Volume 23 — Delaware Reports

<p>Writ of Error (No. 4, June Term, 1903) to the Superior Court for New Castle County.</p>

Indictment for Using a Female Child for the Purpose of Sexual Intercourse. This was a second trial; the jury disagreeing at the first trial held at the October Term, 1904.

to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company, in so operating one of its cars on the Newport Pike near Wilmington, that it became entangled in a coil of rope attached to plaintiff’s person while he was up a telephone pole about thirty feet from the ground and near the track of said company, whereby the plaintiff was thrown to the ground and injured. The narr contained originally three counts.

to recover damages for personal injuries to the plaintiff and for injuries to his horse and buggy, alleged to have been occasioned by the negligence of the defendant in the operation of one of its trolley cars, on Wednesday, November 4, 1903, at Eighth and Tatnall Streets, in the city of Wilmington, by reason of which the said car collided while going west on Eighth Street, with the team of the plaintiff which was traveling north on Tatnall Street.

to recover damages for personal injuries, alleged to have been occasioned by the negligence of the defendant company in placing and erecting a certain obstruction, to wit, a piece of timber or a pillar, in the bed of East Third Street, in the City of Wilmington, dangerously and unnecessarily near to the tracks of the Wilmington City Railway Company, whereby the said plaintiff, who in the exercise of due care and caution on his part was riding as a passenger on a certain car…

<p>Partition—Intestate Real Estate—Will—Devise—Fee Simple— Life Estate—Words of Limitation—Intention of Testator ■—Introductory Clause of Will—Words Showing Intention—Delaware Cases.</p> <p>1. While it may be true that in most cases where there is a general devise of land without words of limitation it was the intention of the testator that a fee simple estate should pass, it is equally true that such intention must be found in the language of the will and not in conjecture or speculation.</p> <p>2. The words “one half of the farm where I now reside,” are merely descriptive of the property devised, and in no sense determine the estate that should pass; nor does the word “descend,” indicate that the testator intended that a fee simple estate should pass.</p> <p>3. The testator devised to his daughter one-half of the farm upon which he resided “to her heirs if she should have any children; if she should have none it is to descend to the oldest son of J ohn W. Reed (George W. Reed), if he should have any lawfully begotten at her death if he should have no male heirs it is to descend to all her heirs alike, except to John W. Reed himself. But shall not prohibit his heirs from receiving his part.” Held, that George W. Reed took only a life estate in the land so devised.</p> <p>4. In holding that a fee simple estate passed when there was a devise without words of limitation, the Courts have been influenced both by the introductory clause of the will which showed .the intention of the testator, and by the fact that the testator had, in bequests to other heirs, shown that in no event did he intend that they should take any other part of his estate.</p> <p>5. The Delaware cases analyzed.</p> <p>6. In the construction of a will, the intention of the testator, as expressed in it, and collected from the whole of it, must prevail, provided it can be carried into effect consistently with the rules of law.</p>

to recover the sum of $579.15 for paving one foot on each side of the defendant’s railway tracks in the City of Wilmington, on Washington Street between Eleventh Street and Washington Street Bridge. (See other facts in case stated and arguments of counsel.) Case stated filed November 13, 1906, showing the following statement of facts agreed upon between, and signed by the respective counsel aforesaid, viz: First.

85, September Term, 1907.) This was an action of assumpsit to recover seventy-five dollars for professional services rendered by plaintiff as attorney for James Dilworth in his lifetime. A bill of particulars was filed. Defendants, at the trial, admitted the death of James Dilworth and the granting of letters testamentary upon his estate to the parties named in the action as defendants.

<p>Assumpsit (Amicable Action on a Case Stated) No. Ill, November Term, 1907. •</p>

■ Action on the.Case (No. 58, September Term, 1906) by the father and administrator of Waclaw Lenkewicz, deceased, to recover damages for the death of his said son, alleged to have been occasioned through the negligence of the defendant company; it being conceded that the défendant company had-, double tracks on Maryland Avenue, in the City of Wilmington, to, and a short distance beyond Stroud Street; that the cars of the-defendant company pass each other on the Avenue going…

Indictment for keeping an eating house without a license (No. 49, September Term, 1907). Tried and argued upon an agreed statement of facts.

