and without notice to appellant or his attorneys. Subsequently Judge Jackson, over appellant's objections, rendered judgment for appellee on this finding and the conclusions of law stated thereon. Before the rendition of judgment, appellant seasonably, but un

60 Ind. 162; Daly v. National Life Ins. Co., | findings of facts and conclusions of law in 64 Ind. 1; Kennedy v. Richardson, 70 Ind. the cause, which was done in the absence of 524; Rush v. Thompson, 112 Ind. 158, 165, 13 N. E. 665; Johnson v. Tyler, 1 Ind. App. 387, 27 N. E. 643; Lupton v. Taylor, 39 Ind. App. 412, 78 N. E. 689, 79 N. E. 523. Claims arising out of tort, it is true, as claimed by counsel, cannot be pleaded as set offs in action on contracts. Indianapolis, successfully, moved to strike out and reject etc., R. Co. v. Ballard, 22 Ind. 448; Roback v. Powell, 36 Ind. 515; Harris v. Rivers, 53 Ind. 216; Harris v. Randolph County Bank, 157 Ind. 120, 60 N. E. 1025.

[8] The pleading which is the subject of counsel's attack does not, however, as we see it, sound in tort, but plainly seeks to recover damages for the breach of a contract. It sets out the contract, and alleges specific instances of appellant's failure of duty under it, by which, it is alleged, appellee was damaged, and for this a recovery is asked. We do not think that the court erred in these rulings.

the paper in question as the findings and conclusions of law in the cause, and also presented the question as a cause for a new trial.

The brief of counsel for appellee gives no aid to the court in the determination of the important question involved, beyond the terse and somewhat dogmatical assertion that: "The court never dies. Judge Jackson had the power to adopt the special findings of facts that had been prepared and signed by his predecessor"-and the citation of Hedrick v. Hedrick, 28 Ind. 291, and Reed v. Worland, 64 Ind. 216. The case of Hedrick v. Hedrick is clearly distinguishable from this. There the succeeding judge rendered a judgment which was based on a verdict properly returned by a jury in a trial before his predecessor, and, as the verdict specially found the facts upon which the judgment was based, such action was upheld.

In the case of Reed v. Worland, it was held, in harmony with earlier and later decisions of this court, that a judge whose office has been abolished, or whose term of office has expired, cannot sign a bill of exceptions in a cause tried before him, but that such duty devolves upon his successor, and a distinction between that case and this is manifest. Moreover, the soundness of these decisions has been doubted by high authority, in so far as they sanction the power of the successor to settle and sign a bill as to matters occurring in the case under the predecessor, saying that the better rule would be that a new trial should be awarded by the new judge, if there be dispute as to what should go into the bill. Elliott, App. Proc. § 799.

[9] This cause was submitted to the Honorable John M. Morris, the regular judge of the trial court, for trial without a jury, and due and proper request was made by the parties for special findings of facts. At the conclusion of the evidence and the arguments, on April 3, 1907, the case was taken under adrisement. The term of court then in progress did not expire until in the month of September following. On the evening of July 5, 1907, Judge Morris died from a sudden and unforeseen illness. It appears that some time before his death he had indicated to one of counsel for appellee that his finding would be favorable to appellee; that about that time he had placed in the hands of the official stenographer of his court a draft of his findings, for the purpose of having copies made in typewriting, which was done by the stenographer, and the copies delivered to him; that in the forenoon of July 5th he got the stenographer to make some changes in the findings; that he was in the courtroom that forenoon, and told the clerk and deputy clerk that he had his findings in the case prepared and ready to file; that he would file them next day; and that the finding would be for appellee. Judge Morris never, in open court, announced his finding in the cause, and never filed any special findings with the clerk, but after his death there was found in his private office, away from the courthouse, the identical special findings of facts copied by the stenographer, ris and rendering judgment thereon was as above.stated, with conclusions of law without lawful authority, and that instead stated thereon, with his signature appended the cause should have been retried. Had thereto, as judge of the Henry circuit court, Judge Morris announced his finding in open and dated July 6, 1907. This paper was de- court, and had it been filed before his death, livered by the family of Judge Morris, on a situation in legal effect the same as that July 18, 1907, to the Honorable Ed Jackson, in Hedrick v. Hedrick would have been prewho had, in the meantime, been appointed sented, and that in such case Judge Jackson and had qualified as the successor of Judge could have rendered judgment thereon is Morris, and on July 20th, on motion of the well sustained by authority. But the paper appellee, he signed the same, and ordered upon which Judge Jackson acted was merely it filed and entered of record as the special a tentative and potential finding. It was in

