Volume 192 — Indiana Reports

From Fayette Circuit Court; Fred C. Game, Special Judge. Action by the Cincinnati, Indianapolis and Western Railroad Company against the board of commissioners of Fayette county and others. From a judgment for defendants, the plaintiff appeals.

<p>Indictment and Information. — Prosecution in City Court. — . Bight to Have Grand Jury Determine Filing of Charge. — StaU •Mies. — A defendant, charged in the city court with violating Acts 1917 p. 15, §4, (§8356d Burns’ Supp. 1918), was not entitled to have the grand jury, in session at the time the affidavit was filed in the city court, pass on the question of whether a charge should be lodged against him, under §1989 Burns 1914, Acts 1905 p. 584, §118, providing that all public offenses, except murder and treason, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when the grand jury is in session -or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of the affidavit; such statute having application to- cases filed in circuit and criminal courts, which have power to call and empanel grand juries.</p>

<p>1. Criminal Law. — Witnesses.• — ■ Competency.— Accomplices. — . Evidence. — Sufficiency to Sustain Conviction. — An accomplice is a competent witness under §2111 Burns 1914, Acts 1905 p. 584, §285, and a person charged with the commission of a crime may he convicted on the uncorroborated testimony of an accomplice. p. 17.</p> <p>2. Criminal Law. — Trial.—Refusal of Instructions. — Repetition. —It is not error to give requested instructions, though they are correct, where the subject-matter thereof is fully and-sufficiently covered by other instructions given, p. 18.</p> <p>8. Criminal Law. — Appeal.—Briefs.—Waiver of Error. — Where appellant’s brief fails to point out the place in the bill of exceptions, or any other place in the transcript, where he objected to the appointment of an interpreter, or, if such objection was made and overruled, that he excepted to such ruling, no question as to such appointment is • presented for review. p. 18.</p>

<p>From Montgomery Circuit Court; Jere West, Judge.</p> <p>Prosecution by the State of Indiana against Charles Flannigan and Everett Flannigan. From a judgment of conviction, the defendants appeal.</p>

From Newton Circuit Court; George A. Williams, Judge. Prosecution by the State of Indiana against Job M. Miller, in which there was a judgment of conviction, but sentence was suspended. From a judgment revoking the order suspending sentence, the defendant appeals.

<p>1. Criminal Law. — Conviction for Violation of Prohibition Law —Imprisonment at State Farm.— Validity.— Statutes. — • Where, in a prosecution for violation of the Prohibition Law (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918), the jury returned a verdict of guilty, and, in addition to imposing a fine in a named amount, found that defendant should be imprisoned in the county jail for thirty days, it was not error for the court to render judgment that the term of imprisonment be served at the Indiana State Farm, in view of §9926h Burns’ Supp. 1921, Acts 1919 p. 81, giving the court discretion to commit a convicted person, whose sentence is thirty days or less, to jail or to the state farm, so that the denial of defendant’s motion to modify the judgment as to the state farm was not improper, p. 55.</p> <p>2. Criminal Law. — Prosecution under Prohibition Law. — Evidence Seized wit i.out Search Warrant. — Admissibility.—Search with Defendant’s Consent. — In a prosecution for violation of the Prohibition Law (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918), where the alleged offense was committed in the presence of the arresting officers, the introduction in evidence of the glasses, pitcher, and bottle of whisky taken at the time defendant was arrested without a search warrant, was not error, especially where defendant gave the officers permission to make a search of the premises, p. 55.</p> <p>8. Intoxicating Liquors,— National Prohibition Law.— Effect on State Prohibition Law.— Under the Constitution of the United States, Amendment Eighteen, providing that Congress and the several states shall have concurrent power to enforce the amendment, the national Prohibition Law (41 Stat. at L. 805) does not supersede or annul §§4, 20 of the state Prohibition Law (Acts 1917 p. 15, §8356a et seq. Burns’ Supp. 1918.) p. 55.</p> <p>4. Intoxicating Liquors. — Eighteenth Amendment to Constitution of United States. — Effect upon Police Power of States.— The Eighteenth Amendment to the Constitution of the United States does not abridge or abrogate the police power reserved by the states by the Tenth Amendment, so as to render invalid the state Prohibition Law (Acts 1915 p. 15, §8356a et seq. Burns’ Supp. 1918.) p. 57.</p>

