Volume 188 — Indiana Reports

From the Hamilton Circuit Court; Ernest E. Cloe, Judge. Proceeding for the establishment of a highway by William J. Whitesell, administrator, and others, against Hamilton Metsker and others. From a judgment setting aside an order of the board of commissioners directing the improvement and remanding the cause to the board for further action, the petitioners appeal.

<p>From Hamilton Circuit Court; James M. Purvis, Judge.</p> <p>Prosecution by the State of Indiana against C. B. Scherer. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Motion in Arrest. — Motion to Quash. — Testing Indictment. — An indictment is not subject to the same test by a motion in arrest as it is by a motion to quash, as a motion in arrest presents only the questions that the offense was not committed within the jurisdiction of the court, and that the indictment does not state facts sufficient to constitute a public offense, p. 22.</p> <p>2. Criminal Law. — Appeal.—Bill of Exceptions. — Time for Filing. — Where time beyond the term is desired for the filing of a bill of exceptions containing the evidence, under §287, Acts 1905 p.- 584, §2163 Burns 1914, leave therefor must be given by the court at the time of the ruling on the motion for a new trial, p. 24.</p> <p>3. Criminal Law. — Bill of Exceptions. — Filing.—Certificate.— Record. — Discrepancy.—Where a criminal case was terminated in the April term of court and the hill of exceptions was not filed until the September term, the record being silent as to any extension of time for the filing thereof, a recital in the judge’s certificate that the bill of exceptions was tendered “within time allowed” does not show such conflict between the certificate and the order-book entry as to make the bill a part of the record, since the record discloses a failure to comply with §287, Acts 1905 p. 584, §2163 Burns 1914. pp. 24, 25.</p>

From Starke Circuit Court; William C. Pentecost, Judge. Petition by Alfred C. Steenburg and others against William G. Kyle and others to repair a drain. From a-judgment of dismissal, the petitioners appeal.

<p>From the Monroe Circuit Court; Robert W. Miers, Judge.</p> <p>Prosecution by the State of Indiana against David Torphy. From a judgment of conviction, the defendant appeals.</p>

From Marion Superior Court (99,089) ; W. W. Thornton, Judge. Action by the State of Indiana, on relation of the trustees of Purdue University, against the Indiana State Board of Finance, the Governor and others. From a judgment for the plaintiff, the defendants appeal.

From Henry Circuit Court; Fred C. Cause, Judge. Mandamus by the State of Indiana, on relation of Arthur M. Hinshaw, against Otho Poer, trustee of Spiceland school township, Henry county. From a judgment for the relator, the defendant appeals.

<p>From St. Joseph Circuit Court; T. D. Mott, Judge.</p> <p>Proceeding by the State of Indiana against John Henry Zuver for indirect contempt of court. From a judgment of conviction, the defendant appeals.</p>

From Delaware Circuit Court; William A. Thompson, Judge. Prosecution by the State of Indiana against Romeo Smith. On the overruling of motions to vacate and to modify the judgment of conviction, rendered on a plea of guilty, the defendant appeals.

<p>1. Criminal Law. — Appeal. — Evidence. — Weight. — Although the evidence is conflicting and contradictory, the court on ap- ' peal will not weigh it, as it will be held sufficient if, standing alone and with the inferences drawn therefrom, it supports the judgment, p. 72.</p> <p>2. Criminal Law. — Appeal.—Reversal.—Lack of Evidence — A judgment will not be reversed for lack of evidence, unless some essential element of the case is wholly unsupported by evidence, p. 73.</p> <p>3. Criminal Law. — Appeal.—Bill of Exceptions. — Instructions given and refused, and the exceptions arising therefrom, must be made part of the record by special bill of exceptions in order to present for review the rulings of the court thereon. ■ p. 73.</p> <p>4. Criminal Law. — Appeal. — Record. — Instruction Directing Verdict. — An instruction directing a verdict in a criminal case must be madp a part of the record in the same manner as other instructions in order to present questions thereon for review, p. 73.</p> <p>5. Criminal Law. — Form of Verdict. — Venire de Novo. — In a criminal case, a motion for a venire de novo will not be sustained, unless the verdjct is so defective and uncertain on its face that no judgment can be pronounced upon it; but the verdict, however informal, is good, if the court understands it when construed according to its reasonable intendment, p. 74.</p> <p>6. Criminal Law. — Codefendants.—Verdict.—Where the effect of an affidavit was to charge that each defendant was guilty of an offense stated therein, and the verdict finds that the defendants are guilty as charged, a fair construction of the language is that each of the defendants is guilty as charged, p. 74.</p> <p>7. Criminal Law. — Appeal.—Review.—Reservation of Grounds. —In a criminal case, in order to present for review the form or substance of a judgment, the question must first be presented to the trial court by a motion to modify, specifically stating the defects or mistakes complained of, and the adverse ruling thereon must b.e assigned as error, p. 74.</p>

<p>From Clinton Circuit Court; Joseph Combs, Judge.</p> <p>Action for divorce by Helen S. Van Natta against Samuel G. Van Natta. From a judgment for the plaintiff, the defendant appeals.</p>

From Marshall Circuit Court; William B. Hess, Special-Judge. Action by Cenia Travis, administratrix of the estate i of her deceased husband, Plarry Travis, against the Rochester Bridge Company. From a judgment sustaining a demurrer to the amended complaint, the plaintiff appeals. (Transferred from the Appellate Court under Acts 1901 p. 565, §1394 Burns 1914.)

<p>From Marion Superior Court; Linn D. Hay, Judge.</p> <p>Action by Gustav A. Schnull and others against the Vandalia Railroad Company. From a judgment for plaintiffs, the defendant appeals.</p>

<p>1-. Criminal Law. — Appeal.—Sufficiency of Evidence. — To'present error on the ground of insufficiency of the evidence, one must show that there is a complete failure of evidence on a material issue, p. 108.</p> <p>2. Criminal Law . — Appeal.—Evidence, Weight and Sufficiency. —Credibility of Witnesses. — Alibi.—Verdict.—The court on appeal will not weigh the evidence as to whether the accused was at the scene of the crime, where there was some evidence of his presence there at the time, since the weight of the evidence and the credibility of witnesses are questions for the jury; and where the jury found against the defendant, and the trial court denied a motion for new trial, the Supreme Court will assume that the court and jury have faithfully discharged their respective duties, p. 109.</p> <p>3. Witnesses. — Contradictory Evidence. — Reputation of One Accused by Defendant. — Homicide.—In a prosecution for mur.der, where the defendant had tried to fix guilt upon another, the state had the right to show that the defendant’s story, wherein he accused the other person, was a falsehood, and in so doing could introduce testimony of the reputation for honesty and peacefulness of such person and that he had had no opportunity to commit the crime, p. 110.</p> <p>4. Criminal Law. — Evidence.—Witnesses.—Credibility.—Where circumstances, created by the accused or by accident, point to a third person as guilty, the state may interpose defenses for such person, even though the evidence has a tendency to fortify such person as a witness, p. 110.</p> <p>5. Homicide. — Weapon.—Identification.—Weight of Evidence. — ■ In á prosecution for murder, a hatchet found near the scene of the crime, although not discovered until several months after the offense was committed, was properly exhibited to the jury, where the evidence tended to show that the wounds inflicted on the deceased were such as could have been made by the hatchet; that nobody in the neighborhood had ever had such a hatchet; that it was found in the natural direction for the guilty party to go; that it was in such position that it might be inferred that it was not left there accidentally; and that it appeared to be new, but had a peculiar brown color on the edge; its identity having also been established by witnesses whose testimony traced it from the place of discovery into the hands of the prosecution, since the objection to such exhibit went to the question of the weight of the evidence, pp. 110, 111.</p> <p>6, Homicide. — Appeal. — Harmless Error. — Reputation. — In a prosecution for murder, the admission of testimo'ny as to the defendant’s reputation, and particularly that by the defendant’s daughter that she, up to the tenth year of her life, knew nothing about her father, if error, was harmless, where there is no showing that any objection was made or exception saved to the admission thereof, and in view of other evidence of a conversation between the defendant and the chief of police, wherein the defendant made the statement, which was not disputed, that he had been in the workhouse for horse stealing, p. 112.</p>

From Adams Circuit Court; David E. Smith, Judge. Action by Joseph McFarren against the Lake Erie and Western Eailroad Company. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under Acts 1901 p. 590, §1405 Burns 1914.) .

<p>1. Wills.- — Codicil.-—Republication.—Contest.—Burden of Proof. ■ — In an action to have a will and codicil declared invalid, the contestant has the burden of establishing the invalidity of both instruments, since the codicil, if valid, serves to republish the original will except as modified by the codicil, p. 127.</p> <p>2. Wills. — Contest.—Testamentary Capacity. — Evidence.—Conflict. — In an action by a daughter to contest her father’s will, which stated that she had been provided for by prior advancement, evidence tending to show that.the testator’s health failed following an operation and his memory weakened, that it was difficult for him to turn his mind from one subject of conversation to another or to readily grasp matters explained to him, that the relations between the father and the daughter had been friendly, and that certain land deeded to the daughter had been purchased by the testator with money held by him as her guardian, was sufficient, as against objection raised in the Supreme Court, to warrant the jury in inferring that the testator did not understand the provision made for the plaintiff, though only, three witnesses gave opinions that the testator was of unsound mind when the will was executed and the facts upon which the opinions were based rendered them of little, if any, probative force, since the court on appeal will not set aside a verdict that is against the preponderance of the evidence, such duty being that of the trial court upon proper presentation of the question, p. 127.</p> <p>3. Appeal. — Revieio.—Conflicting Evidence. — The court on ap- . peal will not weigh conflicting evidence, p. 128.</p> <p>4. Wills. — Contest.—Admission of Evidence. — Harmless Error. —In an action to contest a will upon the grounds of mental incapacity and undue influence of the testator, the admission under the latter issue of the declaration of a defendant legatee that “the will was made to suit her” was harmless error, where •there was sufficient evidence to sustain the jury’s finding that the testator was of unsound mind. p. 129.</p> <p>5. Wills. — Contest.—Admissibility of Evidence. — In a will contest,'statements alleged to have been made by the testator concerning the provision he intended to make for the plaintiff in his will were properly admitted in evidence to show the testator’s mental condition under an instruction limiting them to such purpose, p. 129.</p>

