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Nov. Term,

1859.

THE STATE v. FARLEY and Others.

THE STATE

V. FARLEY.

23 141. 115

Indictment as follows: State of Indiana, &c. The grand jury, &c., charge

that J. F. (and twelve others, naming them), on, &c., at, &c., did then and there willfully, purposely, feloniously, and of their malice aforethought, make and perpetrate an assault on the body of B. M., in the peace, &c., and then and there with pistols, guns, rocks and clubs, which they, the said J. F., &c., in their hands then and there had and held, did willfully, feloniously, purposely, and of their malice aforethought, then and there strike, beat, bruise,

and wound the said B. M., with intent, &c., to kill and murder her, &c. Held, 1. That the indictment is not double. 2. That it charges all the persons named with using all the weapons men

tioned, and is in that regard sufficient. 3. That the assault and battery is sufficiently charged; and that, with proper

averments as to intent, is all that is necessary under the statute. The injury done is set forth with sufficient particularity.

APPEAL from the Putnam Circuit Court.

Saturday, WORDEN, J.-Indictment against the appellees, as fol- 1860.

January 14, lows, viz.:

“State of Indiana, Putnam county, sct. Putnam Circuit Court, October term, 1858. The grand jury of the county of Putnam, in the name of, and by the authority of, the state of Indiana, charge that Joseph Farley (and twelve others, naming them), on the second day of July, 1858, at the county of Putnam and state of Indiana aforesaid, did then and there wilfully, purposely, feloniously, and of their malice aforethought, make and perpetrate an assault on the body of Barbara Mikel, in the peace of the state then and there being, and then and there with pistols, guns, rocks, and clubs, which they, the said Joseph Farley (and others, naming them), in their hands then and there had and held, did willfully, feloniously, purposely, and of their malice aforethought, then and there strike, beat, bruise, and wound the said Barbara Mikel, with intent, in so doing, then and there feloniously, willfully, purposely, and of their malice aforethought, to kill and murder her, the said Barbara Mikel, contrary," &c.

On motion of defendants, this indictment was quashed, and the state excepted and appeals to this Court.

The objections made to the indictment by the counsel

V. FARLEY.

Nov. Term, for the appellees, are, first, that it is double, containing a 1859.

charge of assault with intent, &c, and a charge of assault The State and battery, with intent, &c.; secondly, “that the defend

ants are en masse charged with perpetrating the assault and battery with pistols, guns, rocks, and clubs, without alleging which of the weapons any one of the defendants used;" thirdly, that there is no allegation of the nature of the injury to the person assaulted.

The indictment is clearly not double; that is, it does not charge two separate offenses. It charges an assault and battery with intent to murder; and an assault, or an assault and battery with such intent, constitutes but one offense. 2 R. S. p. 397, 9 9.

The second objection is equally groundless. All the de . fendants are charged with perpetrating the assault and battery with all the weapons named in the indictment. It certainly cannot be objected that there is not enough charged in this respect.

In reference to the last objection, it may be observed that the assault and battery seems to be sufficiently charged; and that, with proper averments as to the intent, is all that seems to be necessary to make out the offense defined by the section of the statute on which the indictment is based. The injury done to the person upon whom the battery was perpetrated is set forth with abundant particularity. It is alleged that the defendants did "strike, beat, bruise, and wound" her, and it seems to us that further particularity is entirely needless.

These are all the objections urged against the indictment, and, in our opinion, they are not well taken.

Per Curiam.The judgment is reversed. Cause remanded, &c.

C. C. Nave, for the state.
J. A. Matson, for the appellees.

Nov. Term,

1859.

NUDD v. BURNETT.

NUDD

V. BURNETT.

The Courts will not aid a party to rescind or annul an executed illegal con

tract.

APPEAL from the Wayne Court of Common Pleas.

