5. Same.-Fraud.-Public Policy.-It is a sufficient answer to such com-
plaint to allege that the plaintiff, by promises of reward made by him
to one who intended making a bid to do the work for a less sum than
that bid by the plaintiff, had induced him not to make a bid.
Ib.
1. Failure to Remove Mortgage.-Damages.-Unless he has paid part or all
of the encumbrance, or has been evicted, the grantee of land conveyed
by deed covenanting against encumbrances, can recover of his grantor
only nominal damages, in an action on the covenant, for failure to pay
off or remove an encumbrance existing at the time of such conveyance.
Bundy v. Ridenour, 406
2. Same.-Verbal Promise to Pay Encumbrance.-The verbal promise of the
covenantor to the grantee to pay off such encumbrance adds nothing to
the covenant.
3. Counter-Claim.-Copy.-A counter-claim, based upon an alleged breach
of the covenants of a deed of conveyance of lands executed by the
plaintiff to the defendant, must, to be sufficient on demurrer, set out
either the original deed or a copy thereof. Patton v. Camplin, 512
4. Seizin.-Husband and Wife.-Deed Executed in this, for Land in
another, State.-Complaint.-Demurrer.-In an action for damages for
a breach of the covenants of warranty contained in a deed of conveyance
of lands in another State, purporting on its face to have been executed in
this State, for a valuable consideration, by the defendants as husband and
wife, to the plaintiff, the complaint set out a copy of the deed and alleged
that it had been executed in this State, between residents thereof, upon a
valuable consideration, but that the defendants had never had either
title to or possession of such lands.
Held, that, on joint demurrer, the complaint is sufficient, though insufficient
on separate demurrer by the wife.
Held, also, that the covenant of seizin in the deed was purely personal, did
not run with the land, and was broken immediately upon the execution
of the deed.
Craig v. Donovan 513
CRIMINAL CIRCUIT COURT.
See FEES AND SALARIES, 1.
CRIMINAL LAW.
See CONTEMPT, 1; LIQUOR LAW.
1. Assault and Battery.-Evidence of Two Offences.-Election by State.-
Where, in a prosecution for assault and battery, the State has given evi-
dence, on the trial, of one assault and battery, committed by the defend-
ant upon the person of the prosecuting witness, she thereby elects to
claim a conviction for that offence, and can not properly give evidence
of another and distinct assault and battery, committed by the defend-
ant upon the person of the prosecuting witness, and elect to abandon
the former, and to claim a conviction for the latter offence.
Richardson v. The State, 192
2. Seduction. Indictment.-" Promise of Marriage."-It is sufficient, in an
indictment for seduction, to charge the defendant with having accom-
plished the seduction of the prosecutrix, "by means of a promise of
marriage" previously made to her.
Callahan v. The State, 198
3. Same.-Condition of Promise.—A “promise of marriage," by means of
which a seduction is accomplished, made by the defendant, to the prose-
cutrix, on condition that she will consent to the act of sexual inter-
course, is a "promise of marriage' within the meaning of section 15, 2
R S. 1876, p. 431, defining the crime of seduction.
4. Same. Promise by Married Man.-The seduction of an unmarried fe-
male, "under promise of marriage," by a man whom she knows to be
already married and living with his wife, does not come within said
Ib.
5. Larceny-Intent in Taking.-To constitute larceny, the taking must be
with a felonious intent existing at the time of the taking.
Umphrey v. The State, 228
6. Same.--Trespass-A mere tortious taking of personal property, without
felonious intent is not a larceny.
Ib.
7 New Trial.-Assignment of Error.-Error in giving or refusing instruc-
tions to the jury, or in admitting or excluding evidence, is cause for a
new trial, but can not be properly assigned as error on appeal to the
Supreme Court.
Wagner v. The State, 250
8. Betting on Election.-Indictment.-An indictment, charging the defend-
ant with losing money by betting on an election, which alleges the pur-
chase, by the defendant, of a chattel, at its alleged value, to be paid for,
at that price, only in the event of the election of a candidate named, to
a particular office, at a certain election, is insufficient.
