418) provides for only two viewers, they must concur in any report in order to make it effective, and when they do concur their report is not affected by the dissent of the engineer, whether indicated in an affirmative or negative manner, p. 290.</p> <p>5. Highways.— Establishment. — Report of Viewers.— Jurisdiction of Commissioners. — Where the original viewers in a proceeding for the establishment and construction of a highway, under §7712 et seq. Burns 1914 (Acts 1905 p. 521, as amended, Acts 1913 p. 418) reported that the proposed highway would not be of public utility, the board of commissioners had no jurisdiction to proceed further, p. 290.</p>

From Daviess Circuit Court; James W. Ogden, Judge. Action of mandamus by the State of Indiana, on relation of the city of Vincennes, against the Vincennes Traction Company. From a judgment for the defendant, the relator appeals.

<p>Original action by the State of Indiana, on relation of John R. Harkness, against William T. Gleason, as judge of the Vigo Superior Court, and others, for a writ of prohibition.</p>

. From the Marion Superior Court (95,314); W. W. Thornton, Judge. Action by John H. Roth and others against the Vandalia Railroad Company and others. From a judgment for the defendants, the plaintiffs appeal. (Transferred from the Appellate Court under §1405 Bums 1914, Acts •1901 p. 590).

<p>1. Drains.— Extension of Drain» — Statutes.— Proceedings for the location and construction of a drain which followed the line of an old drain, but was much longer and differed from it in other particulars, was properly brought under §6140 et seq. Burns 1914, Acts 1907.p. 508, instead of the act of 1915 relative to the cleaning, repair and improvement of drains, p. 306.</p> <p>2. Drains.— Construction.— Appointment of Engineer.— Where the county surveyor, on account of other business, declined to serve as engineer in a proceeding for the construction of a drain and the court appointed a competent and disinterested engineer to serve in his place, it was too late to object to the appointment when the commissioner’s report was offered in evidence at the hearing- of a remonstrance, p. 306.</p> <p>3. Drains. — Establishment. — Review. — Questions of Fact.— Where a finding of the trial court as to whether certain lands will be damaged or benefited by the construction of a proposed drain is supported by some evidence, it will not be reviewed. p. 306.</p>

<p>1. Bills and Notes. — Negotiability.—“At.”—-Place of Payment. —The fact that a note is payable “at” instead of “in the office of” a trust company does not render it nonnegotiable, since a note payable “at” a bank is in legal contemplation payable “in” the bank or “in the office of” the bank at the counter where banking business is done. p. 309.</p> <p>2. Bills and Notes. — Negotiability.—“Bank.”—Place of Payment. — Banks being of three kinds — those of deposit, deposit and discount, and issue — a trust company organized under §4956 Burns 1914, Acts 1893 p. 344, though limited in its powers, is an institution of deposit and check, and is therefore a bank within the meaning of §9076 Burns 1914, §5506 R. S. 1881, making notes payable in a bank in this state negotiable, p. 309.</p> <p>3. Bills and Notes. — Place of Payment. — The reason for the enactment of §9076 Burns 1914, §5506 R. S. 1881, was to fix, as one element of negotiability, a place, a named bank, where a note should be paid, that the holder might there protest and fix liability against endorsers and makers, p. 310.</p> <p>4. Bills and Notes. — Rate of Interest. — A note providing for “eight per cent, interest from maturity,” and which is otherwise regular, is negotiable, p. 310.</p> <p>5.. Bills and Notes. — Action by Endorsee. — Defenses.—Pleading. — In an action on a note by an endorsee, answers based on fraud and no consideration are bad, in the absence of an allegation that the endorsee had notice of such infirmities, p. 310.</p> <p>6. Appeal. — Harmless Error. — Sustaining Demurrer. — The sustaining of a demurrer to verified paragraphs of answer denying execution and endorsement of a note was harmless, where the evidence was admissible under paragraphs of verified non est factum afterwards filed, p. 311.</p> <p>7. Pleading. — Demurrer.—Motion to Strike. — W-ant of Verification. — Where a paragraph of answer is not verified, the proper practice is a motion to strike out; a demurrer admits and waives the verification, p. 311.</p> <p>8. Bills and Notes. — “Currency.”—“Money.”—A certificate of deposit payable in “current funds” or in “currency” is payable in “money” and is therefore negotiable as an inland bill of exchange, p. 312.</p> <p>9. Corporations. — Foreign Corporations. — Collateral Attack.— In an action by an endorsee, a paragraph of answer alleging that the payee of the note in suit was a foreign corporation and that it failed to comply with Acts 1907 p. 286, §4085 et seq. Burns'1914, but alleges that it obtained a certificate from the secretary of state before the transaction in question, is a collateral attack on the right of such corporation, which can be made only by the state in a direct proceeding, p. 313.</p> <p>10. Pleading. — Written Instruments. — Setting Out or Attaching as Exhibits. — In an action on a note, where the maker defends on the ground of fraud consisting of certain written statements as to the financial condition of the payee corporation, from which the maker bought stock, it was not necessary to set out such statements in the answer or as exhibits, since such statements were not the foundation of the defense within the meaning of §368 Burns 1914, §362 R. S. 1881, but were only evidence of an element in it. p. 314.</p>

