harmless, because there was not a particle of controversy in the evidence that the defendant did shoot and kill Hugh Crye, Sr., on that evening. We find no available error in the record. The judgment is affirmed.

(149 Ind. 684)

SIBERRY v. STATE.1 (Supreme Court of Indiana.

March 1, 1895.)

PROSECUTION FOR HOMICIDE-EVIDENCE-KILLING OF DEFENDANT'S WIFE REVIEW ON APPEALOBJECTIONS NOT RAISED - INSTRUCTIONS BILL OF EXCEPTIONS-COMPETENCY OF JUROR.

1. On a second appeal, the report of the prior appeal cannot be considered to disclose erroneous rulings of the trial court, but the record in each appeal must make the error assigned apparent on its face.

2. On a prosecution of a man for the murder of his wife, it is proper to show the char acter of the relations existing between them.

3. On a prosecution under an indictment charging in one count involuntary manslaughter, and in another murder, evidence tending to show an intentional killing is admissible.

4. On such a prosecution the admission of evidence tending to show that deceased was true to her husband is not reversible error, especially where the conviction is for involuntary manslaughter.

5. Error in the admission of evidence will not be reviewed unless appellant's counsel refers to the place in the record showing its admission, and a reference to the motion for a new trial, which contains a recital of its admission, is insufficient.

6. Error in admitting evidence of the conviction of defendant on a former trial is not ground for reversal, where it was not assigned as one of the grounds for a new trial.

7. A court reporter who testifies as to certain testimony given by defendant on a former trial cannot be cross-examined as to other testimony of defendant, which is in no way explanatory of that given on direct examination.

8. A conviction based on conflicting evidence will not be reversed, though against the preponderance of the evidence, where that part relied on to support the verdict is legally sufficient to establish all the essential facts necessary to constitute the crime.

9. Error in giving an instruction will not be reviewed, unless it was assigned as a reason for a new trial.

10. A bill of exceptions recited that on the trial the state requested "the following instruc tions." Then followed the instructions, together with a statement that "to the giving of all and each of which the court gave to the jury, to the giving of which instructions, and each of them, the defendant excepted." Held, the bill did not sufficiently show that any specific instruction was in fact given.

11. It is not error to refuse instructions already substantially given.

12. Under a statute rendering a juror incompetent whose opinion has been formed from reading reports of the testimony of witnesses to the transaction, though the juror may state that he can render an impartial verdict, testimony of a juror on voir dire examination that he had read a part of the evidence given on a former trial does not show that his opinion was formed from reading reports of the testimony of "witnesses to the transaction," so as to render him incompetent in case he states he can render an impartial verdict.

Appeal from circuit court, Wells county; J. F. France, Judge.

Rehearing denied, 47 N. E. 458.

John Šiberry was convicted of involuntary manslaughter, and appeals. Affirmed. Mock & Simmons, for appellant. A. G. Smith, for the State.

MCCABE, C. J. The appellant was prosecuted by indictment in the Wells circuit court, in which there were two counts, one charging him with murder in the first degree, and the second with involuntary manslaughter in the killing of his wife, Emma Siberry. On a plea of not guilty, he was found guilty of involuntary manslaughter as charged in the second count, and his punishment was fixed by the jury at imprisonment in the state prison for 15 years. The court rendered judgment upon the verdict. Upon appeal to this court that judgment was reversed on account of error in the instructions of the court, and a new trial was ordered. Silberry v. State, 133 Ind. 677, 33 N. E. 681. Among the errors assigned on that appeal was the action of the court in overruling the motion of the appellant to quash the indictment. That error was not passed on in that appeal. On remanding the cause, the new trial resulted in another verdict of guilty of involuntary manslaughter, fixing the punishment at 12 years' imprisonment in the state prison, on which the trial court rendered judgment over appellant's motion for a new trial and in arrest of judgment.

Among the matters assigned here for error is the action of the trial court in overruling appellant's motion to quash the indictment. The objection urged to the indictment is that a count for murder cannot be joined with one charging, as here, involuntary manslaughter. But we find no motion to quash in the record, and no ruling thereon; hence the question of the propriety of uniting a count for murder with a count for involuntary manslaughter in the same indictment is not presented to this court by the assignment of error. There may have been such a motion overruled before the case came to this court on the former appeal, but the present record does not show it. The report of the former appeal, cited above, shows that to have been the case. But the errors assigned on this appeal must be made apparent on the face of the record on this appeal. All the record, after the return of the indictment to the return of the case from this court to the trial court, seems to have been omitted from the transcript in this appeal. Appeals are heard upon the record, and by the record determined. Errors must be manifest on the face of the record. It is the duty of the party who asks an appellate tribunal to reverse the judgment of a trial court to bring a perfect record to the appellate court, making the error he assigns apparent on the face there of, so that the appellate court can find in the record the proof of the complaint made in the assignment of errors. The appellate tri

