Volume 190 — Indiana Reports

From Lake Circuit Court; Willis C. McMahan, Judge. Action by William W. Crapo and others against the City of Gary and others. From a judgment for defendants, the plaintiffs appeal.

<p>1. Criminal Law. — Prosecution. ■— Condonation by Injured Pcorty. — It is the state that is offended by a criminal offense, and no individual, even though he be the complaining witness, has any power to condone the offense or to control the action of the state in vindicating its dignity by punishing an infraction of its laws. p. 32.</p> <p>2. Extradition. — Fugitive from Justice. — Habeas Corpus.- — In habeas corpus for the enlargement of one held under extradition proceedings, that the complaining witness gave his consent and advice to the departure of the accused from the demanding state, is immaterial on the issue of fugitive from justice, p. 34.</p>

<p>From Bartholomew Circuit Court; Will M. Sparks, Special Judge.</p> <p>Election contest by Charles D. Glick against Charles G. Hunter. From a judgment for eontestee, the contestor appeals.</p>

<p>1. Master and Servant. — Action for Servant’s Death. — Evidence. — Sufficiency.—In an action against a railroad company under the federal Employers’ Liability Act (§8657 et. seq., U. S. Comp. Stat. 1916, 35 Stat. at L. 65) for the negligent death of its servant, a judgment for the plaintiff will be reversed upon a showing by the defendant that the decedent’s death, under the evidence adduced, resulted from mere accident, or that the cause was left to conjecture, or that it was not the result of any negligent acts pleaded, p. 63.</p> <p>2. Master and Servant. — Negligence.—Contributory Negligence. — Sufficiency of Evidence. — Inferences.—In an action for the death of a bridge repair man, who, while operating a derrick attached to a push car, attempted to change his position and as he did so the crank slipped from the derrick and he fell to his death, the evidence is reviewed and held sufficient to warrant an inference that the decedent attempted to change his position to better his advantage, that such change would have been unnecessary with two men at the crank as was customary and that the sudden release of the crank caused him to lose his balance and fall; and, under such circumstances, the decedent was not contributorily negligent as a matter of law. pp. 63, 64.</p> <p>3. Negligence. — Proof.—Circumstantial Evidence. — Though the plaintiff has the burden of proof as to negligence in the respects charged, such proof may be made either directly or circumstantially. p. 64.</p> <p>4. Master and Servant. — -Negligence.—Adequacy of Working Force. — Jury Question. — In view of evidence tending to show that the plaintiff’s decedent fell to his death as he attempted to change his position to better his advantage, that as he did so the crank of a derrick that he was operating slipped from the shaft, causing him to fall, and that the change of position would have been unnecessary with two men at the crank as was customary, the question whether the defendant was negligent in failing to furnish an adequate working force for such work was one of fact. p. 64.</p> <p>5. Master and Servant. — Contributory Negligence. — Federal Employers’ Liability Act. — In an action under the federal Employers’ Liability Act (§8657 et seq., U. S. Comp. Stat. 1916, 35 Stat. at L. 65) for the negligent death of a servant, the decedent’s contributory negligence is to be considered only in mitigation of damages unless such negligence is shown to be the sole cause of the injury, p. 65.</p> <p>6. Trial. — Instructions.—Servant’s Assumption of Risk. — Sufficiency. — In an action under the federal Employers’ Liability Act (§8657 et seq., U. S. Comp Stat. 1916, 35 Stat. at L. 65) for the death of a servant, an instruction on the doctrine of assumption of risk clearly pointing out the negligence relied on by the plaintiff, and then stating under what circumstances the decedent would be held to have assumed the risk of such negligence, was not erroneous as calculated to mislead because of a general statement therein, in defining the doctrine, as to the assumption of defects as to appliances and place of employment — matters not in issue' — where from the instruction the jury could not have understood that there was any claim of failure in the defendant’s duty in furnishing appliances or the place to work. p. 66.</p> <p>7. Evidence. — Nonexpert Testimony. — Competency.—In an action for the negligent death of a servant, based partially on the inadequacy of the working force, the testimony of a former foreman of the work, when asked the reason for his using two men in the position in which the decedent was working alone when he met his death, answered that, because of the great weight of the timbers being handled it required that number of men in his opinion, was not objectionable as being a conclusion invading the jury’s province, where the witness not only showed himself to be well acquainted with the work, but also detailed all the facts connected therewith, since, though the witness were a nonexpert, his answer was entitled to some weight a,s an opinion from facts observed that could not be fully described to the jury. p. 66.</p> <p>8. Evidence. — Master .and Servant. — Adequacy of ' Working Force. — Opinions.—Since the number of men necessary to operate a hand derrick on a railroad push car is not a matter of common knowledge, a witness shown to have had long experience in the use of such derrick and a special knowledge of the subject-matter, may give an opinion thereon as an expert, the weight of which is for the jury. p. 67.</p> <p>9. ■ Evidence. — Negligent Death of Servant. — Opinions of Coworkers. — Admissibility.—In an action for the negligent death, of a bridge repair man, who, while operating alone the crank of a hand derrick, fell to his death when the crank slipped from the shaft, the plaintiff’s theory being that the accident was partially due to the inadequacy of the working force, the statements of a coworker, who with another operated the other crank of the derrick, that he was pretty well exhausted by the work and that it took all the strength he had, were not mere opinions, but conclusions of fact founded on personal feelings incapable of being plainly stated to the jury. p. 67.</p>

From Allen Circuit Court; John W. Eggeman, Judge. Action by John Hessler, administrator of the estate of Joseph F. Parrant, deceased, against the Federal Casualty Company, of Detroit, Michigan. From a judgment for only the amount tendered by the defendant, the plaintiff appeals.

<p>1. Criminal Law. — New Trial. — Newly-discovered Evidence.— Where it appears that the defendants had a preliminary hearing’ within two months after the commission of alleged larceny of tires and within three months thereafter were indicted and convicted in the criminal conrt nnder a charge stating specifically the date of the offense, during which time they were at liberty on bail, that the date alleged was the only date testified to by any witness, that they failed to offer any evidence of being elsewhere, but merely denied being present and taking part in the crime, that they testified that the tires were put on their automobile by a man in whose home other .stolen tires were found, and that they were represented by • the same attorney in both hearings, the affidavit of one of the defendants, made five months after the indictment, stating his inability to remember until after the trial that he was in jail on the date of the offense, with an affidavit of the sheriff that a man of the same name was in jail on such date, is insufficient to warrant a new trial on the ground of newly-discovered evidence, p. 79.</p> <p>2. Criminal Law. — Prejudicial Cross-examination by the State. Effect. — Though persistent, incompetent and prejudicial cross-questions by the state’s attorney, to which objections were sustained, might constitute reversible error, such is not the rule where it appears that only one incompetent question was asked each of four witnesses and it does not clearly appear that they were asked in bad faith, nor that the defendant was prejudiced thereby, p. 80.</p> <p>3. Criminal Law. — Motion for Neto Trial.- — -Failure to Include Matter Complained of. — A complaint by the accused of an answer by a witness presents no question where it appears that the question referred to in the motion for new trial was not answered, and the answer in response to a different question was not referred to in such motion, p. 81.</p> <p>4. Criminal Law. — Evidence.—Rebuttal.—Where the accused, to meet the state’s testimony that stolen tires were.'carried away in an automobile of a certain make, introduced testimony that they had not bought such.automobile until after the date of the offense, a declaration by one of the accused, prior to the offense, that he was thinking of buying the automobile and was to try it out before deciding, was admissible to rebut the defense and not merely impeaching, p. 81.</p> <p>5. Criminal Law. — Evidence.—Rebuttal.—Discretion of Court. —It is within the discretion of-the trial court to permit further evidence to be given on rebuttal which should properly have been given in chief, and there was no error in admitting such evidence where it does not appear that the defendants sought to introduce any further evidence in defense thereof or were denied the privilege of introducing such evidence, p. 81..</p> <p>6. Criminal Law. — Evidence.—Conversation with Counsel. — Admissibility. — The objection to a question of the defendants’ counsel concerning the time when the witness spoke to such counsel at the hearing in police court was properly sustained, since, the conversation not being admissible, the time was immaterial. p. 82.</p> <p>7. Criminal Law. — Conversations about Tires not Subject of Larceny. — Admissibility.-—-In the trial of defendants for larceny of tires, a conversation between witnesses, in the presence of one defendant, concerning the purchase of tires several months before the alleged offense, which conversation did not relate to the stolen tires, was properly excluded, p. 82.</p> <p>8. Criminal Law. — Cross-examination of Accused as to other Indictment. — Discretion of Court. — The control of the cross-examination of witnesses rests largely in the sound legal discretion of the trial court, and such discretion is not shown to have been abused in permitting cross-examination of an accused and one of his witnesses concerning indictments for another crime pending against them, where it is not shown that the court did not limit the consideration of the evidence to the question of the credibility of the witnesses, since the Supreme Court will presume that the trial court did whatever was required in that respect, p. 82.</p>