<p>Capias in Slander.</p>

65, November Term, 1907). Action of Assumpsit to recover for labor and materials furnished by the plaintiff in repairing an automobile for the defendant. The counts relied upon were for goods furnished and work and labor done. Bill of particulars filed claiming $63.40. The pleas were non assumpsit, payment, statute of limitations, set-off. Notice of recoupment filed.

Verdicts and Judgments for plaintiffs. Writs of Error sued out of Supreme Court by defendant. Etta B. Baldwin, through her counsel, filed the following petition for admission of next friend, viz: “In The Superior Court of The State of Delaware in and for New Castle County. Etta B. Baldwin vs. Peoples Railway Company. No. 24, May Term, A. D. 1907.

to recover upon a fire insurance policy for the value of certain property covered by said policy and which was destroyed by fire, August 11, 1906.

by the administrator of Charles A. Short, deceased, to recover damages sustained by the estate of said deceased on account of his death, alleged to have been caused by the negligence of the defendant, on December 12, 1906.

154, February Term, 1907). Action by the plaintiff to recover from the defendants the sum of $189.28, with interest from August 20th, 1906, for work and labor in constructing a certain porch and steps for the defendants’ home, at Holly Oak, in New Castle County. Said work was claimed to have been done between June first and June twenty-seventh, 1906, under a contract that the defendants were to furnish all materials and plaintiff to furnish the necessary labor to do the work.

<p>Petition for discharge of goods from attachment.</p>

<p>Indictment for selling intoxicating liquor, in Kent County, contrary to the provisions of Section 11, Chapter 65, Volume 24, Laws of Delaware,—being the Local Option Law.</p>

At a Court of Oyer and Terminer, for New Castle County, beginning the twelfth day of November, 1908, Elwood Wiggins, the prisoner, was placed on trial upon an indictment charging Murder of the First Degree.

to recover damages for personal injuries to plaintiff and for injuries to his horse and wagon, occasioned by a collision between an electric car of the defendant and a wagon of the plaintiff, in which he was riding, at or near the intersection of Second and Market Streets in Wilmington, on August twenty-first, 1907.

<p>to recover damages for personal injuries, alleged to have been occasioned by the negligence of the defendant company.</p>

<p>Embezzlement</p> <p>Demurrer to Plea of Autrefois Acquit.</p>

Indictment (No. 24, January Term, 1909) for using a female child for the purpose of sexual intercourse. At the trial, Eva Dlugozima, being duly sworn through a sworn interpreter (Wanda Poniecka), on her voir dire, testified as follows: By Mr. Saulsbury: Q. Do you believe in the sancity of an oath? A. I do. Q. On Monday, November 30th, 1908, did you or did you not say to Paul Dlugozima, in your home, that an oath did not amount to anything, or words to that effect ?

<p>Writ of Error to the Court of General Sessions in and for New Castle County.</p>

Writ of Error to the Superior Court for New Castle County. This was an action of debt brought by Solomon M. Rosenberg against the Continental Insurance Company, to recover the sum of $2,000, with interest, on a policy of fire insurance, covering a stock of merchandise of the plaintiff. The following is the charge of the Court below:

Action on the Case to recover damages for personal injuries to Philip Lynch, alleged to have been sustained by reasom of the negligence of the defendant on one of the public streets of.' Wilmington. Action was brought by Philip Lynch in his lifetime., and comtinued by his executrices after his death.

<p>Writ op Error (No. June Term, 1908) to the Superior Court for New Castle County.</p>