<p>1. Pleading. — Separate Acts of Negligence. — Uniting in One Paragraph. — In an employe’s action for injuries, a paragraph of complaint is not objectionable that sets forth several acts of negligence, which are alleged to have united in causing the injuries, where it alleged but one cause of action, p. 318.'</p> <p>2. Appeal. — Harmless Error. — Motion to Separate Causes.— Ruling. — The overruling of a motion to separate a complaint into paragraphs is not reversible error, p. 319.</p> <p>3. Master and Servant. — Actions for Injuries. — Instructions.-—■ Assumption of Risk. — In an employe’s action for injuries caused by the breaking of one of the steering knuckles of an automobile truck, where one paragraph of the complaint alleged that the driving of the truck at an excessive speed over rough and uneven streets greatly increased the tension on the weak and insufficient steering knuckle and finally caused it to break, an instruction that, if at the time of the injury the truck was being driven at a speed greater than is allowed by law, the plaintiff should not be held to have assumed the risk of any injury occasioned by such unlawful operation, was proper under the issues, since the unlawful operation, under the averments, was a contributing cause, p. 819.</p> <p>4. Negligence. — Proximate Cause. — Violation of Statute or Ordinance. — The violation of a penal statute or ordinance raises no liability for an injury which another may have suffered, unless the injury was in some material degree the result of such violation, p. 820.</p> <p>5. Trial. — Instructions. — Application to Issues. — In an employe’s action for injuries received while at work on an automobile truck, an objection that certain instructions given by the court on the plaintiff’s request applied only to the second paragraph of complaint, but that one of the instructions given by the court on its own motion made the instructions given on reqhest applicable to both paragraphs, is of no avail on appeal, where the two paragraphs of complaint were substantially identical except that the second paragraph alleged the violation of a speed statute as an- additional contributing cause, it further appearing that the application of the instructions on this additional element were apparent and that the instruction given by the court on its own motion referred only to a series of general instructions given which, as the jury was told, were applicable to each paragraph of the complaint, p. 820.</p> <p>6. Master and Servant. — Actions for Injuries. — Evidence. — Other Accidents. — In an employe’s action for injuries caused by the breaking of one of the steering knuckles of an automobile truck, where the complaint proceeded on the theory that the appellant was negligent in the continued use of the truck under conditions that placed a greater strain on each of the steering knuckles than they were designed to meet, thus rendering the truck unsafe, evidence of the breaking on other occasions of a part of one or the other of the steering knuckles at a time when the truck was being used, as at the time of the accident, in the delivery of merchandise from the defendant’s store, was admissible as tending to show notice to the defendant that the truck was not of sufficient construction to meet the strain to which it was subjected, though not confined to the breaking of the particular part in question, p. 821.,</p> <p>7. Damages. — Excessive.—Loss of Leg. — Where an employe received a badly broken leg that necessitated two operations and its final amputation above the knee, and necessitated the confinement of the employe in a hospital for seven months, and causing him great physical suffering and a permanent injury to his health, and greatly diminishing his earning capacity, a verdict for- $8,000 did not indicate that the jury acted from prejudice, partiality or corruption, since the amount of damages, under such circumstances, is not susceptible of exact computation, p. 322.</p>

<p>1. Master and Servant. — Railroad Belief Departments.— Recovery of Assessment. — In an action by an employe of a railroad company to recover deductions from his wages made by the company as assessments for the benefit of its relief department, evidence that he signed, the application for membership at the request of the company’s superior officer, and over his own objection, upon his being told that those employes who did not join were the first to be discharged by the company, was sufficient to show that his application was involuntary and that it did not create an estoppel to demand the return of the assessments paid. p. 325.</p> <p>2. Master and Servant. — Membership in Railroad Relief Assoeiations. — Where the application signed by an employe for membership in a railroad relief department expressly provided that the regulations of the department were a part of his contract of employment with the railroad company, and the contract showed that it was to be performed in this state, the law of the place of performance governs the rights of the parties and makes applicable §5308 Burns 1914, Acts 1907 p. 46, forbidding railroad relief associations that require of members a release for damages, although the employe did not become a member until acceptance of his application by the company in Ohio. p. 326.</p> <p>3. Contracts. — Rule of Comity. — Foreign Contracts. — The rule of comity does not require the enforcement of a contract entered into in another state when it is a violation of a positive legislative enactment .which is declarative of the public policy of the forum, p. 326.</p> <p>4. Commerce. — Interstate. — State Regulation. — Section 5308 Burns 1914, Acts 1907 p. .46, prohibiting railroad companies operating within this state from maintaining' relief associations, the rules of which require members to surrender or waive by contract any right of action for injury or death, is not void as being a regulation of interstate commerce, p. 327.</p> <p>5. Master and Servant. — Action for Wages. — Deduction for Relief Assessments. — Conditions Precedent. — No demand was necessary as a condition precedent to an action by a railroad employe for the recovery of assessments deducted from his wages for the benefit of a relief department maintained by the company in violation of §5308 Burns 1914, Acts 1907 p. 46. p. 327.</p>