<p>From Gibson Circuit Court; S. L. Vwndeveer, Judge.</p> <p>Prosecution by the State of Indiana against George Brewster. From a judgment of conviction, the defendant appeals.</p>

<p>1. Assault and Battery. — Evidence.—Materiality.—In a prosecution for assault and battery upon the driver of a wagon with which the d-efendant’s automobile collided, where the' prosecuting witness testified that the assault was without cause, and the defendant testified in effect that, though he believed the prosecuting witness intended to throw a chunk of coal at him, he proceeded toward the prosecuting witness, that the latter dropped the coal and raised a shovel as though to strike, but that defendant continued going forward, knocked the shovel out of the prosecuting witness’ hand and then struck him, evidence as to whether the defendant ran his automobile into the wagon intentionally was immaterial, p. 89.</p> <p>2. Criminal Law. — Assault and. Battery. — Opinion Evidence.— Condition of Person Assaulted. — In a prosecution for assault and battery, the opinion of the physician who attended the prosecuting witness whether, at the end of ten days or two weeks, a person who had suffered from such injuries as those received by the prosecuting witness would be in a strong or a weakened condition because of the injuries, was competent, the physician having shown himself qualified to give an opinion. p. 89.</p> <p>3. Criminal Law.' — Instruction on Reasonable Doubt. — Necessity. — The failure to give instructions on the subject of reasonable doubt and as to the jury being the judges of the law and facts, though not a commendable practice, is not reversible error in the absence of a request for such instructions, p. 90.</p>

<p>From Clark Circuit Court; James W. Fortune, Judge.</p> <p>Suit by Leona Bottorff against Birdcell Bottorff. From a judgment for the plaintiff, the defendant appeals.</p>

From Knox Circuit Court; Thomas B. Coulter, Judge. Action by the city of Washington, Indiana, against the Public Service Commission’ and others. From a judgment for the defendants, the plaintiff appeals.

<p>1. Lis Pendens. — Improvement Lien.- — -Forecloswre.-—-Attorney’s Fees. — Since §8721 Bums 1908, Acts 1907 p. 257, requiring lis pendens notice to be filed in order to recover attorney’s fees in the foreclosure of an improvement lien, was repealed by Acts 1909 p. 412 (§8721 Burns 1914), which omitted the provision as to lis pendens notice, it was not necessary to file such notice in order to recover attorney’s fees in such a proceeding, p. 113.</p> <p>2. Municipal Corporations. — Improvement Lien. — Forecloswre. —Attorney’s Fees. — Amount.—Evidence.—Admissibility.—In an action to foreclose an improvement lien, it was error to allow an attorney’s fee in excess of the maximum amount authorized by statute (§8721 Burns 1914, Acts 1909 p. 412), though it was permissible to admit testimony as to what would be a reasonable fee even if the witness placed the amount above the maximum limit, p. 114.</p> <p>3. Costs. — Appeal.—Remittitur.—On appeal by a landowner from a judgment in an action to foreclose an improvement lien, ■ where the only question of merit raised was the excessiveness of the attorney’s fee, and the statute limiting such fee was not called to the court’s attention, the amount being attacked only on the general ground that the amount of the recovery was too large, and the error in allowance of the fee clearly appearing in the special findings and conclusions of law, the Supreme Court will, in view of §§703, 706 Burns 1914, §§661, 664 R. S. 1881, adjudge the costs against the appellant on appellee entering a remittitur of the excess allowed on the attorney’s fee. p. 115.</p>

<p>From Johnson Circuit Court; W. E. Deupree, Judge.</p> <p>Action by Joseph Ropp against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.</p>

<p>1. Intoxicating Liquors. — Ownership or Lease of Place.— Proof. — In a prosecution for keeping and operating a place for the illegal sale of intoxicating liquors, a showing that the defendant owned the intoxicating liquors, that he was interested in the sale thereof and shared the profits, was sufficient to convict, though he was not the owner, lessee or proprietor of the place where the liquors were kept or where the unlawful sales were made. p. 137.</p> <p>2. Intoxicating Liquors. — Keeping Place. — Possession.—Evidence. — Sufficiency.—In a prosecution for conducting a place where intoxicating liquors are illegally sold, though the state is not required to prove that the accused is the owner,, lessee or proprietor of the place in. order to establish a prima facie case, it must not only show that the liquors so sold were kept in a room, building or other place, but it must show beyond a reasonable doubt that the accused had the custody or possession of the liquors, p. 138.</p> <p>3. Intoxicating Liquors. — Sale.—Interest of Lessor in Business. — Knoivledge.—Effect.—In a prosecution for operating a place for the illegal sale of intoxicating liquors, it was proper to instruct that, if the defendant had' leased the place to another, but had an interest therein as an individual, partner, director or other interest, and such interest so connected him with the business as to give him knowledge of the facts in the conduct of the business, the jury could consider such facts in determining whether the state had made out a case. p. 139.</p> <p>4. Criminal Law. — Instructions.-—Necessity of Requests.— Lease. — Delivery.—In a prosecution for operating a place for the illegal sale of intoxicating liquors, an instruction that if a lease of the premises was not delivered to the lessee or to any one for him, it was never executed, was correct; and if the defendant wanted the jury more fully instructed on what facts would constitute a delivery, or on the presumption arising from taking possession by the lessee, he should have tendered such an instruction, p. 139.</p> <p>5. Intoxicating Liquors. — Keeping Place. — Acts Committed Out of Defendant’s Presence. — Instruction.—In a prosecution for operating a place for the illegal sale of intoxicating liquors, a requested instruction that acts of third parties out of the defendant’s presence, and not shown to have been done at his instigation, direction or command, should not be considered as affecting the defendant’s guilt, was properly refused in view of evidence of the defendant’s conduct in relation to the business from which the jury might have found that he and others transacting business at that place were partners, p. 139.</p> <p>6. Criminal Law. — Instructions.—Requests Covered by Instructions Given. — Knowledge.—In a prosecution for operating a place for the illegal sale of intoxicating liquors, an instruction that if the defendant was owner of the building and leased it to another with knowledge that it was to be used for the unlawful safe of intoxicating liquors, such knowledge would not be sufficient to sustain conviction of the charge, held properly covered by the court’s instruction that the mere fact that the defendant had knowledge of the illegal business, or that he while acting for persons so conducting it, made occasional sales of the liquors, would not be sufficient to sustain a conviction, p. 140.</p> <p>7. Intoxicating Liquors. — Keeping Place. — Continuous .Viola>■ tion. — Instruction.—Proof that the defendant conducted a place for the illegal sale of intoxicating liquors during any part of the two years previous to the return of the indictment, is sufficient to sustain a conviction for keeping a place for such purpose; hence, an instruction requiring the jury to find that the business was that of the defendant during all of such time was properly refused, p. 142.</p> <p>8. Criminal Law. — Evidence Tending to Prove Other Crimes.— Competency. — In a prosecution for operating a place for the illegal sale of intoxicating liquors, where the accused denied that he was keeper of the place, evidence that he authorized or directed the repayment of money lost at gambling in such place was competent as tending to prove that he operated the place, though it tended to prove an additional crime, p. 143.</p> <p>9. Intoxicating Liquors. — Keeping Place. — Ownership of Business. — Deposit Slips as Evidence. — In a prosecution for operating a place for the sale of intoxicating liquors, where evidence had been introduced tending to show that the accused was at the place at times, collected money and put it in the safe, engaged and discharged help, paid bills for beer and sold it at times, paid back money lost at gaming, regularly filled out deposit slips on a bank, and stated on one occasion that he was going to the bank to make a deposit, it was proper to admit the deposit slips in evidence and to show that the accused regularly made deposits and that the slips were in his own handwriting, p. 144.</p> <p>10. Criminal Law. — Self-serving Declarations. — Admissibility. Res Gestae. — In a prosecution for operating a place for the illegal sale of intoxicating liquors, a statement by the accused amounting to a self-serving declaration, made to an officer who aided in a raid of the place, is not admissible as a part of the res gestae, where the state did not rely on evidence obtained at that raid, and where there was no evidence connecting the statement with the raid as to time. p. 144.</p> <p>11. Criminal Law. — Evidence.—Self-serving Declarations. — Admissibility.- — In a prosecution for keeping a place for the illegal sale of intoxicating liquors, where the state offered no part of a conversation between the defendant and a police officer participating in a raid of the place, such raid having been only incidentally referred to by a witness for the state in testifying that the defendant claimed the liquor seized, a self-serving declaration claimed to have been made by the accused to the officer in the conversation was properly excluded, since it is only when the state introduces a part of the conversation that the defense is entitled to introduce all that was said. p. 145.</p> <p>12. Criminal Law. — Impaneling Jury. — Assignment of Errors. —Since the trial of a criminal case begins when the jury is sworn, alleged error occurring in empaneling the jury may not be assigned as “errors of law occurring at the trial” under the seventh clause of §2158 Burns 1914, Acts 1905 p. 584, §282, such error being assignable under the first clause of such section. p. 146.</p>

From Bartholomew Circuit Court; John W. Donaker, Judge. Action, by Joseph Babb and others against William H. Davis, executor of the last will of Mary L. Taylor, deceased, and others. From a judgment for plaintiffs, the defendants appeal.