<p>1. Railroads. — Crossing Signals. — Negligence.—The failure of a railroad company to give statutory signals as required by §5431 Burns 1914, §4020 R. S. 1881, is negligence per se. p. 133.</p> <p>2. Railroads. — Injuries to Persons on Tracks. — Trespasser or Licensee. — The warning signals required of railroad companies at highway crossings, under §5431 Burns 1914, §4020 R. S. 1881, are for the benefit of travelers on the highways, and one injured in the railroad yards cannot base an action on the failure to give such signals, p. 133.</p> <p>3. Railroads. — Injuries to Persons on Track. — Trespasser or Licensee. — A shipper who, in assisting in the loading of cars, in accordance with a custom under which shippers moved the cars from a switch track into position for loading, went upon the tracks to move a loaded car so that another could be moved into place, was engaged in work mutually beneficial to himself and the company and was neither a trespasser nor a mere licensee, but was rightfully there by implied invitation, p. 134.</p> <p>4. Railroads. — Injuries to Persons on Tracks. — Invitees.-—-Care. —Where a shipper was upon the tracks of a railroad company by implied invitation to do work mutually beneficial to himself and the company, it was the company’s duty not only to exercise ordinary care to keep the premises safe but to use reasonable precautions to avoid exposing him to unnecessary peril, pp. 135,137.</p> <p>5. Negligence. — Pleading.—Contributory Negligence. ■ — ■ In personal injury cases, the complaint need not negative contributory negligence, since such negligence is a matter of defense; and the complaint is sufficient, unless the plaintiff’s contributory negligence appears to reasonable minds as the only conclusion from the facts pleaded, p. 135.</p> <p>6. Railroads. — Persons Entitled to Protection. — A railroad company owes to one in its yards who, at its implied invitation, is doing work beneficial'to a shipper and the company, the duty of equipping its locomotives with the headlights as prescribed by an order of the Railroad Commission under §5533f Burns 1914, Acts 1909 p. 323. p. 136.</p> <p>7> Appeal. — Review.—Sustaining Demurrer. — Harmless Error. —Generally it is harmless error to sustain a demurrer to one paragraph of complaint where the facts pleaded therein are provable under another; but this rule does not obtain where the paragraph held bad proceeds upon a different theory than such other paragraph, p. 138.</p>

From Warrick Circuit Court; R. E. Roberts, Judge. Action by Martin W. Lilly against Richard E. Martin 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 Hamilton Circuit Court; Will M. Sparks, Special Judge.</p> <p>Prosecution by the State of Indiana against Edwin M. .Hinshaw.- From a judgment of conviction, the defendant appeals.</p>

<p>1. Insurance. — Life Insurance. — Beneficiaries. — Rights under “Facility Payment” Clause. — Action.—Where death benefits of a life insurance policy were payable to the personal representative of the insured, unless settlement should be made under a “facility payment” clause empowering the company to pay such benefits to any relative by blood or marriage, or to any person appearing to the company to be equitably entitled thereto by reason of having incurred expense, etc., an action cannot be maintained to enforce payment by one with whom the company might have settled, at its option, under such facility clause, where such person is neither named as a beneficiary nor otherwise designated as the person entitled to recover, p. 159.</p> <p>2. Insurance. — Life Insurance. — “Facility Payment Clause.”— Rights of One Paying Premiums. — Payment of premiums on the life insurance policy of another gives the person so paying them no rights to enforce, under a “facility payment” clause in the policy, the payment of death benefits, since the payment of the premiums, in legal contemplation, was made by the insured, p. 160.</p> <p>3. Insurance. — Parol Assignment of Policy. — Validity. — The parol assignment of an insurance policy is valid, unless forbidden by provision in the policy, p. 160.</p> <p>4. Pleading. • — - Complaint. — Sufficiency.—Overcoming Defects.— Where a complaint states a cause of action and also facts disclosing a defense thereto, the pleading is fatally defective unless it states facts sufficient to overcome the defenses disclosed. p. 161.</p> <p>5. Insurance. — Action on Policy by Assignee.— Complaint.— Sufficiency. — In an action on a life insurance policy by an assignee, who has paid premiums, which policy gave the insurer the right to treat it as void on its assignment, a complaint alleging the assignment and making the policy an exhibit does not state a cause of action in the absence of allegations showing that the insurer has waived, or is estopped from asserting, such right, p. 161.</p> <p>6. Appeal. — Instruction.—Defective Complaint. — Failure to Demur. — Effect.—Verdict.-—Statute.—Since a verdict must be supported by all the facts essential under the law to sustain it, it is reversible error to instruct the jury that proof of the allegations of a complaint entitles the plaintiff to a verdict, where there is an omission to allege, directly or indirectly, a fact essential to the plaintiff’s cause of action; and §844, cl. 6, Burns 1914, Acts 191Í p. 415, requiring memoranda to be filed with demurrers and providing that defects not specified therein shall be deemed as waived, etc., was not intended to change this rule so as to permit a recovery without proof of facts essential to the cause of action, though such facts are not pleaded. (Dunham v. Jones [1915], 184 Ind. 46; Cincinnati, etc., R. Co. v. Gross [1917], 186 Ind. 471, overruled.) pp. 162, 164.</p>

<p>Exceptions, Bill op. — Settlement. — Filing. — Nunc Pro Tunc Entry. — Where the trial court, at the time of the overruling of a motion for new trial, failed to make an order-book entry showing that' time was given the defendant to file a bill of exceptions, after the end of the term the only method of correcting the omission, so as to make a bill of exceptions filed after the term a part of the record, was by a motion for a nunc pro tunc entry.</p>

<p>1. Criminal Law. — Appeal.—Briefs.—Sufficiency.—Where a defendant in a criminal case sets out in his brief as error the overruling of motions to quash the affidavit, to continue the cause, and for new trial, but sets, out neither a,copy of the affidavit nor copies of such motions, the brief is insufficient to present error under the fifth clause of Rule 22 of the Supreme Court, which requires a concise statement of so much of the record as presents every error relied on. p. 171.</p> <p>2. Constitutional Law. — Legislative Power. — Encroachment on Judiciary. — Rules of Court. — The Supreme Court has power to make its own rules as to briefs and as to the conduct of business before the court, and §3, Acts 1917 p. 523, in so far as it refers to rules relative to the sufficiency of briefs and the pointing out of defects therein, is void. p. 171.</p>

<p>Criminal Law. — Sentence.—Place of Imprisonment.- — Objection. —A defendant, convicted of violating the “Blind Tiger” Act, should have presented the alleged error that he was sentenced to the county jail instead of the penal farm by a motion to modify the judgment and not by a motion for new trial.</p>

<p>From Decatur Circuit Court; 'John W. Donaker, Judge.</p> <p>Prosecution by the State of Indiana against the Sperry and Hutchinson Company. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Appeal. — Briefs. — Sufficiency. — Where an appellant in a criminal case fails to group his points and authorities under proper headings, or to apply his propositions to the particular circumstances in issue, the Supreme Court, under the rules of briefing, would be justified in affirming a judgment of conviction, p. 185.</p> <p>2. Assault and Battery. — Striking with Automobile. — Intent.— An assault and battery may be committed by striking another with an automobile, where there is a criminal intent, p. 185.</p> <p>3. Assault and Battery. — Striking with Automobile. — Intent.— In a prosecution of a defendant for assault and battery for striking another with an automobile, the element of intent may not be implied from the lack of ordinary care, but it may be implied from intentional acts, where the injury was the direct result of them, done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict the injury, or from the commission of an unlawful act that leads directly to the injury, pp. 185,187.</p> <p>4. Criminal Law. — Appeal. — Review. — Intent.—Proof.—Where there is evidence in the record tending to show that the defendant, while operating an automobile in violation of §10476c Burns 1914, Acts 1913 p. 779, §14, and, with a reckless disregard for the safety of others, struck the defendant, who was on a motorcycle, there was sufficient showing to present an issue of fact as to the element of intent, and in such case the Supreme Court will not disturb the judgment, pp. 186,188.</p> <p>5. Criminal Law. — Appeal. — Review. ■— Evidence. — Weight. — The Supreme Court will not disturb a judgment of conviction in a criminal case for insufficiency of evidence unless there is an entire failure of proof upon an essential element of the offense, p. 187.</p>

From Kosciusko Circuit Court; Francis E. Bowser, Judge. Action by John Mishler against the Chicago, South Bend and Northern Indiana Railroad Company. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

From Marion Circuit Court (27,522); Louis B. Ewbanh, Judge. Petition by the Syracuse and Milford Railway Company, and intervening petition by the Sandusky Cement Company, before the Public Service Commission, to require the Cleveland, Cincinnati, Chicago and St. Louis 'Railway Company to maintain through routes and joint rates with the petitioner. The commission made an order for joint rates, and from a judgment of the trial court annulling the order, the commission appeals.