Saturday,

January 14, HANNA, J.-Nudd brought suit and obtained judgment, 1860. before a justice of the peace, for 75 dollars, the value of a horse. Burnett appealed to the Common Pleas, where he had verdict and judgment in his favor. It appears that the plaintiffs offered a witness to prove “his case," &c., when, before he had given his testimony, the defendant interposed, and asked him whether a note shown him contained the contract between the parties in regard to said horse, which interrogatory was answered by the witness in the affirmative. The Court thereupon refused to hear any "evidence contradicting or varying the note,” and would not admit evidence offered to prove that on the day of the execution of the note, the defendant took, and has since held, possession of the horse, refused to pay the note or return the horse upon demand made and tender of the note, &c., and the value of said horse, &c.

The note in question is as follows:

"On or before the 25th day of December next, we, or either of us, promise to pay to Edward C. Nudd, or order, one hundred and fifty dollars, if James Buchanan is the next president of the United States; and if he is not the next president, then this note is null and void.

“$150. For value received this 5th day of September, 1856.” Signed by the defendant and another.

The errors assigned are in reference to the rulings of the Court in rejecting the evidence offered, &c.

The plaintiff contends that if the contract shown by the note was illegal, he had a right to repudiate it and sue for and recover the horse for which the note was given, or the value thereof. The other party insists that the contract was illegal; that the Court will not lend its aid to enforce

Nov. Term, it, or grant any relief, &c., but will leave the parties where 1859.

they have placed themselves. CLARK We are inclined to the latter view of the case. Here The State. the contract, upon the part of the plaintiff, was executed;

that contract was illegal; and the Court should not be made an instrument, in his hands, to enable him to rescind or set at naught such contract, after he has so executed it. This differs from a suit against a stakeholder in this, that in the latter class of cases, the party repudiates before the contract is executed by the delivery, &c., to the other contracting party.

Per Curiam.—The judgment is affirmed with costs.

N. H. Johnson, M. Wilson, and L. Develin, for the appellant.

B. F. Claypool, for the appellee.

CLARK V. THE STATE.

Saturday, January 14, 1860.

APPEAL from the Allen Court of Common Pleas.

Perkins, J.— Prosecution for the larceny of one 5 dollar bank bill on the bank of Pittsburgh, Pennsylvania, of the value of 5 dollars, and four 1 dollar bank bills, of the value of 1 dollar each, on banks to the prosecution unknown.

The defendant was convicted.

The only proof of the genuineness of the bills, and of the existence of the banks on which they purported to be, was the testimony of the person from whom they were stolen, and who appears to have been a business man, that the bills were of the value expressed upon their faces.

It seems to us that this evidence tended to prove the existence of the banks and the genuineness of the bills, and fairly made the facts questions for the jury. These are points not requiring the highest degree of evidence. Lewis' U. S. Crim. Law, 468.-3 Greenl. Ev., 153.

Nov. Term, Per Curiam.- The judgment is affirmed with costs.

1859. W. M. Crane and W. S. Smith, for the appellant. J. E. McDonald, Attorney General, and A. L. Roache, for The City of

EVANSVILLE the state.

HALL.

THE CITY OF EVANSVILLE v. Hall.

27 140 319

The situs of shares in an insurance company, at least for the purpose of taxa

tion, is the domicil of the owner. Money or capital to be taxable by the city of Evansville, must be taxable for

county purposes in the county of Vanderburgh.

APPEAL from the Vanderburgh Circuit Court. Saturday,

January 14, WORDEN, J.-Hall, the appellee, was a citizen and resi- 1860. dent of the town of Princeton, in the county of Gibson, in the state of Indiana, and the owner of one hundred and eighty-five shares of the capital stock of the Evansville Insurance Company, located in the city of Evansville, in Vanderburgh county. He paid state, county, and corporation taxes on the stock in the county of Gibson, his residence. At the same time, the city of Evansville assessed a corporation tax on the same stock; and the question involved in the case is, whether the tax thus assessed by the city of Evansville is legal and valid. It was held by the Court below that the city could not thus assess and collect the tax, and from that decision she appeals to this Court.

Section 35 of the charter of Evansville provides that " For the

purposes of revenue, the common council shall have power to levy, and cause to be assessed and collected, once in each year, an ad valorem tax upon all property, real and personal, within said city; and on all money and capital within said city, which is or may be subject to taxation for county purposes, whether such money or capital be actively employed or not, and on all money bearing interest and payable to any inhabitant of said city,” &c. Local Acts of 1817, p. 18.

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