<p>1. Appeal. — Verdict.—Weight of Evidence. — The finding of the jury and the ruling of the trial court on the question whether the evidence supports the verdict will not be disturbed where the court on appeal, upon consideration of the evidence most favorable to appellee, finds that there is some evidence to support the verdict, p. 329.’</p> <p>2. Appeal. — Matters Reviewable. — Assignments of Error. — Although it would have been error to use the word “may” in an instruction where the use of the word “should” was requested, the refusal of an instruction containing the word “should” was not reversible error, nor sufficient as a basis for argument that another instruction given was erroneous, where the record shows that the refusal of the requested instruction was riot assigned as error, p. 331.</p> <p>3. Appeal. — Matters Reviewable. — Searching Record. — The court, on appeal may search the record to affirm a judgment, but not to . reverse it. p. 332.</p> <p>4. Trial. — Instructions.—“Satisfactory” Evidence. — An instruction that, if a witness testified falsely upon a material matter, the jury had the right to disregard the testimony of such witness in other respects unless corroborated by other evidence “satisfactory to you,” was not' an instruction that the jury “must believe” the corroborative evidence or “find it to be true” before they could consider it in connection with the testimony of the witness they believed to be wilfully swearing falsely, p. 332.</p> <p>5. Evidence. — Conclusions.—There was no error in permitting the plaintiff to testify as to whether or not' he received any consideration for the surrender of property to the defendant, p. 334.</p>

<p>From Marion Criminal Court; WHIM. Sparks, Special Judge.</p> <p>Prosecution by the State of Indiana against John Gaughan and Herbert Smutte. From a judgment of conviction, the defendants appeal.</p>

<p>From Vigo Circuit Court; Charles L. Pulliam, Judge.</p> <p>Action by the State of Indiana, on the relation of Richard Wernecke, against Ernest G. Bush and others. From an adverse judgment, the defendants appeal.</p>

<p>1. Criminal Law. — Appeal.—Record.—Objections to Jury.— Mode of Presenting. — Though neither the Civil nor the Criminal Code makes provision for challenge to the array of either a special venire or a regular panel, under the common law the better practice requires that any omissions or irregularities in -the selection of juries should be brought to the attention of the court in writing; and challenges when so made are within the purview of §289 of the act of 1905, Acts 1905 p. 584, §2165 Burns 1914. p. 355. •</p> <p>2. Jury. — Challenge to Venire. — Determination.—Where written objections as to the manner of selection of a special venire or a regular panel are filed, issues between the parties are. not contemplated, but the court is required to investigate summarily the matters presented in the interest of a fair and impartial trial, p. 356.</p> <p>3. Criminal Law. — Appeal.—Selection of Jury. — Presumptions. —The party presenting written objections to the array of a special venire or a regular panel has the burden of proof as to the matters presented and, where the evidence is not in the record and it appears that the trial court, being fully advised, overruled such objections, the presumption is that the ruling was based upon sufficient evidence; and this is true even though the objections were verified by affidavit, p. 357.</p>