<p>1. Trover and Possession.— Demand.— Pleading and Proof.— In civil pleading, when conversion is pleaded, no demand need be pleaded, as at the trial, if a conversion is proved, no demand need be proved, p. 98.</p> <p>2. Indictment and Information. — Certainty.—No greater certainty is required in criminal than in civil pleadings, p. 98.</p> <p>3. Embezzlement.— Demand.■ — ■Failure of Clerk of Circuit Court to Pay over Funds to Successor. — Statutes.—To sustain a judgment of conviction for embezzlement, under §2284 Burns 1914, Acts 1905 p. 671, §391, against a clerk of a circuit court who fails to pay over money in his hands as clerk to his successor in office, as required by such statute, it is not necessary to show a demand on him for such funds by his successor, and his refusal to pay over. p. 98.</p> <p>4. Embezzlement. — Indictment.—Requisites.—Allegation of Demand and Refusal. — It is not necessary to allege in an indictment for embezzlement a demand and a refusal by the accused to pay over the money or property alleged to have been embezzled, unless the statute creating the offense makes a demand and refusal essential elements thereof, p. 102.</p> <p>5. Criminal Law.— Intent.— Evidence.— Admissibility. — Other Offenses. — Flight.-—In a prosecution of the clerk of a circuit court for embezzlement of funds in his hands as clerk, evidence given by accountants tending to show a former misappropriation of public funds by defendant was admissible to show criminal intent, together with evidence that he had not been seen at his office for more than a week before his attorney filed his resignation, and that he was arrested in a distant state, p. 103.</p> <p>6. Constitutional Law. — -Embezzlement by Clerk of Circuit Court. — Statute.—Constitutionality.—Section 2284 Burns 1914, Acts 1905 p. 584, §391, defining as embezzlement the failure of any clerk of any circuit court, etc., to pay over funds held by him in his official capacity to his successor in office, is not violative of the federal Constitution, amendment fourteen, p. 103.</p>

<p>1. Appeal.— Review.— Harmless Error.— Ruling on Motion to Strike Out. — Refusal to strike out mere surplusage from a pleading is not reversible error, p. 107.</p> <p>2. Dismissal and Nonsuit. — Motion to Dismiss. — Exhibits Filed xoith Complaint. — Proofs of loss, filed as exhibits with the complaint in an action on a fire insurance policy, are not the foundation of the action and do not constitute a part of the complaint, so that a motion to dismiss cannot be based on statements made in such proofs, p. 109.</p> <p>3. Appeal. — Review.—Ruling on Demurrer. — Waiver of Objections. — Failure to Specify in Memorandum. — Statutes.—Under §344, cl. 6,. Burns 1914, Acts 1911 p. 415, all objections to the sufficiency of a complaint not specified in the memorandum accompanying the demurrer are waived, p. 109.</p> <p>4. Appeal. — Review.—Evidence.—Motion to Strike Out. — Failure to Object to Evidence. — It is not error to overrule a motion to strike out evidence after it has been introduced without objection or exception, p. 110.</p> <p>5. Appeal. — Presenting Questions for Review. — Motion to Strike out Part of Written Instrument. — Identification.—To be available on appeal, a motion to strike out part of a written instrument introduced in evidence must designate the part to be stricken out in a manner intelligible to the court on appeal, and it is not sufficient to merely refer to pages and lines of the instrument, which are not preserved in copying it into the instrument, p. 110.</p> <p>6. Trial. — Instructions.—Invading Province of Jury. — Direction as to Allowing Interest on Claim for Fire Loss. — In an action on a policy of fire insurance, where there was some evidence tending to prove that plaintiff did not furnish proofs of loss, so as to mature his claim, until a certain date, and that the loss was not payable until sixty days from proof, an instruction, fixing the date of proof for computation of interest at an earlier date than shown by such evidence, was erroneous, as invading the province of the jury. p. 110.</p> <p>7. Constitutional Law. — Insurance.■—Determination of Loss. — . Liability for Attorney Fees. — Statute. — Validity. — Section 4622g Burns 1914, Acts 1911 p. 525, providing a method for determining loss in case of insurance against fire, lightning, or tornado, and, if that method fails for a stated reason, authorizing an action to recover the loss sustained, with reasonable attorney fees, is unconstitutional on the ground, that it is a mere arbitrary selection of subjects of legislation, in violation of Art. 14, §1 of the Constitution of the United States and Art. 1, §23, of the Constitution of Indiana, p. 111.</p>

From Laporte Superior Court; Robert M. Van Atta, Special Judge. Proceedings, on petition of Lemuel Darrow and others, for the establishment of a drain. From a judgment for petitioners, Jackson Civil Township and others appeal.