Ib.
9. Returning Indictment.-Where the record does not show that the indict-
ment has been duly returned into open court, a motion to quash or
in arrest of judgment, should be sustained. Mitchell v. The State, 276
10. Murder. --Insanity Produced by Disease.-Instruction.-On the trial of a
defendant indicted for murder, wherein he had introduced evidence
tending to prove that he was subject to attacks of epilepsy, and that
such disease tends to produce insanity, the court instructed the jury,
that, "When the defence of insanity is interposed to a prosecution for
murder, the jury should carefully and intelligently scrutinize and con-
sider the evidence by which it is sought to be established. If the jury
should find from the evidence, that there is a reasonable doubt whether
the defendant has been subject to attacks of epilepsy and if this fact (if
so found) has been supplemented by testimony of expert witnesses, es-
tablishing to the satisfaction of the jury (evidence raising a reasonable
doubt being sufficient), that epilepsy is a disease which tends to produce
insanity, this evidence would not be sufficient to raise a reasonable doubt
of his sanity, at the time of the alleged commission of the homicide.
There must be sufficient evidence to raise a reasonable doubt of actual
insanity at the time of the alleged commission of the offence."
Held, that the instruction was erroneous.
Held, also, that an erroneous instruction is not cured by a proper instruction
unless the former be withdrawn.
Guetig v. The State, 278
11. Betting on Election.-Parol Evidence of Terms of a Writing.-Parol evi-
dence of the contents of a memorandum of the terms of a bet upon the
result of an election is inadmissible, without first accounting for the ab-
sence of such memorandum.
Caldwell v. The State, 283
12. Larceny of Estray.-Felonious Intent.-In order to constitute a larceny
of an estray, converted by the finder to his own use, the felonious. in-
tent to misappropriate must have existed at the time he took the estray
into his possession.
Starck v. The State, 285
13. Same. Intent Subsequently Formed. The defendant in such case has a
right to have the jury trying the case instructed, that if the felonious
intent was formed after he had taken possession of the estray, he was not
guilty of larceny.
14. Murder.--Indictment.-Description of Deceased. It is not necessary, in
an indictment for the murder of a person therein named, to aver that
such person was "a human being."
Merrick v. The State, 327
15. Same-Negative Averment. In an indictment for murder, wherein
death is alleged to have resulted from a mortal wound, made upon the
person of the deceased by cutting" with a purpose to kill and with
premeditated malice, it need not be alleged that such wound was not in-
flicted in performing a necessary surgical operation upon the person of
the deceased.
Ib.
16. Same.-Electing Between Counts.-Where an indictment contains several
counts, each charging the murder of the same person, but in a different
manner, the State can not be compelled to elect between such counts. Ib.
17. Change of Venue from County.-Judicial Discretion.-Supreme Court.—
The Supreme Court will not review the overruling of a motion for a
change of venue from the county, where it does not appear from the
record that the court had exceeded its discretion.
Ib.
18. Same.-Affidavit for Continuance.-An affidavit for a continuance on ac-
count of the absence of a witness should show that due diligence has
been used to procure the attendance of the witness, and the time when
his attendance can probably be had.
Ib.
19. Empanelling Special Jury. The court has power to order a special ven-
ire for a special jury to try a defendant, if the business of the court so
require
Ib.
20. Order of Introducing Evidence.-It is within the discretion of the court
to allow the State, during the introduction of the defendant's evidence
in chief, to call a witness as to original matter.
Ib.
21. Supreme Court.-Record. - Instructions.-Presumption.-Where the evi-
dence is not in the record, and the instructions given to the jury are not
abstractly wrong, the Supreme Court, on appeal, will presume that the
instructions were properly given.
Ib.
22. Same.-Refusal to Instruct.-In such state of the record, the refusal of
the court to give to the jury an instruction asked will be presumed by
the Supreme Court to have been right.
Ib.