<p>1. Damages. — Pleading.—Medioal Expenses. — In personal injury cases, expenses incurred for medical treatment need not be specially pleaded, at least where the injury is serious, such as the crushing off of an arm at the shoulder, etc., since the description of such an injury apprises the person liable of the necessity for such services, p. 360.</p> <p>2. Trial. — Instruction.—Cure of Error. — Presumptions.—In a brakeman’s action for personal injury, the giving of an instruction that plaintiff, if free from contributory negligence, might recover on proof of one or more of the negligent acts charged in the complaint as proximately causing the injury, was not objectionable on the grounds that some of the averments might have been proved without authorizing recovery, where the court gave other instructions at the defendant’s request that proof of the averments objected to would not sustain a recovery, since the requested instructions, in effect, eliminated from the complaint the averments objected to; and the presumption on appeal is that the verdict rests on evidence tending to prove the remaining charges of negligence, p. 362.</p> <p>3. Master and'Servant. — Action for Injuries. — Allegation.— Proof. — In a brakeman’s action for personal injury, under charges of negligence, relative to the conduct of employes in control of the defendant’s switch engine, proof was admissible to show that such employes, without keeping proper watch for persons or obstructions along the track and without giving any warning of their movement, backed the engine and tender over a sidetrack and upon the plaintiff at a time when his attention was diverted by passing cars and while he was engaged in performing the duties of his employment, p. 363.</p> <p>4. Master and Servant. — Railroad Employes. — Crossing Track. —Contributory Negligence. — The rule requiring a traveler or other person about to cross a railroad track to look in both directions and to listen, is not applied in all its strictness to railroad employes who are required to be on or about such tracks, and the failure of such employes, while in the discharge of duties, to look and listen for approaching trains may or may not be negligence under the particular circumstances. p. 363.</p> <p>5. Master and Servant. — Railroad Employes. — Contributory Negligence. — Railroad employes are required to be watchful to conserve their own safety, but owe a similar duty to others whose duties expose them to the same dangers; and all such employes have the right to rely to some extent on the care of each other and to assume that their coemployes will use reasonable care to avoid the injury of others, p. 363.</p> <p>6. Negligence. — Contributory Negligence. — Negligence cannot be imputed to one who has been deceived by appearances calculated to deceive a person of ordinary prudence, p. 364.</p> <p>7. Trial. — Instructions.—Cure of Error. — Contributory Negligence.- — In a brakeman’s action for injury, an objection to instructions on the ground that they omitted the test of ordinary prudence and authorized the jury to consider whether the circumstances were such as to justify his personal belief that there was no danger, is of no avail, where other instructions precluded a verdict for the plaintiff in case the proof showed that he failed to use due care for his own safety, p. 364.</p> <p>8. Appeal. — Ha/rmless Error. — Instruction Favoring Appellant. —An error in an instruction which operates in favor of the appellant need not be expressly considered, p. 364.</p> <p>9. Master and SERVANV.-^-Employers’ Liability Act. — Negligence and Contributory Negligence. — Jury Question. — In an action under the Employers’ Liability Act, Acts 1911 p. 145, §8020a et seq. Burns 1914, the issues of negligence and contributory negligence are to be determined by the jury. pp. 364, 366.</p> <p>10. Appeal. — Review.—Question of Fact. — Where there is evidence in the record which tends to support the verdict, the inquiry on that issue by the Supreme Court is thereby limited, p. 365.</p> <p>11. Trial. — Request Covered by Instructions Given. — There is no error in refusing instructions which are covered by those given, p. 365.</p> <p>12. Appeal. — Rehearing.-—Objection Not Presented on Original Hearing. — An objection presented on rehearing that an instruction given by the court is in conflict with the rule announced in a previous decision, is waived through failure to present the objection in appellant’s original brief, p. 366.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Action in mandamus by the State of Indiana, on the relation of Charles A. Atkinson, against Tarelton C. Woodward, trustee, to compel consolidation of school districts. From a judgment for relator, the defendant appeals.</p>

From the Benton Circuit Court; James P. Wason, Special Judge. Suits by the Boswell Telephone Company against the Farmers’ and Merchants’ Co-operative Telephone Company, Boswell, Indiana, and against Frederick McVicker and others. From a judgment for plaintiff in each case, the defendants appeal.

From Marion. Superior Court (101,582) ; Vincent G. Clifford, Judge. Proceedings by the Central Amusement Company and others against the city of Indianapolis and others to compel the commissioner of buildings to approve specifications for an awning over a sidewalk, and for an injunction. From a judgment for the plaintiffs, the defendants appeal.

<p>From LaPorte Circuit Court; James F. Gallaher, Judge.</p> <p>Action by the First National Bank of Fort Wayne • against Oliver P. Garner. From a judgment for the defen'dant, the plaintiff appeals.</p>

<p>From Marion Criminal Court (47,605) James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Max Lewis. From a judgment of conviction, the defendant appealsv</p>

<p>From Greene Circuit Court; Theodore E. Stinkard, Judge.</p> <p>Action by Charles E, Meurer against the Chicago, Terre Haute and Southeastern Railway Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From the Lake Superior Court, Virgil S. Reiter, Judge. Proceedings in quo warranto by the State of Indiana, on relation of Matthew Smith and others. From a judgment for relators, the defendants appeal.