From Hamilton Circuit Court; Ernest E. Cloe, Judge. Action by the Davis Construction Company against the Board of Commissioners of Boone county, in which one Bundy appeared and filed a demurrer. From a judgment for defendants, the plaintiff appeals.

From Dubois Circuit Court; Oscar Rafts, Special Judge. Actions by William Cave against the Board of Commissioners of Dubois county. From a judgment for plaintiff, the defendant appeals. Causes No. 23,890 and No. 23,891 consolidated with above named cause on appeal.

From Marion Superior Court (A30); Linn D. Hay, Judge. Action by Frank C. Ball against the Star Publishing Company. From the judgment rendered, defendant appeals, and plaintiff assigns cross-error.

<p>From Marion Circuit Court (29,793); Louis B. Ew~ bank, Judge.</p> <p>Action by James R. Henry against the Standard Oil Company. From a judgment for plaintiff, the defendant appeals.</p>

From Shelby Circuit Court; Alonzo Blair, Judge. Action by William H. Harrell and others against the Indianapolis and Cincinnati Traction Company. From a judgment for plaintiffs, the defendant appeals. (Transferred from the Appellate Court under §1394 Burns 1914, Acts 1901 p. 565.)

From Marion Probate Court (1,114); Mahlon E. Bash, Judge. Action by Jabez Elonzo .Walton and others against James L. Mitchell, executor of the will of Thomas C. Walton, deceased, and others. From a judgment for plaintiff's, the defendants appeal.

From Jackson Circuit Court; James A. Cox, Judge. Action by Guerney O. Burtch against the Baltimore and Ohio Southwestern Railroad Company. From a judgment for plaintiff, the defendant appeals. (For decision on appeal to the United States Supreme Court, see 263 U. S. 540; 69 L. Ed.-; 44 Sup. Ct. 165.

From Wayne Circuit Court; William A. Bond, Judge. Habeas corpus proceedings by Benjamin F. Adding-ton and another against George Retter and another. From a judgment for defendants, the plaintiffs appeal.

From Marion Superior Court (A5,141) ; Solon J. Carter, Judge. Action by James W. Shaw against the Union Trust Company of Indianapolis. From the judgment rendered, the former appeals to the Appellate Court, which transferred the case to the Supreme Court.

From Clark Circuit Court; William Ridley, Special Judge. Action by the State of Indiana, on the relation of the board of commissioners of Clark county, against the National Surety Company of New York. From a judgment for relator, the defendant appeals.

<p>1. Municipal Corporations. — Election of Officers. — Statute Repealing Provisions for Town Elections. — Constitutionality.— Acts 1911 p. 71 (§8988 Burns 1914), amending Acts 1905 p. 221, §14, as amended by Acts 1909 p. 859, §1, by eliminating provisions for holding town elections, is constitutional, in view of Art. 15, §1 of the Constitution as to the selection of certain officers, p. 420.</p> <p>2. Municipal Corporations. — Election of Town Officers. — Validity. — Lack of Constitutional Authority. — There being neither statutory nor constitutional authority for the election of town trustees in 1915, an election of such officers in that year was void. p. 420.</p> <p>3. Constitutional Law. — Retrospective Legalizing Statutes.— Validity. — Powers of Legislature. — If the thing 'wanting, or which was not done, and which constitutes the defect in the proceedings, is something which the legislature might have dispensed with by a prior statute, it is not beyond the power of the legislature to cure the defect by dispensing with it by a subsequent statute, p. 421.</p> <p>4. Constitutional Law. — Legalizing Statutes. — Validity.—Although the legislature has power to cure irregularities and defects which do not go to the essence of a proceeding, it is the general rule that, where an act, proceeding, or transaction is void for lack of power to do it, and not merely voidable on account of some formal defect, it cannot be cured by legislative action, p. 421.</p> <p>5. Constitutional Law. — Void Election. — Legalizing Statute.— • Validity. — As an election of town officers in 1915 was void because held without' either statutory or constitutional authority, Acts 1917 p. 100 is invalid in so far as it undertakes to legalize the election of town officers in that year. p. 421.</p>

