Volume 189 — Indiana Reports

From DeKalb Circuit Court; Dan M. Link, Judge. Proceeding by William Armstrong and another to establish a drain, in which Winifred O. Oster 'and others filed a remonstrance. From a judgment dismissing the petition, the petitioners appeal. Affirmed.

From Marion Superior Court (97,826); John J. Rockford, Judge. ■ Action by Bert McBride against Richard M. Coleman, as receiver of the Independent Envelope Company, on his verified claim for services rendered as receiver under appointment of the circuit court. From a judgment disallowing the claim, the claimant appeals.

From Delaware Superior Court; Robert M. VanAtta, Judge. Proceedings oy Harriett C. Newlee and others for the repair of a public drain, in which John C. Huffman and others filed a remonstrance. From a judgment ordering the construction of the proposed improvement, the remonstrants appeal.

<p>1. Executors and Administrators. — Sale of Intestate Wife’s Realty. — Mortgage Del)t. — Since the husband’s undivided one-third interest of his deceased wife’s realty, which descended to him upon her death by virtue of §3016 Burns 1914, Acts 1891 p. 71, was subject to a purchase-money mortgage executed by her, and in which he had joined, the court, on petition of the administrator of her estate, had authority to order the whole of the realty sold to pay the mortgage debt. p. 38.</p> <p>2. Executors and Administrators. — Debts.—Sale of Realty.— Under, the statute the real estate of an intestate is as completely subject to his debts as his personalty, p. 38;</p> <p>3. Executors and' Administrators. — Wasting of Personalty. — Liability of Realty. — The wasting of the personal assets of the decedent’s estate by the executor or administrator does not relieve the real estate from liability for the debts, p. 38.</p> <p>4. Executors and Administrators. — Sale of Realty. — Misapplication of Proceeds. — Effect on Purchaser. — The malfeasance of an administrator in misapplying the proceeds from the sale of realty cannot be charged against the purchaser, p. 40.</p> <p>5. Descent and Distribution. — Real Estate. — Pus-chase from Heir. —Subject to Debts. — A purchaser of realty from an heir is bound to know that, until the estate is finally settled, the realty is subject to sale for the payment of the debts of the ancestor, and in the event of such a sale the purchaser’s title may wholly fail, p. 40.</p> <p>6. Descent and Distribution. — Heir’s Judgment Creditor. — Rights. —A judgment creditor of an heir has no greater rights than the heir. p. 40.</p> <p>7. Executors and Administrators. — Sale of Realty.- — Devise.— Where a testator has devised realty,- charging it with the payment of his debts, his personal representative, if the personalty is insufficient, may obtain an order to sell the lands, the devise - being no obstacle, p. 40.</p> <p>S. Descent and Distribution. — Realty.—Debts.—The devisee or heir of real estate takes the same subject to the indebtedness of the deceased, pp. 40, 42.</p> <p>O. Descent and Distribution. — Husband and Wife. — Wifefs Realty. — Rights of Surviving Husband’s Creditors. — Where a deceased wife’s realty, in which the surviving husband had an undivided one-third interest by virtue of §3016 Burns 1914, Acts 1891 p. 71, was sold to pay a purchase-money mortgage to which the husband was a party, a judgment creditor of the husband had a lien on no greater interest than that of the husband, and hence such creditor’s lien could affect only the balance of the husband’s interest after payment of the mortgage, p. 42.</p> <p>10. Descent and Distribution. — Sale of Realty to Pay Debts.— Effect on Judgment Against Heir. — An administrator’s sale to pay the debts of the ancestor, when properly petitioned for and regularly conducted, destroys the lien on the land of any judgment against the heir. p. 43.</p> <p>11. Executors and Administrators. — Sale of Realty to Pay Debts. —Parties.—Section 2854 Burns 1914, §2338 R. S. 1881, defining the requisites of a petition to sell real estate for the payment of the decedent’s debts, does not require, the holder of a judgment against an heir or a devisee to be made a party to such a proceeding, though, under §2800 Burns 1914, §2343 R. S. 1881, any person not a party thereto may, upon proper petition, be admitted as a party for the purpose of having his interest heard and determined. p. 43.</p> <p>12. Executors and Administrators.- — Petition to Sell Realty.— Sufficiency. — A petition by an administrator to sell real estate to pay the decedent’s debts which substantially complies with §2854 Burns 1914, §2338 R. S. 1881, is sufficient, p. 43.</p> <p>13. Deeds. — Breach of Warranty. — Failure of Grantor to Pay Drainage Assessments. — -Where the grantee accepted a warranty deed for realty subject to all taxes and assessments falling due after a certain date, and thereafter, to discharge a lien thereon for drainage improvements, paid an assessment, part of which fell due prior to such date, such grantee, in an action for breach of the warranty against the grantors, was entitled to recover judgment for the part falling due prior to the date agreed upon, p. 44.</p>

<p>From Marion Circuit Court (24,860); Louis B. Ewbank, Judge.</p> <p>Action by Adelbert H. Hunt against Samuel C. Ferrell. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565.)</p>

<p>Master and Servant.- — Illegal Employment of Minor. — Applicability of Workmen’s Compensation Act. — The employment of- a boy fifteen years of age to operate a wood joiner in violation of §8022e Burns 1914, Acts 1911 p. 511, and without the affidavit as to age, required by §§8022, 8038 Burns 1914, Acts 1899 p. 231, being illegal and punishable as a misdemeanor under the statute, is not embraced within the provisions of the Workmen’s Compensation Act; and hence the latter act is not a bar to a common-law action for damages for injuries suffered in such employment.</p>

From Lake Criminal Court; Martin J. Smith, Judge. Prosecution by the State of Indiana against Albert C. Batchelor. From a judgment of conviction for murder in- the first degree, the defendant appeals.

From Lake Criminal Court; Martin J. Smith, Judge. Prosecution by tbe State of Indiana against James H. Parker. From a judgment of conviction for murder in tbe first degree, tbe defendant appeals.

<p>1. Criminal Law. — Affidavit with, Indorsement of Prior Conviction. — Submitting to Jury.- — In a prosecution in the criminal court on appeal from a conviction in the city court, it would have been error to permit the jury to take with them, on retiring to deliberate on their verdict, the affidavit which contained an indorsement of the finding and judgment of conviction rendered by i the city court, p. 89.</p> <p>2. Criminal Law. — Appeal.—Presumptions.—Affidavit.—Submitting to Jury. — Since the court in a criminal prosecution is not required to let the jury have the affidavit while deliberating on their verdict, the Supreme Court will assume that the criminal court overruled a motion asking that an indorsement of conviction in the city court be erased from the affidavit, the record not showing that the court permitted the jury to have the affidavit while deliberating, p. 89.</p>

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by Allen T. Osburn against Jacob E. Finkelstein and another. From a judgment for the defend-, ants, the .plaintiff appeals. (Transferred from the Appellate Court under §1399 Burns 1914, Acts 1901 p. 565, §15.)

<p>From Marion Criminal Court (49,254); James A. Collins, Judge.</p> <p>Prosecution by tfce State of Indiana against Dean J. Reed. From a judgment of conviction, the defendant appeals.</p>

From Vermillion Circuit Court; Barton S. Ailoman, Judge. Action by Emma L. Stevenson against tbe Terre Haute, Indianapolis and Eastern Traction Company. From a judgment for tbe plaintiff, tbe defendant appeals. (Transferred from tbe Appellate Court under Acts 1901 p. 590, §1405 Burns 1914.)

<p>From Marion Criminal Court (49,438).</p> <p>Prosecution by tbe State of Indiana against Walter Zoller. From a judgment of conviction, tbe defendant appeals.</p>

From Porter Circuit Court; E. E. Loring, Judge. Suit by John Kwiatkowski against Michael Putz-haven. From a judgment for the defendant, the plaintiff appeals. (Transferred from the Appellate Court under §1392 Burns 1914, Acts 1907 p. 237.)

<p>1. Criminal Law. — Accessory After Fact. — Intent.—Knowledge.— To constitute' a person an accessory after the fact, under §2097 Burns 1914, Acts 1905 p. 584, §226, which prescribes the same punishment as prescribed by law for the principal, it must appear that, after the commission of the felony, such person did harbor, conceal or assist the principal with intent that he should escape detection, arrest, capture or punishment for the offense, and intent requires the defendant’s knowledge of the crime at the time of the giving of such aid or assistance, p. 129.</p> <p>2. Criminal Law. — Rights of Accused. — Denial of Counsel. — Where it appears that officers in charge of the defendant refused or ignored his requests to be represented by counsel, and that the court, before accepting his plea of guilty, made no inquiry as to his desire for, or means to employ, counsel, and .did not inform him as to the court’s duty to appoint counsel in case he was without means, such facts are sufficient to show a denial of the defendant’s rights to appear by counsel as guaranteed by Art. 1, §13, of the Constitution, p. 132.</p> <p>3. Criminal Law. — Plea of Guilty. — Duty of Court. — Where the defendant, who was called on to plead to a charge of being an accessory after the fact of murder, the punishment for which is death or life imprisonment, had been denied the right to consult with counsel, and, though he was without counsel at the time of his appearance to enter his plea, the court did not inform him as to the consequences of a plea 'of guilty, the plea was improvidently accepted and the court on such showing should have sustained the defendant’s, motion to withdraw it. p. 133.</p> <p>4. Criminal Law. — Plea of Guilty. — Explaining Indictment. — Presumption. — Though the assumption is properly indulged that an interpreter correctly and accurately explained the indictment to the defendant in the absence of a contrary showing, such assumption is overcome where it appears that a police officer acting as interpreter, in explaining an indictment to one charged as an accessory after the fact of murder, so failed to make clear the elements of knowledge of the murder and intent to aid the principal’s escape that the defendant could not intelligently plead to the charge; and the defendant's plea of guilty under such showing should have been set aside on his motion, pp. 133, 135.</p> <p>5. Courts. — Officers.'—Ai-resting Officer as Interpreter. — Since an interpreter should be entirely free from any suspicion of interest either in the conviction or the acquittal of an accused, it is an impropriety to permit an arresting officer to act in such capacity, p. 136.</p> <p>G. Criminal Law. — Plea of Guilty. — Duty of Court. — A plea of guilty should be made in an entirely voluntary manner by one competent to know the consequences, and the trial court should be satisfied of such facts before accepting the plea.- p. 136.</p>