It would seem to be clear, if there be such serious doubt of the power of a succeeding judge to sign a bill of exceptions that the granting of a new trial would be the better and juster practice, that there can be but little, if any, doubt that the action of Judge Jackson in adopting as the special findings and conclusions of law in the case the findings and conclusions prepared by Judge Mor

the breast of the court, and subject to change and modification until its public announcement in court or filing gave it force as a finding; and it therefore could not be considered as determining the cause. Before it was so announced or filed, appellant could have dismissed his action, and so rendered it mere ineffective and worthless waste paBeard v. Becker, 69 Ind. 498; Cohn v. Rumley, 74 Ind. 120; Mitchell v. Friedley, 126 Ind. 545, 26 N. E. 391; Crafton v. Mitchell, 134 Ind. 320, 33 N. E. 1032; Halstead v. Sigler, 35 Ind. App. 419, 74 N. E. 257:

per.

section 338, Burns 1908.

A party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence, and where a case is tried by the judge, and the issues remain undetermined at the death, resignation, or expiration of the term of such judge, his successor cannot decide, or make findings in the case, without a trial de novo. Bahnsen v. Gilbert, 55 Minn. 334, 56 N. W. 1117; Clanton v. Ryan, 14 Colo. 419, 24 Pac. 258; Guardianship of Sullivan, 143 Cal. 462, 77 Pac. 153; Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60; Mace v. O'Reilly, 70 Cal. 231, 11 Pac. 721; Norvell v. Deval, 50 Mo. 272, 11 Am. Rep. 413; Weyman v. National Broadway Bank, 59 How. Prac. (N. Y.) 331; Putman v. Crombie, 34 Barb. (N. Y.) 232; Cain v. Libby, 32 Minn. 491, 21 N. W. 739; Ells v. Rector, 32 Mich. 379; 23 Cyc. 565.

on appeal in the absence of a showing of manifest abuse.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 98; Dec. Dig. § 40;* Criminal Law, Cent. Dig. & 3062; Dec. Dig. § 1153.*] 2. CRIMINAL LAW (§ 1169*)—HARMLESS ERROR-ADMISSION OF EVIDENCE.

The admission of testimony of similar offenses to show the intent charged in a prosecution for assault and battery with intent to rape was harmless error, where the verdict acquitted the defendant of the intent charged and found him guilty of assault and battery only.

Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § [Ed. Note. For other cases, see Criminal 1169.*]

3. WITNESSES (§ 393*)-IMPEACHMENT-TESTIMONY IN FORMER PROCEEDINGS.

Where a witness was sought to be impeached by the introduction of stenographer's notes of his evidence in a former proceeding, only such questions and answers as were pertinent to the testimony attacked were admissible in rebuttal, and the introduction of all the notes taken was improper.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. § 393.*]

Appeal from Circuit Court, Fayette County; George L. Gray, Judge.

Alexander D. Tyrrel was convicted of assault and battery, and appeals. Reversed, with instructions to sustain motion for new trial.

Conner, Conner & Chrisman, for appellant. Thomas M. Honan, Thomas H. Branaman, Edwin Corr, and Jas. E. McCullough, for the State.

The consideration of the case by Judge Morris never having reached the point of determination of the issues, the action of MONKS, J. Appellant was tried on an inJudge Jackson in adopting the findings as dictment charging him with assault and bathis own was, in legal effect, but deciding the issues in a case in which he had not heard tery on a female child under the age of 16 the evidence, or been in any way concerned, unlawful and felonious intent to ravish and years, to wit, of the age of 7 years, with the prior to the time he decided it, and this we carnally know said child, in violation of sechold he had no right to do, but, on the con- tion 2240, Burns 1908. He was acquitted of trary, the case should have been retried. The judgment is reversed, with instruc-sault and battery only. The crime of rape the intent charged and found guilty of astions to the lower court to grant appellant a new trial, to sustain the demurrer to the fourth paragraph of answer, and for further proceedings in harmony with this opinion.

upon a female child under 16 years is defined by section 2250, Burns 1908 (Acts 1907, p. 85). The only error assigned in this court is that the court erred in overruling appellant's motion for a new trial. At the time

MORRIS, J., did not participate in the de- of the trial the female child upon whom the cision of this cause.