<p>1. Contracts. — Performance.—Defenses.—Act of God. — An unprecedented flood that did not render impossible the performance of a contract for the construction of a ditch and levee, though it damaged the work already done, did not excuse the contractor from the completion of the contract, p. 209.</p> <p>2. Contracts. — Performance.-—Defenses.—Act of God. — Where an obligation is imposed by law, a failure of performance thereof that is due to an act of God will be excused; but where a party by contract creates an absolute and unconditional obligation, the performance of which rests on himself, he is bound to perform or to answer in damages, notwithstanding any act of God or inevitable accident, because he might have provided against such contingencies, p. 210.</p> <p>3. Drains. — Contracts.—Recovery of Valíte of Work After Annulment of Contract. — Although a bid was attached to a- contract for the construction of a ditch and levee showing that the total amount of the bid resulted from a calculation based on a price per cubic yard of earth in the levee, the contract was a unit and required the construction of the entire work; hence the contractor could not, after annulment, recover the value of the work done under §6144 Burns 1914, Acts 1907 p. 508, where its value was exceeded by the cost of its reconstruction after damage by unprecedented flood, p. 211.</p>

From St. Joseph Circuit Court; Arthur L. Hubbard, Special Judge. Action by Mary Opperman against the Citizens’ Bank of Michigan City. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>1. Mandamus.— Office.— Possession.— Mandamus is the proper remedy to obtain possession of an office from a person wrongfully holding over where the facts show that the plaintiff has been legally elected to, and has qualified for, the office, p. 224.</p> <p>2. Elections.' — Tie Vote.- — Casting Lots. — Section 15 of Acts 1905 p. 219, §8989 Burns 1914, which provides that, in case of a tie vote for candidates for office in town elections, the inspectors shall determine by lot which of them shall be dedared elected, applies to all town elections and not only to the first election following incorporation, in view of §14 and the acts of 1909 and 1911 amending the act of 1905, and there being nothing in the history of the legislation to indicate a different construction, p. 227.</p>

<p>From Marion Criminal Court (45,768) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Charles Wheeler. From a judgment of conviction the defendant appeals.</p>

<p>From Delaware Circuit Court; Frank Ellis, Judge.</p> <p>Suit by the Cincinnati, Richmond and Fort Wayne Railroad Company against the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for the defendant, the plaintiff appeals.</p>

<p>1. Witnesses. — Accused as Witness. — Cross-Examination.— Credibility: — Though a defendant in a criminal prosecution testifying in his own behalf may be -cross-examined as to a prior conviction for the purpose of affecting his credibility as a witness, it was error for the court to instruct the jury that impeaching testimony brought out in such cross-examination should be considered in determining the defendant’s guilt or innocence, pp. 243,245.</p> <p>2. Witnesses. — Credibility.—Cross-Examination.—Extent.—Any fact tending to impair the credibility of the witness by showing his interest, bias, ignorance, motives, or that he is depraved in character, may be shown in cross-examination, but the extent to which such cross-examination may be carried is within the sound discretion of the court, p. 245.</p> <p>3. Criminal Law. — Witnesses. — Instructions. — Character. —■ Character of Codefendants. — In the prosecution of a defendant for conspiracy, an instruction that evidence concerning an offense of a codefendant should be considered by the jury in determining the guilt or innocence of the defendant, if it in any way applied to the conduct of the defendant, was erroneous. p. 245.</p> <p>4. Criminal Law. — Instructions.—Prejudicial Error. — Character. — Where the evidence is wholly circumstantial and contradictory, instructions permitting the jury to consider the defendant’s character and prior convictions in determining his guilt were prejudicial, p. 246.</p>

From the Hamilton. Circuit Court; Ernest E. Cloe, Judge. Action by Robert M. House against Lorenzo H. Wright and others to enjoin the improvement of a highway. From a judgment for the plaintiff, the defendants appeal.

<p>From Pulaski Circuit Court; William C. Pentecost, Judge.</p> <p>Prosecution by the- State of Indiana against Nathan T. Barker. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Rape.—Relation of Husband and Wife.— Defense. — In a prosecution for rape upon a female child under the age of consent, though the part of the statute defining such offense makes no exception with regard to the husband of such female, the fact that the defendant is her husband may be proved as a defense, p. 278.</p> <p>2. Criminal Law.— Affidavit.— Rape.— Denial of Relation of Husband and Wife. — An affidavit charging rape upon a female child under the age of consent was not defective for failure to state that such female was not then the wife of the defendant, since the part of the statute defining the offense makes no such exception, p. 278.</p> <p>3. Criminal Law. — Reasonable-Doubt.—Subsidiary Evidence.— The rule requiring the state to prove the defendant’s guilt beyqnd a reasonable doubt applies only to the essential facts 'constituting the crime charged, and has no application to the proof of subsidiary facts that are not essential elements of the crime but which, if shown, tend to prove or to disprove one or more of the essential elements, p. 279.</p> <p>4. Criminal Law.— Reasonable .Doubt.— Evidence.— Essential and Subsidiary Facts. — Subsidiary facts need not be proved beyond a reasonable doubt to justify a conviction; it is the facts essentially necessary to constitute the crime that must be so proved; but, since a reasonable doubt as to the essential facts may arise from a consideration of evidence adduced in support of subsidiary facts, it was error for the court to give an instruction that excluded evidence bearing on the question of reasonable doubt from the consideration of the jury by the statement that a reasonable doubt could not spring from subsidiary evidence. {Hauh v. State, 148 Ind. 248, disapproved in part.) pp. 279,281. '</p> <p>5. Criminal Law. — Erroneous Instruction. — Exclusion of Evience. — Reversible Error. — In a prosecution for rape upon a female child under the age of consent, an instruction that excluded from the consideration of the" jury evidence, though subsidiary, as to the date on which the offense was committed, and which ■ tended to break down the essential fact that the child at the time was under the age of consent, constituted such error that the Supreme Court cannot say that the defendant was so clearly guilty as to render the instruction harmless, though the fact of intercourse was not disputed, p. 281.</p>

<p>Appeal from the Delaware Circuit Court; Fred C. Gause, Special Judge.</p> <p>Prosecution by the State of Indiana against Gene Williams. From a judgment of conviction, the defendant appeals.</p>

From the Jefferson Circuit Court; Francis M. Griffith, Judge. Action by Solomon J. Bear, receiver, and others against Cora Lawler and another. From a judgment for the plaintiffs, the defendants appeal.

From Vigo Circuit Court; Samuel D. Royse, Special Judge. Action by John Kushner, by his next friend, against the Fauvre Coal Company. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under Acts 1901 p. 590, §1405 Burns 1914.)

<p>Appeal. — Matters Reviewable. — Bill of Exceptions. — Objections to the giving of instructions which necessitate a consideration of the evidence present 'no question for review where- neither the bill of exceptions by which the appellant attempted to make the instructions part of the record, nor that containing the evidence, was filed during the term in which the cause was tried or during the time given for that purpose.</p>

From Harrison Circuit Court; William Ridley, Judge. Proceeding by the State of Indiana, on the relation of 0swell Martin and others, against the advisory board of Morgan township, Harrison county. From a judgment for the relators, the defendant appeals.

<p>From the St. Joseph Circuit Court; Walter A. Funk, Judge.</p> <p>Action by Emanuel M. Horning against William McGill. From a judgment for the defendant, the plaintiff appeals.</p>

<p>From Porter Circuit Court; H. H. Loring, Judge.</p> <p>Action by the Chicago, Indianapolis and Louisville Railway Company against the Public Service Commission. From a judgment for the commission, the plaintiff appeals.</p>

From Jasper Circuit Court; Elmer Barce, Specia1 Judge. Proceeding by John P. Ryan and others to establish a drain, in- which Austin O. Moore filed a remonstrance. From a judgment establishing the drain, the remonstrant appeals.

<p>1. Criminal Law. — Verdict.—Certainty.—Place of Punishment. —A verdict finding the defendant guilty as charged and assessing his punishment “at a fine of $300, and imprisonment in the county jail for a period of three months, 90 days in the penal farm” was not ambiguous or uncertain as to the place of imprisonment, since, under §9926h Burns 1914, Acts 1913 p. 660, §8, it was the duty of the court to sentence the defendant to the Indiana State Farm, the term being fixed at ninety days. p. 355.</p> <p>2. Intoxicating Liquors. — Statute.—Construction.—“Furnish.” ■ — -Where the accused, pursuant to an agreement with his son-in-law, purchased intoxicating liquor to be used by them and their families on a future day, the son-in-law furnishing half of the money at the time of making the agreement, the court,</p> <p>■ in determining whether the accused was guilty of an intent to “furnish” the liquor in violation of §4, Acts 1917 p. 15, will consider the word “furnish” in the concrete as used in the act, rather than in-the abstract, keeping in mind the general purpose of the act and the evils intended to be remedied, p. 356.</p> <p>3. Intoxicating Liquors. — Unlawful Keeping. — “Furnish.”— Statute. — Where the accused had in his possession intoxicating liquor which he purchased pursuant to, and with intent to carry out, an agreement with his son-in4aw under which the liquor was to he used by them and their families on a future day, the son-in-law having furnished half of the purchase price at the time of making the agreement, he was guilty of keeping intoxicating liquor with intent to “furnish,” etc., in violation of Acts 1917 p. 15, though the son-in-law had title to half of the liquor from the time of the purchase, p. 358.</p>

<p>From Randolph. Circuit Court; Theodore Shockney, Judge.</p> <p>Prosecution by the State of Indiana against Chañes Sarlin. From adjudgment for the defendant, the state appeals.</p>

<p>From Marion Circuit Court, (28,049) ; Louis B. EwbanJc, Judge.</p> <p>Action by Marion Caldwell against Adam H. Felker and others. From a judgment for the plaintiff, the defendant appeals.</p>

<p>1. Criminal Law.— Manslaughter.— Definition.— Common-Law Construction. — Since §2239 Burns 1914, Acts 1905 p. 584, §351, defining manslaughter, was adopted bodily from the common law, the legislature must have intended to adopt the common-law meaning of the words used. p. 375.</p> <p>2. Homicide. — Manslaughter.—Wanton Recklessness. — “Unlawful Act.” — Proximate Cause. — Evidence.—The words “unlawful act” contained in the- statutory definition of manslaughter (§2239 Burns 1914, Acts 1905 p. 584, §351) are as broad in their content as they were at common law, and therefore include not only acts prohibited by statute but also conduct involving such wilfulness as to show a wanton recklessness as to the life and limb of others; but in either case, to support a conviction for manslaughter, the evidence must show that the unlawful act was the proximate cause of the death, p. 375.</p> <p>3. Homicide. — Manslaughter.—Wanton Recklessness. — Intent.— Where one acts in violation of a statute under circumstances showing reckless disregard for the life and limb of others, and this violation is the proximate cause of the death of another, the law implies an intent to commit involuntary manslaughter, p. 375.</p> <p>4. Homicide. — Manslaughter.—Proximate Cause. — In a prosecution for manslaughter, based on a violation of the Motor Vehicle Act (§10476 Bums 1914, Acts 1913 p. 779, §16), evidence showing that the accused, while on a motorcycle, ran into and killed a two-year-old child, who suddenly started across the street and stopped in front of the motorcycle, but which failed to show that such violation was the proximate cause of the death and, when considered as a whole, showed at most only negligence on the part of the accused is insufficient to support a conviction, p. 379.</p>

<p>From Greene Circuit Court; Thomas Van Btiskirk, Special Judge.</p> <p>Prosecution by the State of Indiana against Stanley Bennett. From a judgment of conviction, the defendant appeals.</p>

<p>From Allen Circuit Court; William H. Eichhorn, Special Judge.</p> <p>Prosecution by the State of Indiana against John H. Koehler. From a judgment of conviction, the defendant appeals.</p>

From the Pulaski Circuit Court; W. C. Pentecost, Judge. Proceedings by Jacob Cromer and others for the construction of a drain, in which Otto Bridenbaugh and others filed remonstrance. From an order dismissing the proceedings, the petitioners appeal.