<p>1. Criminal Law. — Indictment and-Information. — Receiving Stolen Goods. — Sufficiency of Evidence. — -In a prosecution -for receiving stolen goods, tbe evidence is reviewed and held sufficient to support the court’s conclusion that part of the brass testified about was that charged in the affidavit, that it was stolen from the company named therein, that the name of the thief was unknown when the affidavit was filed and could not by inquiry be found out, and that the defendant had knowledge that the brass was stolen at the time he received it. pp. 138, 140.</p> <p>2. Criminal Law. — Objections to Evidence. — Review.—Where the defendant failed to make timely objection to the introduction of hearsay evidence and to save an exception, so as to give the trial court an opportunity to review the question on his motion for new trial, he may not raise such question on appeal under a specification in such motion challenging the sufficiency of the evidence, p. 140.</p>

<p>From Howard Circuit Court; Lloyd McClure, Special Judge.</p> <p>Action "by Orel S. Prickett against the Citizens Telephone Company and others. From a judgment for the plaintiff, the defendants-appeal.</p>

From Decatur Circuit Court; John W. Donaker, Judge. Action by Elizabeth Fugit against William F. Bobbins, executor of the will of Charles S. Williamson, deceased, and others. From a judgment for the plaintiff, the defendants appeal.

<p>From Marion Criminal Court (49,116); James A. Collins, Jndge.</p> <p>Proseention by tbe State of Indiana against J ames Barksdale. From a judgment of conviction, tbe defendant appeals.</p>

<p>From Marion Criminal Court (49,061); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Olin Mendenhall. From a judgment of conviction, the defendant appeals.</p>

From Boone Circuit Court; Willett H. Parr, Judge. Proceeding by John F. Adair and others for the reconstruction and improvement of a drain, in which John F. Martin and others remonstrated. From a judgment for the petitioners, the remonstrants appeal.

<p>1. Criminal Law. — Evidence.—Conflict.—The Supreme Court will not weigh conflicting evidence, p. 184.</p> <p>2. Intoxicating Liquors. — Joint Defendants. — Complicity.—In a prosecution of an owner of a soft drink parlor and his servant jointly, under §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4, for an illegal sale of intoxicating liquor made by the servant, it was necessary for the state to prove complicity between the defendants in order- to sustain a conviction of the owner, p. 185.</p> <p>3. Intoxicating Liquors. — Owner of Place Aiding Sale. — Principals and Accessories. — -Where a person stands in such relation to a misdemeanor as would constitute him an accessory before the fact if the offense were a felony, he is regarded as a principal; hence, where an owner of a soft drink parlor aided or abetted his servant in making a sale of intoxicating liquor, in violation of §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4, or where he counseled, encouraged, hired, commanded, directed or otherwise induced the servant to do any such act, he was guilty of the commission of the misdemeanor charged as a principal, p. 185.</p> <p>4. Intoxicating Liquors. — Illegal Sale. — Complicity.—Proof.—Inferences. — In the prosecution of an owner of a soft drink parlor and his servant jointly for a sale of intoxicating liquor made by the servant, under §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4, in order to show that the owner furnished the liquor, and that he encouraged, directed, hired or commanded the servant to make the sale, it was competent to prove facts from which his participation or complicity in the act might be rightly and reasonably inferred, p. 185.</p> <p>5. Intoxicating Liquors. — Illegal Sale. — Sale by Servant. — Complicity of Master. — Inference.—The complicity of the owner of a soft drink parlor in an illegal sale of liquor, made in violation of §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4, could be reasonably inferred from facts showing that he kept whisky concealed in or about his place of business which he and the servant both sold fro'm time to time in connection with the business there conducted, p. 186.</p> <p>6. Intoxicating Liquors. — Illegal Sale. — Sale by Servant. — A person who keeps a place where intoxicating liquors are sold in violation of law is guilty of the offense defined by §8356t Burns’ Supp. 1918, Acts 1917 p. 15, §20, and every sale made in such place, whether made by the owner or by his servant or agent constitutes a distinct and separate offense under §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4. p. 186.</p> <p>7. Intoxicating Liquors. — Illegal Sale. — Sale by Servant. — Master’s Liability. — Where a person owns or operates a place for the sale of intoxicating liquors in violation of §8356t Burns’ Supp, 1918, Acts 1917 p. 15, §20, any request, direction or command of such person to his servant authorizing the latter to sell any of such liquor kept therein renders the former criminally liable for every sale made, even though made in his absence and without his knowledge, since all such sales are forbidden by statute. (Boos v. State, 181 Ind. 562, distinguished.) p. 186.</p> <p>8. Criminal Law. — Evidence of Other Crimes. — Admissibility.— In a prosecution of a master and his servant jointly, under §8356d Burns’ Supp. 1918, Acts 1917 p. 15, §4, for a sale of intoxicating liquor made by the servant, evidence that whisky was found in ' a room connected with the master’s place of business and that other sales were made by each of the defendants was admissible as against the master to prove that he authorized, commanded or directed the specific sale charged, pp. 187, 188.</p> <p>9. Criminal Law. — Evidence.—Other Criminal Acts. — Admissibility. — It is error to admit evidence of other criminal acts committed by the defendant on the theory that the commission thereof shows such a state of mental or moral depravity in the defendant as to indicate that he committed the crime charged or as to render the commission of that crime more probable, p. 188.</p> <p>10. Criminal Law. — Appeal.—Evidence.—Limiting Application.— Request for Instruction. — In the trial of two defendants jointly, where certain evidence introduced was competent as against only one of the defendants, the other may not complain of the admission of such evidence in the absence of a request to the trial court for an instruction limiting its application, p. 189.</p>

From Lake Superior Court; A. D. Bartholomew, Special Judge. Action by the Edward Hines Lumber Company and others against the Baldwin Locomotive Works. From a judgment for the plaintiffs, the defendant appeals.

From Lake Superior Court; Virgil 8. Reiter, Judge. Indirect contempt proceedings by Harry E. Newbert and others against George Gardner and others. From a judgment of conviction, the defendants appeal.

<p>Commerce. — Telegraphs and Telephones. — Interstate Messages.— State Statutes. — The provisions of the federal act making interstate telegraph companies subject to the Interstate Commerce Act, and placing them under the administrative control of the Interstate Commerce Commission, so clearly establishes the purpose of Congress to subject such companies to a uniform national rule as to make it certain that there was no power left with the several states to regulate, by penalizing the negligent failure to deliver promptly interstate telegrams. (Western Union Tel. Oo. v. Boegli, 187 Ind. 238, affirming judgment of trial court, superseded, in accordance with mandate of United States Supreme Court [251 U. S. 351, 40 Sup. Ct. 167.])</p>

<p>1. Indictment and Information.- — Adultery.—Sufficiency of Indictment. — In an indictment of the defendant for cohabiting with another in a state of adultery, in violation of §2353 Burns 1914, Acts 1905 p. 584, §457, it was sufficient to follow the language of the statute, without alleging that the parties named lived and cohabited as husband and wife. p. 207.</p> <p>2. Criminal Law. — Appeal.—Bill of Exceptions. — Instructions.— The instructions not being in the record by a bill of exceptions, no question -concerning the ruling of the court in giving or refusing instructions will be considered on appeal, p. 207.</p> <p>3. Criminal Law. — Appeal.—Evidence.—Weight.—As against the objection that the verdict is not supported by sufficient evidence and is contrary to law, the verdict will be upheld on appeal unless there is a total failure of evidence as to an essential element of the offense, p. 208.</p> <p>4. Lewdness. — “Cohabitation.” —■ Meaning. — Statute. — “Cohabitation,” as used in §2353 Burns 1914, Acts 1905 p. 584, §457, implies a dwelling together as husband and wife, including one or more acts of sexual intercourse, by parties not occupying the marriage relation, and is understood as something different from occasional, transient interviews for unlawful intercourse, p. 208.</p> <p>5. Lewdness. — Cohabitation.—Evidence.—Sufficiency.—In a prosecution under §2353 Burns 1914, Acts 1905 p. 584, §457, where the evidence failed to show that the defendant and a named woman dwelt together for any period of time as husband and wife, but showed only occasional visits to the woman’s home while she was living with her husband, a verdict of guilty was contrary to law, there being an entire failure of evidence on the essential element of cohabitation, p. 208.</p>

From Marion Circuit Court (31,888); Louis B. Ewbank, Judge. Action by the Indianapolis Telephone Company against the Central Union Telephone Company and the city of Indianapolis. From a judgment for the plaintiff, the defendants appeal.