(177 Ind. 14)

TYRREL v. STATE. (No. 22,028.) (Supreme Court of Indiana. Jan. 12, 1912.) 1. WITNESSES (§ 40*)-CRIMINAL LAW (§ 1153*)-APPEAL COMPETENCY OF WITNESSES-DISCRETION OF COURT.

crime is alleged to have been committed was about 7 years and 11 months of age. After an examination in regard to her capacity to testify, the court determined that she was competent to testify under the second clause of section 520, Burns 1908, which provides that children under 10 years of age are incom, petent to testify "unless it appears that they understand the nature of an oath." Over Under Burns' Ann. St. 1908, § 520, which the objection of appellant that she was inprovides that children under 10 years of age competent, said witness was permitted to are incompetent to testify unless they under- testify, and, after the conclusion of her tesstand the nature of an oath, whether a child timony, appellant moved to strike out the 7 years and 11 months of age was a competent witness was a question for the trial court, same for the reason "that her examination whose discretion will not be interfered with shows that she has not sufficient knowledge

of the oath to testify in a case of this kind." | 111; Pittsburgh, etc., R. Co. v. Indiana, etc., This motion was overruled by the court.

[1] Whether a child under 10 years of age is competent to testify is a question for the trial court to determine, and when, as in this case, the trial court determines that the witness is competent, it would require a case of manifest abuse of discretion to authorize | this court to interfere. Blackwell v. State, 11 Ind. 196, 198; Batterson v. State, 63 Ind. 531, 536; Taylor v. McGrath, 9 Ind. App. 30, 32, 36 N. E. 163, and cases cited; State v. Juneau, 88 Wis. 180, 59 N. W. 580, 24 L. R. A. 857, 43 Am. St. Rep. 877, and cases cited; State v. Jackson, 9 Or. 457; Wade v. State, 50 Ala. 164; Smith v. Commonwealth, 85 Va. 924, 926, 927, 9 S. E. 148; 12 Cyc. 893.

Co., 154 Ind. 322, 335, 336, 56 N. E. 766; Miller v. Louisville, etc., R. Co., 128 Ind. 97, 102, 27 N. E. 339, 25 Am. St. Rep. 416; Robbins v. Masteller, 147 Ind. 122, 125, 46 N. E. 330; Wright v. McLarinan, 92 Ind. 103, 106; Swygart v. Willard, 166 Ind. 25, 34, 76 N. E. 755; Peden v. Scott, 35 Ind. App. 370, 373, 73 N. E. 1099.

[3] This prosecution was commenced before the mayor of Connersville, and at the trial of appellant before the mayor the prosecuting witness testified, on behalf of the state. Her evidence was taken down by a stenographer. At the trial below, appellant for the purpose of impeaching said witness, after laying the proper foundation therefor, called said stenographer as a witness, who In Blackwell v. State, supra, this court read in evidence certain questions and ansaid 11 Ind. on page 198: "But we must in swers of the prosecuting witness at the prethis case presume in favor of the action of liminary trial, claimed to be in contradiction the circuit court for the reason that that of the evidence of said prosecuting witness court had the proposed witness in its pres- at the trial in the court below, as to the ence and was therefore enabled to estimate place in appellant's storeroom where it is to some extent her capacity, from her ap-claimed the crime charged was committed, pearance, and the manner of her replies in and also as to the number of times the prosethe examination." cuting witness was at said storeroom after said offense is claimed to have been committed. On cross-examination by the state, said stenographer was permitted, over the objection of appellant, to read in evidence all of the testimony given at the preliminary trial by said prosecuting witness.

