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way Company, by an instrument duly signed by its president and attested by its secretary and corporate seal, the execution of which was duly acknowledged, conveyed to the appellant railroad company all of its property, of every kind and description, for the express purpose of merging the two railroads, and leaving no assets of any description in the hands of the said Midland Railway Company, out of which its debts might be satisfied. Said instrument provided, among other things, that said appellant company took all said property subject to the just debts against said Midland Railway Company. (6) That, at the time said instrument was executed, appellee's judgment was a valid, subsisting debt against said Midland Railway Company, and still remains unpaid. (7) That upon the execution of the deed of conveyance to the appellant of all the property of the Midland Railway Company, as set forth in the fifth finding, the appellant entered into possession of said property, including that portion of appellee's premises so appropriated by said Midland Railway Company for their said railroad, and have ever since continued in the use of the same. As conclusions of law, the court found that the appellee was entitled to judgment against the appellant for the amount of his said judgment against the Midland Railway Company.

The only brief filed by appellant is a supersedeas brief, in which it is claimed that the court erred in overruling the demurrer to the complaint, and also in its conclusions of law. There is no argument, however, in favor of these contentions, nor are there any authorities cited. As the same questions arise under the assignment that the court erred in its conclusions of law as arise under the assignment that the court erred in overruling the demurrer to the complaint, we need consider only the correctness of the conclusions of law. Stephenson v. Boody (decided at last term) 38 N. E. 331; Martin v. Cauble, 72 Ind. 67; Graham v. State, 66 Ind. 386. We think there can be no question that the conclusions of law upon the facts found were correct. In Railroad Co. v. Hammond, 132 Ind. 475, 32 N. E. 83,-a case very much like the case at bar,-this court, by Coffey, J., said: "When the appellant, upon acquiring the property, rights, and franchises of the corporation condemning the land for right of way, entered upon, used, and occupied the land for the purposes for which it was condemned, it must be held to have elected to adopt the original appropriation. Having adopted and ratified such appropriation, it is bound, in equity and good conscience, to compensate the owners for their land thus taken. It is bound by the judgment against the corporation through which it takes its title, and must pay for the land the price fixed by the award and judgment in the proceedings to condemn. Indeed, the question now under consideration does not seem to be an open one in this state." The judgment is affirmed.

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3. On a trial for assault with Intent to kill, an instruction that the mere fact that death did not ensue, or the mere statement of the defendant that he did not intend to kill the prosecuting witness, would not justify the jury in finding that defendant did not so intend; and that if one purposely shoots another with a deadly weapon, near a vital point, and in such manner that death would probably ensue, all the other elements of the crime concurring, the jury will be justified in believing that defendant intended to kill, though defendant himself claimed that he did not intend to kill, is not a charge on the weight of evidence.

4. A charge that defendant's testimony should be considered with all the other testimony in the case, and that the jury had no right to disregard it, or to refuse to give it any weight on the mere ground that it came from defendant, is proper.

Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Forest Berten Newport, convicted of assault with intent to commit murder in the second degree, appeals. Affirmed.

Thos. R. Jessup, for appellant. H. C. Starr, W. H. Ketcham, S. H. Spooner and Merrill Moores, for the State.

MCCABE, C. J. The appellant was convicted of an assault and battery on one Hieger, with intent to commit murder in the second degree, on an indictment charging him with an assault and battery with intent to commit murder in the first degree. Pursuant to the punishment assessed by the jury, the court sentenced him to six years' imprisonment in the state prison, and to pay a fine of $100, over his motion for a new trial.

The only proper assignment of error is the action of the trial court in overruling the appellant's motion for a new trial. The only ground stated in the motion, and urged here, as error, is the action of the court in giving and refusing certain instructions.