<p>From White Circuit Court; James P. Wason, Judge.</p> <p>Proceeding by Laurie T. Kent to have certain improvements accepted by White county, to the acceptance of which Thomas Cowdin filed objections. From a judgment denying acceptance, the former appeals..</p>

<p>1. Money Received. — Natu/re of Remedy. — Limitations of. — Indebtitatus assumpsit in the form of a count for money had and received, though an action at law, is equitable in its nature, requiring no express promise to be proved, and can be maintained whenever one has the money of another which he has no right to retain, but does not apply to cases in which a court of equity would deny relief were the plaintiff at liberty to go there, p. 418.</p> <p>2. Money Received. — Propriety of Remedy. — Breach of Contract. — An action for money had and received does not lie to recover money paid to a business college under a contract that the amount was to cover tuition and all expenses, where the plaintiff, after attending school five days, was informed that it was necessary for him to buy a stenotype machine, since the defendant’s failure to comply with one of the provisions was only a breach of the contract, the damages for which would not necessarily be the amount paid. p. 419.</p>

<p>From Howard Circuit Court; W. C. Purdum, Judge.</p> <p>Action by Emily Dennis and others against Silas D. Ramseyer, executor, and others. From a judgment for plaintiffs, the ■ defendants appeal.</p>

From Wabash Circuit Court; A. II. Plummer, Special Judge. Action by the State of Indiana, on relation of Avery G. Ham and others, against Milton E. Shira and others, as members of the board of police commissioners of the city of Marion. From a judgment for the relators, the defendants appeal.

From Marion Superior Court (21,549) ; Joseph Collier, Judge. Action by Erickson Elsey against the Fidelity and Casualty Company of New York. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action by Julia C. Haworth against the Union Traction Company of Indiana. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Briefs. — Waiver of Error. — An assigned error based on the overruling of a motion for new trial is waived where neither the motion, nor its substance, is set out in appellant’s original brief, p. 467.</p> <p>2. Appeal. — Briefs.—Omission.—Reply Brief. — The omission to set out the motion for new trial in the appellants’ brief, the error assigned being based thereon, cannot ‘be cured by inserting the motion in the reply brief, p. 467.</p>

From Miami Circuit Court; Charles O. Cole, Judge. Petition by Andy Stehle and others for the construction of a highway, to which Lewis Baker objected. From an order of the circuit court dismissing his appeal from the board of commissioners and referring the proceedings back, Baker appeals.

From Delaware Circuit Court; William II. Eichhorn, Special Judge. Action by Albert Studes against the Indiana Steel and Wire Company and the Fidelity and Casualty Company of New York. From a judgment for plaintiff, the defendant appeals.

From Clinton Circuit Court; Joseph Combs, Judge. Suit to quiet title by Emma D. Coon against William H. Coon and others. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Public Service Commission. — Jurisdiction. — Procedure.— Presumptions. — All presumptions are indulged in favor of the, jurisdiction and regularity of the procedure of the Public Service Commission, p. 491.</p> <p>2. Constitutional Law.' — Contracts.—Telephone Companies.— Contracts between telephone companies, though valid, do not prevent the state from exercising its power to provide for the people’s welfare, even though such provision may render such ’ contracts partially or wholly ineffective, p. 492.</p> <p>3. Telegraphs and Telephones.— Regulation.— Contracts. — A contract for the exclusive transmission of messages between a local and a long distance telephone company which can be terminated in thirty days is not sufiicient ground for a permanent injunction against the enforcement of an order of the Public Service Commission granting to another local company, with 1,500 subscribers, the right to connect with the long distance company, p. 492.</p> <p>4. Pleading. — Conclusions.-—While the pleading of conclusions is somewhat justified by recent statute, the practice of pleading conclusions should not be encouraged, p. 493.</p> <p>5. Telegraphs and Telephones. — Regulation.—Competition.— The fact that a local telephone company with long-distance connections will be subjected to competition is not sufficient reason to enjoin an order of the Public Service Commission granting to another local company the right to connect with the long-distance company, p. 493.</p> <p>6. Telegraphs and Telephones. — Regulation.—Connections.— Competing Companies. — To require a local telephone, company, with 1,500 subscribers, desiring long-distance service to connect with the long-distance company through a competing local company, would not be an arrangement in the interest of public welfare, p. 494.</p> <p>7. Telegraphs and Telephones. — Regulation. — Remedies.— That an order of the Public Service Commission allowing a local telephone company to connect with a. long-distance company would interfere with the service of a competing local company, already connected, is a mere detail subordinate to the public welfare, to be modified on petition and not by injunction. p. 495.</p> <p>8. Telegraphs and Telephones. — Rulings of Commission. — Remedies. — The proper practice requires that a telephone company aggrieved by an order of the Public Service Commission should submit its grievance to the commission by a motion to modify before an appeal to the courts, where all the issues determined by the commission are open foT retrial, p. 496.</p> <p>9. Telegraphs and Telephones. — Regulations.—Orders.—Motive of Applicant. — Where a telephone company filed a lawful petition for an order to be granted only after a hearing, and the proceedings were regular as to all parties affected, the motive of the company in filing the petition is immaterial in an action by a competitor to enjoin enforcement of the order, p. 496.</p> <p>10. Pleading. — Dismissal of Complaint After Overruling Demurrer.— The dismissal by the court of a complaint after a demurrer to it had been overruled and a general denial filed thereto was error, as the complaint was sufficient as it then appeared of record and the issue raised should have been tried, p. 497.</p>

From Clay Circuit Court; John M. Rawley, Judge. Suit by the city of Vincennes against the Vincennes Traction Company. From a judgment sustaining a demurrer to the complaint, the plaintiff appeals.