The court in permitting the witness to testify only determined that she was competent, and her credibility as a witness and the weight to be given to her testimony were for the determination of the jury. Whether or not she was a competent witness was a question of fact, determined by the trial court, and, as the court was satisfied of the competency of the witness to testify, we cannot say that there has been such an abuse of discretion as would authorize this court to interfere.

It is settled law in this state that in cases where a witness is contradicted by evidence of statements, whether at a former trial or not, different from those made at the trial, and the contradiction is for the purpose of impeachment, that the party by whom the witness was called may prove statements in harmony with that part of his testimony which has been contradicted by the alleged contradictory statements. Hicks v. State, 165 Ind. 440, 75 N. E. 641, and cases cited.

[2] Evidence was admitted over the objection of appellant of similar offenses by appellant to prove the intent charged in the indictment. Appellant claims: (1) That such evidence is not admissible in a case like this; (2) that, if it is, the same must not be This rule, however, does not authorize the equivocal, but must point with certainty to admission of all prior statements of the witthe commission of a like crime. It is un- ness in harmony with his testimony at the necessary to consider either of said objec- trial, but, as we have already said, only such tions for the reason that appellant was ac- as are in harmony with the part of his tesquitted of the intent charged in the indict- timony which has been contradicted. When, ment. It has been uniformly held by this as in this case, the alleged contradiction is court that when an issue in a cause, civil or by giving in evidence statements of a witcriminal, has been found in favor of a par- ness at a former trial, this does not auty, the erroneous admission of evidence con- thorize the party calling the witness to give cerning such issue or the giving of erroneous in evidence all the testimony of such witness instructions as to such issue is harmless and at the former trial, but only so much thereof does not constitute reversible error in favor as explains, modifies, or is necessary to enof the party in whose favor such issue is able the court or jury by trying the cause found. Ginn v. State, 161 Ind. 292, 295, 68 to understand the statements introduced to N. E. 294, and cases cited: Shields v. State, impeach the witness. Culver v. South Ha149 Ind. 395, 404, 49 N. E. 351; Hart v. State, ven, etc., R. Co., 138 Mich. 443, 446, 101 N. 149 Ind. 585, 49 N. E. 580; Braxton v. State, W. 663; Colby v. Reams, 109 Va. 308, 63 S. 157 Ind. 213, 215, 61 N. E. 195; Starr v. E. 1009; Rudy v. Myton, 19 Pa. Super. Ct. State, 160 Ind. 661, 666, 67 N. E. 527; Rains 312; Thornton v. State (Tex. Cr. App.) 65 v. State, 152 Ind. 69, 52 N. E. 450, and cases S. W. 1105, 1108; Noyes v. Gilman, 71 Me. cited: Rollins v. State, 62 Ind. 46; Bannen 394; Whitman v. Morey, 63 N. H. 448, 2 Atl. v. State, 115 Wis. 317, 91 N. W. 107, 110, 899; Casey v. State, 50 Tex. Cr. R. 392, 97

S. W. 496; Falkner v. State, 151 Ala. 77, 44 | consider the testimony of witnesses who tesSouth. 409; Hicks v. State, 165 Ind. 440, 442, 443, 75 N. E. 641.

tified that they did not hear the whistle or bell as well as the testimony of witnesses who testified that they did hear the same, that they were the exclusive judges of the weight which they would give to the testimony, and in doing the sound of a whistle or bell and not be conso might consider that a person might hear

invasion of the jury's province.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 439-466; Dec. Dig. § 194.*] 5. TRIAL (§ 235*)-INSTRUCTIONS-POSITIVE AND NEGATIVE EVIDENCE-WEIGHT.

While the state was entitled to prove by said stenographer all that part of the testimony of the prosecuting witness at the preliminary trial before the mayor that modi-scious of hearing it, was properly refused as an fied, explained, or was necessary to enable the fury fully to understand the part thereof given to impeach her at the trial in the court below, it was error to permit the state to give in evidence any other testimony of said prosecuting witness at the preliminary trial. Judgment reversed, with instructions to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion.

1. RAILROADS (§ 312*)-CROSSING ACCIDENTACTION-INSTRUCTIONS.

In an action for injuries at a railroad crossing, an instruction that it was the defendant's duty to give timely warning of the approach of its train to plaintiff while he was approaching the crossing, whether such warning was required by ordinance or statute, and that any failure to exercise such care, if shown to exist, was negligence, was proper.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 988-1003; Dec. Dig. § 312.*] 2. RAILROADS (§ 309*) - CROSSING OPERATION OF TRAINS CARE REQUIRED.