<p>From Knox Circuit Court; Thomas B. Coulter, Judge.</p> <p>Action by the John V. Farwell Company against the W. A. Flint Company, William A. Flint, and others. From a judgment for plaintiff against all defendants, the W. A. Flint Company, William A. Flint, and another appeal.</p>

From Cass Circuit Court; Paul M. Souder, Judge. . Action by Fannie Rooney and others against George A. Gamble, executor of the estate of Isaac N. Crawford, deceased, and others. From a judgment for plaintiffs, the defendants appeal.

From Wells Circuit Court; Frank W. Gordon, Judge. Action by the State of Indiana, on the relation of John A. Hines, against S. F. Bowser and Company, Incorporated, and others. From a judgment for relator, the defendant appeals.

<p>From Tippecanoe Circuit Court;Homer W.Hennegar, Judge.</p> <p>Prosecution by the State of Indiana against Isadore Rosenberg. From a judgment of conviction, the defendant appeals.</p>

<p>1. Judgment.— Complaint.— Proof.— Variance.— Recovery.— In an action against a corporation for damages in which plaintiff predicated its cause of action upon an allegation that defendant had issued to its secretary a stock certificate, of which he was the owner, and that the secretary assigned it as collateral security for the renewal of a note evidencing a personal debt, and that such stock was worth an amount named, plaintiff was not entitled to recover upon a special finding that neither it nor its assignor owned the shares and that defendant did not issue the stock certificate nor authorize it to be issued, but that it was obtained by the' secretary’s fraud and deceit, and that when he hypothecated the certificate with plaintiff he was not acting within the scope of his agency as secretary, but solely in his private capacity, and which failed to find that the shares of stock had any value, p. 506.</p> <p>2. Judgment. — Complaint. — Proof. — Variance. — A plaintiff must recover upon proof of the facts alleged in his complaint, and he will not be permitted to allege one state of facts, and then procure the court to find altogether different facts, and recover judgment for a cause of action not within the issues joined in the pleadings, p. 506.</p> <p>3. Judgment. — Complaint.—Proof.—Variance.—In an action for damages against a corporation grounded upon the allegation that it had issued to plaintiff’s debtor, who was secretary of the corporation, an illegal stock certificate, after it had previously issued all the stock authorized under its charter, and that the debtor had delivered the certificate to plaintiff as collateral security for renewal of a note evidencing a personal loan, plaintiff was not entitled to recover under a finding that the certificate was surreptitiously issued by the debtor without authority, when not acting within the scope of his agency for defendant, and was negotiated to plaintiff when the secretary was engaged solely in the transaction of his own private business; and in the absence of a finding that the certificate had some value, a conclusion of law awarding damages was not warranted, since plaintiff could not have been damaged if the certificate was worthless, p. 512.</p> <p>4. Corporation. — Fraud of Officer. — Liability of Corporation.— The mere fact that one chargeable with fraud in the issuance of a stock certificate was an officer of the corporation would not make it liable for false representations made by him in his own behalf, when transacting his own business and not . that of the corporation, p. 513.</p> <p>Gibraltar Realty Co. v. Security Trust Co. — 192 Ind. 502.</p> <p>5. Judgment.— Estoppel.— Failure to Plead.— Where a complaint failed to allege facts constituting an estoppel, a judgment on that ground cannot be upheld, regardless of whether a cause of action based on an estoppel could have been maintained if it had been pleaded, p. 514.</p> <p>6. Corporations. — Stock Certificates. — Negotiability.—Statutes. —Under §9089a Burns 1914; Acts 1913 p. 120, enumerating the requisites of a negotiable instrument, a stock certificate is not negotiable by the law merchant so as to vest good title in an assignee for value, without notice, by virtue of such an assignment, where the assignor has no title, p. 514.</p>

<p>From Marion Criminal Court (50,820) ; James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against James Kilgallen. From a judgment of conviction, the defendant appeals.</p>