From Lake Superior Court; Virgil 8. Reiter, Judge. Action by Charles Musulin against the Standard Brewery. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

From LaPorte Circuit Court; James F. Qallaher, Judge. Mandamus by the State of Indiana, on tlie relation of the United States Railroad Administration and others, against Carl Puseh, treasurer of LaPorte county. From a judgment for the defendant the relators appeal.

. From Hamilton Circuit Court; Ernest E. Cloe, Judge. Proceeding iii quo warranto by tbe State of Indiana, on the relation of George B. Daubenspeck against Elbert H. Day and others. From the judgment rendered, the relator appeals.

<p>1. Criminal Law. — Appeal.—Briefs.—Sufficiency.—The failure of the appellant to comply with the fifth clause of Rule 5 by setting . out in that part of his brief devoted to the record the instructions given or refused of which he complains, or to refer to the pages and lines of the transcript where the same may be found, was . not overcome by setting out in the points and authorities certain given and refused instructions, but failing to refer to any place in the transcript where his alleged objections and'exceptions to the trial court’s rulings thereon may be found, p. 255.</p> <p>2. Criminal Law. — Appeal.—Briefs.—Bwhibits.—Alleged error of the court in admitting in evidence, or in rejecting as evidence, an exhibit presents no question for review where the appellant fails to set out in full or in substance such exhibit, or to refer to any place in the transcript where it may be found, and to show that any exception to the court’s ruling was taken. ' p. 255.</p> <p>3. Criminal Law. — Appeal.-—Briefs.—Alleged error of the court in overruling a motion to discharge the jury, because of misconduct of the court,-presents no question where the appellant fails to set out the motion in his brief or to refer to the place in the transcript where it may be found, and fails to disclose that any exception was taken by him to the court’s ruling, p. 256.</p> <p>4. Criminal Law. — Briefs.—Sufficiency.—Where the appellant’s brief fails to point out in the record where alleged error of the court in the admission and rejection of evidence may be found, or to show any exception taken by him to the court’s rulings thereon, ho question is presented for review, p. 256.</p>

From Madison Circuit Court; Luther F. Pence, Judge. Injunction by George C. Forrey against the board of commissioners of Madison county. From a judgment for the defendants on their demurrer to the complaint, the plaintiff appeals.

<p>1. Carriers. — Rejection or Allotoanee of Freight Claims. — Statute. ■ — VaUdity.—Sections 8020b-80201i Burns 1914, Acts 1911 p. 454, providing for an action in damages against a carrier for freight lost or damaged, where the carrier fails to allow or reject a claim therefor within ninety days, are not violative of the provisions of the state or the federal Constitutions relating to due process and to the privileges and immunities of citizens, p. 265.</p> <p>2. Appeal. — Review.—Evidence.—The Supreme Court will not weigh the evidence, but will accept as true that which supports the verdict, p. 268.</p> <p>3. Trial. — Peremptory Instructions. — When Given. — A peremptory instruction for the defendant is authorized only where the evidence favorable to the plaintiff, and the inferences reasonably deducible therefrom, fail to support all the essential elements of any paragraph of the complaint, p. 268.</p> <p>4. Trial. — Ewclusion of Cumulative Evidence. — Effect.—There was no error in rejecting evidence that was merely cumulative, p. 269.</p> <p>5. Carriers. — Contracts Limiting Liability. — Instruction.—Where a paragraph of complaint, in an action against a carrier for damages to a shipment of hogs, was based on §§3918-3920 Burns 1914, Acts 1905 p. 58, and §3920b Burns 1914, Acts 1911 p. 454, relating to initial liability, it was not error to state in an instruction bearing on such paragraph that the latter section did not affect the validity of a shipping contract'limiting liability unless it attempted to limit liability to the initial carrier’s own line, p. 270.</p> <p>6. Carriers. — Damages to Shipment. — Time for Bringing Action.— Reasonableness of Contract Provision. — Jury.Question.—In a shipper’s action on an admitted claim for damages, under §§3918-3920 Burns 1914, Acts 1905 p. 58, §§3920b-3929h Burns 1914, Acts 1911 p. 454, where the defense relied on a contract provision that no action for loss should be maintained unless begun within ninety days after the action accrued, an instruction stating that if the claim was filed April 29, and defendant required until August 4 to complete its investigation of the alleged loss, the jury might consider such fact in determining whether such contract provision was reasonable or unreasonable, properly left to the jury the-question whether the action was brought in time. pp. 271, 272.</p> <p>7. Pleading. — Rulings on. — Waiver of Error. — The plaintiff waives his right to judgment on the pleadings if, after an ineffectual motion for judgment thereon owing to the absence of an answer, he goes to trial on the complaint, submits the issue to a jury, and is defeated, p. 272.'</p>

<p>1. Witnesses. — Impeachment.—Opinions.—In a prosecution for assault and battery with intent to kill, it was not error to refuse to permit the defendant’s witness to answer an impeaching question as to whether the wife of the prosecuting witness had said .before trial that if her sister had not been present there would have been no trouble, as the defendant and her husband were talking quietly until the sister interfered, where the alleged statment involved no contradiction of the wife’s testimony on the trial; and furthermore, it was merely an opinion, p. 275.</p> <p>2. Homicide. — Self-Defense.—Freedom from Fault. — In a prosecution for assault and battery with intent to kill, instructions on self-defense, to have been proper, should have required a finding that the defendant was without fault, or did not use excessive force, p. 276.</p> <p>3. Criminal Law. — Instructions.—Erroneous Requests. — Duty of Court. — The fact that the court was requested to give instructions that attempted to apply general propositions of law to specifically recited facts did not impose on the court the duty, if the proffered instructions were improper, to give other instructions making such specific application, p. 276.</p> <p>4. Homicide. — Self-Defense.—In a prosecution for assault and battery with intent to kill, requested instructions on self-defense omitting the element as to whether the defendant was in a place where, so far as his assailant was concerned, he had a right to be when attacked, were insufficient, p. 277.</p> <p>5. Criminal Law. — Instructions.—Repetition.-—In a prosecution for assault and battery with intent to kill, requested instructions as to what was necessary to justify conviction, and distinguishing between such requirements and facts permitting the jury to find guilt of simple assault, were properly refused, in view of other instructions on the point, and the record showing the refusal to be harmless, p. 277.</p>

<p>1. Master and Servant.- — Extra Compensation. — Contract.-—One employed to perform services at a stated remuneration may be entitled to recover additional compensation for extra services rendered at the employer’s request, even though the contract makes no provision therefor; but the right thereto -depends upon the ■ existence of a contract express or implied, p. 280.</p> <p>2. Master and Servant. — Implied Contract. — Extra Compensation. —Though a request for the performance of services ordinarily gives rise to an implied offer to pay the reasonable value of such services, and the rendition thereof in response to the request amounts to an acceptance of the offer, this rule does not apply where the services are performed by one already in the employ of the person making the request, since in such case a presumption arises that the services are performed under the contract of employment, p. 281.</p> <p>3. Master and Servant. — Extra Compensation. — Proof. ■— Sufficiency.- — As between employer and employe it is not sufficient, in establishing an employe’s claim for extra compensation, to show that services outside the ordinary employment were performed at the employer’s request, but the employe must prove that the services were of such a character and were rendered under such circumstances as would lead to the conclusion that extra compensation was contemplated by both parties, p. 281.</p> <p>4. Master and Servant. — Extra Compensation. — Jury Question.— Whether there was an implied contract between master and servant that. extra compensation was to be paid the servant for services rendered outside the ordinary employment, is ordinarily a question for the jury; but where the facts are such that reasonable-minds may not differ, the question is for the court, p. 282.</p> <p>5. Appeal. — Verdicts.—General and Special. — The general verdict must stand unless the specific facts found by answers to interrogatories are in irreconcilable conflict therewith, p. 282.</p> <p>6. Master and Servant. — Extra Compensation. — Implied Contract. —Sow Determined. — In determining whether there was an implied contract between an employer and an employe that additional compensation should be paid the latter for extra services, all the facts and circumstances connected with the entire transaction, and the nature and character of the extra services, should be considered, and not merely the question whether the extra services were similar to those usually performed, p. 284.</p> <p>7. Master and Servant. — Extra Compensation. — General and Special Verdicts. — Where answers to special interrogatories showed that one employed as porter on a train performed services as rear brakeman for seven years, during which time he accepted the stipulated compensation for his services as porter without demanding additional compensation, the specific facts so found were sufficient to overcome a general verdict in the employe’s favor for extra compensation, since the only reasonable inference deducible from such facts is that there was no implied contract for extra compensation, there being no showing of facts provable under the issues that, when considered with the facts disclosed by the answers, would justify an inference that extra compensation was contemplated, pp. 284, 286.</p> <p>8. Trial. — General and Special Verdicts. — Inferences.—Rights of Court and Jury Distinguished. — In considering a motion for judgment on answers to interrogatories, the court, in determining what ultimate facts can be reasonably inferred, is confined to facts shown by the answers, while the jury may, in support of the general verdict, draw inferences as to such facts from all the evidence; hence, the general verdict is not overcome merely because the ultimate fact found by the jury in support thereof is contradicted by the only ultimate fact inferentially deducible from the answers, unless there were no facts provable under the issues so supplementing the facts disclosed by the answers as to permit an inference of the ultimate fact found by the jury, p. 285.</p>

<p>From Delaware Circuit Court; Luther F. Pence, Special Judge.</p> <p>Prosecution by the .State of Indiana against Luther Flatters. From a judgment of conviction, the defendant appeals.</p>

From Marion Superior Court (102,607), Vincent G. Clifford, Judge. Injunction by Carrie E. Temperly and others against the city of Indianapolis. From a judgment for the defendant, the plaintiffs appeal.