<p>1. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Assumption of Risk. — Employers’ Liability Act.— Where iron rods piled upon the floor beside a table on which a servant was engaged in making wire screens made the place of work dangerous, and the servant notified the employer’s foreman of the danger, but was told to return to his duties and that the rods would be removed at once, his resumption of work was not contributory negligence which would defeat a recovery under the Employers’ Liability Act (Acts 1911 p. 14b, §8020a et seq. Burns 1914) for injuries from slipping on the rods thirty minutes later, nor did it amount to an assumption of risk from negligent failure to remove the rock. p. 194.</p> <p>2. Master and Servant. — Injuries to Servant. — Assumption of Risk. — Promise to Repair. — Where the master has been notified of a defect making the place of work dangerous, and he has promised to remedy the defect and directed the workman to continue at his employment, the servant does not assume the risk of injury by reason of su,ch defect by remaining at work with knowledge of it for a reasonable .time within which to make the promised repairs, p. 195.</p> <p>3. Master and Servant. — Injuries to Servant. — Complaint.— Sufficiency. — Employers’ Liability Act. — In a servant’s action for personal injuries, complaint held to state a cause of action under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns 1914). p. 195.</p> <p>4. Trial. — Argument.—Misconduct of (Counsel. — Reference of Defendant’s Financial Condition. — In a servant’s action against the master for personal injury, a statement by plaintiff’s counsel in argument that “it does not matter whether this defendant corporation is worth one million or eight million dollars, and it does not matter whether the stock of this defendant is worth $100 or $400 a share,” was error, where it was not based on the evidence; nor was it justified by opposing counsel’s statement that it was immaterial whether defendant was a farmer or a corporation, p. 195.</p> <p>5. Trial. — Interrogatories.—S cop e. — S tatut e. — Under §572 Burns 1914, Acts 1897 p. 128, the right to submit interrogatories to be answered in case a general verdict is returned only extends to questions of fact, and questions relating to mere subsidiary facts to be considered in deciding the ultimate facts in issue, and which were likely to impress th$ jury that the only question before them was Low much damages a corporation ought to .pay a servant injured as plaintiff was, were improper. p. 196.</p>

<p>1. Master and Servant. — Injuries to Servant. — Employers’ Liability Act. — Complaint.—Sufficiency.—In a- servant’s action for . injuries under the Employers’ Liability Act (Acts 1911 p. 145, §8020a, et seq. Burns 1914), complaint held to sufficiently plead that the employer was engaged in a business in this state in which it was employing five or more persons, that its agents, servants and employes were guilty of negligence in the matter of making and keeping the place of work and appliances safe, under the changing conditions of employment, and that an injury to plaintiff resulted in whole or in part from such negligence. p. 203.</p> <p>2. Judgment. — Personal Injuries. — Verdict for Some Defendants. — Bight of Other Defendant to Judgment. — In an employe’s action for personal injuries, where the complaint alleged that the defendants, each and all of them, did or omitted to do the things alleged, a verdict for some of the defendants did not require the rendition of judgment fox the other defendant found by the jury to have been negligent, p. 204.</p> <p>3. Judgment. — Motion for Judgment. — Questions Presented.— Where in an action against several defendants for personal injuries, the verdict was for all the defendants except one, the latter’s motion for judgment on the verdict presented no question under the evidence, but only the question whether the verdict had decided against movent the issues joined on the pleadings. p. 204.</p> <p>4. Master and Servant. — Injuries to Servant. — Verdict.—Evidence. — Sufficiency.—In an action against barge owners and a tie manufacturer for injuries to an employe of the latter, where verdict was rendered for the barge owners, evidence held sufficient to sustain a verdict against the employer and in favor of the barge owners, p. 204.</p> <p>5. Master and Servant. — Injuries to Servant. — Action Under Employers’ Liability Act. — Instructions.—Assumption of Bisk. —In an action under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Bums 1914), for injuries to an employe who was injured while unloading cross-ties from a barge into a freight car because the gangplank was insecurely fastened, held that defendant on proper request was entitled to instructions on the subject of assumed risk. p. 207.</p> <p>6. Appeal. — Beview.—Befusal of Instructions. — Cure-by Other Instructions. — In an action for personal injuries, the refusal of the court to instruct on assumed risk was not cured by the giving of instruction that plaintiff could only recover upon proof that negligence of defendant was a proximate cause of the injury, p. 210.</p> <p>7. Trial. — Befusal of Instructions. — Cure by Other Instructions. —Correct instructions on one subject embraced within the issues cannot be a substitute for instructions covering a different subject also in issue. (J. Wooley Coal Company v. Te-vault [1918], 187 Ind. 171, explained and disapproved in part.) p. 210.</p> <p>8. Master and Servant. — Injuries to Servant. — Assumption of Bisk. — Instructions.—Sufficiency.—In an employe’s action for personal injuries under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Burns, 1914), instructions that if plaintiff’s injury was caused by any of the risks incident to the work, and not by the alleged negligence of the employer, .there could be no recovery, held sufficient on the assumption of risk, although the expressions “assumed risk” and “perils incident to work” were not used. p. 211.</p> <p>9. Trial. — Instructions.—Contributory Negligence. — Burden of Proof. — In an employe’s action for personal injuries under the Employers’ Liability Act (Acts 1911 p. 145, §8020a et seq. Bums 1914), instructions on burden of proving contributory negligence which failed to inform the jury that they must consider all the evidence, whether introduced by plaintiff or defendant,. held sufficient, in the absence of a request for more complete instruction and in view of other instructions given. p. 212.</p> <p>10. Trial .-r — Incomplete Instructions. — Duty to Request Proper Instructions. — Where instructions, though correct as to the matters embraced therein, are incomplete, it is the duty of the party desiring more complete instructions to tender them, with a proper request that they be given, p. 212.</p>

<p>1. Forgery. — Evidence.—Sufficiency.—In a prosecution for forging indorsement of payee’s name on a cheek, evidence held sufficient to sustain a conviction, p. 215.</p> <p>2. Criminal Law. — Appeal.—Review.—Evidence.—Verdict.—• The court on appeal, on finding that there is evidence which, if it stood alone and was undisputed, would sustain the verdict, will not pass upon the weight of conflicting evidence to overthrow the verdict, p. 217.</p> <p>3. Forgery. — Irrelevant Evidence. — Exclusion.—In a prosecution for forging indorsement of payee’s name on a check, where it appeared that payee and defendant were officers of a corporation the name of which defendant also indorsed upon the check, it was not error to strike out as irrelevant testimony by a third officer of the corporation as to the financial control of the company, the indorsement of -the corporation’s name not having been charged to have been an offense, p. 217.</p> <p>4. Witnesses. — Cross-Examination.—Scope.—In a prosecution for forging the indorsement of payee’s name on a check, where it appeared that payee and defendant were officers of a corporation, and that the check was part payment of premium on notes given by them to the maker of the check, a question on cross-examination of the payee of the check, “You thought by denying his (defendant’s) authority to. sign your name on that check you possibly would get all of that check?” was improper, where the witness had not testified to anything to which such question was pertinent, since the right to inquire into the motives of a witness does not include the right to inquire if he is not committing perjury for reasons not in evidence and about which he has not been interrogated, p. 218.</p> <p>5. Forgery. — Evidence.—Admissibility.—Check with Forged Indorsement.- — In a prosecution for forging the indorsement of payee’s name on a check, the check was properly permitted to be read in evidence over the objection that the evidence showed the crime of uttering forged paper such evidence being pertinent to the issue joined on the indictment and plea thereto, p. 219.</p> <p>6. Forgery. — Evidence.—Admissibility.—Telegram Sent After Commission of Offense. — In a prosecution for forging the name of payee on a check, a telegram from one bank to the bank paying the check sent after the forgery was committed, if committed at all, the telegram being offered to rebut fraudulent intent on the part of defendant in signing payee’s name, was properly excluded, p. 220.</p> <p>7. Criminal L a w. — Forgery.—Evidence.—Admissibility.—Letter From Makeo- of Forged Check. — In a prosecution for forging an indorsement on a check, a letter from the maker, who lived in another state, to an officer of a corporation of which defendant was also an officer, offered to rebut fraudulent intent, was inadmissible as being a mere ex parte statement, p. 220.</p> <p>8. Criminal L a w. — Forgery.—Evidence.—Admissibility.—Defendant’s Statement as to Contents of Letter. — In a prosecution for forging an indorsement on a check, a statement of defendant to the bank paying the check as to contents of a letter written by the maker after the commission of the offense, the evidence being offered to rebut fraudulent intent, was inadmissible. p. 220.</p> <p>9. Criminal Law. — Forgery.—Evidence.—Res Gestae. — Letter from Maker of Cheek. — In a prosecution for forging the indorsement on a check, a letter written by the maker in ignorance of the indorsement, six days after the alleged offense was committed, held not to be a part of the res gestae, and so admissible to rebut fraudulent intent, p. 220.</p> <p>10. Criminal Law. — Evidence.—Rebuttal.—Repetition.—I n a prosecution for forging the indorsement of payee’s name on a check, where, after payee had denied having any conversation with defendant relative to authorizing him to make the indorsement, defendant introduced evidence of himself and another that such indorsement was authorized by payee in a certain telephone conversation, it was proper to permit payee, testifying in rebuttal, to specifically deny that authority was given defendant in such conversation, p. 221.</p> <p>11. Criminal Law. — Evidence.—Repetition.—Discretion of Court. — The extent to which evidence given in general terms shall be repeated in answer to specific questions is controlled largely by the sound legal discretion of the trial court, which will be reviewed only for an abuse thereof, p. 222. *</p>