From the Dubois Circuit Court; John L. Bretz, Judge. Action by Nancy E. Murray against the city of Huntingburg and another. From a judgment for defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From the Porter Circuit Court; H. H. Loring, Judge. Action by. the Interstate Steel and Iron Company against the city of East Chicago and others. From a judgment for the city on its cross-complaint, the plaintiff appeals.

From the Miami Circuit Court; Nott N. Antrim, Special Judge. Petition by Thomas E. Bolley and another for the cleaning and repairing of a public ditch to which Jacob J. Harmon and others filed objections. From a judgment ordering the repair of the ditch, the objectors appeal.

From Marion Superior Court (104,513) ; Theoyhilus J. Moll, Judge. Proceedings on appeal to the superior court from an assessment by the board of public works against the College Park Land Company. From a judgment reducing the assessment, and an order denying a new trial,, the city appeals.

<p>From Randolph Circuit Court; James S. Engle, Judge.</p> <p>Action by Grant C. Markle against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. u From a judgment for the plaintiff, the defendant appeals.</p>

From Marion Circuit Court (28,656); Louis B. Ewbank, Judge. Mandamus proceedings by the State of Indiana, on the relation of the Indianapolis Traction and Terminal Company, to compel the Public Service Commission of Indiana to take jurisdiction of a petition to allow the relator to increase fares on its street cars. From a judgment sustaining a demurrer to the complaint, the relator appeals.

<p>1. Appeal. — Record.—Briefs.—Where the sustaining of demurrers to the complaint and the denial of a motion for a new trial are the only errors assigned, and neither of the demurrers, nor the motion for new trial, is set out in the appellant’s brief, there is no question presented for review, p. 576.</p> <p>2. Constitutional Law. — Access to Courts. — Public Improvement Contract. — Right to Question Validity. — The proviso in §8710 Burns 1914, Acts 1909 p. 412, declaring that the validity of a public improvement contract can be questioned only by a suit to enjoin performance, brought within ten days from the execution of the contract or prior to the commencement of work, is not violative of Art. 1, §12, of the state Constitution, p. 576.</p> <p>3. Statutes. — Validity.—Title of Act. — The title of the Cities and Towns Act of 1905 is broad enough to cover provisions for the making of public improvements and all matters of procedure relative thereto as expressed in §107 (Acts 1909 p. 412, §8710 Burns 1914) of the act. p. 577.</p>

From Marion Superior Court (104,861) ; Richard M. Coleman, Special Judge. Application by Emory J. Cain for writ of habeas corpus against George V. Coffin, sheriff. From an order denying the writ, the petitioner appeals.

<p>From Adams Circuit Court; David E. Smith, Judge.</p> <p>Action by Thomas M. Gallogly against Walter L. Ross, receiver of the Toledo, St. Louis & Western Railroad Company. From a judgment for the plaintiff, the defendant appeals.</p>

<p>1. Statutes. — Validity.—Title.—Section 90 of the act entitled “An act concerning municipal corporations” (Acts 1905 p. 219, §8639 et seq. Burns 1914) authorizing appeals by cities without bond is not violative of Art. 4, §19, of the Constitution, which declares that every act shall embrace but one subject and matters connected therewith, which subject shall be expressed in the title, p. 584.</p> <p>2. Statutes. — Local Legislation. — Validity.—Section 90 of the act concerning municipal corporations (Acts 1905 p. 219, §8639 et seq. Burns 1914) is not violative of Art. 4, §22, clause 3, of the Constitution, which forbids local or special laws regulating the practice in courts of justice, since the classification is reasonable. p. 584.</p> <p>3. Time: — Computation.—Sunday.—Perfection of Appeal. — Filing Transcript. — Although it was necessary for the appellant to file his transcript within sixty days from the ruling on a motion for new trial and the granting of the appeal, where the sixtieth day was Sunday, the filing of the transcript on the ' sixty-first day was in time, under §1350 'Burns 1914, §1280 R. S. 1881. p. 585.</p> <p>4. Adverse Possession. — Highways.—Encroachments.—One encroaching on a highway dedicated to the public use acquires no rights by prescription or adverse user. p. 587.</p> <p>5. Statutes. — Construction.—Vacation of Highways. — The legis-. lative purpose in laws providing for the vacation of existing highways is public — and not private — use and convenience, p. 587.</p> <p>6. Municipal Corporations. — Highways. — Vacation. — Jurisdiction of Court. — Statutes.—Under §§8908-8920 Burns 1914, Acts 1907 p. 617, relative to the vacation of plats and the dis-annexation of territory from cities and towns, etc., which authorizes a proceeding in the circuit court to vacate any street or part thereof and authorizing a remonstrance on the grounds that the public place sought to be vacated is necessary to the growth of the municipality, or that the proposed vacation will leave the remonstrants’ property without a public way or will deprive the public of access to some church, school or other public building, does not confer on circuit courts jurisdiction of a proceeding to vacate a portion of a street longitudinally along either of its sides so as to narrow it and leave it open, since the last section provides that the act shall not repeal any existing law, and, in view of such section, the municipal authorities have exclusive power to narrow the width of a street under §267, Acts 1905 p. 219, §8961 Burns 1914, giving to every city, except as otherwise provided, exclusive power over its streets and the right to straighten, widen and alter the streets already laid out. pp. 588, 590.</p>