The first complaint is of the third instruction, which, after the court had stated that the defendant might be found guilty under the indictment of either the intent to commit murder in the first or second degree, or manslaughter, and defining these several crimes, then it reads as follows: "To convict the defendant of an assault and battery with intent to commit the crime of voluntary manslaughter, the evidence must prove, beyond a reasonable doubt, that the defendant committed an assault and battery upon the person

of John Frederick Hieger, as charged in the indictment, and that at the time he did so he was in a sudden heat or passion, produced by a provocation given by said John Frederick Hieger, in the use of personal violence by him, upon his person, and, being in such heat, he, by said assault and battery, without malice, purposed and designed to kill said John Frederick Hieger." The objection urged against this instruction is that it requires the defendant to prove the facts, beyond a reasonable doubt, necessary to reduce the grade of the offense from that charged in the indictment to the lowest degree. The statute, as well as the decisions of this court, require, where there is a reasonable doubt in which of two or more degrees of an offense a defendant is guilty, he must be convicted of the lowest degree only. 1 Burns' Rev. St. 1894, § 1893 (Rev. St. 1881, § 1824). Had the indictment here contained nothing but a charge of assault and battery with intent to commit manslaughter, there could be no doubt that the part of the instruction quoted would not be erroneous, because, in that case, there could be no such thing as a reduction of the degree of the offense charged, since there would be only one degree charged. But the indictment here contained a charge of all three degrees, namely, an assault and battery with intent to commit murder in the first degree, the same with intent to commit murder in the second degree, the same with intent to commit manslaughter, and a simple assault and battery. 1 Burus' Rev. St. 1894, § 1903 (Rev. St. 1881, § 1834); Dukes v. State, 11 Ind. 557; Carrick v. State, 18 Ind. 409; Powers v. State, 87 Ind. 144; Foley v. State, 9 Ind. 363; Gillespie v. State, Id. 380; Rose v. State, 33 Ind. 167; Wall v. State, 23 Ind. 150; State v. Throckmorton, 53 Ind. 354. Therefore, if the court, in giving this instruction, had exclusive reference to a case made by the evidence under that part of the indictment considered, only charging an assault and battery with intent to commit manslaughter, the instruction, standing alone, could hardly be said to be erroneous. But there was another instruction given on the same subject, removing all objection to the one now in question. In Rhodes v. State, 128 Ind., at page 194, 27 N. E. 866, this court said: "The settled rule is that instructions upon a single subject must be considered together, and not in fragmentary parts; and if, thus considered, they correctly declare the law, they will not be overthrown, even though detached or isolated parts may not be accurate or clear. If, therefore, the series of instructions upon the subject, * consid

ered as a whole, are not erroneous, the attack of appellant's counsel must fail." To the same effect are Boyle v. State, 105 Ind. 476, 5 N. E. 203; Kennedy v. State, 107 Ind. 149, 6 N. E. 305; Story v. State, 99 Ind. 414; Goodwin v. State, 96 Ind. 559. The fourth instruction was on the same subject as the part of the third just quoted, and it con

cluded as follows: "If there is in your minds a reasonable doubt in which of two or more degrees the offense charged the defendant is guilty, you should convict him of the lowest degree." With these two instructions before the jury, we do not see how they could have been led into the mistake of supposing that the accused was required to prove the facts making the offense charged of the lower degree beyond a reasonable doubt. On the contrary, if they followed the instructions, they must acquit the accused of the higher degree or degrees, if they had a reasonable doubt of which of the degrees he was guilty. This was all he had a right to demand. The sixth instruction is complained of, but no reason is suggested in argument why it is erroneous, and we perceive none.