From Owen Circuit Court; John F. Rey ester, Special Judge. Action by John J. Livingston against Barbara Livingston and another. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court §1394 Burns 1914, Acts 1901 p. 565.)

<p>1. Criminal Law. — Erroneous Judgment. — Initial Attach on Appeal. — Defendant’s objection that the judgment rendered, on conviction of keeping a house of ill fame, imposed a greater penalty than warranted by the verdict, cannot be presented for the first time by an assignment of error on appeal, p. 233.</p> <p>2. Indictment and Information. — Affidavit.—Validity.—Seal of Prosecuting Attorney. — Statutes.—An affidavit charging a violation of a penal statute need not bear the seal of the prosecuting attorney under Acts 1919 p. 68, enabling prosecuting attorneys to perform the duties of a notary public, as it was not intended by that act that the seal therein provided for should be used by prosecuting attorneys in the performance of their official duties in administering oaths under §9408 Burns 1914, Acts 1901 p: 38, which section was not repealed by such later act. p. 233.</p> <p>3. Criminal Law. — Evidence.—Admissibility.—Records of City Court. — Identification.—Statutes.—The city court o'f a city of the third class is both court and clerk, and its records are proved the same as the records of justices of the peace by copies certified under the hand and seal of the court, as provided by §475 Burns 1914, §459 R. S. 1881, or by the judge appearing in person and identifying the records, so that it was not error for the trial court to exclude a record or transcript of the city court of such a city which it was sought to identify only by the court’s bailiff, p. 234.</p>

<p>1. Criminal Law. — Appeal.—Review.—Evidence.—Sufficiency.— • Scope of Review. — In determining the sufficiency of the evidence to sustain a judgment of conviction in a criminal prosetion, the court of appeal will look only to the evidence 'most favorable to the decision, and, if there is any legally admitted evidence to sustain the essential elements of the charge, the judgment müst stand, p. 236.</p> <p>2. Intoxicating Liquors. — “Bootleg”.—Definition.—The word “bootleg” has a well understood meaning, and conveys the impression of, and imports the peddling and illegal sale of intoxicating liquor, p. 236.</p> <p>3'. Intoxicating Liquors. — Keeping for Sale. — Conviction.—Evidence. — Sufficiency.—Statutes.—In a prosecution for keeping intoxicating liquor for sale in violation of §4, Acts 1917 p. 15 (§8536a et seq. Burns’ Supp. 1918), evidence held sufficient to sustain a conviction, p. 236.</p> <p>4¡ Intoxicating Liquors. — Keeping for Sale. — Prima Fade Case. — Possession of Whisky. — In a prosecution for keeping intoxicating liquor for sale in violation of §4, Acts 1917 p. 15 (§8536a et seq. Burns’ Supp. 1918), possession of less than one gallon of liquor on defendant’s premises was not prima facie proof of guilt, in view of §35 of the act, permitting the keeping of one gallon of whisky without subjecting the person in possession to the presumption that he was keeping it for the purpose of sale. p. 237.</p>

<p>From Marion Superior Court (Al,779); W. W. Thornton, Judge.</p> <p>Action by the State of Indiana on the relation of Robert A. Smith, against Ross G. Thomas. From a judgment for defendant, the relator appeals.</p>

<p>1. Electricity. — Electric Power •Company. — Surrender of Franchise. — Effect.—Statutes.—An electric power company surrendering its franchise under §§100, 102 of the Public Service Law (Acts 1913 p. 167, §10052a et seq. Burns 1914), and thereafter operating under an indeterminate permit, does not thereby part with any other of its property, such' as its property rights in a contract of another company to furnish it current, p. 263.</p> <p>2. Electricity.— Electric Power Company.— Fixing Bates.— Property Siibject to Appraisement. — Contract for Current.— In the appraisement of an electric power company’s property for rate-making purposes, it was entitled to have a valuation fixed upon its valuable long-time contract for current, and to have that valuation considered in fixing the rate which the company would be permitted to charge, p. 264.</p> <p>'3. Electricity. — Electric Power Company. — Action to Set Aside Bates. — Bight to Special Finding. — Statute.—In view of §78, Public Service Law (Acts 1913 p. 167, §10052a et seq. Burns 1914), relating to the practice on appeals to the courts from orders of the Public Service Commission and providing that such appeals shall be tried and determined as other civil actions, an electric power company appealing from an order of the commission fixing rates for it was entitled, upon proper request, to a special finding of facts, p. 266.</p> <p>4. Electricity. — Electric Power Company. — Order Fixing Bates. —Acceptance of Benefits. — Estoppel.—Where patrons of a company furnishing electrical current and gas to the general public file a petition with the Public Service Commission for a reduction in the rates for electricity, and the company files a petition for an increase of rates for both of its products, though the commission consolidates the causes for the purposes of hearing, and in form makes but one order, which grants the patron’s petition and allows the company’s petition to the extent of adding a limited and temporary surcharge on gas bills, the company is not estopped by accepting the benefit of the order as regards the surcharge on gas to appeal from the order for the purpose of having the rate for electricity set aside, pp. 266, 267.</p> <p>5. Public Service Commission. — Orders.—Nature.—An order of the Public Service Commission fixing rates is not a judgment, but an administrative order, p. 267.</p>

<p>From Noble Circuit Court; Luke H. Wrigley, Judge.</p> <p>Prosecution by the State of Indiana against Charles T. Myers; From a judgment of conviction, the defendant appeals.</p>