<p>From Greene Circuit Court; Theodore E. Stinkard, Judge.</p> <p>Action by William Blumenthal and others against Louis Friedman. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

From Carroll Circuit Court; Henry H. Vinton, Special Judge. Action for writ of mandate by the State of Indiana, on relation of Charles Shepard and others, against James A. Smith, Trustee of Madison school township, Carroll county. From a judgment for relators, the defendant appeals.

From Tippecanoe Circuit Court; James L. Caldwell, Judge. Petition for* the improvement of a highway by Amos H. Anson and others, opposed by James Connett and others. From the judgment rendered on appeal to the circuit court, the* petitioners appeal.

From Vigo Circuit Court; Charles L. Pulliam, Judge. Action by George Hitz and Company against the Kent Avenue Grocery Company. From an interlocutory order appointing a receiver without notice, the defendant appeals.

<p>Criminal Law. — Selection of Grand Jury. — Irregularity.—Irregularity in the selection of- the grand jury was properly presented by a plea in abatement to the indictment. (Stipp v. State, ante 211, followed.)</p>

<p>Intoxicating Liquors. — Place of Sale. — Conducting Other Business. — The operation of a restaurant or other business in a room covered by .a license to sell intoxicating liquors is not a violation of §8325 Burns 1914, Acts 1895 p. 248, unless the business of selling such liquors under the license is being conducted at the time.</p>

From Jennings Circuit Court; James F. Cox, Special Judge. • Suit by George M. Crist and others against Daniel Molony and others. From the judgment for the defendants, the plaintiffs appeal.

From Marion Superior Court (a 221); Clarence E. Weir, Special Judge. Quo warranto by the state, on the relation of Adam H. Felker, against Marion Caldwell. From a judgment for relator, the defendant appeals.

<p>From Vanderburgh Superior Court; Fred M. Hostetter, Judge.</p> <p>Suit by the F. W. Cook Brewing Company against Edgar Schmitt, as superintendent of police of the city of Evansville. From a judgment for the plaintiff, the defendant appeals.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Prosecution by the State of Indiana against Crawford Fairbanks and others. From a judgment for the defendant, rendered on a motion to quash the affidavit, the state appeals.

<p>1. Appeal. — Briefs.—Sufficiency.—The overruling of a motion for new trial will not be reviewed, where the appellant fails to set out a copy, or the substance, of such motion, p. 659.</p> <p>2. Appeal. — Presenting Questions. — Assignment of Errors.— That the finding, decree and judgment are not sustained by sufficient evidence and are contrary to law are causes for new trial, but not proper subjects for independent assignments of error, and such assignments will not be reviewed, p. 659.</p> <p>3. Appeal. — Evidence.—Weight.—The finding of the trial court is conclusive where there is some evidence to support it, as the Supreme Court will not weigh the evidence, p. 660.</p>

From Porter Superior Court; Harry L. Crumpacker, Judge. Action by the Indiana Harbor Belt Railroad Company against the Public Service Commission and another. From a judgment for the defendants, the plaintiffs appeal.

<p>From Allen Circuit Court; J. W. Eggeman, Judge.</p> <p>Action by Schuyler M. Lease against the Ohio Electric Railway Company. From a judgment for the plaintiff, the -defendant appeals. (Transferred from the Appellate Court under §1405 Burns, 1914, Acts 1901 p. 590.)</p>

From Gibson Circuit Court; Simon L. Vandeveer, Judge. Action by John Iverson against the Public Utilities Company. From a judgment for the plaintiff, the defendant appeals. ’ (Transferred from the Appellate Court under §1405 Burns 1914,-Acts 1901 p. 590.)