<p>Criminal Law—Indictment—Attempting to Obtain Money under-False Pretenses—-False Pretense—Levy Court—County Treasurer—False Bill; Presentation of—Knowledge of Defendant—Intent—Agency—Evidence—• What State must Prove—Statute— Pleading.</p> <p>1. In order to find the defendant guilty under an indictment for attempting to obtain money under false pretenses from the County Treasurer, the alleged false pretense being the presentation of a false bill to the Levy Court, the jury must be satisfied, (1) that the defendant knowingly made a false pretense; that is, that he presented, or authorized to be presented to the Levy Court a false bill, he knowing at the time that such bill was false; (2) that the bill was presented by the defendant, or by his direction, with intent to cheat and defraud the County Treasurer.</p> <p>2. If the bill when presented to the Levy Court was false, known to the defendant to be so, and was intended by him to deceive and defraud the County Treasurer, an offer by the defendant to change or correct the bill after it was presented would be immaterial.</p> <p>3. The intent is the important and material element of the case. It is not a presumption of law but a material fact, and must be proved by the State to the satisfaction of the jury.</p> <p>4. The County Treasurer is a person who may be cheated and defrauded, under the provisions of Chapter 418, Vol. 11, Laws of Delaware.</p> <p>5. It is not necessary, in order to sustain the indictment, for the State to show that all the items or any particular item in the bill presented was false, because satisfactory evidence of the falsity of any one of the separate items set forth in the indictment would be sufficient.</p> <p>6. It is not sufficient that the defendant "should have known that the bill presented to the Levy Court was false, because the deceitful means necessary to sustain a conviction involved knowledge of the falsity of the representation by the defendant, and no conviction can .be had without proof of the scientre. Deceit is the foundation of the action, which cannot exist without knowledge of the falsity of the representation. The representation made must not only be false in fact but false to the knowledge of the defendant.</p> <p>7. If the bill presented was a false one, and the person or persons who prepared and presented it to the Levy Court were authorized by the defendant to prepare and present such bill, and the defendant knew that the bill was false at the time it was presented, that would constitute a false pretense on the part of the defendant; and if the defendant intended by means of such bill to deceive and defraud the County Treasurer, he would be guilty.</p>

<p> Case Stated—Quo Warranto—Municipal Corporation—Department of Elections; Members of—Municipal Elections; Right to Hold. </p> <p>1. A Writ of Quo Warranto was issued in the name of the State to determine by what right or authority Jacob H. Lewis and Thomas A. D. Hutson, who claimed to be members of the Department of Elections for the City of Wilmington, participated in the transfer and registration of voters preparatory to holding a municipal election in said city. Held, on demurrer, that said Jacob H. Lewis and Thomas A. D. Hutson are members of the Department of Elections for the City of Wilmington, and as such of right hold and exercise the right of office of members of said department, among the rights and duties of such office is the transfer and registration of voters, preparatory to holding the municipal election in said city.</p> <p>2. Demurrer overruled.</p>

to recover damages for injuries to plaintiff’s property, by the cutting of certain shade trees. It was admitted at the trial that the title to the property was in the plaintiff and that'said plaintiff was the owner of the trees alleged to have been damaged.

Scire Facias on Judgment. At the trial it was proved that the plaintiff, on September seventh, 1872, obtained a judgment by confession against Ebenezer Waller for one hundred and fifty dollars, and the plaintiff testified that only seventy-four dollars and fifty-cents had been paid on account of the same. This suit was brought to recover the balance claimed to be due.

to recover damages for personal injuries alleged to have been received by the plaintiff through the negligence of the defendant.

Action to Recover Damages for the death of a child fifteen months old.

<p>Habeas Corpus.</p>

<p>Actions to recover Damages for personal injuries, (Nos. 154 and 155, September Term, 1906).</p>

<p>Landlord and Tenant—Repairs—Payment—Contract—Executor— ■ Occupancy of Premises—Statute—Payment of Debts of Deceased—Set-off—Statute of Limitations.</p> <p>1. When a person rents a property he takes it as it is, and unless the landlord has agreed to make repairs, or agrees that the repairs shall be made, or, having been made, promises to pay for them, the landlord is not bound to pay for them. If the landlord authorized the tenant to make the repairs, or if he directed him to have them made, the law would imply a promise to pay for them.</p> <p>2. The tenant cannot dispute his landlord’s title.</p> <p>3. If the plaintiff, who lived in the premises during his father’s lifetime, and who became the executor of his father, and continued to live there after his father’s death, charged himself a fair amount for the use and occupation of the premises, and applied that amount to the payment of the debts of his father, he would not be liable to the devisee for the use and occupation of the premises. And, if the charge for use and occupation of the premises was more than three years before the action was brought, it is barred by the statute of limitations, and cannot be allowed as a set-off,</p> <p>4. But if the plaintiff occupied the premises as the tenant of the defendant, and the charge therefor has not been paid, and is not barred by the statute of limitations, it may be set-off against any amount found to be due to the plaintiff.</p>

<p>Special demurrers to defendants’ pleas, and motion to strike out notice of recoupment. Motion for a nonsuit granted.</p>