<p>1. Frauds, Statute op. — Contractor’s Bond. — Applicability of Statute. — A contractor’s bond, conditioned for the faithful performance of the contract, is “a special promise to answer for the debt or default of another,” within §7462 Burns 1914, §4904 R. S. 1881, requiring such a contract to be in writing, p. 276.</p> <p>2. Principal and Surety. — Contractor’s Bond.- — Surety for Hire. — Liability.—Strict Construction. — A contractor’s bond is to be strictly construed against a surety who became such for hire, but the mere fact that a consideration was paid to the surety does not bind it beyond the terms of the contract as so construed, p. 276.</p> <p>3. Principal and Surety. — Contractor’s -Bond. — Provisions Required to be in Writing. — Parol Waiver. — Parol Evidence.— Where a contractor’s bond required written notice of default at the home office of the surety and that suit to recover on any claim under the bond be instituted within twelve months after the first breach of the contract, the surety could, by its conduct and statements, waive such conditions, and the facts constituting such waiver, as well as the waiver itself, could be established by parol evidence, although the bond was a promise to answer for the debt or default of another within §7462 Burns 1914, §4904 R. S. 1881, requiring such a contract to be in writing, p. 279.</p> <p>4. Frauds, "Statute op. — Contract to Answer for Default of Another. — Collateral Agreements Operative only on Accrual of Liability. — Applicability of Statute. — Section 7462 Burns 1914, ' §4904 B. S. 1881, requiring a contract “to charge any person upon any special promise to answer for the debt, default or miscarriage of another” to be in writing, does not cover a collateral agreement of the other party to such a contract which cannot become operative until the liability to pay the debt of another has matured by his default, p. 280.</p> <p>5. Frauds, Statute of. — Contract Required to be in Writing.— Collateral Agreements. — Parol Modification. — Statute.-—Section 7462 Burns 1914, §4904 R. S. 1881, requiring a* contract “to charge any person upon any special promise to answer for the debt, default or miscarriage of another” to be in writing, does not forbid the parties, after liability under such a contract has matured and become fixed, to enter into parol agreements modifying or waiving the terms of collateral undertakings with relation to giving notice of default and bringing suit within a specified time. (Wainright Trust Co. v. U. S. Fidelity, etc., Co. [1916], 63 Ind. App. 309, disapproved in part.) pp. 280, 281.</p> <p>6. Frauds, Statute of. — Contract Within Statute. — Waiver of Stipulations. — Estoppel to Deny Liability. — One who has become liable to an action under a contract within the Statute of Frauds can waive stipulations in his own favor, or estop himself to deny liability, because of a failure of the other party to perform conditions as to what should be done after liability had accrued, the same as if the principal contract were not within the Statute of Frauds, p. 280.</p> <p>7. Estoppel. — Estoppel by Conduct. — A person tacitly encouraging an act to be done cannot afterwards exercise his legal right in opposition to such consent if his conduct or acts of encouragement induced the other party to change his position so that he will be peculiarly prejudiced by the assertion of such adversary claim; and such rule applies to the waiver of conditions tending to bar an action for breach of a contract within the Statute of Frauds, p. 280.</p>

<p>1. Appeal. — Presenting Questions for Review. — Causes for New Trial. — All causes for a new trial must be specified in the motion as causes therefor, and such causes are not properly presented to the court on appeal by alleging them by an assignment of error, p. 291.</p> <p>2. Appeal. — Assignments of Error.- — -Sufficiency.—Assignments of error that the court erred in finding and decreeing that the plaintiff take nothing, and that defendant recover costs, and in failing to find for plaintiff, and in finding that he take nothing, are too general to present any question on appeal, in view of the statute requiring a specific assignment of all errors relied upon. p. 291.</p> <p>3. Appeal. — Briefs.—Sufficiency.—Failure to Set Out Motion for New Trial. — Error assigned on the overruling of the motion for new trial will not be considered on appeal, where appellant’s brief fails to set out the motion or the substance thereof, as required by Rule 22, cl. 5, of the Supreme Court, p. 292.</p>

From St. Joseph. Superior Court; Chester R. Montgomery, Judge. Action by Leo Van Hess against the board of commissioners of St. Joseph county and others. From a judgment for defendants, the plaintiff appeals.

From Vanderburgh Superior Court; Louis O. Raseh, Special Judge. Proceeding in the nature of a libel by the State of Indiana against Charles Thompson to condemn and destroy certain intoxicating liquors, etc. From the judgment rendered, the defendant appeals.

From Starke Circuit Court; William C. Pentecost, Judge. Habeas corpus proceeding by Henry C. Roney against Clement L. Rodgers, sheriff of the county of Starke. From a judgment for defendant, the plaintiff appeals.

From Sullivan Circuit Court; William H. Bridwell, Judge. Action by John E. M. Purcell against Tarleton C. Woodward, trustee, and others. From a judgment for defendants, the plaintiff appeals. Transferred to the Appellate Court under §§1397, 1429 Burns 1914, Acts 1901 p. 565, §13, Acts 1893 p. 29, §3.

<p>' From Huntington Circuit Court; Nelson G. Hunter, Special Judge.</p> <p>Drainage proceeding on the petition of William Michael. From the judgment rendered, Andrew Kilty and others appeal.</p>

<p>From Marion. Criminal Court (50,791); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against Thomas Ford. From a judgment of conviction, the defendant appeals.</p>

<p>From Marion Criminal Court (50,916); Frank S. Roby, Special Judge.</p> <p>Prosecution by the State of Indiana against Charles Small. From a judgment of conviction, the defendant appeals.</p>

<p>1. Criminal Law. — Instructions.—“Reasonable Doubt.” — In a criminal prosecution, an instruction that if, after an “impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant’s guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own ■ affairs, then you have no reasonable doubt,” held too narrow in that the words' “more weighty .and important matters” were used instead of the words “matters of the highest and most important affairs.” p. 414.</p> <p>2. Criminal Law. — “Reasonable Doubt.” — In a criminal prosecution, the evidence is insufficient unless it excludes from the mind of the juror all reasonable doubt as to the defendant’s guilt, and unless the juror is so convinced by the evidence, no matter what class, of defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interest under circumstances where there was no compulsion resting upon him to act at all. p. 415.</p> <p>3. Criminal Law. — Assault and Battery With Intent to Kill.— Defense of Insanity. — Instructions.—Intent.—In a prosecution for assault and battery with intent to kill in which defendant filed a special plea setting up the defense of insanity, the giving of an instruction upon the subject of intent as an essential element of the crime was not error, in view of other instructions informing the jury that criminal intent must be proved beyond a reasonable doubt, and that a person of unsound mind is incapable of forming an intent and that a person in that mental condition cannot be convicted of any crime, p. 416.</p> <p>4. Homicide. — Assault and Battery With Intent to Kill. — Inferring Intent from. Conduct. — In a prosecution for assault and battery with intent to kill, evidence that defendant deliberately used a deadly weapon in committing the assault and battery in such a manner as was reasonably calculated to take the life of the complaining witness warrants an inference that defendant, in committing the assault, intended to take her life. p. 416.</p> <p>5. Homicide. — Assault and Battery With Intent to Kill. — Inferring Malice. — Malice in the commission of an assault and battery may be inferred where defendant purposely shot the complaining witness without justification or legal excuse or reasonable provocation, p. 416.</p> <p>6. Homicide. — Assault .and Batter’y With Intent to Kill. — Elements. — Motive.-—In a prosecution for assault and battery with intent to kill, the state is not required to prove a motive on the part of defendant in order to secure a conviction, p. 417.</p> <p>7. Criminal Law. — Assault and Battery With Intent to Kill.— Instructions. — Inferring Motive. — Province of Jury. — In a prosecution for an assault and battery with intent to kill, an instruction stating that proof of motive was not essential to a conviction, and that the motive might be found from the commission of the crime, held not to be an invasion of the province of the jury. p. 417.</p> <p>8. Homicide. — Assault and Battery With Intent to Kill. — Defense of Insanity. — Instructions.—Impaired Will Power. — In a prosecution for assault and battery with intent to kill in which defendant pleaded insanity as a defense, an instruction that, if defendant had an insane impulse to kill the complaining witness which he could not control, then mental disease produced it, but if he could have controlled such impulse, his will must have assented to the act, and it was not caused by the disease, but by the concurrence of his will, and was, therefore, criminal, was erroneous, since the state was required to show, not only that defendant could resist or control his impulse to kill the complaining witness, but also that he had sufficient mental power to know that such act was wrong and that he could comprehend the nature -and consequences of his act. p. 417.</p> <p>9. Homicide. — Assault and Battery With Intent to Kill. — Defense of Phsanity. — Instructions.—Knowledge of Right and Wrong. — In a prosecution for assault and battery with intent to kill in which defendant filed a special plea of insanity, instructions that, if defendant knew the nature and quality of his act, or knew the act was wrong, he would be responsible, held erroneous as making a knowledge of right and wrong the sole test of insanity, since a person may have sufficient mental capacity to know right from wrong and to be able to comprehend the nature and consequences of his act, and yet be not criminally responsible therefor, for, if the will power is so impaired that he cannot resist an impulse to commit a criminal act, he is not of sound mind. p. 417.</p> <p>10. Criminal Law. — Defense of Insanity. — Jury Questions.— Whether insanity exists, and its character and extent, is a question of fact for the jury to be determined from the evidence, p. 418.</p> <p>11. Homicide. — Assault and Battery With Intent to Kill. — Defense of Insanity. — Instructions.—Knowledge of Right and Wrong. — Impaired Will Power. — In a prosecution for assault and battery with intent to kill in which defendant pleaded the defense of insanity, an instruction that, if a person has not sufficient mental capacity to know right from -wrong and cannot comprehend the nature and consequences of his act, and, if he has not sufficient will power to control an impulse to commit crime, he is not criminally responsible, held, erroneous because requiring the presence of each of the mental defects named, whereas if either was present, to the extent stated, defendant would not have been criminally responsible, p. 418.</p> <p>12. Criminal Law. — Credibility of Witnesses. — Instructions.— Relationship of Witnesses to Accused. — In a criminal prosecution, an instruction that, in determining the weight to be given to the testimony of witnesses, the jury might take into account, among other things, the relationship they sustained, if any, to the defendant, and their interest in the ease, was not objectionable as invading the province of the jury by implying that the fact of relationship and the fact of interest detracted from the credibility of testimony, p. 419.</p> <p>13. Homicide. — Assault and Battery With Intent to Kill. — Defense of Insanity. — Instructions.—In a prosecution for assault and battery with intent to kill, it was error to refuse defendant’s requested instruction stating that the defense relied upon was insanity, and setting forth all the elements constituting unsoundness of mind and what the state was required to prove before a conviction could be sustained, where no other instruction given stated fully the principles embodied in the instruction tendered, p. 419.</p>

<p>From Decatur Circuit Court; Hugh Wiekens, Judge.</p> <p>Action by William F. Stewart against, the Royal Insurance Company, Limited, of Liverpool. From a judgment for' plaintiff, the defendant appeals. (Transferred from the Appellate Court under §1394 Bums 1914, Acts 1901 p. 565, §10.)</p>

From Vigo Superior Court; William T. Gleason, Judge. Action by the Chicago and Eastern Illinois Railroad Company, by its receiver, against the Clinton Coal Company and others. From the judgment rendered, the defendants appeal.