From St. Joseph Circuit Court; Walter A. Funk, Judge. Action by the First National Bank o£ South Bend against Frank Mayr, Jr., and others. From a judgment .for the defendants, the plaintiff appeals. (Transferred with recommendations from the Appellate Court under §1394, cl. 1, Burns 1914, Acts 1901.p. 565, §10).

From Marion Superior Court (97,700); Linn D. Hay, Judge. Action by tbe German Investment and Securities Company against tbe Banker’s Surety Company and others. From a judgment for tbe plaintiff, tbe defendant appeals.

From Lake Circuit Court; J. P. Wason, Special Judge. Proceeding by Patrick J. Carlin and others for the establishment of a drain, in which the Northern Indiana Land Company and others filed remonstrances. From a judgment overruling the remonstrances, the remonstrators appeal.

<p>Appeal. — Moot Question. — By Operation of Law. — Where city officials appealed from an order restraining them from interfering with the plaintiff’s right to operate a saloon under a license which they claimed.the right to revoke, and the cause was not submitted to the Supreme Court until after the Prohibition Law, Acts 1917 p. 15, §8356d Burns’ Supp. 1918, became effective, no application to advance having been made, the appeal presents a moot question by operation of law; and, since it involves no .matter of great public interest, or one affecting the public generally, a dismissal is authorized.</p>

<p>jl. Criminal Law. — Argumentative Plea of Not Guilty. — Effect.— Where a pleading termed a plea in abatement was in effect an argumentative plea of not guilty, it was proper for the trial court to treat it as a plea of not guilty, p. 342.</p> <p>2. Criminal Law. — Argumentative Plea, of Not Guilty. — Overruling demurrer. — Refusal of State to Introduce Evidence.- — Where a pleading termed a. plea in abatement was in effect an argumentative plea of not guilty, and the court overruled the state’s demurrer thereto, properly treating the plea as one of not guilty, there was no error in discharging the defendants on the state’s refusal to introduce evidence in support of the charge, p. 342.</p>

<p>1. Evidence. — Judicial Notice. — Presumptions.—Foreign Statutes.— The courts of this state do not take judicial notice of the statutes of a sister state; hence, in determining the power of the Public Service Commission of another state, the courts will consider only such statutes as have been pleaded and proved, and will presume that all statutes bearing on the question have been so presented, p. 348.</p> <p>2. Railroads. — Employe’s Action for Injuries. — Pleading and Proof of Foreign Statute. — Public Service Commission. — In a railroad employe’s action under the federal Employers’ Liability Act for injuries sustained in falling from a bridge on the defendant’s line in Ohio, the complaint being based on the defendant’s negligence in failing to construct a footwalk alongside the bridge in accordance with an order of the Ohio Public Service Commission, the plaintiff could not establish negligence by introducing in evidence merely the order of the commission, where the Ohio statutes, as pleaded and proved, conferred power on the commission to make only specific orders after hearing and notice, since, if the order was general, it was unauthorized and void under the statutes in issue, and, if specific, it had no binding force in the absence of proof that it was made after hearing and notice, p. 350.</p>

From Lake Circuit Court; W. G. McMahan, Judge. Action by Hattie E. Arnott, administratrix of tbe estate of James W. Arnott, deceased, against the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.

From Clay Circuit Court; John M. Rawley, Judge. Mandamus by the State of Indiana, on the relation of Charles W. Daggy, against Joe M. Allen, auditor of Putnam county, and another. From a judgment for the defendants, the plaintiff appeals.

<p>1. Pleading. — Demurrer.—Statutory Causes. — A complaint is good as against a demurrer stating none of the causes enumerated in §344 Burns 1914, Acts 1911 p. 415. p. 376.</p> <p>2. Pleading. — Foreign Laws. — Statutes.—In- pleading a foreign law it is not sufficient to state the effect thereof, but the lá'w must be set out specifically and definitely so that the court can determine its applicability to the facts pleaded; if such law is statutory, that part upon which the pleader relies must be set out verbatim, p. 378.</p> <p>3. Insurance. — Fraudulent Application. — Rescission.—To rescind a benefit insurance policy for fraudulent representations of the insured, the insurer must act within a reasonable time after discovery of the facts, and return, or offer to return, the premiums paid, so as to place the insured in statu quo; otherwise the insurer affirms the contract, p. 379.</p> <p>4. Insurance. — Action on Policy. — Breach of Warranty. — Answer. —In an action on an insurance policy, an answer relying on breach of warranty to avoid the policy must show a return, or an offer to return, the premiums within a reasonable time after discovery of the breach, p. 380.</p> <p>5. Insurance.' — Avoidance of Policy. — Return of Premiums. — Rear sonable Time. — What is a reasonable time for rescission of an insurance policy after discovery of the insured’s fraudulent representations, though ordinarily a question of fact, is a question of law where the facts are ascertained or where they are undisputed or admitted, p. 380.</p> <p>O. Insurance.- — Avoidance of Policy. — Return of Premiums.— Reasonable Time.- — The payment of a premium into court by the defendant insurer more than seventeen months after discovery of facts relied on to avoid the policy for fraud,, and after the cause had been set for trial, no tender ever having been made to the plaintiff beneficiary or to any one authorized to act for him, was not within a reasonable time, nor was it sufficient as a tender, p. 380.</p> <p>7. Insurance. — Avoidance of Policy. — Return of Premiums to Beneficiary. — After the death of the insured, a tender of premiums in avoidance of the policy for breach of warranty or for fraud must be made to the beneficiary, p. 380.</p> <p>8. Tender. — Payment Into Court.- — A tender of money, to be sufficient, must first be made to the party entitled to receive it, or to some one authorized to receive it for him, and if refused the money must then be paid into court for his use and benefit, p. 381.</p> <p>9. Appeal. — Constitutional Questions. — Avoidance.—The Supreme Court will not consider constitutional questions where the determination thereof is not necessary to dispose of the appeal, p. 381.</p>

<p>From Lake Superior Court; Walter D. Hardy, Judge.</p> <p>Proceedings by James D. Evans and others against the Plymouth Congregational Church of Whiting, Indiana, and others, to condemn land for school purposes. From a judgment for plaintiffs, the defendants appeal.</p>

<p>From Henry Circuit Court; Fred C. Gause, Judge.</p> <p>Petition by Alonzo Tyner and others for the improvement of a public highway. From a judgment for the petitioners, John S. Souder and others, remonstrators, appeal.</p>

From Madison Circuit Court; B. H. Campbell, Special Judge. Proceedings by Horace E. Jones and others for the repair of a drain, wherein Joseph F. Love and others filed answer. From a judgment sustaining a demurrer to the answer, the latter parties appeal.

From Wayne Circuit Court; Henry C. Fox, Judge. Action by Joshua Allen, administrator, against the Standard Oil Company of Indiana. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394- Burns 1914, Acts 19.01 p. 565, §10).

<p>Appeal. — Briefs.—Sufficiency.—Oral Argument. — Where the appellant’s brief is insufficient to present any question, and, though the defects therein were promptly challenged, the appellant took no steps to amend so as to conform to the rules of briefing, the appellant’s request for oral argument will be denied, and the judgment affirmed.</p>

From Marion Probate Court; Mdhlon E. Bash, Judge. Action by Dale J. Crittenberger, auditor of the State of Indiana, against the State Savings and Trust Company and others. From a judgment for the defendants, the plaintiff appeals.

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

<p>From Howard Circuit Court; William G. Overton, Judge.</p> <p>Prosecution by tbe State of Indiana against Omer Zell. From a judgment of conviction, the defendant appeals.</p>