23. Murder.-Evidence.-Body of Deceased.-It is not error, on the trial of a
defendant indicted for murder, to admit evidence that a body claimed to
be that of the deceased is the body of a human being.
24. Same. Possession of Deadly Weapons.-Where an indictment for mur-
der charged the killing to have been caused by the infliction of mortal
wounds, it was not error to admit evidence that weapons with which
such wounds might have been inflicted were carried by the defendant on
the alleged day of the murder.
Ib.
25. Verdict.-A general verdict of guilty "as charged in the indictment,"
returned on an indictment charging the same crime in separate counts, is
valid.
Ib.
26. Venire De Noro.-A venire de novo can be awarded only where no judg
ment can be rendered upon the verdict, in consequence of its imperfec-
tion or uncertainty.
Ib.
27. Arrest of Judgment.—The judgment in a criminal case can be arrested
only because the court has no jurisdiction of the case, or because the in-
dictment does not state facts constituting a public offence.
Ib.
28. Evidence Before Grand Jury.-The prosecuting attorney can not be com-
peiled to furnish the defendant with a copy of the evidence given
against him before the grand jury in finding the indictment.
29. Short-Hand Reporter.-Rights of, as to Payment.-Defending as Poor
Person. Under section 4 of the act of March 10th, 1875, 1 R. S. 1876, p.
770, a short-hand reporter may require payment or security therefor, of
a party demanding a long-hand copy of his notes of the evidence, be-
fore proceeding to prepare it though the court may, in its discretion,
admit the defendant to defend as a poor person, and direct that such
copy be furnished to him, to enable him to prepare a bill of exceptions. Ib.
30. Same.-Bill of Exceptions.-It is not error to refuse to admit a copy of
the short-hand notes of the evidence into a bill of exceptions.
Ib.
31. Same.-Supreme Court.-The Supreme Court has no authority to direct
such short-hand notes to be copied, and to order them to be paid for out
of the State or county treasury.
Ib.
32. Same.-Error can not be predicated upon the action of the lower court
in tying the short-hand notes of the evidence to the record of the
Ib.
33. Time for Filing Bill of Exceptions.-The length of time to be allowed
for the filing of a bill of exceptions is to be fixed by the court try-
ing the cause, in the exercise of a sound discretion.
İb.
34. Duty of Coroner Holding Inquest-Testimony Must be in Writing-
Where a coroner of this State is holding an inquest upon the body of a
decedent "supposed to have come to his death by violence or casualty,"
it is his duty, under the provisions of sections 8 and 9 of the act of
May 27th, 1852, "prescribing the powers and duties of coroners," 2 R.
S 1876, p. 20, to cause all testimony given before him by witnesses to
be reduced to writing, and subscribed by them. Woods v. The State, 353
35. Same-Presumption.-Parol Evidence as to Testimony Before Coroner.—
Impeaching Witness.-Murder.-The law conclusively presumes, that, in
such case, the coroner has duly performed his whole duty, by causing all
of such testimony to be reduced to writing; and unless the proper foun-
dation be laid for secondary evidence, parol evidence of the testimony
given before the coroner, by any such witness, is inadmissible, even to
impeach evidence given by him as a witness on the trial of a defendant
indicted for the murder of the person over whose body such inquest
was held.
36. Same. When Defendant's Evidence Before Coroner is Admissible.
Where the defendant in such case has testified in his own behalf, the
written statement of evidence given by him as a witness on such inquest
is admissible in evidence to contradict him.
37. Change of Venue from County.-The granting or refusing of a motion
by the defendant for a change of venue from the county is a matter
within the sound discretion of the court.
Short v. The State, 376
38. Burglary with Intent to Commit Larceny.—Indictment.----Value of Goods.—
An indictment for burglary with intent to commit a larceny need not
aver the value of the goods which the defendant is alleged to have in-
tended to steal.
Ib.
39. Petit Larceny a Felony.--Petit larceny is declared by the statute of this
State to be a felony.