<p>From Marion Superior Court (99,867); Vincent G, Clifford, Judge.</p> <p>Action by Guy M. Miller, against the Pittsburgh, Cincinnati, Chicago and- St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.</p>

From Henry Circuit Court; Will M. Sparks, Special Judge. Mandamus by the State of Indiana, on the relation of John F. Thompson, against Howard C. Elliott, auditor, and others. From a judgment for the defendant, the plaintiff appeals.

<p>1. Indictment and Information. — Motion to Quash. — Selection of Grand Jury. — Irregularity in the selection of a grand jury, under §1668 Burns 1914, Acts 1913 p. 15, or in the filling of vacancies therein, under §544a Burns 1914, §519 R. S. 1881, cannot be presented by a motion to quash the indictment, where it purports to have been returned by a legal grand jury and no defects appear upon its face, since §2065 Burns 1914, §1759 R. S. 1881, providing grounds for a motion to qua§h, does not authorize the court to search the record preceding the indictment. p. 697.</p> <p>2. Criminal Law. — Impaneling Grand Jury. — Plea in Abatement. — Illegality or irregularity in the impaneling of a grand jury should be presented by plea in abatement, p. 697.</p> <p>3. Criminal Law. — Appeal.—Scope of Review. — Where the verdict, the form of which is unquestioned, rests upon two counts of the indictment, the court, on appeal, will not consider proceedings or evidence applicable to the remaining counts, p. 698.</p> <p>4. Criminal Law. — Appeal. — Requested Instructions. — Requested instructions, though applicable and correct in principle, were properly refused, where they were fully covered by other' instructions given, p. 698.</p> <p>5. Criminal Law. — “Venue”.By “venue” is meant the county in which the criminal acts are alleged to have occurred, p. 699.</p> <p>6. Criminal Law. — Venue.—Evidence.—Venue is a mere fact requiring no more direct or convincing evidence to establish it than is required to prove any other essential fact. p. 699.</p>

From Fountain Circuit Court; I. E. Schoonover, Judge. Action by Myrtle M. Snapp, as administratrix of the estate of Charles Snapp, deceased, against Clayton L. Steinbaugh and others. From a judgment on a directed verdict for the defendants, the plaintiff appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Marion Superior Court (Í01,203); TheopMhis J. Moll, Judge.</p> <p>Action by Arthur C. Sanders against the Vandalia Railroad Company. From a judgment fpr the plaintiff, the defendant appeals.</p>

<p>From Delaware Circuit Court; William A. Thompson, Judge.</p> <p>Prosecution by the State of Indiana against Edward Gable. From a judgment of conviction, the defendant appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against Isora Lucas. From a judgment of conviction, the defendant appeals.</p>

From Rush Circuit Court; Will M. Sparks, Judge. Action by the State of Indiana, on relation of the National Surety Company and the surety company, individually, against the board of commissioners of Rush county and others. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

From Marion Superior Court (84,518); John J. Rockford, Judge. Action by James C. Hennigar, administrator of Frank H. Bloemer, deceased, against the Bedford Stone and Construction Company and”others. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Johnson Circuit Court; William E. Deupree, Judge.</p> <p>Prosecution by the State of Indiana against Floyd j. Bills. From a judgment of conviction, the defendant appeals.</p>

<p>From Lake Superior Court; Charles E. Greenwald, Judge.</p> <p>Proceeding by Valentine Pisarski against Clyde E. Hunter, prosecuting attorney. From a .judgment for the defendant, the plaintiff appeals.</p>

<p>From Shelby Circuit Court; Alonzo Blair, Judge-</p> <p>Action by the National City Bank against August M. Kuhn. From a judgment for plaintiff, the defendant appeals.</p>

From Hamilton Circuit Court; Meade Vestal, Judge. Action by the State of Indiana, on relation of the board of finance of the town of Cicero, against the Equitable Surety Company. From a judgment for the relator, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Delaware Circuit Court; Alonzo L. Nichols, Special Judge.</p> <p>Proceedings by the State of Indiana against Charles Benadum and others. From a judgment rendered, the defendants appeal.</p>

<p>From Marion Superior Court (99,116); John J. Rochford, Judge.</p> <p>Action by William B. McIntosh against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (99,871); John J. Rochford, Judge.</p> <p>Action by George W. Koehler against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (99,866); John J, Rochford, Judge.</p> <p>Action by Charles W. Campfield against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company'. From a Judgment for the plaintiff, the defendant appeals.</p>

<p>From Marion Superior Court (100,721); John J. Rockford, Judge.</p> <p>Action by Emmet Stágg against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Sullivan Circuit Court; William H. Bridwell, Judge.</p> <p>Prosecution by the State of Indiana against G. Michael Dausman. From a judgment quashing the indictment, the state appeals.</p>