<p>1. Appeal. — Final Judgment.— “Finds."— Construction. — Where, after sustaining a demurrer to the complaint and noting the plaintiff’s exception and election to stand on the ruling, an order-book entry was made that the court “finds for the defendant, that the plaintiff take nothing and that the defendant recover * * * costs,” was sufficient as a final judgment, though the word “finds” was used instead of the usual word “orders” or “adjudges.” p. 442.</p> <p>2. Public Service Commission.' — Orders.—Application for Rehearing. — Necessity Before Resort to Courts.- — Statute.—-Construction. —Section 79 of the Public Service Commission Act, §10052a et seq. Burns 1914, Acts 1913 p. 167, construed in connection with §§76, 78, fixes the time for bringing an action in the courts by a party aggrieved by a final order of the commission at sixty days, beginning with the date of the entry, except where a final order has been set aside by the commission on rehearing, in which case the time is fixed at thirty days after the final order on rehearing; and the act does not require the filing and disposal of a motion for rehearing as a condition precedent to such right of resort to the courts, as was required under §6 of the Bailroad Commission Act, as amended, Acts 1913 p. 820, §5530 Burns' 1914. pp. 442, 445.</p> <p>3. Public Service Commission. — Void Order. — Right of Resort to Courts. — Time.—Cases Distinguished.- — The rule that a party aggrieved by an order of the Public Service Commission should exhaust the remedies provided for on motion for rehearing and modification, etc., before resorting to the courts for relief, applied by the Supreme Court in certain cases in which the orders were not invalid or unreasonable as a whole, has no application to a case in which the order is wholly .void because the statute upon which it is based conflicts with provisions of the state and federal Constitutions relative to the impairment of contractual obligations. (Chicago, ete., R. Co. v. Railroad Commission, 175 Ind. 402; Southern, etc., R. Co. v. Railroad Commission, 172 Ind. 113; Vandalia, etc., R. Co. v. Railroad Commission, 182 Ind. 382; Northern, etc., Cable Co. v. Peoples, etc., Tel.,Co., 187 Ind. 486, distinguished.) p. 445.</p> <p>4. Constitutional Law. — Franchises.-—Municipality as Agent of State. — Where a city possessed delegated power to contract with anutility company as to rates, a franchise granted by it and accepted by the company constituted a contract binding on the state and the company, since the municipality under the circumstances was the agent of the state, p. 452.</p> <p>5. Franchises. — Modification or Abrogation. — Mutual Consent. — ■ Neither the state nor a public utility company has power to modify or abrogate a franchise contract existing between them, though such contract may be abrogated in its entirety by mutual agreement of the parties, p. 452.</p> <p>6. Constitutional Law. — Franchises.—Impairment of Obligations. — Where a water company, pursuant to §§101, 102 of the . Public Service Commission Act, surrendered its franchise and accepted an indeterminate permit, under which it was permitted to collect increased rates, a new contract was thereby created between the state and the company; and the amendment to such statute, passed after the new contract was executed (Acts 1919 p. 709), which attempts to re-establish some of the provisions of the original franchise as to free service, etc., to municipalities, constitutes an impairment of contractual obligations, and is therefore void. p. 453.</p>

From Marion Probate Court (827); Mahlon E. Bash, Judge. Action by Frank Kretzer and others against Edwin R. Gross, administrator, and others. From a judgment for the defendants, the plaintiffs appeal. (Transferred from the Appellate Court for want of jurisdiction, under §1429 Burns 1914, Acts 1907 p. 29.)

<p>1. Larceny. — Possession as Evidence of Cuilt. — Instruction.—Omission of Word “Recently.” — In a prosecution for larceny of chickens, where undisputed evidence showed that the chickens were stolen, if at all, not more than eighteen hours before they were found in concealment in a burlap bag, and not more than a few hours before a burlap bag was seen in a wagon being driven by the defendant near the. place of concealment, an instruction, as to the effect of the possession of stolen property “after the commission of the alleged larceny,” was not misleading because it omitted the word "recently.” p. 460.</p> <p>2. Criminal Law. — Release of Defendant Pending Trial. — Failure to Require Bond. — Evidence of Innocence. — In a prosecution for larceny, the fact that the sheriff permitted the defendant to go at large without giving bail in the amount fixed by the court, constitutes no proof of the defendant’s innocence or guilt, and the admission of such evidence without objection could not deprive the court of the right to give instructions defining the issue to be tried, and excluding from the jury’s consideration the fact whether a bond was given, p. 462.</p> <p>3. Criminal Law. — Flight of Accused. — Admissibility.—In a prosecution for larceny, the fact that the defendant did not flee when he learned that the property had been found and that he was suspected of stealing it, was legitimate matter for the jury’s consideration and for comment by counsel, p. 462.</p> <p>4. Criminal Law. — Transcript.—Certification.—Authentication as to Evidence. — Where the transcript of the evidence on appeal in a larceny case closed with the official stenographer’s statement that “This was all the evidence given in this cause,” the judge’s certificate following must be deemed to authenticate such statement and to warrant the consideration of questions arising on the evidence, as against the objection that the judge’s certificate to the bill of exceptions fails to state that it contains all the evidence, p. 463.</p> <p>5. Criminal Law. — Record of Prior Conviction. — Admission.— Harmless Error. — In a prosecution for larceny, the admission , in evidence of a record of a former conviction of the defendant on a similar charge, reciting that “by reason of the facts surrounding the commission of said crime, the interests of society does not demand or require” the prescribed punishment, and that the defendant “go at liberty on probation,”' was harmless, even if error, in view of evidence brought out, without objection, by both parties, p. 463.</p> <p>6. Larceny. — Evidence.—Sufficiency.—In a prosecution for larceny, the evidence, considered with the inferences tending to support the jury’s conclusion, is reviewed and held sufficient to support a verdict of guilty, p. 464.</p>

<p>1. Criminal Law.. — Record.—Control.—Correction.—Certiorari.—• Since a transcript upon its filing in the Supreme Court becomes a part of the records and subject to the control of the court, an appellant desiring to have it' corrected should apply for a writ of certiorari, p. 465.</p> <p>2. Criminal Law. — Record.—Certiorari.—Necessity of Notice.— Notice to the. opposite party is not required in applying to the Supreme Court for a writ of certiorari if the cause has not been submitted, but after submission a ten days’ notice is required. p. 466.</p> <p>3. Courts. — Rules of Court. — Judicial Function. — It is an inherent judicial function in courts of last resort to make rules governing the conduct of counsel and the care of the court’s records; hence, §3, Acts 1917 p. 523, §691c Burns’ Supp. 1918, is void, as ail interference with this function, p. 466.</p> <p>4. Criminal Law. — Record.—Change Without Consent. — Effect.— A change made in a transcript by the clerk of the trial court, at the instance of the appellant’s counsel, who obtained the transcript from the clerk on appeal by filing a statement pursuant to §3, Acts 1917 p. 523, §691c Burns’ Supp. 1918, is but a mutilation of the record and may not be recognized to determine any question'arising'on a motion for new trial, p. 467.</p>

<p>From Marion Criminal Court (45,836); Charles E. Henderson, Special Judge.</p> <p>Prosecution by the State of Indiana against Dennis J. Bush. From a judgment of conviction, the defendantappeals.</p>

From Marion Superior Court (A7240); Linn D. Hay, Trial Judge. Suit for injunction by William Bosson and others against Leo K. Fesler, auditor, and another. From a judgment for plaintiffs, the defendants appeal. (Transferred from the Appellate Court under §1394, el. 2, Burns 1914, Acts 1901 p. 565.)

<p>1. Wnxs. — Execution.—Revocation.—Codicils.—The statutes relative to wills, by virtue of §3169 Burns 1914, §2611 R. S. 1881. require the same formality and the same competency of attesting witnesses in the execution of a codicil or a revocation as is required in the execution of a will. p. 511.</p> <p>2. Wnxs. — Execution.—Requirements.—The right to make a will. is statutory, and to be valid a will must conform to the statutory formalities and requirements, p. 511.</p> <p>3. Wnxs. — Attestation.-—Competency of Witnesses. — Beneficiaries. —Since attestation of a will contemplates subsequent testimony of the facts which the witness attested, §522 Burns 1914. §499 R. S. 1881, when construed with §§3115, 3132 Burns 1914, §§2559, 2576 R. S. 1881, makes an interested beneficiary incompetent to attest a will, codicil, or revocation as to any matters which occurred during the lifetime of the ancestor, and §525 Burns 1914, §501 R. S. 1881, makes the wife of such beneficiary likewise, incompetent, the word “ancestor” as used in §522 having its broad and legal meaning and includes testator and testatrix, pp. 512, 513.</p> <p>4. Wnxs. — -Attestation.—Beneficiary as Witness. — Effect as to Other Beneficiaries. — Under §3144 Burns 1914, §2586 R. S. 1881, the beneficiaries who did not attest a will may compel an interested attesting witness to prove the will that it may not fail as to them, but, though such interested witness is competent as -to them, such fact does not remove the incompeteney placed on him by §§522, 3115, 3132 Burns 1914, §§499, 2559, 2576 R. S. 1881. p. 514.</p>

<p>From Pike Circuit .Court; John L. Brets, Judge.</p> <p>Action by Peter R. Miller against Wayne Bryan. From a judgment for plaintiff the defendant appeals.</p>