<p>1. Judgment.- — Nuisance. — Damages. — Continuing Abatable Nuisance. — For a continuing abatable nuisance, damages may be recovered only to the date of the action, as there is a presumption that the cause producing the damage will be removed by an abatement of such nuisance; but if the nuisance is not abated, successive actions may be maintained so long as it is permitted to continue, in any one of which damages may be recovered for injuries occasioned prior to the commencement of the action and within the statute of limitations, not extending back of a former recovery, p. 403.</p> <p>2. Nuisance.- — Damages.—Continuing Nuisance. — In an action for injury to products of the soil caused by a continuing abatable nuisance, the measure of damages is the depreciation in the rental value of the real estate affected, p. 403.</p> <p>3. Action. — Permanent Injury. — Where a single' completed act causes ah injury to real estate, the effects of which will continue indefinitely, the damages occasioned thereby must be entirely compensated in a single action, since there is no continuing wrong upon which to base successive actions, p. 404.</p> <p>4. Damages. — Measure.—Permanent Injury. — Where a portion of land is permanently appropriated by wrongful act, or where it is so occupied as to deprive the owner of the use or occupation thereof, the general rule as to the measure of damages is the depreciation in the market value of the land occasioned by the appropriation or trespass, p. 404.</p> <p>5. Trespass. — Quan-e Clausum Fregit. — Nature of Action. — The foundation of the action quare clausum fregit is the breaking by the defendant of the plaintiff’s close, and the action can be maintained by one in possession having an interest in'the profits only. p. 407.</p> <p>6. Trespass.- — Quare Clausum Fregit. — Action.-—Fight to Maintain. — In an action of trespass quare clausum fregit it is necessary for the plaintiff to prove only that he ivas in possession of the land and that the defendant entered thereon without right, such prooí entitling the plaintiff to nominal damages, without proof of injury; and upon additional proof of injury to products of the soil, the plaintiff is entitled to compensatory damages, p. 407.</p> <p>7. Action on the Case. — Pollution of Stream. — Injury to Riparian Owner’s Land. — Under the common-law forms of pleading, trespass on the case is the proper form of remedy for injuries occasioned by oil carried by the waters of a creek from a defective pipe line and deposited on land, since the injury is not the direct result of force, but the indirect result of a wrongful act. ' p. 408.</p> <p>8. Action. — Forms.—Common Law. — Though the common law forms of actions are abolished in this state, the rules of common law are not abrogated, and they obtain in civil actions under the Code whenever applicable to the facts pleaded and proved, p. 408.</p> <p>9. Trespass.— Trespass on the Case.— Action.— Defense.— A wrongdoer who by a single completed act causes permanent injury to land can be compelled to pay only a single compensation therefor, and such wrongdoer, when sued for the injury to the freehold by one in possession, may set up as a defense that there is a valid outstanding title in another, p. 409.</p> <p>10. Trespass. — Trespass on the Case. — Action.—Defense.—In an action against a wrongdoer for injury to land, where the title to the land is in issue only as indirectly affecting the measure of damages, proof that the plaintiff was in actual possession of the land under a claim of ownership is sufficient to make ' a prima facie case of' title; and in the absence of countervailing proof, the prima facie showing of title will stand, p. 410.</p> <p>11. Action. — Damages.—Trespass on the Case. — Defense.—Sue-' cessive Actions. — In an action for injuries to the plaintiff’s land caused by crude oil that was carried from the defendant’s, defective pipe line by the waters of a creek and deposited on a portion of such land, where it is not the plaintiff’s theory that such portion has been wrongfully appropriated for the purpose of flowing oil thereon throughout the future, and the evidence shows the plaintiff to be in possession of all the land in the condition in which it was left after the water receded and fails to show a continuous or intermittent flow of oil causing injury so long as such pipe line is .operated, the entire damage must be recovered in a single action and the recovery limited to damage resulting from the oil permitted to flow upon the land prior to the commencement of the action, p. 411.</p> <p>12. Damages. — Permanent Injury. — Evidence.—In an action by a plaintiff for injuries to his land caused hy crude oil that was carried from the defendant’s defective pipe line by the waters of a creek and deposited on a part of the land, where the evidence showed only injury to products of the soil and that some of the plaintiff’s stock was killed or injured by eating grass or drinking water contaminated with oil, but failed to show that the fertility or productive value of the soil was destroyed thereby, a verdict of $17,000 must be deemed excessive, p. 412.</p> <p>13. Appeal.— Review.— Verdict.— Where it appears from the record that a verdict is based on improper items of damages, the verdict will be held to be excessive, and a new trial will be granted; and the same rule applies where a verdict is based on an item of damage that has no evidence to sustain it. p.' 414.</p>

<p>1. Appeal. — Assignment of Error. — Sufficiency of Complaint.— Where a complaint was not challenged by demurrer for insufficiency of facts, it may not be challenged on appeal on such ground by independent assignment of error, in view of §344 Burns 1914, Acts 1911 p. 415. p. 420.</p> <p>2. Negligence. — Contributory Negligence. — Proof.—Rule Cruder Federal Employers’. Liability Act.- — In an action under the federal Employers’ Liability Act by a conductor of a train for personal injuries suffered in a collision, it is only after negligence on the part of the defendant is shown that it becomes material to determine the question of the plaintiff’s contributory negligence, which under the act can only diminish the damages recoverable, p. 420. '</p> <p>3. Master and Servant. — Injuries to Conductor. — Negligence.— Sufficiency of Evidence. — Verdict.—In an action under the federal Employers’ Liability Act for injuries sustained by the plaintiff conductor as a result of a collision, the evidence is reviewed and held sufficient to support a verdict for the plaintiff on the issue of the defendant’s negligence, in view of the rule that the verdict,.as against the objection that it is wholly unsupported by evidence, must stand on appeal unless the court finds that the evidence most favorable to the plaintiff appellee is such that no reasonable inference of the negligence charged can be drawn therefrom, p. 421.</p> <p>4. Appeal. — Weight of Evidence. — Review.—In an action under the federal Employers’ Liability Act, the contention that, since the injured plaintiff had the burden of proof on the issue whether the train on which he was employed was being operated in interstate commerce, he cannot recover where the evidence on each issue was evenly balanced, is of no avail on appeal, since the Supreme Court will not weigh the evidence, p. 423.</p> <p>5. Appeal. — Excluding Contradictory Statement. — Effect.— Where, on cross-examination, a witness for the plaintiff identified a written statement as one signed by him previously to the trial, and did not deny a statement therein that was contradictory to his testimony, but in effect admitted it, the exclusion of such written statement was not harmful to the defendant, p. 423.</p> <p>6. Trial. — Defective Pleading. — Cwre by Evidence. — Instructions. — Where, in a railway conductor’s action for injuries under the federal Employers’ Liability Act, the complaint stated only inferentially the essential fact that the plaintiff and the train upon which he worked were engaged in interstate commerce at the time of the injury, the court properly instructed that the plaintiff establish such fact, since under the statute a defective complaint may be cured by the evidence and will be deemed amended to conform to the evidence, p. 424.</p> <p>7. Master and Servant. — Negligence of Servant. — Master’s Liability. — Instructions.—In a railway conductor’s action for injuries under the federal Employers’ Liability Act, where all the negligence charged related to the conduct of the engineer and the conductor of a train that collided with the train upon which the plaintiff was conductor, an instruction that, if the first named employes committed any of the acts of negligence charged which proximately caused the plaintiff’s injury, the defendant would be liable, was not objectionable as imposing a liability on the defendant for negligent acts of such employes outside the scope of their employment, p. 425.</p> <p>8. Trial.. — Questions of Laxo or Fact.- — In a railway conductor’s action for injuries under the federal Employers’ Liability Act, an instruction permitting the jury to determine as a question of fact whether certain rules of the railroad company were in effect was error, such question being one of law. p. 426.</p> <p>9. Appeal.- — Invited Error. — An appellant who tendered instructions containing the same error as a given instruction of which he complains is in no position to avail himself of the error, p. 426.</p> <p>10. Appeal. — Erroneous Instruction. — Harmless Error. — In a railway conductor’s action for injuries, under the federal Employers’ Liability Act, an. instruction, though it improperly permitted the jury to decide as a fact whether the failure of certain employes to observe precautions prescribed by a rule of the company was negligence, was not prejudicial to the defendant where such instruction, in view of the evidence, was not more unfavorable than one would have been that stated the law correctly, p. 426.</p> <p>11. Damages. — Loss of Leg. — Where the plaintiff, who was thirty-six years of age, suffered injuries causing great pain, disqualifying him for the work in which he was engaged and necessitating an amputation of the leg below the knee and a second amputation above the knee when gangrene ensued, a verdict of $20,000 in an action for the injury was not excessive, there being no evidence showing his earning capacity in other employments, p. 428.</p> <p>12. Damages. — Discretion as to Amount. — The amount of damages to be awarded for pain and suffering rests largely in the discretion of the jury, there being no exact standard for determining the question, p. 428.</p> <p>13. Appeal.. — -Reduction of Verdict. — In an action for injuries, under the federal Employers’ Liability Act, the court on appeal is without power to say that the verdict should have been reduced on account of contributory negligence, unless it can say that the plaintiff was guilty of contributory negligence as a matter of law. p. 429.</p> <p>14. Appeal. — Verdict.—Presumption.—Where, in a personal injury action under the federal Employers’ Liability Act, contributory negligence under the evidence was a question of fact for the jury, the court on appeal cannot assume that the jury found the plaintiff guilty of contributory negligence, in order to reduce the amount of the recovery, but, on the contrary, will indulge every presumption in favor of the verdict, p. 429.</p> <p>15. Master and Servant. — Injury to Servant. — Contributory Negligence. — Evidence.—In an action under the federal Employers’ Liability Act by a conductor for injuries sustained in a rear-end collision between freight trains, the Supreme Court cannot say as a matter of law that the plaintiff was guilty of contributory negligence for failing to require the rear brakeman to observe a certain rule relative to the guarding of the rear of the train, which rule applied only when the train was stopped, in view of evidence from which the jury could find that the train was kept moving, p. 429.</p> <p>16. Master and Servant. — Contributory Negligence. — Ordinary Care. — Jury Question. — In an action under the federal Employers’ Liability Act by the plaintiff conductor for injuries sustained in a rear-end collision between freight trains, whether the conductor was guilty of contributory negligence in failing to observe rules relative to the dropping of fusees for the purpose of warning an approaching train was a question for the jury, where such rules were not specific, but permitted the trainmen, in the observance thereof, to exercise the care that men of ordinary prudence would use under the particular circumstances. p. 430.</p> <p>17. Master and Servant. — Contributory Negligence. — Evidence. —In an action under the federal Employers’ Liability Act for injuries sustained by the plaintiff conductor in a rear-end collision between freight trains, the failure of the plaintiff to have a light burning in the cupola of the caboose did not constitute contributory negligence as a matter of law, under evidence showing that the light would not burn, that the plaintiff was using the caboose for the first time and had no previous knowledge of the defective condition of the light, p. 431.</p> <p>18. Damages. — Future ■ Suffering. — Recovery. — Instructions.— In an action for injuries, an instruction, although subject to criticism in that it told the jury that it might consider future pain and suffering, if any “likely” to occur, was not so misleading as to be reversible error; the more accurate rule is to limit such recovery to such pain as the injured party is reasonably sure to suffer, p. 431.</p>