<p> Assumpsit—Refrigerator Cars—Special Contract—Defense, Inability to Perform; Effect of. </p> <p>1. If a person, enters into a special contract with another, mere inability to perform the contract will not relieve the defaulting party, except he be prevented by the act of God or by the public enemy.</p> <p>2. If the defendant engaged to deliver to the plaintiff at a certain place, two cars, as alleged by the plaintiff, and did not so deliver them by reason of a shortage in the cars at the time, whether the fact of such shortage was known to the plaintiff or not, this would not relieve the defendant from the performance of its contract.</p> <p>3. In such case the plaintiff would be entitled to recover such a sum as would compensate him for the loss or damage which he sustained by reason of the failure of the defendant to perform his engagement with him.</p>

<p>Assumpsit (Amicable Action on a case stated,) No. 115, June Term, 1908, involving a lien of ground rent.</p>

Action of Assumpsit to recover for personal services which plaintiff claimed she rendered the defendant as bar-keeper, and other work about his house, from December 25, 1896 to June 30th, 1907—542 weeks at ten dollars a week.

<p>Indictment for breaking and entering a dwelling house in day time, with intent to commit Larceny, (No. 42, March Term, 1909).</p>

Indictment for Malicious Mischief (No. 20, January Term, 1909). The material parts of said indictment are set out in the charge of the Court. When the case came on for trial, counsel for defendants demurred to the indictment, assigning the following causes: “ 1.

Indictment found under Section 10, Chapter 127, Revised Code, providing that “Every person who shall commit the crime of rape, or who shall carnally know and abuse a female child under the age of seven years, shall be deemed guilty of felony and shall suffer death.” The prosecuting witness was a child eleven years of age.

to recover damages for certain alleged trespasses on farm lands which the plaintiffs held as tenants under a demise, the said lots being situate within the limits of the City of Wilmington. The damages as alleged consisted of the destruction of forty panels of fence, by the employees of the City of Wilmington, who were opening a street across said lands.

brought by next friend of plaintiff, an infant, about ten months old, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company, on the fifteenth day of August, A. D. 1907, while said plaintiff was a passenger in its mother’s arms, on the Steamer “Ulrica,” owned and operated by the defendant on said date. This was a re-trial.

Foreign Attachment Cases tried together by agreement of counsel; No. 6 being to recover for the 4-32 interest in Bark “Good News,” $1968.75, with interest from December 14, 1907; Nos. 7 and 8 each being to recover for the 1-32 interest in Bark “Good News,” $492.19, with interest from December 14, 1907. Narr filed May 15, 1908. Pleas of non-assumpsit, payment, set-off; and notice of recoupment filed April 2, 1909. Reps and issues filed April 5, 1909.

Information for Violation of Section 7, Article 5, of the Constitution of the State of Delaware. The information was in the following form, to-wit:— “February Term 1909 “Sussex County ss. “1.

<p>■Action op Replevin (No. 110, September term, 1908).</p>

<p> Divorce—Marriage—Desertion; Voluntary, Involuntary—Extreme Cruelty—Justification—Duty of Husband—Reconciliation —Duty of Wife—Evidence. </p> <p>1. Wilful desertion, in the statutory intent and meaning,- is the voluntary separation of one of the married persons from the other, or the voluntary refusal to renew a suspended marital relation, without justification either in the consent or wrongful conduct of the other. The onus is on the plaintiff satisfactorily to prove all the constituent elements of the alleged wilful desertion. If he fails to do this, and especially if the evidence discloses that the wife’s separation was either by his compulsion or with his consent, the divorce cannot be granted.</p> <p>2. The wife’s separation by the husband’s compulsion may be caused either by actual physical force against her, or by-threats and conduct on his part sufficient to afford her reasonable ground for believing or fearing that the security of her life or person is seriously endangered, unless she seeks safety by leaving him. The husband’s consent to his wife’s departure and continued separation from him may be either express or implied, and may be proven either by his direct declarations or admissions, or by such conduct and other circumstances as plainly and reasonably import such consent.</p> <p>3. Under the proven and admitted facts in the case, held, that at the time of the wife’s departure she had reasonable ground for believing or fearing that the security of her person was seriously endangered, unless she sought safety in immediate flight from her husband’s house and presence. The threats of bloodshed, the presence of his revolver, the bolting of the doors, and the recent violent personal encounter only two nights previously might well excite alarm and fear of serious bodily injury, or worse, in the breast of a woman.</p> <p>4. The controlling question is not whether the husband’s language and conduct at the time of the separation were mere rhodomontade, without actual intent or purpose in his mind to kill or beat her, but whether these and all the other circumstances reasonably warranted her in believing or fearing that he would then and there injuriously assault her, unless she immediately departed.</p> <p>5. If the wife’s separation from her husband was by his compulsion, then it was not a wilful desertion in legal contemplation; and hence its continuance has been with his consent, as must be presumed until the contrary is satisfactorily proven by evidence showing that she voluntarily, and without justification, has since refused or failed to renew her marital relations with him.</p> <p>6. Under the circumstances proved in the case, held, that it was the duty of the husband to have sought for his wife the next day after the separation, or at the earliest reasonable opportunity in order to explain his mistake and threatening language and conduct and assure her of her future safety and care in his society and home.</p>