<p>1. Drains. — Establishment.—Report of Drainage Commissioners.— Remonstrances.— Statutes.— Under §§6142, 6143 Burns 1914, Acts 1907 p. 508, §§3, 4, each owner of lands described in the report of the drainage commissioners is required to be given notice, and an opportunity to be heard upon a remonstrance for any or all of the statutory reasons, p. 478.</p> <p>2. Drains. — Establishment.—Report of Drainage Commissioners. — Validity.—Extending Drain Described in Petition. — Statutes. — Under §6142 Burns 1914, Acts 1907 p. 508, §3, providing that commissioners to whom a petition for a drain is referred may determine the best and cheapest method of drainage, the termini and route, including all necessary arms, vary the line described in the petition, etc., a report by the drainage commissioners laying out a proposed drain which is sufficient and proper as to utility, benefits and expenses thereof, is not contrary to law because the drain, which overlaid a natural watercourse, extends farther up and down stream than the proposed drain described in the petition, and includes laterals above and below the proposed termini, and because lands assessed are not described in the petition, nor the owners thereof named therein, p. 478.</p> <p>3. Drains. — Establishment.—Fraud.—Failure to Tender Issue. —Appeal.—Questions Reviewable. — Where a petition for the establishment of a drain purported to ask for drainage for only 480 acres of land belonging to eight owners, and the drain as established, including its branches, was almost eighteen miles in length, and would affect 18,000 acres of land, an objection on appeal that the petition operated as a fraud upon appellant landowners and others not named in the petition, nor given notice before the cause was docketed, by depriving them of their statutory right to defeat the proceeding by filing a “two-thirds remonstrance” under §6142 Burns 1914, Acts 1907 p. 508, §3, is not reviewable, where the answer or remonstrance filed by appellants did not tender any issue of fraud, and the special finding does not include a finding of fraud or of facts from which an inference thereof must follow as a matter of law, since exceptions to the conclusions of law in such case present no question as to the effect of petitioner’s fraud or fraudulent intent in instituting the proceeding. p. 480.</p>

<p>From Marion Superior Court (93,602); V. G. Clifford, Judge.</p> <p>Action by the H. C. Smith Coal Company against John D. Finley, doing business under the name of the Mitchell Coal Company, and others, in which a receiver was appointed. From a judgment approving the receiver’s final report and directing the distribution of assets remaining in his hands, the plaintiff appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)</p>

<p>From Morgan Circuit Court; Alfred M. Bain, Judge.</p> <p>Action by Mary E. Glansman against Sidney Ledbetter and wife. From a judgment for defendants, the plaintiff appeals.</p>

<p>Constitutional Law. — Statute Authorizing Operation on Prisoner. — Constitutionality.—Due Process of Law. — Section 2232 Burns 1914, Acts 1907 p. 377, authorizing the board of managers of institutions intrusted with the care of confirmed criminals and defectives and a committee of experts to perform an operation of vasectomy on an inmate, in cases pronounced unimproveable, to prevent procreation, but giving the inmate no opportunity for a hearing or to cross-examine the experts who decided upon the operation, or to establish that he was not within the class designated in the statute, is unconstitutional as denying due process of law in violation of Constitution U. S., 14th Amendment.</p>

From Lake Superior Court; Virgil S. Reiter, Judge. Action by Rose Stanley against Granville Stanley for divorce. From an order granting plaintiff an allowance for support pending suit and for fees for her attorney, the defendant appeals. (Transferred from the Appellate Court under §1392, cl. 15, Burns’ Supp. 1918, Acts 1915 p. 149.)

<p>1. Criminal Law. — Appeal.—Revieiv.—Sufficiency of Evidence. —Scope of Review. — In determining the sufficiency of the evidence to sustain a conviction, the court on appeal will not weigh the evidence and will consider ' only such evidence as tends to sustain the decision of the trial court, p. 532.</p> <p>2. Intoxicating Liquors. — Unlawful Possession with Intent to Sell.- — In a prosecution for unlawfully keeping intoxicating liquor with intent to sell, barter, etc., in violation of §8356d Burns’ Supp. 1918, evidence held insufficient to support a conviction. p. 532.</p>

<p>Appeal. — Law of the Case. — Subsequent Appeals. — Where the Supreme Court on appeal decided that a paragraph of complaint stated a cause of action, and the cause was remanded with a mandate which amounted to • an express direction to overrule defendant’s demurrer, and the trial court obeyed the mandate, and defendant refused to plead over, the decision as to the sufficiency of such paragraph was the law of the case and the same question will not be reviewed on a second appeal.</p>

<p>1. Criminal Law.— Evidence.— Admissibility. —Stenographer’s Notes. — Absent Witness. — Where it was shown that a witness at a former trial had enlisted in the army and had been sent to a foreign country, it was not error to permit the court reporter to read to the jury from her shorthand notes of the testimony of the witness given at the former trial, p. 540.</p> <p>2. Criminal Law. — Evidence.—Other Offenses. — Admissibility. —Evidence of the commission by defendant of entirely separate and distinct offenses cannot be received for the purpose of showing a disposition to commit the crime charged or that the accused probably committed it, but where the act constituting the crime has been established, any evidence tending to show motive, intent or guilty knowledge, if in issue, or evidence which directly or as a natural sequence tends to show the defendant guilty of the offense charged is competent, although it tends to show him guilty of another and distinct offense, p. 542.</p> <p>8. Criminal Law. — Evidence.—Other Offenses. — Instructions.— Where evidence of the commission by defendant of other offenses entirely separate and distinct from the one charge is admitted to show motive, intent, etc., the court should by instructions to the jury expressly and clearly limit such evidence to the particular phase of the case to which it is relevant and the purpose for which the jury may consider it. p. 543.</p> <p>4. Criminal Law. — Evidence.—Other Offenses. — Admissiblity.— In a prosecution for grand larceny wherein defendant was charged with stealing an automobile, evidence that four months previous to the commission of the offense charged defendant had later gone to the factory for the purpose of procuring another, held admissible to show the plan and method pursued by defendant in obtaining possession of the car in question, as well as guilty knowledge, and to aid the jury in determining who actually committed the offense, and to rehut the defense that a certain person other than defendant was the primary thief, p. 543.</p> <p>5. Witnesses.— Recalling Witnesses.— Discretion of Court.— The recalling of witnesses and permitting them to testify in rebuttal is largely within the discretion of the trial court, p. 544.</p> <p>6. Criminal Law.— Instructions.— Assuming Truth of Testimony. — In a prosecution for the larceny of an automobile, an instruction limiting evidence tending to show the stealing of another ear and the purpose for which the jury might consider such evidence held not erroneous as assuming the testimony of a certain witness to be true. p. 544.</p> <p>7. Criminal Law. — Instructions.—Measure of Proof. — Circumstantial Evidence.— An instruction relative to the probative value of circumstantial evidence and the caution required by a jury when basing a conviction thereon held not erroneous in stating that the evidence need not produce absolute and demonstrative certainty in the minds of the jury, when such instruction was read in connection with the instruction defining reasonable doubt, which it was so worded as to naturally include, pp. 545, 546.</p> <p>8. Criminal Law.— Circumstantial Evidence.— Sufficiency. — A jury may convict on circumstantial evidence alone when the circumstances are so strong and convincing as to he inconsistent with any reasonable hypothesis of the defendant’s innocence. p. 545.</p> <p>9. Criminal Law. — Instructions.—Repetition.—In a prosecution for the larceny of an automobile, the giving of five instructions relating to the effect of unexplained exclusive possession of stolen property within a short time after a larceny held subject to criticism even though it would not he said that the trial court was guilty of an abuse of discretion, p. 546.</p> <p>10. Criminal Law.— Instructions.— Weight of Evidence.— An instruction stating that the testimony of a certain witness should not be discredited because of the fact that he had made another affidavit charging another party with the same offense was not erroneous as an intimation of the court as to the weight the jury should give to the testimony of the witness as to the issue being tried, p. 547.</p> <p>11. Criminal Law. — Appeal.—Refusal of Instructions. — The refusal of requested instructions, though applicable and correct in principle is not error, where they were fully covered by other instructions given, p. 547.</p>