<p>1. Fraud. — Settlement for Personal Injuries. — Effect on Right of Action. — Though an unrescinded contract' for settlement of damages for personal injuries precludes a recovery for negligence causing the injury, it does not preclude an action for fraud whereby the settlement was brought about, p. 436.</p> <p>2. Fraud. — Pleading.—Opinions.—A statement, though based on the expression of an opinion, may amount to actionable fraud, if it is a mere contrivance of fraud, or if the person to whom it was expressed has justly relied on it and has been misled, or when it is coupled with other circumstances, p. 436.</p> <p>3. Fraud. — Nominal Damages. — Where one procures a contract by fraud, the defrauded party may recover at least nominal damages, p. 438.</p> <p>4. Pleading. — Complaint. — Demurrer. — Though a complaint states a cause of action for only nominal damages, the overruling of a demurrer thereto on the grounds of insufficiency will be sustained on appeal, p. 438.</p> <p>5. Fraud. — Settlement of Claim. — Complaint.—Validity of Claim. — A complaint for substantial damages caused the plaintiff by the defendant’s fraud in procuring a contract of settlement for personal injuries, to warrant a recovery of such damages, must show not only the fraud but also a valid claim against the defendant for the original injury, p. 439.</p> <p>■ 6. Pleading. — Demurrer.—Admissions.—A demurrer to a complaint admits not only the facts directly and specifically alleged but also all facts that can be implied by reasonable and fair intendment, p. 439.</p> <p>- 7. Fraud. — Complaint.—Fraudulent Release Contract. — Elements of Cause. — The essential elements of a cause of action for damages based on the fraudulent procurement of a settlement of a claim for personal injuries are representations, falsity, scienter, deception and injury, p. 439.</p> <p>8. Fraud. — Liability for Representations. — “Actionable Fraud.” —A party who makes an untrue representation as to a material fact, not knowing whether it is true or untrue, though he believes it to be true, with the intention that another shall act upon it, and such other does act thereon to his injury, is guilty of “actionable fraud.” p. 439.</p> <p>9. Fraud. — Measure of Damages. — Settlement for Injury. — Instructions.- — -The measure of damages for a fraudulent procurement of a settlement of a claim for personal injuries is the amount to which the plaintiff was entitled under all the circumstances pn the day of the trial, less any amount received at such time; hence an instruction proceeding upon the theory of an award as of the date of the trial was erroneous, pp. 440, 442.</p>

<p>1. Carriers. — Rate Schedule for Continuous Journey. — Validity. —A provision in a rate schedule prohibiting a passenger from choosing a combination of fares between intervening points instead of the through rate, upon its approval by the Public Service Commission, became binding upon the carrier and its passengers, and justified a conductor in demanding of a passenger, upon the same train, who had paid his way to an intermediate point and presented a ticket for carriage from there to destination, the additional amount necessary to make up the through fare as scheduled, p. 445.</p> <p>2. - Carriers. — Passenger’s Intent to Make Continuous Journey.— Evidence. — An arrangement made by a passenger by telephone with the carrier’s agent at an intermediate point, before entering the car at the initial point, for the purchase of a ticket for carriage from the intermediate point to destination, indicates a determination to make a continuous journey on the same car, notwithstanding his statement that he intended to leave the car at the intermediate point to get the ticket, p. 446.</p> <p>3. Carriers. — Forcible Removal of Passenger. — When Justified. —Assault and Battery. — Where a passenger paid his fare to an intermediate point of an intended continuous journey and presented a ticket for the remaining distance and refused to pay an additional sum to make up the through fare required by a schedule approved by the Public Service Commission, which schedule prohibited the choosing of a combination of fares between intervening points, the conductor was justified in ejecting the passenger, upon his refusal to voluntarily leave the car. p. 447.</p>

<p>1. Banks and Banking. — Indictment.—Overdraft by Banker.— Facts and Conclusions. — In an indictment, under §2295 Burns 1914, Acts 1905 p. 584,. allegations that on a certain date the accused was president and director of a certain incorporated bank, doing business in a named county of the state, and that</p> <p>' he did then and there feloniously, unlawfully and knowingly overdraw his account in such bank, are not conclusions, but statements of the material facts necessary to constitute the offense defined in the first clause of such section, p. 452.</p> <p>2. Banks and Banking. — Indictment.—Charging Officer Having No Credit with Drawing Check. — The statement in an indictment of a bank official for drawing and receiving a check in violation of §2295 Burns 1914, Acts 1905 p. 584, that the defendant “knew at the time that he had no funds to his credit” was sufficient to charge that the defendant had no funds to his credit therein and knew that he had none. p. 452.</p> <p>3. Indictment and Information. — Sufficiency.—An indictment charging -an offense with such degree of certainty that the court can pronounce judgment thereon according to the right of the ease is sufficient, p. 453.</p> <p>4. Indictment and Information. — Charging Statutory Offense. —Sufficiency.—An indictment based on a statute must, with certainty and precision, charge the defendant with having committed or omitted the acts, under the circumstances, and with the intent, mentioned in the statute, p. 453.</p> <p>5. Indictment and Information. — Description of Money.— Sufficiency. — In a prosecution of a bank official for a violation of §2295 Burns 1914, Acts 1905 p. 584, the description of money called for in a check described in the indictment as “Three Thousand ($3,000) Dollars lawful and current money of the United • States,” was sufficient, in view of §2058 Burns 1914, Acts 1905 p.'584. p.455.</p> <p>6. Indictment and Information. — Motions to Make More Specific. — Motions requiring the state, to make indictments or affidavits more specific, and to state facts necessary to sustain conclusions or recitals, are not recognized by the Criminal Code, p. 455.</p> <p>7. Indictment and Information. — Different Felonies of Same Class. — How Chcwged. — Felonies of the same class should be charged in separate counts of an indictment, p. 455.</p> <p>8. Indictment and Information. — Several Counts Based on Same Felony. — Election.—Where several counts of an indictment based on the same alleged felony are inserted to avoid the consequences of a possible variance, it is not error to overrule a motion requiring the prosecution to elect, p. 456.</p> <p>9. Indictment and Information. — Election Between Counts.— Discretion of Court. — Whether prosecution should be required to elect between different counts of an indictment is largely within the court’s discretion; and when it is not apparent on the face of an indictment that different and distinct offenses, which cannot be properly joined, are charged, election need not be required, p. 456.</p> <p>10. Indictment and Information. — Joinder of Cognate Ofr fenses. — Buie.—Any number of counts charging the same transaction as constituting different offenses may be joined, if the offenses are cognate or of the same nature, and the mode of trial is the same. p. 456.</p> <p>11. Criminal Law. — Appeal.—Review.—Ruling on Motion for Change of Venue. — The ruling of the trial court on a motion for change of venue, as to the existence of excitement and prejudice, is a determination of an issue of fact and is conclusive on appeal, p. 457.</p> <p>12. Criminal Law. — Appeal.—Denial of Change of Venue.— Discretion of Court. — It cannot be said that the trial court abused its discretion in denying a change of venue, based on the ground that publications had excited and prejudiced the people against the defendant, where the record fails to show that copies of the publications, or the substance thereof, were presented to the trial court, the defendant stating only his opinion as to the effect thereof, p. 458.</p> <p>13. Criminal Law. — Appeal. — Instructions.- — Presumptions.—. Since it is the duty of the court to instruct in writing when requested, the presumption on appeal is that the court did its duty, in the absence of a contrary showing, p. 458.</p> <p>14. Criminal Law. — Appeal.-—Bill of Exceptions. — Certification. —A bill of exceptions certified by the trial court imports absolute verity, p. 458.</p> <p>15. Criminal Law. — Instructions.—Duty of Jurors. — An instruction malting it the duty of each juror to consult and deliberate with his fellow jurors, and stating that if any juror, after considering all the evidence, the argument of counsel, the instructions of the court, and after having fully consulted and deliberated with his fellow jurors, should be convinced beyond a reasonable doubt of the defendant’s guilt as charged, it would be his duty to refrain from voting for an acquittal, or, if not so convinced, after having performed such duties, it would be his duty to refuse to vote for conviction, was not objectionable on the ground that it told each juror that, if, after deliberation, he once arrived at a conclusion of the defendant’s guilt, it was his duty thereafter to refrain from voting for acquittal, p. 459.</p> <p>16. Criminal Law. — Instructions Considered as a Whole. — Reasonable Doubt. — An instruction on the subject of reasonable doubt, though incomplete, was not erroneous, when considered with another instruction that fully stated the law on the subject. p. 460.</p> <p>17. Criminal Law. — Instructions.—Right of Jury to Determine Law. — An instruction on the right of the jury to .determine the law and its duty to consider instructions, is reviewed and held not objectionable as taking from the jury its freedom to judge the law, on the authority of Blaher V. State, 130 Ind. 203. p. 461.</p> <p>18. Banks and .(Banking. — Officer Drawing Chech Without Credit. — The offense defined in §2295, cl. 2, Bums 1914, Acts 1905 p. 584, was complete, if an officer of a bank having no funds to his credit therein indorsed a check payable to himself, presented it to another institution and from it received payment or credit thereon, p. 461.</p> <p>19. Banks and Banking. — Official Drawing Chech Without Credit. — Sufficiency of Evidence. — Criminal Law. — In the prosecution of a bank official for drawing and receiving payment of a check in violation of §2295, cl. 2, Burns 1914, Acts 1905 p. 584, the state, in order to convict, must prove that the defendant had no funds to his credit in the bank at the time of drawing and receiving payment on the check, and evidence failing to show when the check was drawn, or that at the time of receiving payment thereon the defendant had no funds to his credit in the bank, is insufficient to sustain a conviction, p. 462.</p>