The fifteenth instruction reads as follows: "The mere fact that death did not ensue, or the mere statement of the defendant that he did not intend to kill the prosecuting witness, would not justify the jury, in themselves alone, in finding that the defendant did not intend to kill the prosecuting witness. A man is presumed in law to intend the probable and natural consequences of his own unlawful act. If one purposely shoots another with a deadly weapon, at or near a vital part, and in such a manner that death would probably ensue, all the other elements of the crime concurring, the jury would be justified in believing that the defendant intended to kill the prosecuting witness, even if death did not ensue, and if the defendant himself claimed that he did not intend to kill him." The objection urged against this instruction is that it invades the province of the jury, and directs them as to what weight they shall give certain evidence. They had already been instructed that they were the exclusive judges of the evidence and its weight and force, and also of the law. But another instruction, taking that power away from them, would not be cured by the former, unless the latter was distinctly withdrawn. Binns v. State, 66 Ind. 428; Kingen v. State, 45 Ind. 518; Bradley v. State, 31 Ind. 492. What evidence proves or tends to prove, after it has gone to the jury, is a question solely for the jury to decide; and it is error for the court to interfere with their decision upon the weight of evidence, by instruction. Guetig v. State, 63 Ind. 278; Veatch v. State, 56 Ind. 584; Greer v. State, 53 Ind. 420; Kintner v. State, 45 Ind. 175; Barker v. State, 48 Ind. 168; Reynolds v. Cox, 11 Ind. 262; Scott v. State, 64 Ind. 400; Steele v. Davis, 75 Ind. 191; Huffman v. Cauble, 86 Ind. 591. The first sentence of the instruction, ending at the first period, standing alone and unconnected with the last sentence thereof, and disconnected with other instructions, would be seriously objectionable. But it is our duty to ascertain the meaning of the whole instruction, read together. The learned counsel for appellant concedes that, inasmuch as it was one of the

instructions asked by the state, the court probably inadvertently overlooked the bungling character of its construction. This furnishes a very poor excuse for the trial judge, whose negligence thus jeopardizes the ends of justice by permitting an awkwardly framed instruction to go to the jury. But if, when the meaning of the whole instruction is ascertained, it correctly states the law, there was no error in giving it. The same hand framed both parts of it, and the same mind conceived the thought expressed in both parts. And both parts are directed to an attempted statement of the law on one single point, namely, as to the force and effect of the presumption of law arising from the facts supposed. The last part of the instruction is clearly right, because it informs the jury that a man is presumed to intend the natural and probable consequences of his own unlawful act, and therefore, if one purposely shoots another with a deadly weapon, at or near a vital part, and in such a manner that death would probably ensue, the jury would be justified in believing that the defendant intended to kill the prosecuting witness, even though death did not ensue, and the defendant stated that he did not intend to kill him. The statement that the jury would be justified in believing that the defendant intended to kill, etc., is nothing more than saying the jury may so find or believe. That does not invade their province of being the exclusive judges of the evidence, and the weight and force to be given to the whole evidence. It would be contrary to all rules for the construction of writings or written instruments to hold that the author of such writing meant to convey inconsistent and contradictory ideas upon the same point in the two parts of the writing. On the contrary, those rules require us to hold that the same idea was intended to be expressed in both parts of the instruction. In other words, it is apparent that the latter part of the instruction was intended to amplify and make more clear what was intended in the first part; that is, it should be construed as if the court had said, after the first part, that is to say: "A man is presumed, in law, to intend the probable and natural consequences of his own unlawful act. If one purposely shoots another with a deadly weapon, at or near a vital part, and in such a manner that death would probably ensue, all other elements of the crime concurring, the jury would be justified in believing that the defendant intended to kill the prosecuting witness, even if death did not ensue, and if the defendant himself claimed that he did not intend to kill him." In Insurance Co. v. Buchanon, 100 Ind., at page 71, the construction and correctness of a single instruction were involved, which reads as follows: "(19) But the fact that the plaintiff may have suffered a long period of time to elapse without making demand or bringing suit for the alleged items of indebtedness for which he sued, is