<p>1. Appeal. — Questions Reviewnble. — Constitutionality of Statute. —Assignment of Error. — That a designated statute is unconstitutional or conflicts with a certain section of the Constitution of the United States, without pointing out the ruling complained of as having been made in violation of the rule of law so asserted, is not a proper assignment of error, and presents no question for i*eview. p. 549.</p> <p>2. Appeal. — Right of Appeal. — Decision on Appeal From Drainage Commissioners. — Under §6161s2 Burns’ Supp. 1918, Acts 1917 p. 384, §3, providing that, in the event an appeal is taken from the decision of the drainage commissioners in a proceedings under the act to have a public drain cleaned, the decision of the court upon such appeal shall be final, there can be no appeal in such proceedings to the Supreme Court, p. 549.</p>

From Adams Circuit Court; David E. Smith, Judge. Action by the State of Indiana, on the relation of Darius Robinson, against Charles W. Yager, mayor of the city of Decatur. From a judgment for relator, the defendant appeals.

From the Industrial Board of Indiana. Proceedings for compensation under the Workmen’s Compensation Act by Charles Ossam against Kingan and Company, Limited. From an award for applicant, defendant appealed to the Appellate Court, which affirmed the award, and defendant petitions for transfer of the appeal to the Supreme Court.

<p>From Dekalb Circuit Court; Dan M. Link, Judge.</p> <p>Prosecution by the State of Indiana against Leroy Ewing. From a judgment of conviction, the defendant appeals.</p>

From Marion Circuit Court (25,437); Louis B. Ewbank, Judge. Proceedings by the Indianapolis Union Railway Company against Gustav A. Schnull and others to condemn lands. From the judgment rendered, the landowners appeal.

<p>Evidence. — Parol Evidence That Party Signing as Principal was Agent. — Admissibility.—Where defendants signed a written instrument evidencing the sale of an automobile to plaintiff as principals, arid there was nothing in the writing, which was complete and free from ambiguity, to indicate that they were acting as agents in the transaction, parol evidence is inadmissible in their behalf, in an action for breach of warranty of title, to show that they made the sale as agents and not as principals.</p>

<p>1. Highways. — Establishment.—Jurisdiction of Board of Commissioners. — Laying Out New Highway Over Existing Road.— Statutes. — In a proceeding for the location, opening and establishment of a new public highway, the board of county commissioners had jurisdiction under §§7649, 7650 Burns 1914, Acts 1907 p. 443 and §7654 Burns 1914, Acts 1905 p. 521, to lay out a new highway thirty-five feet wide extending in part of its course along an existing highway eighteen feet wide, thus widening the old highway for the distance that both follow the same route, p. 590.</p> <p>2. Highways. — Establishment.—Appeal from Board of County Commissioners. — Questions Triable. — Route of Highway.— Statute. — On appeal from a decision of the board of county commissioners granting the prayer of a petition for the location, opening and establishment of a new public highway, the court and jury have no authority under §7650 Burns 1914, Acts 1907 p. 443, to review and set aside the action of the viewers on the ground that there had been a violation of such statute in that the highway was laid out through an inclosure of more than one year’s standing, without the owner’s consent, and a good way could otherwise be had by departing only a short distance from the route petitioned for, though, under §§7653, 7657 Burns 1914, Acts 1905 p. 521, §§6, 9, they may decide whether the highway, as finally laid out and established, will be of public utility and whether it will damage land and in what amount, pp. 592, 593.</p> <p>3. Eminent Domain. — Exercise of Right. — Regulation.—Power of Legislature. — So long as private property is taken only for public use, and the damage caused thereby is compensated, the legislature has the power to determine, either directly or through agencies chosen by it, when convenience or necessity requires that such property be taken, and what particular property shall be taken, p. 593.</p> <p>4. Appeal. — Review.—Harmless Error. — Exclusion of Evidence. —the exclusion of evidence which would not have established the defense in support of which it was offered was not prejudicial error, p. 595.</p>

From Adams Circuit Court; Da/uid A. Smith, Judge. Action by Amos French on a claim against the estate of Amos Hubert French, deceased. From a judgment for plaintiff, the administrator, Albert S. Kindel, appeals. (Transferred from the Appellate Court under §1392, subdiv. 4, Burns’ Supp. 1918, Acts 1915 p. 149.)

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

<p>From Marion Criminal Court (50,474) ; James A. Collins, Judge.</p> <p>Prosecution, by the State of Indiana against Elijah Carpenter, alias Lige Carpenter. From a judgment of conviction, the defendant appeals.</p>

<p>1. Indictment and Information.— Indictment.— Certainty.— Use of Unnecessary Words. — Statutes.—An indictment for violation of §8356d Burns’ Supp. 1918, Acts 1917 p. 5, §4, charging that defendant unlawfully kept intoxicating liquors with intent to sell, etc., to persons to the grand jurors unknown, “within this state,” the use of the quoted words did not render the indictment defective for uncertainty in that the statement relating to the persons to whom defendant intended to sell left the legitimate inference that such persons were known and without the state; the words “within the state” being mere surplusage, p. 617.</p> <p>2. Indictment and Information.— Validity.— Surplusage.— Statutes. — Under §2063 Burns 1914, Acts 1905 p. 584, no indictment will be deemed invalid, set aside or quashed for any surplusage when there is sufficient matter alleged to indicate the crime and person charged, p. 618.</p> <p>3. Indictment and Information. — Failure to Indorse Names of Witnesses on Indictment. — Statutes.—The only effect of not indorsing the names of the witnesses for the state on the back of an indictment, as required by §1983 Burns 1914, Acts 1905 p. 584, §112, is to prevent the state from obtaining a continuance on account of the absence of such witnesses, p. 618.</p>

From Fountain Circuit Court; Burton B. Berry, Special Judge. Action by the State of Indiana, on the relation of Charles S. Crawley, against Frank B. May, clerk of the city of Veedersburg. From judgment for defendant, the relator appeals.

<p>1. Criminal Law. — Appe.al.—Presumptions.—On appeal from a judgment of conviction, it will be assumed that the jury believed that part of the evidence most strongly tending to support the finding, p. 632.</p> <p>2. Gaming. — Indictment for Keeping Gaming House. — Sufficiency. — Names of Gamblers. — An indictment for keeping a gaming house, in violation of §2466 Burns 1914, Acts 1905 p. 584, §557, need not allege the name of any person who played there, p. 632.</p> <p>3. Gaming. — Surplus Averments. — Proof. — The unnecessary averment in an indictment for keeping a building to be used for gaming in violation of §2466 Burns 1914, Acts 1905 p. 584, §557, that certain named persons and others unknown were suffered to gamble, did not make it necessary for the state to show that all the persons thus described actually engaged in gaming in order to prove the offense, p. 632.</p> <p>4. Criminal Law. — Indictment Charging Two Offenses. — General Verdict of Guilty. — Presumption.—Where an indictment properly charged in the language of the statute two public offenses forbidden by the same section of the statute, if the evidence proved one of them, but not the other, a general verdict of guilty will be deemed a verdict of guilty of the offense sufficiently, p. 633.</p> <p>5. Gaming. — Conviction.—Evidence.—Sufficiency.—S tatutes. — In a prosecution for keeping a building to be used for gaming in violation of §2466' Burns 1914, Acts 1905 p. 584, §557, evidence held sufficient to sustain a conviction, p. 633.</p> <p>6. Criminal Law. — Appeal.—Review.—Evidence.—Sufficiency.— Scope of Review. — In determining the sufficiency of the evidence to sustain a judgment of conviction, the court on appeal will reject the evidence favorable to appellant, and accept as true the evidence and inferences therefrom which most strongly tend to support the finding below, p. 633.</p>