<p>1. Criminal Law. — Intoxicating Liquors. — Whislcy.—Judicial notice. — Conflicting Evidence. — In .a prosecution of a defendant for' the illegal sale of intoxicating liquor, particularly described in the charge as whisky, there was no error in submitting to the jury in an instruction the question of whether or not the compound alleged to have been sold was intoxicating, where there was some evidence that it was whisky, since the courts will take judicial notice that whisky is intoxicating liquor, p. 527.</p> <p>2. Criminal Law. — Intoxicating Liquors. — Illegal Bale. — Proof.— Sufficiency. — Under an indictment charging the defendant with the illegal sale of intoxicating liquor, particularly described as whisky', proof that the liquor sold was whisky, or that it contained more than half of one per cent, of alcohol in violation of §2, Acts 1917 p. 15, §8356a Burns’ Supp. 1918, or that it was intoxicating, is sufficient to sustain such allegation, p. 527.</p> <p>3. Criminal Law. — Intoxicating Liquors. — Alcoholic Contents.— Judicial notice. — Courts will not take judicial notice that a liquid is necessarily intoxicating, or that it contains more than half of one per cent, of alcohol by volume, merely because whisky is an ingredient in some proportion, p. 527.</p> <p>4. Criminal Law .- — Intoxicating Liquors. — Illegal Sale. — Instruction. — In a prosecution for the filial sale of intoxicating liquor, under a charge particularly describing the liquor as whisky, an instruction to the effect that, if the liquor sold contained a sufficient portion, of whisky to constitute it an intoxicating liquor or compound, though there were other ingredients therein, was not erroneous as failing to charge the jury that the subject of the sale m-ust have been found to be intoxicating liquor in order to warrant conviction, notwithstanding the failure to give the statutory definition of intoxicating liquor, p. 528.</p> <p>5. Criminal Law. — Witnesses.—Competency of Accused. — The testimony of accused is competent in his own behalf and is to be taken, considered, weighed and tested by the same rules affecting credibility as other witnesses in the ease. p. 529.</p> <p>6. Criminal Law. — Instruction.—Consistency and Credibility of Defense. — Province of Jury. — Harmless Error. — In a prosecution for illegal sale of intoxicating liquor, an instruction permitting the jury, in determining the guilt or innocence of the accused, to consider the consistency or credibility of his defense, though subject to criticism, was not such an intimation of the court’s opinion relative to the guilt or innocence of the accused as to constitute an invasion of the province of the jury, in view of language disclaiming any opinion thereon, p. 529.</p> <p>7. Criminal Law. — Instructions.—Harmless Error. — The erroneous character of an instruction does not constitute reversible error unless it was harmful to the complaining party, p. 530.</p> <p>8. Criminal Law. — Witnesses.—Credibility.—The question whether the testimony of a witness is consistent or inconsistent with other facts and circumstances in evidence, is one of fact to be determined by the jury from all the evidence, p. 530.</p> <p>9. Criminal Law. — Instructions.—Consideration as a Whole.— Instructions are to be considered as an entirety and not by detached portions, sentences or phrases, and.if, when so considered, ordinarily intelligent jurors would not thereby be misled as to the law and the obligations resting upon them, or as to the method of arriving at the issuable facts upon which their verdict depends, then no harmful error can be predicated on the instructions, p. 531.</p> <p>10. Intoxicating Liquors. — Illegal Bale. — Determination of Alcoholic Content. — In a prosecution for the illegal sale of intoxicating liquors, §2, of the Prohibition Law, Acts 1917 p. 15, §8356a Burns’ Supp. 1918, defining intoxicating liquor to mean liquor containing so much as a half of one per cent, alcohol, does not require a chemical analysis of liquor sold in order to determine whether it was intoxicating, though such method is a proper one. p. 531.</p> <p>11. Criminal Law. — Verdict.—Sufficiency of Evidence. — Where there is some evidence to support a verdict of guilty, the question of the insufficiency of the evidence presents an error of fact for the trial court to correct, and not one of law for the Supreme Court, p. 532.</p>

<p>From Knox Circuit Court; Thomas B. Coulter, Judge.</p> <p>Prosecution by the State of Indiana against William A. Hamke. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Appeal.—Exception Not Relied On. — Refusal to Discharge Accused. — Where the accused introduced evidence in his own behalf, no question is presented for review on appeal upon an exception taken to a ruling,, made at the close of the evidence in chief for the state, refusing to discharge the accused, p. 536.</p> <p>2. Intoxicating Liquors. — Unlawful Possession. — Prima Facie Case. — Ewplamation.—In a prosecution under Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918, for a violation of §4 by keeping • intoxicating liquor with the intent to sell, etc., in violation of law, where the trial was by the court, and the evidence sufficiently showed a prima fade case under §35 of the act, it was for the trial judge to say whether he believed the explanation offered in evidence by the accused and his wife for the purpose of overcoming such prima fade case. p. 537.</p>

<p>From Marion Criminal Court (49,876); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against George Leap. From a judgment of conviction, the defendant appeals.</p>

From Daviess Circuit Court; James W. Ogden, Judge. Mandamus by the State of Indiana, on the relation of James E. Gilley, against the board of commissioners of the county of Daviess. From a judgment for the relator, the defendant appeals.

<p>From Marion Criminal Conrt (50,112); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Elizabeth Mayhew. From a judgment of conviction, the defendant appeals.</p>

<p>1. Party Walls. — Rights and Liabilities of Lessees. — Wrongful Alterations. — Action.—A lessee of a building and of tbe first floor and basement of tbe building adjoining wbo made alterations on tbe basement and first floor levels, in tbe party wall between said structures, tbe wall being a support to eacb floor of both buildings, and belonging, for that purpose and to tbe extent required, to sucb lessee and to tbe lessee, of tbe remaining floors or upper portion of tbe second building, and wbo, in so making sucb alterations, undertook s'ucb work without any authority from tbe other lessee, did tbe work at bis own risk, though authorized thereto by tbe respective lessors, and for injury to sucb other lessee, in bis rights, possession and property on the upper floors, was chargeable, though be may have exercised due care in so doing, p. 557.</p> <p>2. Party Walls. — Wrongful Alterations. — Defenses.—Independent Contractor. — It is not a defense to an action for the wrongful making of alterations, resulting in the collapse of a party wall, that the work thereon had been performed by an independent contractor, p. 558.</p> <p>3. Appeal. — Theory.—Verdict.—That appellee, by his complaint, tendered an issue of the negligent manner of making the wrongful alterations in a party wall complained of, and that, on the trial, much time was spent by the parties upon such issue, cannot be availed of by appellant to indicate and preclude a change by appellee, on appeal, of his theory of liability, where a general verdict has been returned for appellee settling the question of negligence in his favor, and where the complaint and proof are sufficient to show and support a cause of action of which negligence is not an element, p. 560.</p> <p>4. Trial. — Interrogatories.—Answer of “No Evidence” as to Particular Item of Damages. — Motion for Judgment. — Where the jury returned an answer of “no evidence” to an interrogatory addressed to but one of various items of damage- in issue, and fixed the amount of plaintiff’s damage by a general verdict, such answer does not justify judgment for defendant upon the other items, and a motion for judgment, based thereon, was properly overruled. p. 561.</p> <p>5. Interest. — Torts.—Damages.—Instructions.—In an action eco delicto, where the amount of damage can be learned with reasonable certainty or by fixed standards, the jury have no discretion as to whether, or at what rate, interest shall be allowed, and an instruction directing the allowance of interest at the legal rate, in addition to the damage so arrived at, is proper, p. 561.</p> <p>6. Evidence. — Expert Testimony. — Opinion Based on Facts Stated hy the Witness. — In an action for damages resulting from the collapse of a party wall, an architect, qualified as an expert witness to the satisfaction of the court, and who has testified to Ms examination of, and acquaintance with, the wall in question, and who has in detail stated to the jury the results of such examination and the facts and conditions found by him, may give opinions in evidence, based on such facts as he had stated to the jury. p. 562.</p>

<p>1. Criminal Law. — Affidavit in Three Counts, One Bad. — Presumption after Conviction.- — Intoxicating Liquors. — Where the affidavit was in three counts, one of which charged a failure to remove intoxicating liquors in the possession of accused from the state, under §35, Acts 1917, ch. 4, p. 15, §8356a et seq. Burns’ Supp. 1918, which has been held not to define a public offense, it must be assumed that the judgment of conviction rests upon one of the other counts, p. 564.</p> <p>2. Intoxicating Liquors. — Unlawful Keeping. — Explanation by Accused of Presence of Liquors. — Question for Jury. — Reasonable Doubt. — Where, under a charge of unlawfully keeping intoxicating liquor with intent to sell, etc., in violation of law (§4, Acts 1917 p. 15, §8356a Burns’ Supp. 1918), a statement is testified to by the accused, which, if believed, will so explain the presence of the liquor in his garage, in his automobile, and the other circumstances in evidence against him, as to require a verdict of acquittal, a question of fact is presented for the decision of the jury under the rule of reasonable doubt, p. 565.</p> <p>3. Criminal Law . — -Offense Not Charged. — Instructions.—Reversible Error. — Where the evdience was such as to have sustained a conviction of the offense of unlawfully keeping intoxicating liquors with intent to sell, etc., in violation of law (§4, Acts 1917 p. 15, §8356d Burns’ Supp. 1918), had the case been submitted to the jury under proper instructions, the giving of instructions authorizing a conviction for an offense against the liquor laws, defined by statute, and of which the proof undisputedly showed accused to have been guilty, but which was not charged in the affidavit, deprived the accused of all consideration of his defense made to the charge made, and constituted reversible error, for ■ a person cannot be convicted of an offense not charged in the affidavit or indictment to which he has entered his plea. p. 566.</p>

<p>1. Indictment and Information. — Included Offenses. — Rape.—Under a charge of rape there may be a conviction of assault and battery with intent to commit rape, since the’former is the accomplished offense of the latter, p. 570.</p> <p>2. Rape. — Attempt.—Instructions.—In a prosecution for rape, an instruction that if the state had satisfied the jury beyond a reasonable doubt that accused had sexual intercourse with the prosecuting witness, or that he laid his hands upon her with the intent and purpose of having sexual intercourse with her, as charged in the affidavit, she being under the age of sixteen years, that the state had made out a case, held, misleading and incorrect as applied to the case at bar since there may be an assault and battery with intent without accomplishing rape. p. 570.</p> <p>3. Criminal Law. — Rape. — Forms of Verdict. — Instructions. — Where rape is charged, an instruction should not be given limiting the jury to one of the two forms of verdict, guilty as charged or not guilty, when there is evidence from which the jury might have found the accused guilty of assault and battery with intent to commit rape. p. 571.</p>

<p>From Shelby Circuit Court; David L. Wilson, Special Judge.</p> <p>Action by Merchants Heat and Light Company against Henry E>. Pierce. From a judgment for plaintiff, the defendant appeals. .(Transferred from the Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)</p>