"It

susceptible of various explanations consistent with the hypothesis of the justness of his claim, and it is for you to say whether or not the plaintiff has offered one that is satisfactory or not." The instruction was held not to invade the province of the jury. In Wright v. Fansler, 90 Ind., at page 494, another single instruction came under review, where it was said: "In the eighth instruction the court correctly stated the elements which should be considered in estimating the damages, and added: 'You are only limited in extent by the amount de manded by the plaintiff in his complaint, which is $5,000, beyond which you cannot go, but you may, if you see proper, find in a much less sum; in fact, you may find in any sum from one cent to $5,000.' Appellant singles out the first clause of the first sentence, and urges several objections against it. This course is not permissible. Instructions are not to be judged by detached clauses or sentences, but are to be taken as entireties; and, if correct when thus considered, they will be upheld. We have no doubt that the instruction under immediate mention, taken, as it must be, as a whole, correctly stated the law to the jury." In White v. Beem, 80 Ind., at page 242, it is said: is settled by repeated decisions that the instructions must be taken as a whole, and if, so taken, they express the law correctly, they will be upheld, although they may contain some slight inaccuracies. The appellant selects one or two sentences from the charge of the court, and assails them with much energy, and, it must be said, with much force. If, however, counsel were entirely correct in their objections to detached parts of the instructions, it would not entitle them to a reversal, if the instructions, regarded as a whole, are correct." To the same effect, Eggleston v. Castle, 42 Ind. 531. In Craig v. Frazier, 127 Ind., at page 287, 26 N. E. 842, it is said: "An examination of the instructions given by the court, as shown by the record, discloses the fact, as above stated, that appellants do not object to any single, entire instruction, but to two clauses taken from the instruction numbered six. It has been repeatedly held by this court that instructions are not to be judged by detached clauses or sentences, but as entireties"; citing Nicoles v. Calvert, 96 Ind. 316; Wright v. Fansler, 90 Ind. 492; Railway Co. v. Grantham, 104 Ind. 353, 4 N. E. 49; Town of Rushville v. Adams, 107 Ind. 475, 8 N. E. 292; Railway Co. v. Cook, 102 Ind. 133, 26 N. E. 203; Cline v. Lindsey, 110 Ind. 337, 11 N. E. 441. In Anderson v. Anderson, 128 Ind., at page 258, 27 N. E. 724, it is said: "Appellants do not complain of any entire instruction, but find fault with one sentence in instruction number 16, and one word in instruction number 162. Instruction number 16 strikes us as being, when all read together, quite favorable to appellants, and as containing nothing objectionable. At all events, the law is well

NEWPORT v. STATE.

929

ant in a criminal case to be a witness in his ed himself of that privilege, and "has testiown behalf, and that the appellant had availsaid] should be considered by you along with filed before you. all the other testimony in the case, and you This testimony [the court have no right to disregard it, or refuse to give it any weight, on the mere ground alone sufficiently guarded the appellant's testimony that it comes from the defendant." This from impairment through any possible misunderstanding of the fifteenth instruction on the part of the jury. Appellant's contention cannot be maintained. It amounts to this: rectly aiming at his heart. The leaden ball A man fires a loaded revolver at another, dicing on a rib, inflicting a serious wound, is only turned away from the heart by glanwithout causing death. On a trial for the offense the accused makes the naked stateinjured. The contention here would deny ment that he did not intend to kill the person the right of the court, in such case, to tell the jury what the legal presumption arising legal presumption they would be justified in from those facts is, and that by force of that believing that the accused intended to kill, notwithstanding his statement that he did instruction does not undertake to measure not so intend. As before observed, such an accused, but does undertake to measure the the force and weight of the evidence of the force and weight of a legal presumption. That was matter of law, and, while the jury were the judges of both the evidence and the law of the case, yet the law imposed the duty on the court of telling them what the fully and completely discharged, in this case, law was. That duty would not have been sumption arose from certain facts, without by simply telling the jury that a legal pregiving them something like an accurate idea as to the force and weight of that presumption. The jury could not be supposed to know that, without information, any more than any other principle of law involved in the trial. While the instruction is not a model, and belongs to that class that should not be repeated, we are of opinion that the court did not err in giving the instruction in this particular case.

