Gundy v. The State.

We think this charge was wrong, in respect to the point that, if the defendant had given Satterthwaite leave to attach his fence to that of the defendant, the defendant could not move his fence back from it without having first given Satterthwaite six months' notice, in writing, and that it made no difference whether Satterthwaite had completed his enclosure or not.

The statute provides, that, "When any party shall cease to use his lands, or shall lay open his enclosures, he shall not take away any part of his fence which forms a partition fence between him and the inclosure of any other person, until he shall have first given six months' notice to such person or persons as may be interested in the removing of said fence, of his intention to remove the same." 1 R. S. 1876, p. 497, sec. 23.

It seems to us, that, according to the letter and spirit of this statute, the owner of a fence, which is a partition fence between his land and that of another, may remove it at any time, without notice to the adjoining proprietor, unless the adjoining land be enclosed. The object of the notice is to give the adjoining proprietor an opportunity to protect his enclosure from trespassing animals that might otherwise come upon it after the partition fence is removed. Where the adjoining land is not enclosed, the owner thereof is in no worse condition, as to trespassing animals, after the partition fence is removed, than before.

It seems to us also, that, to bring a case within the statute, the adjoining land must be enclosed. A fence only partly enclosing the land, would not make it an "inclosure." To constitute the "inclosure," we think the fences, including the partition fence, must surround the adjoining land or some part of it.

On account of the error in the instruction, the judgment will have to be reversed.

The judgment below is reversed, and the cause remanded for a new trial.

Batterson v. The State.

BATTERSON V. THE STATE.

CRIMINAL LAW.-Witness.-Child Under Ten Years of Age.-The question,
as to whether or not a child under ten years of age is capable of under-
standing the facts about which it is to be examined, is to be determined
by the court in which such child is offered as a witness, upon the an-
swers of the child to interrogatories put to it by the court.
SAME.-Judicial Discretion.-Supreme Court.-The determination of such
question by the court will not be reviewed by the Supreme Court on ap-
peal, except for a clear abuse of its discretion.

SAME.- Misconduct of Juror.—Taking Notes of Evidence.-The act of a ju-
ror in taking notes of the evidence being given is not misconduct suffi-
cient to set aside the verdict, where he, upon being admonished by the
court of the impropriety of his act, ceased taking notes.
SAME.— Verdict.- Fixing Term of Imprisonment.-The fact that the jury, in
fixing upon the term of imprisonment to be suffered by the defendant, took
the quotient arising from the division of the aggregate of the periods indi-
cated by each juror by the number of jurors, as a proposition merely of the
term of imprisonment, is not improper, if not done pursuant to a previous
agreement to accept such quotient as such term.

SAME.-Newly-Discovered Cumulative or Impeaching Evidence.-A new trial
will not be granted on the ground of newly-discovered evidence which is
merely cumulative or impeaching.

SAME. Reasonable Doubt.-Supreme Court. Where, from the evidence, the Supreme Court, on appeal, is satisfied that a reasonable doubt of the guilt of the defendant manifestly exists, a judgment of conviction will be reversed.

From the St. Joseph Circuit Court.

W. G. George, for appellant.

T. W. Woollen, Attorney General, and G. Ford, Prosecuting Attorney, for the State.

PERKINS, J.-An indictment as follows was duly returned into the St. Joseph Circuit Court.

"The grand jurors for the county of St. Joseph, in the State of Indiana, good and lawful men, duly and legally empanelled, sworn and charged in the St. Joseph Circuit Court of said State, at the December term, 1878, to inquire into felonies and certain misdemeanors in and for the body of said county of St. Joseph, in the name and by the

63 531 126 571

63 531

140 356

Batterson v. The State.

authority of the State of Indiana, on their oath do present, that one John Batterson, late of said county, on the 23d day of November, A. D. 1878, at said county and State aforesaid, did then and there, in a rude, insolent and angry manner, unlawfully and feloniously touch one Sarah A. Mell, a woman child, then and there under twelve years of age, and did then and there unlawfully and feloniously have carnal knowledge of her, the said Sarah A. Mell, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.

"GEORGE FORD, Prosecuting Attorney."

Answer, not guilty.

Wm. G. George, an attorney, was appointed to defend the accused, as a poor person.

The court made the following further entry:

"And it appearing that Doctors Levi J. Ham, Robert Harris, R. P. Barbour, Joel Harris, Thomas McDonald, Josephus Davis, James Dorward, L. Humphries and Daniel Dayton, have been subpoenaed as medical witnesses to testify as experts in this behalf. It is ordered by the court that each be allowed the regular witness fee provided by statute, and that the clerk of this court certify the same to the auditor of St. Joseph county for payment, and day is given."

A jury trial followed, in which the defendant was convicted and awarded, as punishment, twelve years in the state-prison.

A motion for a new trial was overruled, judgment rendered, and sentence pronounced thereon upon the verdict.

The error assigned on appeal to this court is, overruling the motion for a new trial.

The following are the grounds specified in the motion for a new trial:

1. Verdict not sustained by the evidence;

Batterson v. The State.

2. The permitting Sarah A. Mell to testify as a witness, over the objection of the defendant;

3. Misbehaviour of the jury;

4. Newly-discovered evidence.

We will consider last the first ground in the motion for a new trial.

We copy from the record the statement of the facts touching the admission of Sarah A. Mell to testify as a witness, and also the testimony she gave, as follows:

"Thereupon the plaintiff introduced as a witness Sarah A. Mell; to the introduction of which witness the defendant objected upon the ground of incompetency, she being under the age of ten years, and incapable of properly understanding the facts about which she was to be examined.

"Thereupon the court made of said Sarah A. Mell the following inquiries, and received answers as follows: "What is your name?

"Sarah Mell.

"How old are you?

"Five years and a half.

"Do you know what it is to take an oath?

"Yes sir.

"Would it be incumbent on you to tell the truth if you are sworn?

"Yes, sir.

"Would it be wrong to tell a lie?

"Yes, sir.

"Do you know it is more incumbent on you to tell the truth when sworn in court than if you were not?

"Yes, sir.

"Do you know that you would be punished if you were to swear to a lie?

"Yes, sir.

"Who told you it was wrong to swear to a lie, and that you would be punished for it?

666

66

My pa

Batterson v. The State.

and my ma both told me so.'

Thereupon the court ordered the said Sarah A. Mell to be sworn and examined as a witness; to which order and ruling of the court the defendant, at the time, duly objected and excepted, and does now object and except.

"Sarah A. Mell, being duly sworn, testified as follows, to wit: (She was questioned by Mr. Anderson thus:) "What is your name?

"Sarah A. Mell.

"Where do you live? Do you know what town you live in?'

66 The witness shook her head. "Where does your father work? "On the railroad.

"What is your father's name? "Joel Mell.

"What is your mother's name?

"Lizzie Mell.

"Do you know Batterson?' (Pointing to the defendant.) "Yes, sir.

"What is his name?

"John Batterson.

"Do you know of his being at your house a while ago?

"Yes, sir.

"When did you see him, in the night or in the morning?

"I didn't see him at all.

"Did you know of his being in bed with you?

"Yes, sir.

"Did he hurt you?

"Yes, sir.

"Did any one else hurt you, at all?

"Only just him; that's all.

"Did you tell your mother of it next morning? "No, sir.