<p>From Hendricks Circuit Court; George W. Brill, Judge.</p> <p>Action by Elmer E. Baker against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Commerce. — Interstate Commerce.— Regulation.— Power of States. — The states have surrendered their power to regulate commerce to the federal government, but, until the latter takes possession of the entire field, the states, as to that unoccupied; may exercise limited authority in the aid of commerce, but their power will be upheld only so long as the exercise thereof does not affect the conduct of a company engaged in interstate commerce in the performance of its duties in other states, p. 652.</p> <p>2. Commerce. — Interstate Co-mmerce.— Telegraph.- — Regulation. —Power of Congress. — Statutes.—The provisions of the act of June 18, 1910 (§8563 U. S. Comp. Stat., 1916, 36 Stat. at L. 539 ch. 309), bringing telegraph companies under the act to regulate commerce, as well as placing them under the administrative control of the Interstate Commerce Commission clearly establish the purpose of Congress to subject such companies to a uniform national rule, leaving no room for the exercise by the state of the power to regulate by penalizing the negligent failure to deliver promptly an interstate telegram, as attempted by §§5780, 5781 Burns 1914, Acts 1885 p. 151. p. 653.</p>

<p>From Marion Superior Court (Al,450); Theophilus J. Moll, Judge.</p> <p>Action by Benjamin J. Burris against the Western Union • Telegraph Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>From Morgan Circuit Court; Fred B. Owens, Special Judge.</p> <p>Action by Albert R. Smith against the Pittsburgh, Cincinnati, Chicago and St. Louis Railroad Company. From a judgment for plaintiff, the defendant appeals.</p>

<p>1. Appeal. — Review.—Hm-miess Error. — Overruling Motion to Make Immaterial Averment More Specific. — Ovérruling a motion to make more specific allegations of the complaint not constituting a necessary part of the statement of the alleged cause of action is not reversible error, p. 668.</p> <p>2. Pleading.— Complaint.— Conclusions of Law.— Motion to Make More Specific. — Statutes.—In an action under the Federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of a railroad engineer, overruling a motion to make more specific an allegation in the complaint that the injury and death “was caused solely by the negligent acts and omissions of the defendant” held not error, where the negligent acts relied on were set out, the quoted words having reference to such facts, p. 668.</p> <p>3. Master and Servant. — Injuries to Servant. — Complaint.— Sufficiency. — Federal Employers’ Liability Act. — In an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an engineer killed in collision, with an engine negligently placed on a sidetrack, complaint held sufficient, as against demurrer^ to charge actionable negligence, pp. 669, 670.</p> <p>4. Master and Servant. — Injuries to Servant. — Contributory Negligence. — Federal Employers’ Liability Act. — In an action under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of a locomotive engineer, contributory negligence of deceased is not sufficient of itself to defeat recovery, under §3 of the act. p. 669.</p> <p>5. Trial. — Instmctions.—Incorporating Complaint. — Immaterial Allegations. — The practice of reading the complaint to the jury, where it alleges facts that are immaterial, is not to be commended, p. 670.</p> <p>6. Appeal.— Review.— Harmless Error.— Instructions.— Incorporating Complaint. — Immaterial Allegations. — In ah action to recover for wrongful death, the action of the court in giving an instruction setting out the complaint in full, without any suggestion as to which averments were not material, and directing the jury to find for plaintiff if “such allegations” were proved, was harmless, where the jury wás not told that plaintiff could recover upon proof of less than all the material allegations of the complaint, p. 670.</p> <p>7. Appeal.— Revieiv.— Instructions.— Negligence.— Incomplete Instructions. — Duty to Request Broader Instructions. — Statutes. In an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an engineer in a collision with an engine, caused by an employe’s violation of the rules of defendant company, which claimed the deceased was contributorily negligent, the giving of an instruction in general terms on negligence, which was correct as far as it went, but which did not purport to define contributory negligence or refer to the violation of the company’s rules, held not reversible error, in the absence of a request for an instruction supplying the omission, p. 671.</p> <p>8. Appeal. — Revieiv.—Instructions.—Failure to Limit Jury to Consideration of Evidentiary Facts. — In an action for wrongful death, the giving of an instruction authorizing the jury, in determining the credibility of a witness, “to consider his appearance, conduct, manner of testifying,” etc., and stating that “any other fact or circumstances which from your experience and observation you believe will aid you in arriving at the truth in this cause may be considered, and given such weight as you think it is justly' entitled to,” held error, in that the instruction did not limit the jury to a consideration of the facts in evidence, and that such error entitled appellant to a reversal, in view of the issues of fact involved and the sharply conflicting evidence. (Townsend C. J. dissents.) p. 671.</p> <p>9. Appeal. — Review.— Instructions.— Error.— Curing by Other Instructions. — Statutes.—In an action under the federal Employers’ Liability Act (§8657 et seq. IT. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an employe, an instruction that defendant was liable if the death was caused by the negligence of the officers, agents or employes of the railroad company held not erroneous because failing to exclude the case of injury being fully due to deceased’s own negligence, where other instructions authorized a verdict for defendant if the injury and death was caused entirely by the negligence of deceased, p. 674.</p> <p>10. Master and Servant. — Injuries to Servant. — Instructions. —Proximate Cause. — Statutes. In an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) to recover for the death of an engineer, an instruction that, if the death was caused by the negligence of the officers, agents or employes of defendant, it was liable, held objectionable, in that it failed to state that such negligence, to make defendant liable, must have been the proximate cause of the injury, p. 674.</p> <p>11. Death. — Instructions.—Apportionment of Damages. — In an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an employe who was survived by a widow and minor children, an instruction as to the form of verdict for plaintiff which did not require the jury to apportion the damages among the widow and children held not ground for reversal, since the failure to apportion damages in such a case could not affect the substantial rights of defendant. p. 674.</p> <p>12. Appeal. — Review.—Refusal of Instructions. — Invading Province of Jury. — In an action under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918,, 35 Stat. at L. 65) for the death of an engineer in a collision with another train upon a sidetrack upon which he was to have run his engine to permit such other train to pass, the refusal of an instruction that, if such train had not yet entered the sidetrack, any failure to put out a warning flag was not a proximate cause of the injury, and that the jury “should not consider any possible negligence of the defendant that was not a proximate cause of the wreck” held proper, since such instruction, being a declaration of law based, in part, upon evidence which the jury might have refused to believe, would have invaded the province of the jury. p. 675.</p> <p>13. Master and Servant. — Injuries to Servant, — Action.—Evidence. — Speed of Locomotive. — Position of Reverse Lever. — In an action against a railroad company under the federal Employers’ Liability Act (§8667 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an engineer in a collision, where it was contended that deceased was operating his engine at an excessive rate of speed, the testimony of a witness, who had been the first to enter the cab of deceased’s engine after the wreck, as to the position of the reverse lever held admissible on the issue as to the rate of speed at which deceased had been running the train immediately prior to the wreck, p. 677.</p> <p>14. Appeal.— Review.— Evidence,— Admission of Incompetent Evidence. — In an action against a railroad company under the federal Employers’ Liability Act (§8657 et seq. U. S. Comp. Stat. 1918, 35 Stat. at L. 65) for the death of an engineer in a collision, error in the admission of testimony of trainmen as to their duties under certain circumstances under the rules of the company governing the operation of trains held not rendered harmless by other evidence, in view of the conflict in evidence upon the matters to which such incompetent testimony related, p. 678.</p> <p>15. Trial. — Separation of Witnesses. — Discretion of Court.— The separation of witnesses during trial is a matter concerning which the court has a very wide discretion, p. 680.</p> <p>16. Death. — Wrongful Death. — Damages Recoverable by Widow and Infant Children. — In an action for wrongful death, the infant children of deceased were entitled to recover damages for their loss until they became twenty-one years of age, and the widow for the' period of her husband’s life expectancy. p. 681.</p>

<p>Gaming. — Keeping a Place for Gaming. — Prisoner in County Jail Conducting a Game of Chance. — Where a prisoner in a county jail, who, .as “cell boss,” had supervision and authority over his fellow prisoners in a particular room, pláced or directed the placing of tables and invited other prisoners to play poker thereat, and furnished them with cards and took a “rake off” of “a nickel on each pot,” he was guilty of keeping a building and a room to be used for gaming.</p>

From Delaware Circuit Court; William A. Thompson, Judge. Proceeding by William A. Rickard, executor of the estate of George H. Booher, deceased, to set aside orders of the court relating to the sale of certain real estate to Marcus Holaday. From the judgment rendered, Holaday appeals.

From Marion Superior Court (100,535); Linn D. Hay, Judge. On remand from the Supreme Court of the United States pursuant to. mandate thereof, on writ of error to review a former decision of the Supreme Court of Indiana affirming judgment of lower court. Judgment reversed in obedience to such mandate.

From Fountain Circuit Court; Burton B. Berry, Special Judge. Action by the State of Indiana, on the relation of Orville W. Zimmerman, against Frank B. May, clerk of the city of Veedersburg. From a judgment for defendant, the relator appeals.