<p>Writ of Error to the Superior Court for New Castle County, No. 2 June Term, 1908.</p>

<p> Writs of Error—Personal Injuries—Negligence—Measure of Damages—Proximate Cause—Disease—Intervening Cause —Child's Services—Minority. </p> <p>1. In actions brought to recover damages alleged to have been caused by the defendant’s negligence, the Court below charged the jury as follows, viz.: “The defendant can be held liable only for such negligence as constituted the proximate cause of the injuries complained of. * * * In order for the plaintiff in either of the cases before you to recover at all, it must be proved to your satisfaction that the defendant’s negligence was the proximate cause of the injuries complained of. The plaintiffs cannot recover in either case for the effects of tuberculosis or any other disease contracted after the accident, unless it is satisfactorily shown to the jury that such disease was the natural and probable consequence of the defendant’s negligence. Nor can there be any recovery for the effects of any disease contracted before the accident unless the jury are clearly satisfied from the evidence that such disease was aggravated or increased by the negligent act of the defendant, and even then recovery could be had only to the extent that such effects were so aggravated or increased.” Held, that there was no error in the charge of the Court, and that the addition of the words insisted on by the defendant, viz., “It must appear that the injury ought to have been foreseen by the defendant in the light of the attending circumstances,” would probably have tended rather to confuse than to aid the jury in reaching a proper conclusion.</p> <p>2. The cases below, being for pain and suffering, loss of services and expenses, should be distinguished from those in which damages are claimed for the deaths.</p> <p>3. The Court below further charged the jury as follows: “The father is entitled to the services of a minor child, and if such services were lost or impaired by the negligence of the defendant, the father is entitled to be reasonably compensated for such loss or impairment. But even if the defendant is liable, by reason of its negligence, for such loss of services, a recovery can be had only for such a sum as the evidence shows the father actually sustained on account of the injuries complained of, caused by the defendant’s negligence. * * * In estimating the value of the daughter’s services to the father you may consider her earnings and ability to labor.” Held that such charge of the Court expressly limited the right of the father to recover for loss of services and expenses during his daughter’s minority; there being no suggestion in the charge that the jury might allow the father damages for the loss of services of his daughter until she would have attained twenty-one years, had she lived so long, and that there was no reason to suppose that the jury, in view of instructions given by the Court, committed any such error.</p>

to recover damages for permanent personal injuries and for in juries to horse, wagon and baker’s supplies, alleged to have been caused by the negligence of the defendant in allowing one of its trolley wires to become sagged, whereby plaintiff collided with the same, causing the injuries complained of.

<p> Mandamus—Alternative Writ—Return; Motion to Quash for Insufficiency—Pleading—Practice—Stockholder—Inspection of Books and Papers; Purpose of—Corporation—By-Law. </p> <p>1. A motion to quash the return to the alternative writ of mandamus is founded upon the proposition, that,conceding the truth of every material allegation properly pleaded in the return of the respondent, as a matter of law no sufficient defense has been shown. The question to be decided is, whether upon the face of the return the condition of the relator and the respondent is so changed as to prevent or delay the issue of the peremptory writ.</p> <p>2. The averment of the respondent that certain books and papers, the inspection of which is asked for, are now out of the State, would not avail. If their inspection was necessary the Court would order their production.</p> <p>3. The by-law set up as a defense, which absolutely vests in the discretion of the directors the right of a stockholder to inspect or examine the books of the company, and which makes the decision of the directors final, is both unreasonable and unlawful, and would be so regarded by the Court.</p> <p>4. The return may be in some respects evasive and argumentative and yet contain denials of such material facts and conditions set forth in the petition of the relator as to make the Court hesitate in granting a peremptory writ.</p> <p>5. As the case stands upon the motion to quash the return, the question is simply, whether the petitioner upon the face of the petition and return is entitled to the peremptory writ for the purpose of ascertaining the actual value of his stock.</p> <p>6. While on the one hand it is the duty of the directors of corporations to afford to their stockholders every reasonable opportunity to get accurate information as to the conduct and management of the business of which they merely act as trustees, yet, on the other hand, it is their duty to protect the interests of the stockholders. The books and papers in their charge should not be subject to unnecessary, unreasonable or untimely inspection. The directors are clearly entitled to have the assurance that the information sought is not for the purpose of injuring their business, or building up a rival or competitive concern, or any other improper purpose.</p>