Bettled that instructions are not to be judged | told the jury that the law allows a defendby detached clauses or sentences, but as entireties. Craig v. Frazier, 127 Ind. 286, 26 N. E. 842." In Nicoles v. Calvert, 96 Ind., at page 318, it is said: "The appellant separates from the body of the sixth instruction given by the court a fragment thereof, which he assails. It has been held by this court that 'instructions are not to be judged by detached clauses or sentences, but are to be taken as entireties, and, if correct when thus considered, they will be upheld.' Wright v. Fansler, 90 Ind. 492. The instruction, considered as an entirety, was not erroneous." To the same effect are Conrad v. Kinzie, 105 Ind. 281, 4 N. E. 863; Railroad Co. v. Shanklin, 98 Ind., at page 577; Railroad Co. v. Talbot, 131 Ind., at page 224, 29 N. E. 1134. We therefore conclude that we are justified by the foregoing authorities in holding that the substance and evident meaning conveyed to the jury by the instruction are that a man is presumed, in law, to intend the natural and probable consequences of his own unlawful act, and therefore, if one purposely shoots another with a deadly weapon, at or near a vital part, and in such a manner that death would probably ensue, the jury would be Justified in believing or finding that the defendant intended to kill the prosecuting witness; that is, they may so believe or find, even though death did not ensue, and the defendant stated that he did not intend to kill him. That is a correct statement of the law. Shinn v. State, 68 Ind., at page 426. deliberate use of a deadly weapon, in the The manner supposed in the instruction, raises a legal presumption of an intent to kill. Dermott v. State, 89 Ind. 187; Murphy v. State, 31 Ind. 511; Bradley v. State, Id. 492; Clem v. State, Id. 480; 1 Bish. Cr. Proc. & 1096-1100; 19 Am. & Eng. Enc. Law, 38-58; 11 Am. & Eng. Enc. Law, 377, 378, and authorities there cited. the court to instruct the jury properly as to It was the duty of such presumption. Such presumption may not have been conclusive, but it was a legal presumption, and not evidence. ing the jury what was the legal effect of the And in telllegal presumption the court was not invading the province of the jury as to the force and weight of evidence. court told them that, on account of said preAnd when the sumption, they would be justified in believing that the defendant intended to kill the prosecuting witness, even though death did not ensue, and though the defendant stated he did not intend to kill him, there was no attempt to prescribe the weight to be given to the statement of the defendant, even if that was as a witness, nor to the fact that death did not ensue, but rather to define and measure the weight and force they would be Justified in giving to the legal presumption. The court, in the twentieth instruction, v.39N.E.no.13-59

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The alleged error in refusing certain in structions is not discussed in the brief of appellant's counsel, except as to the fifth, and the only argument in its support in the brief is the statement that it "was fair, and should have been given." This is not a brief, and according to the cases in this court, too numerous to cite, the appellant must be deemed to have waived the error, if any there was, in refusing his instructions. Judgment affirmed.

HACKNEY, J., was absent.

(140 Ind. 354)

DEAL v. STATE.

(Supreme Court of Indiana. Feb. 26, 1895.) CRIMINAL PROSECUTION-APPEAL-WEIGHT OF EvIDENCE INSTRUCTIONS - TESTIMONY OF INTERESTED WITNESS-EXCEPTION TO EVIDENCE-ADMISSIONS.

1. The supreme court has no jurisdiction to reverse a judgment in a criminal case based on conflicting evidence.

2. A verdict may be reviewed on appeal when there is no evidence to support it or some fact essential to it.

3. One must withdraw from a conflict which he wrongfully brings on, to justify the taking of his antagonist's life in self-defense.

4. A charge that, "in determining the weight to be given the testimony of the different witnesses, you should take into account the interest or want of interest they have in the case, their manner on the stand, the probability or improbability of their testimony, with all other circumstances before you which can aid you in weighing their testimony," is not erroneous as charging that an interested witness is, as a matter of law, entitled to less credence than another.