40. Same.-Indictment for Burglary and Larceny.—Election by State.-Ver-
diet.-Acquittal. The defendant in an indictment containing one count
charging burglary, and another charging larceny, moved the court to
compel the State to elect upon which count trial should be had, where-
upon the prosecuting attorney stated to the court, that both counts re-
lated to the same transaction, and that he meant to convict of one felony
only, and thereupon the motion was overruled, trial had, and a verdict
returned finding the defendant guilty of burglary.
Held, that, under the circumstances, it was within the discretion of the
court to overrule the motion.
Held, also, that the verdict, being silent as to the charge of larceny, acquit-
ted the defendant on that count.
Ib.
41. Same-Inspection of Article Stolen.-Magnifying Lens.-Evidence.--One
of the articles claimed to have been stolen by the defendant in such case
was a gold ring bearing a certain inscription, and on the trial a gold
ring which was in the defendant's possession after the burglary, claimed
by the State to be the one stolen, was exhibited to the jury who were al-
lowed to inspect it through a magnifying lens, to ascertain whether or
not such inscription had been on and removed from the ring.
Held, that this was not error.
42. Return of Verdict.-Failure to Poll Jury.-Where, on the return of a
verdict against the defendant in the presence of himself and his coun-
sel, he fails to ask that the jury be polled, he can not avail himself of an
omission by the court to cause a poll of the jury to be made, without also
showing, that, in fact, some of the jury were then absent.
43. Omission of Name of State's Witness from Indictment.-Continuance.—
The fact that the name of a witness before the grand jury is not placed
upon the indictment is not ground for striking out evidence given by
him as a witness on behalf of the State, on the trial of the cause; the
only effect of such omission being to prevent the State from obtaining a
continuance on account of his absence.
44. Incest.-Evidence.-Impeaching Witness.--The fact as to whether or not
the prosecuting witness had become pregnant by means of sexual inter-
course had by her with others than the defendant, and her declarations
in relation thereto, are immaterial and irrelevant, on the trial of a de-
fendant indicted for incest, either for the purpose of impeaching her tes-
timony or for any other purpose.
Kidwell v. The State, 384
45. Same. Reputation for Chastity and Virtue.-Evidence attacking her
reputation for chastity and virtue is inadmissible.
46. Constitutional Law.-Defining Crime.-Title of Act.-Neither the title,
nor the body, of a statute defining a felony need designate the felony
Peachee v. The State, 399
defined by giving to it a particular name.
47. Same.-Blackmail.-The act of March 10th, 1873, 2 R. S. 1876, p 449,
sufficiently defines the felony ordinarily designated "blackmailing." Ib.
48. Grounds of objection to Evidence. The grounds of objection to the ad-
mission of evidence offered must be stated to the court, at the time the
objection is made, which must appear by the record on appeal to the Su-
preme Court, to make error in admitting such evidence available.
49. Evidence of Former Acquittal.-An offer to introduce the record of an
acquittal of the defendant on the trial of a former indictment against
him, should be accompanied by an offer to identify the crime charged in
that indictment with that charged in the indictment on which trial is
being had.
50. Perjury-Indictment.-Juror.-An indictment for perjury may be pred-
icated upon alleged false answers given by the defendant while being
examined under oath as to his competency to sit as a juror on the trial of
a cause. See opinion for form of indictment. The State v. Howard, 502
51. Malicious Trespass.-Removing Partition Fence.-Notice.-The owner of
a partition fence between his land and that of an adjoining proprietor
may, if the land of the latter be unenclosed, remove such fence without
giving any notice thereof.
Gundy v. The State, 528
52. Same. The fact that such removal is made by the owner after allowing
the adjoining proprietor to connect therewith a fence which the latter is
erecting to enclose his land, but has not completed, does not make the
former guilty of malicious trespass.
53. Same." Inclosure."-To constitute an "inclosure," as used in section
23 of the act" concerning inclosures," etc., 1 R. S. 1876, p. 497, the fences
including the partition fence, must surround some part of the land ad-
joining.
54. Witness.-Child Under Ten Years of Age. - The question, as to whether
or not a child under ten years of age is capable of understanding the
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