<p>1. Criminal Law.- — Instructions.—Tender of Special Written Instruction. — Modification by Court. — In a criminal case, the trial court may, in writing, modify written special instructions tendered by the accused under §2136 Burns 1914, Acts 1909 p. 257, els. 5, 6, §561 Burns 1914, Acts 1907 p. 652, having been held not to apply to criminal eases, p. 580.</p> <p>2. Criminal Law. — Intoxicating Liquors. —- Modifitkl Instruction Given.- — Possession of Liquors.- — Rights of Accused. — An instruction that it is not unlawful for a person to have in his possession less than one gallon of intoxicating liquor, requested and tendered by the accused in a prosecution under §4, Acts 1917 p. Í5, §8356a et seq. Burns’ Supp. 1918, given after modification by the trial court by the written insertion of the word “necessarily” so as to instruct that it is not necessarily unlawful, etc., considered in connection with all the other instructions given, held not misleading, in view of the rule that the full instruction of the jury on all legal questions necessary to reach a true verdict satisfies all rights of an accused in that connection, p. 582.</p> <p>3. Criminal Law. — Appeal.—Record.—Bill of Exceptions.- — Certificate of Judge. — Oral Modification of Written Instruction. — Where the certificate of the trial judge to the bill of exceptions failed to state that a written instruction had been orally modified when read to the jury, though stating that the accused so contends, the record does not make such question available on appeal, although the bill of exceptions contains two affidavits, filed in support of the motion for a new trial, stating that the instruction in question had been orally modified, and setting out a reasonable excuse for the failure to call the same to the attention of the judge at the time. p. 582.</p> <p>4. Criminal Law. — Qualifications of Juror.- — Voir Dire. — Challenge. —Harmless Error. — No harmful error is disclosed in a ruling sustaining an objection made by the state to a question asked a juror on his voir dire, where it does not appear from the record that the accused had exhausted his right of peremptory challenge, nor that any other questions were put to the juror upon which a challenge for cause was predicated, p. 583.</p> <p>5. Criminal Law. — Intoxicating Liquors. — Admission of Testimony. — Harmless Error. — In a prosecution under §§4, 15, Acts 1917 p. 15, §§8356d, 8356o Burns’ Supp. 1918, a witness for the state, after having testified that he, holding a search warrant therefor, had searched the premises of accused, and had there found the accused and one L together with a bottle in which was. about one-half inch of whisky, a quart of whisky and two whisky glasses sitting on a stand, was asked “whether or not that is the L— that was convicted of operating a ‘blind • tiger’ in 1918,” and, over the objection of accused that “that would be a specific charge, not the general reputation,” was permitted to answer “he was convicted of operating a ‘blind tiger’ but I don’t remember that date,” held that, while under the testimony at the time adduced, the question could not be approved, yet, in view of the objection made, and the fact that this same L was a witness for and testified on behalf of accused, and on cross-examination, without objection, admitted that he had been convicted on a “blind tiger” charge on February 18, 1919, that the accused had not been harmed by the answer, p. 584.</p> <p>6. Criminal Law. — Circumstantial Evidence. — Sufficiency of the Evidence. — Weighing Evidence on Appeal. — The Supreme Court cannot weigh the evidence to determine whether it might be construed harmoniously with the innocence of accused, when there are some facts admitted and evidence from which inferences might easily be drawn establishing all of the facts essential to support a conviction, p. 584.</p>

From Bartholomew Circuit Court; John W. Donaker, Special Judge. Action by Fred Wolf, administrator of the estate of Burney Wolf, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Indictment and Information. — Rape.—Proof.—Time.—Time is not of the essence of the offense of rape and the state is not bound by the time fixed in the indictment, p. 600.</p> <p>2. Criminal Law.- — Rape.—Election l)y State When More Than One Offense Shown. — When there is a single offense of rape charged, and upon the trial several offenses of the same hind are shown, the state may be required to elect on which offense it will rely for a conviction, p. 600.</p> <p>3. Criminal Law. — Rape.—Election hy ■ State. — Defendant Not Harmed. — On a trial for rape of a female child, charged as occurring on of before June 1, 1917, the defendant was not harmed by a refusal by the court to require the state to elect more specifically by giving the exact date of the offense relied, on for conviction, where the evidence disclosed numerous acts prior to the day named, but also showed an act on or about such day upon which it was obvious that the state relied for a conviction, and where the court by instruction limited the state to an offense on or about that date, such election being simply that the state “elected to stand on the particular offense as charged in the indictment.” p. 600.</p>

From Cass Circuit Court; H. J. Paulus, Special Judge. Action by the Logansport Loan and Trust Company, administrator de bonis non, witli tlie will annexed, of the estate of Levi H. McKaig, deceased, against Grace Clark and others and Lida Allen and others, for the construction of a will. From a judgment construing the will according to the contention of Lida Allen and others, Grace Clark and others appeal.

<p>1. Evidence. — Receiver.—Discharge.—Record.—Absence of Evidence to Contradict. — A verdict for plaintiff in an action against one as a receiver, wherein defendant had pleaded his final discharge pending the action, cannot be sustained when there was no evidence to contradict the record of the discharge, when such discharge, if found favorably to' the pleader, would have required ' a judgment or discontinuance in his favor, and this is true whether such answer was properly in bar or in abatement, it having been filed, replied to, and, together with the issues joined on the complaint, tried as a plea in bar, without question as to its. character or challenge as to its sufficiency in the court below, p. 616.</p> <p>2. Trtal. — Verdict for Plaintiff. — Effect as to Material Facts Pleaded in Answer. — A verdict for the plaintiff decides in his favor, and against the defendant, every material fact averred in the answer, p. 616.</p> <p>3. Beceivers. — Personal Liability. — Negligence of■ Employes. — A receiver can be held liable personally for his own negligence only, and when liable in his official capacity for injuries caused by the negligence of employes operating the receivership property, no judgment can be rendered against him personally, the object in proceeding against him as receiver being t9 reach property in his hands as such and cause its application to the payment of the demand, p. 617.</p> <p>4. Beceivers. — Full Administration- — Distribution of Funds. — Final Discharge. — Judgments Thereafter Against Receiver in Official Capacity Invalid. — After a. receiver has fully administered his trust and distributed all trust funds in his hands, under the orders of the court, made final report and been discharged, he no longer occupies the official character of receiver, and no valid judgment can be rendered against him in such capacity, and this is true notwithstanding his discharge occurred after an action asserting liability against him in his official capacity had been begun by leave of the court appointing thp receiver, p. 617.</p> <p>5. Beceivers. — Sale of Property Reserving Liability and Remedy Against Purchaser for Receivership Liabilities.- — Discharge of Receiver Pending Action Against Sim Alone. — Effect of Judgment Thereafter as Against Purchaser. — Where the receivership property has been sold and delivered by the receiver under an order of sale, providing a remedy against the property in the hands of the purchaser for the satisfaction of all claims for damages for personal injuries occasioned by the receiver, and retaining jurisr diction in the court to enforce the provisions of the order; and where the plaintiff has not proceeded under such remedy, but has proceeded against the receiver alone, in the ordinary way, a judgment rendered in such action, against the receiver, after his ' final and unconditional discharge, the purchaser not having been made a party at any stage of the action, could have no binding force against the purchaser, and would not authorize the court to declare a lien on the receivership property in the hands of the purchaser, nor to otherwise enforce payment, although such action was begun before the receiver was discharged, p. 621.</p>

From Shelby Circuit Court; David L. Wilson, Special Judge. Action by Jacob W. Girton against the Public Service Commission. From -a judgment enjoining the defendant from enforcing an order regulating telephone rates, the defendant appeals.

From Delaware Circuit Court; W. A. Thompson, Judge. Mandamus by the State of Indiana, on the relation of Center School Township, Delaware county, against Edward Tuhey and others as trustees of the school city of Muncie, Delaware county. ' From a judgment for the defendants, the relator appeals.

From St. Joseph Superior Court; T. 'D. Mott, Judge. Action by tbe North Indiana Brick Company against the Portage Brick Company. From an inter: locutory order, appointing a receiver for the defendant, the defendant appeals.