brought to recover the value of two certificates of the capital stock of said defendant corporation, alleged by the plaintiff to have been converted by the defendant to its own use.

<p>Information for violation of Section 7, Article 5, of Constitution, by offering money for a vote at a primary election in Sussex County.</p>

Facts: John Jacoby entered into a contract with the District of Columbia to construct certain sewers in the City of Washington. Under the statute of the United States he was required to enter into a bond with surety for the performance of his contract for $170,000.

by a passenger to recover damages for personal injuries sustained while attempting to alight from a car. See facts in charge of Court.

Actions on the Case to recover damages for personal injuries to plaintiffs, while riding together in a carriage drawn by a horse, and crossing the track of the defendant company at the intersection of Eighth and Pine Streets in the City of Wilmington; said injuries being alleged to have been caused by a car of the defendant negligently colliding with the said team. The facts sufficiently appear in the charge of the Court.

to recover damages for personal injuries, alleged to have been occasioned by the negligence of the defendant while plaintiff was in the act of boarding one of the defendant’s trolley cars, April 8, 1905, at Fourth and Van Burén Streets in Wilmington.

<p> Executors and Administrators—Assumpsit—Services Rendered Deceased—Implied Promise; Exceptions to Rule—Near Relations—Friends—-Presumption of Law—Book Account; What Subject to Evidence—Statute of Limitations; Exceptions to—Subsisting Demand; Acknowledgment of—Conflict of Testimony. </p> <p>1.. Where one person at the request of another performs work and labor without any agreement as to the price to be paid, the law implies a promise on his part to pay whatever such work and labor are reasonably worth.</p> <p>2. Where work and labor are rendered for one and he receives the benefit of the same, the law implies a promise on his part to pay for such work and labor what it is reasonably worth, and this is so although he may not have requested the other party to do the work.</p> <p>3. These rules are, however, subject to certain exceptions and qualifications. In many cases where the parties are near relations the law will not imply a promise or obligation to pay for services which are usually rendered each other gratuitously by near relations. So, too a promise to pay is not implied by law where the services are rendered by one friend to another under such circumstances as warrant the presumption that they were "intended to be rendered gratuitously.</p> <p>4. Work and labor of the character set forth in the plaintiff’s bill of particulars are proper subjects of a book account under our statute, but the performance of such work and labor and the value thereof may be proved by other evidence than a book account.</p> <p>5. If the debtor, within three years next before the bringing of the action acknowledges the debt to be a subsisting demand or makes any recognition of it as an existing debt this will be sufficient to take the case out of the statute of limitations.</p> <p>6. The naked acknowledgment of a subsisting demand without an express promise to pay it is sufficient to take the case out of the statute.</p> <p>7. It is for the jury to say whether the acknowledgment of a subsisting demand has been proved in the case.</p> <p>8. Where the evidence is conflicting the jury should reconcile it if they can, and if they cannot do so they should accept that part of it which they deem worthy of credit and reject that part which they deem unworthy of credit, having due regard to the interest of the witnesses in the result of the suit, their opportunities of knowing that of which they have testified, and all other circumstances which may aid them in reaching a conclusion as to their credibility and the weight which should be given to their testimony.</p>

<p>to recover for personal injuries.</p> <p>At the trial, the following questions were raised and ruled upon.</p>