<p>1. Criminal Law. — Illegal Sale of Intoxicating Liquors. — Affidavit. — Sufficiency.—An affidavit in a city court, under • §8356d Burns’ Supp. 1914, Acts 1917 p. 15, charging that the defendant, on a certain date, unlawfully kept intoxicating liquors in the city, county and state with intent to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons unknown within the state, being in the language of the statute, is not objectionable on the ground that it fails to charge that such liquors were kept for sale within the state; p. 465.</p> <p>2. Intoxicating Liquors. — Illegal Sale. — Sufficiency of Evidence. — In a prosecution for the illegal sale of intoxicating liquors, under §8356d Bums’ Supp. 1914, Acts 1917 p. 15, the ■ evidence, though circumstantial, is held sufficient to show that the defendant unlawfully- kept, and was making unlawful sales of, intoxicating liquors as charged, in view of the rule that a verdict supported by some evidence is supported by sufficient evidence, p. 466.</p> <p>3. Criminal Law. — Appeal.—Sufficiency of Evidence. — In determining the sufficiency of the evidence to support the verdict, or the finding, the court on appeal will consider not only the positive testimony of witnesses but also such inferences as flow naturally from the facts established, p. 466.</p>

<p>1. Criminal Law. — Circumstantial Evidence. — Sufficiency.—To warrant a conviction in a criminal case on circumstantial evidence, the proof must not only coincide with the hypothesis of guilt but it must be inconsistent with any other rational conclusion. p. 469.</p> <p>2. Criminal Law. — Intoxicating Liquors. — Keeping Place. — Circumstantial Evidence. — Instruction.—In a prosecution under §8351 Burns 1914, Acts 1907 p. 689. in which there was no direct evidence that the defendant kept, ran or operated the place for the illegal sale of intoxicants, or that he had any interest therein or in the liquor sold, but there was evidence that at times he brought intoxicating liquor into a gambling room from an adjoining barroom and served it to the gamblers, and collected the money therefor, and that he operated the gambling game at times and frequently admitted persons to the room, the evidence also showing that other patrons of the gambling room performed the same acts at times, the Supreme Court cannot say that it was harmless error to refuse to instruct that, before the jury could convict on circumstantial evidence alone, the circumstances must be so convincing as to be inconsistent with any reasonable hypothesis of innocence, it being the defendant’s contention that the facts could be reconciled on the theory that he performed such acts as a frequenter of the place and for the accommodation of others, pp. 470,471.</p>

<p>From Gibson Circuit Court; Simon S. Vandeveer. Judge.</p> <p>Action by Joseph H. Clift against the Southern Railway Company. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1397 Burns 1914, Acts 1901 p. 568).</p>

<p>1. Arson. — Character of Property. — Proof.—Under an indictment for arson which alleges the burning of a building of another, the state should prove a burning of that which was a part of the structure belonging to the real estate, and not the defendant’s personal property in the building, which he had a right to remove, p. 479.</p> <p>2. Arson. — Proof.—Sufficiency of Agreement as to Ownership of Building.- — Inference.-—In a prosecution for burning the building of. another, under §2260 Burns 1914, Acts 1905 p. 584, §371, a judgment of conviction must be reversed, where the only evidence as to the ownership and the value of the building was an agreement by the parties in reference thereto which failed to fix any date of ownership, as the court on appeal will not infer the date to be that alleged in the indictment; the state, in asking for an admission from a defendant in a criminal case, should make its request as certain and accurate as the proof is required to be. pp. 479, 483.</p> <p>3. Arson. — Evidence.—Motive.—Insurance.—In a prosecution for burning the building of another, evidence concerning insurance which the defendant had on his personal property in the building was competent to show motive, though the statute defining arson makes it a crime to burn one’s own property to defraud an insurance company, a different crime than that charged, p. 480.</p> <p>4. Arson. — Value of Structure. — Statute.—Construction.—In the statute defining arson, §2260 Burns 1914, Acts 1905 p. 584, §371, the provision fixing the value of the property burned at “twenty dollars or upwards” has reference to the value of the thing burned and not to the damage caused by the' burning, p. 481.</p> <p>5. Indictment and Information. — Arson.—Value of Structure. —Surplusage.—Fine.—In a prosecution for arson, under §2260 Burns 1914, Acts 1905 p. 584, §371, the fine may be double the value of the structure burned, subject to Art. 1, §16, of the state Constitution, prohibiting excessive fines; hence, an allegation in an indictment fixing the damage to the structure burned at $500 is surplusage, it being sufficient to show that some burning was done. p. 481.</p>

From Crawford Circuit Court; William Ridley,, Judge. Suit by Felix G. Hammond, in which John V. McCoy afterwards intervened as a party plaintiff, against William M. Luckett and another. From a judgment for the plaintiffs, the 'named defendant appeals. (Transferred from the Appellate Court under Acts 1901 p. 590, §1405 Burns 1914.)

<p>1. Criminal Law.' — Instructions.—Bill of Exceptions. — The instructions in a criminal case can be made a part of the record only by a bill of exceptions, and there must be an affirmative showing- that the bill of exceptions was filed with the clerk as required by §2163 Burns 1914, Acts 1905 p. 584, §287, after it had been signed, which matters cannot be shown by recitals in the bill or by the file mark of the clerk, p. 494.</p> <p>2. Criminal Law. — Appeal.—Reasonable Doubt. — Sufficiency of Evidence. — It is not necessary on appeal from a conviction that the evidence should show the defendant’s guilt beyond a rea- . sonable doubt in order to sustain the verdict; all that is required is that there shall be some evidence sustaining every material allegation of at least one count of the affidavit, p. 495.</p> <p>3. Criminal Law. — Appeal.—Evidence.—Weight.—In determining whether the verdict is sustained by sufficient evidence a court of appeal will not weigh conflicting evidence, but will consider only the evidence tending to support the judgment, p. 495.</p> <p>4. Intoxicating Liquors. — Keeping Place. — Appeal. — Sufficiency of Evidence. — OiTappeal from a judgment of conviction for the violation of the Prohibition Act, Acts 1917 p. 15, the evidence is reviewed and held sufficient to sustain the verdict, under the rule that the judgment will be upheld unless there is a total lack of evidence on an essential element of the offense. p. 496.</p>

<p>1. Pleading. — Complaint.—Motion to Make More Specific.— Wills. — Where a complaint to set aside a will was based on the grounds of unsoundness of mind, undue execution and undue influence, the first two being in the language of the statute, a motion to make more specific was properly denied, for the reasons that such motion is unavailing as against the grounds stated in the language of the statute, and, though undue influence is not a statutory ground, it is an authorized one and evidence in support thereof was admissible under the allegations of unsoundness of mind and undue execution, p. 498.</p> <p>2. Trial. — Motions.—Venire de Novo. — Arrest of Judgment.-— A motion, though termed a motion in arrest of judgment, will be treated as a motion for a venire de novo where it is directed to the verdict alone and the remedy sought is unmistakably that which can only be had by a motion for a venire de novo. pp. 499, 500.</p> <p>8. Judgment. — Trial.—Motions for Venire de Novo and, in Arrest. — Distinction.—While a motion for a venire de novo and a motion in arrest of judgment must both be made before judgment, the former should precede the-motion for new trial and is confined to uncertainty, ambiguity or imperfections in the verdict or findings, while the latter challenges the pleadings upon which the verdict or finding rests and cuts off the right to subsequently file a motion for new trial, p. 499.</p> <p>4. Pleading. — Motions. — Character of. — Determining From Prayer. — Though the name and prayer of a pleading or motion may be advisory in determining its character and effect, they will not be allowed to control the remedy chosen as shown by the facts stated, p. 500.</p> <p>5. Appeal. — Striking out Motion for New Trial. — Presumption. —Error of the trial court in striking from the record a proper motion for new trial will be presumed harmful in the absence of a showing to the contrary, p. 500.</p>

<p>From Fulton Circuit Court; Smith N. Stevens, Judge.</p> <p>Prosecution by the State of Indiana against Henry Smith. From a judgment of conviction, the defendant appeals.</p>

<p>From Hamilton Circuit Court; Frank S. Campbell, Special Judge.</p> <p>Prosecution by the State of Indiana against Rufus Young. From a judgment of conviction, the defendant appeals.</p>

From Tippecanoe Circuit Court; Burton B. Berry, Judge. Petition by Kiley C. Sterrett and others for a drain, to which Charles Stidham and others filed remonstrances. From a judgment for the petitioners, Sterrett and others appeal.