A railroad company, operating trains in a city, must so run them and give such warnings as will avoid injury to all persons using the streets and crossing the tracks in a proper manner, the degree of care being such as is commensurate with the dangers of the particular situation of the railroad company's use of the streets.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 981; Dec. Dig. § 309.*] 3. TRIAL (§ 260*)-INSTRUCTIONS-REQUEST TO CHARGE-INSTRUCTIONS GIVEN.

Where the court charged that it was the jury's duty to determine the credibility of the witnesses, the weight to be given to their testimony, etc., and if there was a real or apparent conflict in the evidence, to reconcile the conflict if possible and determine what should be accepted as true and what rejected as false, a request to charge, in so far as it directed that it was the jury's duty to reconcile any conflict or apparent conflict in the testimony if they could do so, and in doing so they might consider that a person might hear the sound of a locomotive whistle or bell, and not be con

scious of hearing such sound, there being a conflict in the testimony as to whether the bell was rung or the whistle sounded on defendant's engine as it passed the crossing at which plaintiff was injured, was properly refused.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 4. TRIAL ( 194*)-INSTRUCTIONS.

An instruction that, in determining whether the whistle on defendant's locomotive was sounded or the bell rung at the crossing at which plaintiff was injured, the jury should

It is improper for the court to charge the jury that positive evidence is to be given more weight than negative evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 539-548; Dec. Dig. § 235.*] 6. APPEAL And Error (§ 520*)-DEPOSITIONS -MOTION TO STRIKE-RECORD-BILL OF EXCEPTIONS.

Burns' Ann. St. 1908, § 662, provides that every motion to insert new matter or to strike out any part or parts of any deposition or othforth the words sought to be inserted or stricker paper shall be in writing, and shall set en. Held that, where a motion to strike matter from a deposition did not set out the matter to be stricken, and was made orally, there being no record of a written motion having been filed, such motion did not become a part of the record, and, not having been brought into the record by bill of exceptions, could not be reviewed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2359-2366; Dec. Dig. 520.*]

7. RAILROADS (§ 348*)-CROSSING ACCIDENTNEGLIGENCE-CONTRIBUTORY NEGLIGENCE

EVIDENCE.

In an action for injuries in a collision at a railroad crossing, evidence held to support the verdict finding defendant guilty of negligence and that plaintiff was free from contributory negligence.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 8. APPEAL AND ERROR (§ 1001*)-—REVIEWQUESTIONS OF FACT.

Where there is some evidence to support the verdict it will not be disturbed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3934; Dec. Dig. § 1001.*]

Appeal from Circuit Court, Morgan County; Jas. W. Williams, Judge.

Action by John S. Baker, as guardian of Marion S. Payton, against the Vandalia Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Samuel O. Pickens and Owen Pickens, for appellant. Will H. Pigg and John E. Sed

wick, for appellee.

IBACH, P. J. Appellee recovered judgment for damages for personal injuries received by his ward while crossing appellant's railroad on a street in the town of Paragon, Morgan county, Ind. The complaint charged negligence of appellant in permitting lumber to be stacked on its right of way and box cars to stand on the siding in such a manner as to obstruct the view

For other cases sea same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexen

Instruction 2 is the same instruction approved by this court in the case of Pittsburgh, etc., R. Co. v. Lynch, 43 Ind. App. 177, [4] In so far as instruction 19 told the on page 179, 87 N. E. 40. In the pres-jury how to compare conflicting evidence it ent case, as in that case, another instruc- was erroneous, and rightly refused as intion informed the jury as to the statutory | vading their province. Wood v. Deutchman, duty of the railroad company to give warnings at crossings. Instruction 3 embodies the language of the instruction approved on pages 180 and 181 of the opinion in the Lynch Case. The reasoning in that case is based mainly on the case of Cleveland, etc., R. Co. v. Miles, 162 Ind. 646, 70 N. E. 985. We are convinced that the opinion in the Lynch Case states the law correctly, and is 97 N.E.-2