<p>Indictment for murder of the fiist degree, (No. 30, November Term, 1891).</p>

<p>Criminal Law—Manslaughter; Voluntary and Involuntary— Unlawful Act—Cause of Death—Maltreatment of Wound —Misconduct of' Deceased—Death from some other Cause than Wound. '</p> <p>1. Manslaughter, voluntary and involuntary defined.</p> <p>2. Manslaughter may arise from an unlawful act or from a lawful act done without proper caution or without requisite skill. To establish this offense, it is necessary for the State to prove that the act of the prisoner which produced the wound was unlawful, and that the wound so produced was the cause of death.</p> <p>3. If the deceased staggered up against the prisoner and there was an unintentional collision and the prisoner used so much force as was reasonably necessary to get rid of contact with the body of the deceased, he did only what he had a right to do! But if the prisoner intentionally came into contact with the deceased or used unreasonable violence, then his act was unlawful.</p> <p>4. But even though the act was unlawful, if death resulted from some other cause than the wound, the prisoner cannot be convicted. It is well established law that where the wounds are adequate or calculated to produce death, it is no excuse to say that had proper care and attention been given, recovery might have followed. If death ensues from a wound given in malice, but not in its nature mortal, but which being neglected or mismanaged the person dies, this would not excuse the person who gave it and he would be held guilty, unless he could make it clearly and certainly appear that maltreatment of the wound or the misconduct of the wounded man, and not the wound itself, was the sole cause of his death. If, however, such maltreatment or misconduct only increased the danger of the wound, or accelerated the death, it would be no excuse.</p>

<p>Criminal Law—Manslaughter; Voluntary and Involuntary— Unlawful Act—Self-Defense—Ejecting a Trespasser from Premises—Indictment—Pleading—Evidence— Verdict—Statute—Reasonable Doubt.</p> <p>1. Manslaughter is the unlawful killing of another without malice express or implied. It is of two kinds: (1) Voluntary manslaughter, where upon a sudden quarrel, two persons fight and one of them kills the other; or where a person greatly provokes another by some personal violence and the other immediately kills him; (2) Involuntary manslaughter, where one in committing an unlawful act tending to great bodily harm or in committing a lawful act without proper caution or without requisite skill, unguardedly or undesignedly kills another.</p> <p>2. To constitute the crime of manslaughter, the party charged must be engaged in an unlawful act when the killing occurs, and to determine this fact the jury must be satisfied from the evidence that the prisoner was doing that which he had no right to do.</p> <p>3. A person has a right to eject from his premises, anyone who is acting in a disorderly or improper manner, and to effect this he may use sufficient force to accomplish this purpose; but if he employs more than is sufficient to attain this end he becomes a trespasser ab-initio.</p> <p>4. Where the indictment charges the prisoner with causing the death of the deceased by blows and violence, it being a necessary averment, it constitutes the gist of the offense and gives notice to the accused of that with which he is charged. The facts alleged as to the killing and the manner of killing must be proved to the satisfaction of the jury beyond a reasonable doubt.</p> <p>5. Where a person is charged with a crime the offense should be alleged in the indictment, because otherwise the prisoner is not prepared and cannot make the defense that would be necessary for him to make. If he is charged with force and violence in inflicting blows-and injuries in an unlawful manner, from the effects of which death ensued, whether the blows were inflicted justifiably or unlawfully, if the averment in the indictment is not proved the prisoner cannot be convicted.</p>

<p>Criminal Law—Arson—What Necessary for State to Prove— Evidence, Positive and Circumstantial—Relations—Accomplices—Statute, Construction of.</p> <p>1. Arson at common law was “the malicious and voluntary burning of the house of another by, night or by day.”</p> <p>2. In order to convict the prisoner of arson, under our statute, the State must prove, (1) the burning or setting on fire of the building; (2) that it was a dwelling house in which at the time of burning or setting on fire there was some human being, and (3) that the offense was committed wilfully and maliciously.</p> <p>3. The ownership of the dwelling house, in the construction of our statute, whether it be that of the person charged with the offense or that of another, makes no difference, as the gravamen of the offense is the burning or setting on fire of a dwelling house in which there was at the time some human being.</p> <p>4. The evidence to prove the commission of such crime must be direct and positive, or circumstantial and presumptive. Positive and circumstantial evidence defined and illustrated.</p> <p>5. The jury are the sole judges of the credibility of witnesses—Although they may be near relations of, and kin to the prisoner, if. competent, they are allowed to testify. What faith and credit are to be given them is for the jury to determine. They stand on the same footing with other witnesses. The law applicable to accomplices does not apply to relations. All classes interested, or even parties accused are competent, under our law. The jury may accept or reject their testimony.</p>