<p>1. Insurance. — Life Insurance. — Conditions Avoiding Policy._ Construction. — Failure to Pay Premiums. — The provision in a policy of life insurance that a failure to pay any premium when due shall render the policy void was a condition subsequent, the breach of which did not of its own force terminate the policy, but rendered it voidable at the election of the insurer, which election could he exercised only after the expiration of the six-month period, after failure to pay an annual premium, within which insured had the right to claim a paid-up policy, p. 627.</p> <p>2. Insurance. — Life Insurance. — Nonpayment of Premiums.— Forfeiture of Policy.- — Granting Extended Term Insurance.- — •• Effect. — Where a policy of life insurance provided for forfeiture for nonpayment of premiums when due, the action of the insurance company in making an entry on its books showing extended term insurance, though no such right was given by the terms of the policy, constituted a recognition of the validity and continued existence of the policy, and did not operate as an exercise of the company's option to terminate it. p. 628. . .</p> <p>3. Insurance. — Life Insurance. — Nonpayment of Premiums.— Forfeiture. — Application of Earned Surplus to Extended Term Insurance. — Upon a failure to pay premiums when due, an insurance company cannot apply, without the consent of the insured, the surplus and undivided profits earned on a policy liable to forfeiture for nonpayment of premiums to the purchase of extended term insurance, where such right was not given the insurer by the terms of the policy, p. 628.</p> <p>4. Insurance.— Life Insurance.— Forfeiture.— Tender of Premium. — Where an insurance company has marked on its books a policy a"s lapsed for nonpayment of premiums, it is unnecessary for insured to make further tender of performance to preserve whatever rights he may have under his policy, p. 628.</p> <p>5. Insurance. — Life Insurance. — Forfeiture.—Exercise of Option. — Notice.—Necessity.—Where a policy of life insurance secured to the insured certain options at the expiration of the tontine period, but before that time he had been informed by the insurance company that the policy had been forfeited for nonpayment of premiums, insured was’ not ’ required, at the expiration of the tontine period, to give notice of an election as to which option he would accept, p. 630.</p> <p>6. Insurance. — Life Insurance. — Nonpayment of Premiums.— Failure to Forfeit Policy. — Insurer’s Liability. — Where an insurance company did not exercise its right to forfeit a life policy for nonpayment of premiums, but entered on its books an extended term insurance, though the policy contained no provision therefor, it was proper for the court, in an action by insured after the expiration of the tontine period, to give judgment against the company for the amount which the insured was entitled to under the terms of the policy at the end of the tontine period less the amount of unpaid premiums, with interest thereon for their respective due dates, p. 630.</p> <p>7. Insurance.— Life Insurance.— Police Provision Requiring Suit to be Brought within a Year.— Validity.— Statutes.— Where a life policy was issued by a foreign insurance company which took effect on its delivery to insured and payment - of premiums by him within the state, a provision in the policy that no suit should be brought on the policy after one year from the time of the accruing of the cause of action, is void under §4803 Burns 1914, §3770 R. S. 1881. p. 631.</p> <p>8. Evidence.— Admissibility.— Intent.— Abandoning Insurance Contract. — In an action on an insurance policy claimed by the insurer to have been forfeited for nonpayment of premiums, wherein insured contended that the failure to pay the premiums was due solely to insurer’s failure to notify him when they were payable in accordance with the custom previously followed, insured could testify that he had no intention to abandon his contract of insurance; evidence of intent being admissible in civil cases where material, p. 631.</p> <p>9. Appeal. — Review.—Harmless Error. — Admission-of Evidence of Intent. — In an action on a life policy claimed by the insurer to have been forfeited for nonpayment of premiums, error, if any, in permitting insured to testify that he had no intention of abandoning his contract of insurance, was harmless, where it clearly appeared from all the evidence that his failure to pay the premiums was wholly unintentional, p. 631.</p> <p>10. Insurance. — Life Insurance. — Action on Policy. — Evidence. —Estimate Submitted by Agent as to Surplus. — Admissibility. — In an action on a life policy to recover the surplus to which insured was entitled under the policy at the expiration of the tontine period, an estimate, prepared by the insurer’s agent at the time he secured the policy, as to the amount of such surplus, was admissible on behalf of the insured, p. 631.</p>

<p>From Marion Criminal Court (50,821); James A. Collins, Judge.</p> <p>Prosecution by the State of Indiana against James L. Kilgallen. From a judgment of conviction, the defendant appeals.</p>