<p>1. Embezzlement. — Indictment.—Allegation of Possession. — In an indictment for embezzlement, an averment that defendant had control and possession of hjs employer’s money by virtue of his employment is regarded as an allegation that he held rightful possession in a trust capacity, p. 648.</p> <p>2. Embezzlement. — Indictment.—“Director, Agent and Employe." —In an indictment for -embezzlement an averment that the de- ■ fendant was the agent and employe of a corporation is not made insufficient by the further charge that he was a director, there being no law forbidding a director to be an agent or employe, p. 649.</p> <p>3. Embezzlement. — Indictment.—Harmless Error. — Swpl/as Allegation of Stealing. — "Where a count of an indictment was for embezzlement, stating facts showing that the alleged taking constituted embezzlement, the use of the word “steal” in connection with the charge of taking, purloining, secreting and appropriating to his own use, must be regarded as surplusage, and where it clearly appears that the • defendant was tried thereon for embezzlement only, under instruction that such count charged only embezzlement, and the statute defining such offense was recited in the instruction, and the. verdict recited that it was for embezzlement and on such count, the use of such surplusage was harmless and overruling the motion to quash was not reversible error, p. 649.</p> <p>4. Indictment and Information. — Pleading Conclusions. — Statute.-.Validity. — Chapter 62, Acts 1915 p. 123, §343a Burns’ Supp. 1918, declaring that allegations of conclusions shall be treated as averments of all facts necessary to sustain such allegations, is void under the Constitution, as applied to criminal pleading, p. 650.</p> <p>5. Indictment and Information.' — Joinder of Offenses. — Bmbezzlement and Larceny. — No Bleationhy Stale Necessary. — As §185, Acts 1905 p. 584, §2050 Burns 1914, expressly authorizes the joinder of counts for larceny and embezzlement of the same property, no election by the state can be required when the indictment is sq drawn and it does not appear from the evidence that different sums are involved, p. 651.</p> <p>6. Criminal Law. — Appeal.—Refusal of Peremptory Instruction. —Motion for New Trial. — Assignment of Brror. — The refusal of the trial court to peremptorily instruct the jury for the defendant at the close of the evidence offered by the state, cannot be assigned independently as error, but must be included in the motion for a new triai. p. 651.</p> <p>7. Criminal Law. — Refusal of Peremptory Instruction. — Waiver of Motion. — The introduction of evidence by an accused after the refusal of the trial court to give the jury a peremptory instruction in his favor at the conclusion of the state’s evidence, waives the motion for such instruction, p. 651.</p> <p>S. Criminal Law. — Instructions.—Refusal for Incompleteness or Over-emphasis. — It is not improper to refuse to give instructions requested by an accused where in each some element of a complete instruction is omitted or words of emphasis are inserted that expose the instruction to misconstruction as an attempt to control the jury in matters within its exclusive province, p. 652.</p> <p>9. Criminal Law.' — Instructions.—Jury as Judges of the Law. — In a prosecution for embezzlement, an instruction is inaccurate that tells the jury that they should judge the law as it is found in the statutes, because all the law of Indiana is not so found, and the common law has to be looked to for a complete definition of such crime, p. 652.</p> <p>10. Embezzlement. — Instructions. — Disjunctive Characterization and Recital. — In a prosecution for embezzlement, an instruction authorizing a conviction if the jury found accused to be a director, agent or employé, and that as such he had access, to, control or possession of, the funds, without any mention being made of such control and possession being by virtue of his employment, is 'fatally defective in stating the crime of embezzlement, and in effect authorizes a conviction upon facts constituting larceny in case the proof showed only that the accused was a director and as such had access to the funds, p. 653.</p> <p>11. Criminal Law. — Instructions.—Presumption of Knowledge by Accused.■ — Embezzlement.—It was improper, in a prosecution for embezzlement of a stated sum of money, to instruct the jury that, as a director of the corporation, the accused would be presumed to know the amount and value of the paper and securities held .by the company, as such instruction was not pertinent to the issues, p. 655.</p> <p>12. Criminal Law. — Instructions.—Presumption Against Accused. —Presumption of Innocence. — An instruction that accused would be presumed to know certain' facts by virtue of his office was erroneous as violating the rule that all presumptions favor the innocence'of the accused, p. 655.</p> <p>13. Criminal Law. — Instructions.—Larceny and Embezzlement Charged. — Other Offenses. — In a prosecution under two counts for larceny and embezzlement under §§2269, 2285 Burns 1914, §§377, 392, Acts 1905 p. 584, it was error for the court to impliedly assume by an instruction that the accused was guilty of an offense in becoming in any manner indebted to the corporation under other laws relating to transactions between trust' companies and their directors, p. 656.</p> <p>14. Criminal Law. — Larceny and Embezzlement. — Instructions.— Authorizing Conviction for Offense Not Charged. — Where the indictment in one count charged the larceny of a sum of money, and the other count charged embezzlement of the same sum of money, an instruction authorizing conviction if by means of a draft the accused had withdrawn that sum, was erroneous, as authorizing conviction for a crime with which the accused was not charged by the indictment, p. 658.</p> <p>15. Criminal Law. — Embezzlement. — Instructions. — Failing to Mention “Money” as Charged. — Under an indictment for embezzling a stated sum of money, an instruction authorizing conviction if the jury found that the accused had embezzled the sum stated, no mention being made that such sum so embezzled must be in money, was erroneous, p. 659.</p> <p>16. Embezzlement. — Evidence Insufficient' to -Sustain Verdict.— Evidence that accused was a director and former president of a trust company, and that he cashed at the trust company a draft on another company with which he had no funds, but which failed to show that the accused was in the employment of the trust company or that by virtue of such employment he had possession of its money as charged, and converted it to his own use with felonious intent, is insufficient to sustain a verdict of guilty of the crime of embezzlement, since an accused cannot lawfully be found guilty except upon proof of the facts alleged, pp. 662, 663.</p> <p>17. Embezzlement. — Director of Trust Company. — Control of Money. — Mere proof that accused was a director of a trust company is insufficient to establish that kind of a trust relation toward the company’s money necessarily involved in the offense of embezzlement, since the powers and duties of a director of a loan and trust company, as defined by §4949 Burns 1914, Acts 1907, ch. S3, p. 109, do not necessarily include any such control and possession, p. 663.</p>

From Hancock Circuit Court; Earl Sample, Judge. Action by Jacob Miller against Etta Willis and another. Prom a judgment for the defendants, the plaintiff appeals. (Transferred from Appellate Court under §1405 Burns 1914, Acts 1901 p. 590.)

<p>From Jay Circuit Court; E. E. McGriff, Judge.</p> <p>Prosecution by the State of Indiana against Omer Ginter. From a judgment of conviction, the defendant appeals.</p>

<p>1. False Pretenses. — BeKanee on Pretenses. — Proof.—In a prosecution for obtaining money under false pretenses, under §2688 Burns 1914, Acts 1907 p. 431, it must be established that the false pretense alleged was the controlling cause which induced the owner to part with his property, p. 679.</p> <p>2. False Pretenses. — Warranty of Title by Bill of Sale.- — A covenant in a bill of sale that the seller was the lawful owner of the goods, that they were free from incumbrance, that he had the right to sell them, and that he warranted the title thereto, is a mere civil warranty, and .cannot be the basis of a prosecution for obtaining money under false pretenses, p. 683.</p> <p>3. Criminal Law. — Appeal.—False Pretense. — Where the record fails to disclose any evidence to establish the fact that the false pretense alleged was the controlling cause which induced the owner to part with his property, a conviction under ?2588 Burns 1984,Acts 1907 p. 431, is not sustained by sufficient evidence and is contrary to law p. 683.</p>

<p>1. New Trial.-Motions.-Memorandum Not Required.-The requirement o~ ~5, Acts 1917 p. 526, §691e Burns' Supp. 191~6~a~ rne~nor~nth~, specifying the reasgus ~hy a motion should .be susiao1~ ~tIy to a ~notioi~ for ne~ ~tFià1. p~ O8~~</p> <p>2. Trial.-Directed Verdict. - Motion by Defendant. - Rules for CoivsiZerin~g Eviience by Tria~Z Uo~rt.-The trial court, in i~u1ing on a motion made by defendant for a directed verdict, or on his demurrer to the evidence, must consider only the evidence most favorable to plaintiff, excluding all conflicting evidence favorable to defendant, and must regard as proved all facts supported by such evidence and all facts that can be reasonably inferred therefrom. p. 686.</p> <p>3. Aepeal.- — Directed Verdict. — Evidence.—Sufficiency.—When the sufficiency of the evidence to sustain a directed verdict is presented on appeal, the court must consider only the evidence most favorable to appellant, excluding all conflicting evidence favorable to appellee, and must regard as proved all facts supported by such evidence and all facts that can be reasonably inferred therefrom, p. 687.</p> <p>4. New Trial. — Motion.—Evidence.—Sufficiency.—The trial court, in passing on a motion for new trial which attacks the sufficiency of the evidence to sustain a verdict is not restricted to a consideration of the evidence most f-avorable to the verdict, but can weigh the evidence presented, p. 687.</p> <p>5. Railroads. — Negligence at Crossing. — Evidence.—Rails Electrified. — Evidence that flashes of light had for two or three days prior to the accident been observed to pass between the joints of the rails of an interurban electric railway, at the highway crossing where plaintiff’s horse took fright and ran away, injuring plaintiff, and that two or three horses had there received shocks of electricity some time before the accident occurred was sufficient to require the court to submit to the jury the issue of the company’s negligence in failing to discover and remedy the dangerous condition of the track, p. 687.</p> <p>6. Railroads. — Crossing.-—Fright to Morse. — Evidence.—Evidence that the rails of an interurban electric railway were charged with electricity at a highway crossing, and that plaintiff’s horse, which was ordinarily gentle, became frightened while crossing the track at said point and ran away, even though there be no direct evidence that the foot of the horse touched the charged rail, is sufficient to require the court to submit to the jury the question whether the horse was frightened by electric shock or by box cars standing nearby on the tracks of another company. p. 688.</p>

<p>From Marion Criminal Court (50,525); James A. Collins, Judge,- ■ . ;</p> <p>Prosecution by the State of Indiana against Phil Lytle. From a judgment of conviction, the defendant appeals.</p>

<p>From Allen Circuit Court; Sol A. Wood, Judge.</p> <p>Prosecution by tbe State of Indiana against Fred B. Miles. From a judgment of conviction, tbe'defendant appeals.</p>

<p>From Lake Criminal Court; Martin J. Smith, Judge.</p> <p>Prosecution by the' State of Indiana against Dan Trkulja. From a judgment of conviction, the defendant appeals.</p>

<p>From Lake Criminal Court ■,Martin J. Smith, Judge.</p> <p>Prosecution by the State of Indiana against Thomas M. Batchelor.- From a judgment of conviction, the defendant appeals.</p>