5. A recital not in the record proper or in the bill of exceptions cannot be considered on appeal, though it appear in the motion for new trial.

6. On a murder trial, defendant's counsel asked a witness what, if anything, he knew about deceased having chopped any one in the head with a hatchet, and, after the state's objection thereto was sustained, he offered to prove by the witness that deceased chopped a certain person with a hatchet at a certain time and place. Held, that an exception to the overruling of the offer does not present the question of the admissibility of the proposed testimony.

7. Testimony that on the night of the homicide witness heard one who, from his voice, witness thought was defendant, say that he killed a man, was admissible as tending to prove that defendant made that statement.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Joseph Deal was convicted of voluntary manslaughter, and appeals. Affirmed.

Colerick & France, for appellant. A. G. Smith, P. B. Colerick, and J. M. Robinson, for the State.

MCCABE, C. J. The appellant, on a trial by jury, was found guilty of the crime of voluntary manslaughter in the killing of one Hugh Crye, on an indictment charging appellant with the crime of murder in the first degree, and his punishment was fixed at 15 years in the state prison. The court rendered judgment on the verdict over appellant's motion for a new trial and in arrest of judgment. These rulings are assigned as the only error complained of. The learned counsel of appellant makes a strong appeal to us, as has often before been made to this court, to overthrow the long-established rule that this court will not undertake to weigh the evidence where there is a conflict, and where, as is claimed here, the preponderance thereof is against the finding of the jury, and ventures the prediction that the time will come when this court will overthrow that rule.

It must be confessed that the rulings of this court on the point have not been entirely harmonious. Out of the whole number of cases, amounting to about 150, there have been the following cases holding that this court, in extreme cases, can and will reverse the judgment of the trial court on the weight of the evidence: Railroad Co. v. Goddard, 25 Ind. 185; Martin v. State, 28 Ind. 310; Batterson v. State, 63 Ind. 531; Railroad Co. v. Bowen, 49 Ind. 154. And Smith v. Kruger, 33 Ind. 86, recognized the right of this court to reverse on the weight of the evidence, but this court refused to reverse because it could not say that the finding was All the against the weight of the evidence. other cases in this court, too numerous to cite here, and, as before observed, nearly 150 in number, strongly affirm the rule that this court cannot reverse on the weight of the evidence, and cannot weigh the evidence. These cases will be found scattered all through our reports down to the present time. In Railroad Co. v. Husselman, 65 Ind. at page 76, this court strongly criticised Railroad Co. v. Goddard, supra, first quoting the following extract from that case: "We do not ignore the rule, so repeatedly laid down by this court, that we will not reverse a cause upon the mere weight of evidence. The general rule is that if there is evidence from which the jury might reasonably find or infer a fact, and they find accordingly, this court will not disturb the verdict be cause there is other evidence in conflict with that on which the finding is based. But, where the evidence in support of the finding is clearly and overwhelmingly or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of parties, to refuse to disturb the verdict, simply because it had been found by a jury." The criticism then proceeds: "No one can find fault with the theory of the rule, or the exception thereto so clearly stated by the distinguished judge who wrote the opinion of the court from which the extract cited was taken. Practically, however, the exception to the rule cannot be safely used. For how can this court or its judges possibly know that the evidence in support of the verdict or finding has been 'clearly and overwhelmingly or conclusively contradicted'? To arrive at such a conclusion, must we not weigh the evidence? If so, how can we, as an appellate court, by merely reading the written evidence, without any personal knowledge of the intelligence or character of the witnesses, or any of those living indicia before us by which men ordinarily judge of the truthfulness and credibility of evidence, determine that the evidence in support of the verdict or finding has been 'clearly and overwhelmingly or conclusively contradicted'? We know of no rule or measure by which an appellate court can be safely guided when it undertakes to determine such a question

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