<p>From Randolph Circuit Court; Theodore ShocJcney, Judge.</p> <p>Prosecution by the State of Indiana against Fossie L. Jenkins. From a judgment of conviction, the defendant appeals.</p>

From Marion Superior Court (99,476); Henry N. Spawn, Special Judge. Action by Noah D. Berry, administrator of the estate of Charles Elliot, deceased, against the Union Traction Company. From a judgment for the plaintiff, the defendant appeals.

<p>From Lawrence Circuit Court; James A. Cox, Judge.</p> <p>Prosecution by the State of Indiana against Bruce Flinn. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Self-Defense.—Right to be in Place. — Defendant’s Belief. — The defendant’s belief that he is in a place where he has a right to be, coupled with the fact that he is so suddenly attacked with a deadly weapon that there is no opportunity to escape, perfects a right of self-defense; the belief alone goes only to rebut his bad faith in bringing on the conflict, p. 535.</p> <p>2. Criminal Law. — Instructions.—Requests.—If the defendant desired certain principles more particularly applied to his theory of defense, he should have tendered instructions on this phase of the case. p. 535.</p> <p>3. Witnesses. — Impeachment. — Contradictory Statements. — Where the jury finds that a witness has made statements out of court at variance with his testimony, the fact may tend to impeach the recollection or truthfulness of the witness, and . the jury may consider the point in determining the weight to be given his testimony, p. 535.</p> <p>4. Criminal Law.- — Abstract Instruction. — Harmless Error. — - Witnesses. — In a prosecution for murder, resulting in a conviction for manslaughter, an instruction that, if the jury believed from the evidence that the moral character of any witness had been successfully impeached on the trial, then that fact might be considered in estimating the weight of his testimony, was erroneous where there was no evidence on the subject; but, the instruction being on a subsidiary matter, the error was harmless, in view of evidence conclusively establishing the defendant’s guilt as found by the verdict, p. 536.</p> <p>5. Criminal Law. — Remarks of Cowrt on Testimony. — Harmless Error. — In a prosecution for murder, resulting in a conviction for manslaughter, the remark of the trial judge, in reference to an exception taken by counsel for the defendant during the latter’s examination, that the question was not improper as assuming anything, because the defendant “testified about going forward and going away and going back,” though ’erroneous, was harmless where the evidence conclusively established the defendant’s guilt as found by the verdict, p. 539.</p>

<p>1. Receiving Stolen Goods. — Reception 'from Robbers. — Larceny. — It is no defense to a prosecution for receiving stolen goods that the article received was taken by robbers, "and not in the commission of a larceny, since every robbery includes a larceny, p. 542.</p> <p>2. Receiving Stolen Goods. — Variance.-—In a prosecution for' receiving stolen goods, there is no variance between an affidavit charging larceny of the article received and the evidence showing that the article was taken by robbers, since every robbery includes a larceny, p. 542.</p> <p>3. Receiving Stolen Goods.- — Ownership of Goods. — Evidence.— Sufficiency. — In a prosecution for receiving a stolen automobile under an affidavit charging the ownership to have been in a named person, evidence tending to show that two men conspired to take it from the owner and sell it, and that in the execution of their intention the owner was killed, was sufficient to support a verdict of guilty, though the owner was dead at the precise time of the taking, since, the intention having existed long before the owner’s death, the jury was justified in finding that to all' intents and purposes the automobile was stolen prior thereto, p. 545.</p> <p>4. Receiving Stolen Goods.— Instruction.— Certainty.— In a prosecution for receiving a stolen automobile, an instruction that, if the jury should find that the two named persons alleged to have taken the automobile, or either of them, shot and killed the owner and, as a part of such transaction, took possession of the automobile, the taking under the circumstances constituted a larceny and that this would be true even though they intended to rob the owner of the car and not to steal it, was not erroneous as being misleading, uncertain or ambiguous, pp. 546, 547.</p> <p>5. Receiving Stolen Goods. — Instruction.—Applicability to Issues. — In a prosecution for receiving a stolen automobile, an instruction on the subject of conspiracy, pursuant to which the defendant and another procured automobiles to be stolen for them to sell, in which instruction the jury was told that, if such conspiracy existed, the defendant would be bound by all things done and said by his coconspirator in carrying out the conspiracy, was not erroneous as being inapplicable to the issues, pp. 546, 548.</p>

<p>1. Brokers. — Sale of Realty. — Pa/rol Contract for Commissions. —An alleged parol contract employing the defendant to sell real estate for the plaintiff, by the terms of which the defendant was to receive $25,000, in addition to his salary, when $100,000 worth had been sold, was within the statute requiring contracts for the sale of realty to be in writing (§7463 Burns 1914, Acts 1913 p. 638), even though such sum was to be paid the plaintiff for managing the defendant's sales force, p. 551.</p> <p>2. Brokers.— Real Estate.— Commissions. — Statute.—Construction. — Section 7463 Burns 1914, Acts 1913 p. 638, applies to all contracts by which one person agrees to find or procure a purchaser for the real estate of another in consideration of a commission or reward; and this is true even though the .result is to be accomplished in conjunction with, or through the efforts of, other agents, p. 552.</p>

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by George W. Brown against Edward G. Sour-bier and William Hansman.. From a judgment for plaintiff, the defendants appeal.</p>

From Rush. Circuit Court; Will M. Sparks, Judge. Action on appeal to the circuit court by Lewis A. Frazee from an order of the Public Service Commission. From a judgment setting aside the order of the commission, the commission appeals. Trial court directed to modify conclusions of law; otherwise

<p>1. Intoxicating Liquors. — Charging Offense. — Exceptions.— The charge that the defendant on a certain date, in a named city and county of the state, did then and there unlawfully keep intoxicating liquor, to wit, whisky, gin, wine and beer with intent to sell, barter, exchange, give away, furnish and otherwise dispose of the same to persons to the affiant unknown sufficiently charged an offense, under the Prohibition Act, Acts 1917 p. 15, §4, though it did not negative the exception in the proviso, p. 581.</p> <p>2. Intoxicating Liquors. — Keeping Place. — Nuisance.—Charging Offense. — Excluding Home. — In charging the illegal sale, barter, etc., of intoxicating liquors under §4, Acts 1917 p. 15, or the maintenance of a place for such illegal purposes, defined as a nuisance by §20 of the act, it was not necessary to exclude the home of the accused, on the theory that he had the right to keep intoxicating liquor there and to serve it to guests, since the act does not authorize the keeping of the liquor in the home for sale, barter, exchange or to be otherwise disposed of contrary to law. p. 581.</p> <p>3. Statutes. — Prohibition Act. — Title and Subject. — Constitutionality. — The Prohibition Act, Acts 1917 p. 15, is not violative of Art. 4, §19, of the Constitution, which provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, p. 582.</p> <p>4. Criminal Law. — Affidavit.—Jurat.—Character of Officer.— An affidavit is not defective for failing to show the official character of the officer who administered the oath. p. 583.</p>

From Grant Circuit Court; Nelson G. Hunter, Special Judge. Prosecution by the State of Indiana against Oscar M. Brumfiel. From 'a judgment of acquittal, the state appeals and presents reserved questions of law.

From Marion Superior Court (96,989) ; W. W. Thornton, Judge. Suit by Ellen C. Bryan and others against the city of Indianapolis and others. From a decree for the plaintiffs, the defendants appeal.

<p>1. Criminal Law. — Affidavit.—Bribery.—Words Descriptio Personae. — -An affidavit under §2425 Burns 1914, Acts 1905 p. 584, §519, relating to bribery of public officials, charging that a township trustee entered into a contract with the defendant, “agent of” a named company, was not insufficient, and cannot be construed as alleging that the contract was made by the dedefendant, on behalf of the company, the words following the defendant’s name being descriptio personae, p. 594.</p> <p>2. Criminal Law. — Affidavit.—Bribery.—Sufficiency as Showing Knoivledge. — An affidavit for bribery, under §2425 Burns 1914,'Acts 1905 p. 584, §519, which charged in substance that B was the duly elected and qualified trustee of a certain township, that as such trustee he entered into a contract with the defendant for the repair of a furnace in a high school building of the township, and that the defendant unlawfully, feloniously and corruptly paid B, trustee, a certain sum as a percentage, reward, etc., in violation of the statute, was not insufficient as against the objection that it failed to allege that the defendant knew that B was then a township trustee, since the allegations, when considered together, sufficiently show such fact. p. 595.</p> <p>3. Criminal Law. — Evidence.—Sufficiency.—Review.—Where, in a prosecution for bribery, the evidence was conflicting on the issue as to whether the defendant, on the alleged date of the bribery, had a contract with another who was acting in his official capacity as township trustee, the court on appeal will not disturb the jury’s verdict of guilty, the presumption being that the trial court heard all the evidence and considered it sufficient to sustain the verdict, p. 595.</p> <p>4. Criminal Law. — Bribery.—Evidence.—Proof of Payments in Other Counties. — Sufficiency.—In a prosecution for bribery of a township trustee, under §2425 Burns 1914, Acts 1905 p. 584, §519, evidence of payments by the defendant to such trustee in counties other than that of the venue would not be sufficient to’ show payment of the bribe as charged in the county of the venue, but could be considered only as bearing on the purpose of payment in case the jury found from other evidence that such payment was made; and, where there was a sharp conflict in the evidence relating to the payment made in the county of the venue as charged, it was error to refuse an instruction limiting the application of the evidence as to the payments in the other counties, pp. 600, 602.</p> <p>5. Criminal Law.- — Evidence of Other Crimes. — Purpose.—In a criminal prosecution, proof of the commission of other criminal acts is admissible for the purpose of showing motive, criminal intent or guilty knowledge, where such motive, intent or knowledge is an essential ingredient of the crime charged, p. 602.</p>

<p>1. Statutes. — Subjects and Titles. — Prohibition Act. — The Prohibition Act, Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918, is not violative of Art. 4, §19, of the Constitution on the ground that the title is not broad enough to cover the penalty provision in §4. p. 604.</p> <p>2. Criminal Law. — Appeal.—Motion in Arrest. — Ambiguity.— The defendant’s assertion that the purported paper termed the affidavit is not an affidavit, because it was stamped with a rubber stamp by the officer administering the oath, presents no question for review, it being ambiguous, uncertain and meaningless. p. 605.</p> <p>3. Criminal Law. — Evidence.—Conclusion.—Harmless Error.— In a prosecution for the violation of the Prohibition Act, Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918, where the evidence in behalf of the defendant showed conclusively that a bottle contained intoxicating liquor, the statement of a witness for the state that the bottle contained whisky, if improper as a conclusion, was harmless, p. 605.</p> <p>4. Criminal Law. — Intoxicating Liqtiors. — Opinion Evidence.— In a prosecution for keeping intoxicating liquors with intent to sell, etc., in violation of the Prohibition Act, Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918, testimony of a witness that a bottle found in the defendant’s possession contained whisky, which he knew by the odor, was admissible as an opinion of the witness, p. 605.</p> <p>5. Criminal Law. — Appeal.—Evidence.—Weight.—Where there was some evidence to support a conviction, the court on appeal will neither disturb the judgment, nor rule, as a matter of law, that the judgment is contrary to law, on the ground of insufficiency of the evidence, p. 606.</p>

<p>1. Criminal Law. — Verdict on One Count. — Effect on Other Counts. — In a prosecution for violation of the Prohibition Act, a verdict that found the defendant guilty on the second count of the affidavit, but which was silent as to the first count, amounted to an acquittal on the first count, p. 607.</p> <p>2. Statutes. — Construction. — Ambiguity. — The rule under which courts may be called upon to construe an ambiguous, uncertain or indefinite statute- has no application where the language used is plain and its purpose clear, p. 608.</p> <p>3. Statutes. — Construction.—Prohibition Act. — Prima Facie Evidence of Violation. — Section 35 of the Prohibition Act, Acts 1917 p. 15, §8356a et seq. Burns 1914, declaring that, within ten days after the taking effect of the act, every person except licensed pharmacists, etc., shall remove all intoxicating liquors in his possession from the state, and failure to do so shall be prima facie evidence that such liquor is kept for the purpose of being sold, etc., in violation of the act, the section not applying to specifically named quantities kept by a person in the home for domestic use, was intended to aid in the enforcement of §4 by establishing a rule of evidence to sustain a charge of unlawfully keeping, etc., and does not make the mere keeping of intoxicants by one not falling within the excepted classes an offense subject to the penalty prescribed by §38. pp. 609, 611.</p> <p>i. Statutes. — Adoption from Another State. — Construction.— Presumption. — The legislature, in adopting a statute of another state which had been construed by the courts of that state, also adopted the construction so placed upon it. p. 609.</p> <p>5. Statutes.- — Construction.—Purpose.—Though the rule is that courts should so construe statutes as to meet the mischief sought to be remedied, where the legislative intention is plain, and the enactment as a whole covers the various forms of evils sought to be corrected, the reason for the rule ceases, p. 611. -</p>

<p>From St. Joseph Superior Court; George Ford, Judge.</p> <p>Action by Adolph Heller against the George Kraft Company and others. From an interlocutory order appointing a receiver, the defendants appeal.</p>

<p>From Marion Criminal Court (48,780); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Herman Blomberg. From a judgment of conviction, the defendant appeals.</p>

From Marion Superior Court (96,964) W. W. Thornton, Judge. Proceeding by William Nackenhorst, receiver, for the ■ purpose of reducing funds to his possession, in which the Aetna Trust and Savings Company and others filed cross-complaints and asked that their claims be adjudicated. From the decree rendered, the Aetna Trust and Savings Company appeals.

From the Porter Superior Court; Harry B. Tuthill, Judge. Action by Isabella Carson against the Tolleston Club of Chicago, Amos W. Walker and others. From a judgment for the plaintiff, the named defendants appeal.

From Johnson Circuit Court; Hugh L. Wickens, Special Judge. Action by Jeptha Crouch and others against Hanna Parker and Robert H. Parker on a note. From a judgment against Robert H. Parker, and in favor of Hanna Parker, the plaintiffs appeal. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565).

From Huntington Circuit Court; Eben Lesh, Special Judge. Action for writ of mandate by the State of Indiana, on the relation of Charles Roth, against John Sell, township trustee, and others. From a judgment for the plaintiff, the defendant appeals.

From Delaware Circuit Court; Theodore Shockney, Special Judge. Action by Edward R. Templer and others against Charles W. Kilgore and others. From a judgment for the plaintiffs, the defendants appeal.

<p>Criminal Law. — Affidavit Showing Conviction in City Court.— Submission to Jury. — Reversible Error. — On the trial in the criminal court on appeal from a conviction in the city court, it was error to submit to the jury, over the defendant’s objection, the affidavit upon' which the prosecution was based, which was taken to the jury room, where such affidavit contained an indorsement showing the .conviction and the fine imposed in the city court.</p>

<p>1. Mandamus. — Remedy.—Scope.—Mandamus will be issued only in cases where the facts show a clear legal right on the relator’s part to the relief sought and a clear legal duty resting on the defendants to perform the thing demanded, p. 691.</p> <p>2. Municipal Corporations. — Street Improvements. — Contractor. — Assignment of Assessments. — Rights of Assignee.— The assignment by the contractor of assessments to be made on the completion of a street improvement, and its acceptance by the city, conferred on the assignee an equitable interest therein, but the interest acquired thereunder was no different than that of the contractor, in the absence of the assignment, and was therefore subject to any defenses which might exist against the contractor, p. 691.</p> <p>3. Municipal Corporations. — Street Improvements. — Final Assessments. — In view of §8711 Burns 1914, Acts 1909 p. 412, neither the contractor nor the assignee of assessments for street improvements can require the board of public works of the city to make final assessments to pay for the work, unless such work has been finally accepted as completed in accordance with the contract, p. 692.</p> <p>4. Municipal Corporations. — Street Improvements. — Acceptance. — Rescission of Order. — Though the board of public works, by approval of the report of the city engineer, entered an order accepting street improvements as completed according to the contract, the board had the right to rescind the order on the discovery that the work had not been properly constructed and was of no benefit to property affected, and it was the duty of the board to exercise that power, unless the rights of innocent parties had intervened so as to make such course inequitable, pp. 692, 695.</p> <p>5. Municipal Coepoeations. — Street Improvements. — Inspection. —Waiver of Defects. — Though the work and operations of the contractor for' street improvements, and the kind and character of the material used, were supervised as the work progressed by the engineering department of the city, such facts cannot be held as a waiver by the city of its right to reject the work for ■ failure to construct it as required by the contract, the rights and duties of the city being purely statutory, pp. 693, 695.</p> <p>6. Municipal Coepoeations. — Shreet Improvements. — Authority to Make Assessments. — A municipality has no power to make assessments for street improvements without statutory authority. pp. 693, 694.</p> <p>7. Municipal Coepoeations. — Street Improvements. — Acts of Officers. — Payment of Contract Price. — City’s Liability. — In awarding contracts and performing other duties imposed by the statute authorizing such proceedings, the municipal officers do not act in behalf of the municipality in such a way as to create any liability against it under the contract, since the contract price can be paid only from special assessments made under statutory authority, and the contractor is bound by the statutory provisions which authorize and govern the contract and provide for its acceptance, p. 694.</p> <p>8. Municipal Coepoeations.- — Street Improvements. — Compliance with Contract. — Acceptance.—The decision of the board of public works as to whether street improvements have been-made in substantial compliance with the statute is quasi-judicial in its nature and when made is conclusive, in the absence of fraud, on all persons affected thereby,, and may be set aside only in a direct proceeding for that purpose on the ground of fraud, p. 694.</p> <p>9. Municipal Coepoeations.- — Street Improvements. — Assignment of Assessments. — Assignee’s Rights. — Where a contractor for street improvements assigned assessments before the board of public works had taken any action as to accepting or rejecting the work done under the contract, the board, in rescinding an order of acceptance thereafter made, did not prejudice the rights of the assignee, since the assignee’s position was no more advantageous than that of the contractor had no assignment been made. p. 696.</p> <p>10. Municipal Corporations. — Street Improvements. — Completion of Contract. — Authority of Municipality. — An assignee of assessments for street improvements is not in position to complain of the refusal of the hoard of public works, after the rejection thereof for failure to comply with the contract, to take steps, hy contract or otherwise, to complete the work in accordance with the contract, the city being under no duty to the contractor to cause the completion of the work, p.697.</p>

From Howard Circuit Court; Joseph Combs, Special Judge. Proceedings by William B. Green and wife, as executor and executrix of the last will of Lucinda E. Foreman deceased, against Barbara Nation and others. From a judgment for the petitioners, the named defendant and others appeal. (Transferred from the Appellate Court under §1397 Burns 1914, Acts 1901 p. 568.)

<p>From Randolph Circuit Court; W. H. Eichhorn, Special Judge.</p> <p>Prosecution by the State of Indiana against Elisha Roberts. From a judgment of conviction, the defendant appeals. '</p>

<p>From Marion Superior Court (101,767); V. G. Clifford, Judge.</p> <p>Action by Thomas J. Gallivan against the Pittsburg, Cincinnati, Chicago- and St. Louis Railway Company. From a judg-</p> <p>ment for the plaintiff, the defendant appeals.</p>

<p>From the Marion Superior Court (102,517); F. G. Clifford, Judge.</p> <p>Action by William Kruger against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for</p> <p>plaintiff, the defendant appeals.</p>

From Vigo Circuit Court; Charles L. Pulliam, Judge. Prosecution by the State of Indiana against the Surety Coupon Company. From a judgment quashing the affidavit and dis- charging the defendant, the state appeals.