bunal can look nowhere else for such proof. Elliott, App. Proc. § 186, and authorities there cited. But the statute seems to authorize counts for murder in the first and second degrees and manslaughter to be joined in the same indictment or information. 1 Burns' Rev. St. 1894, § 1814 (Rev. St. 1881, § 1745); Powers v. State, 87 Ind. 144.

There was testimony of several witnesses introduced by the state on the trial, over the appellant's objection, tending to show ill feeling in the appellant towards the deceased during their marriage relation. It is contended this was error, inasmuch as its tendency was to prove intention and motive to kill her on the part of the appellant, and the jury having found him guilty only of involuntary manslaughter, in which there can be no intention to kill. The proposition furnishes its own refutation; because, no matter how strongly it tended to prove an intentional killing, yet the verdict proves that it did not harm appellant, because the jury found that no such intention existed. Such testimony might possibly have been inadmissible had there been no other count than the second, charging nothing but involuntary manslaughter; but the first count charged murder in the first degree, making evidence of an intentional killing admissible. It was the right of the state to try to prove that count, if it could. This same class of testimony was held by this court to have been rightly admitted on the former appeal. Silberry v. State, supra.

It was next complained that the court permitted the state to prove by the witness John Coons that he remained at the house of Mr. Campbell, where the killing occurred, under the direction of the sheriff, to guard the appellant, the night after the homicide, of which direction and purpose the appellant was wholly ignorant. Counsel in their brief refer us to the page and lines of the record where it is claimed this ruling may be found. On turning to that place in the record, we find such a ruling stated, but is simply so recited in the motion for a new trial. Such recitals must be shown to be true by the record, outside of the motion for a new trial, or by bill of exceptions. Indianapolis, etc., Manuf'g Co. v. First Nat. Bank, 33 Ind. 302; Skillen v. Skillen, 41 Ind. 122; Hopkins v. Turnpike Co., 46 Ind. 187; Vawter v. Gilliland 55 Ind. 278; Hyatt v. Clements, 65 Ind. 12; Clouser v. Ruckman, 104 Ind. 588, 4 N. E. 202; Deal v. State (at the present term) 39 N. E. 930. If there is such a ruling in the record, rule 26 of this court requires the appellant's counsel to cite the pages and lines of the record where it may be found. We have often held, where that was not done, we would not search the record to find such error. The record here contains nearly 850 pages.

It is next urged that the court erred in admitting the evidence of William H. Wilson, over the appellant's objection, in answer to

ΤΟ

the question whether he had ever, during the marriage relation of appellant and his wife, kept her company. The answer was, "No, sir." The objection to the admission of the evidence stated was that it was irrelevant, incompetent, and immaterial. We are inclined to think that the evidence was subject to that objection, but that its admission was harmless. It certainly did not tend to prove anything against the appellant. prove that his wife had been circumspect and prudent in her conduct, if it tended to establish anything concerning the homicide, it was that he had less motive, and therefore it tended to negative intention to kill. But the finding of the jury makes it absolutely certain that the evidence did not harm him, because the verdict finds that he did not intend to kill.

On cross-examination of George Patterson, a witness for the defendant, the court permitted the state to ask him the question, "I will ask you if you took the defendant there [to the state prison] at the time referred to, in pursuance of a verdict and judgment rendered against the defendant in this court for murder;" and over a proper objection, timely made, by appellant, permitted him to answer, "Yes, sir." This is quite an ugly ruling of the trial court, but it was not assigned as one of the reasons for a new trial, and therefore its correctness is not presented to this court for review.

The state proved by the shorthand reporter that appellant on the former trial, as a witness in his own behalf, had made certain answers to certain questions as to how the homicide occurred. The appellant, claiming the right to cross-examine the shorthand reporter, asked him if the defendant, as such witness, had not during such examination made certain other answers to certain other questions, and, on objection by the state, such questions and answers on cross-examination were excluded. This ruling is urged as error. The questions were not strictly cross-examination, any more than it would have been, under such claim to cross-examine, to have gone on and called out all of appellant's testimony on that trial entirely. But the questions did not seek to call out such portion of appellant's former testimony as was explanatory of that part that the state had put in evidence; and, at most, that was the utmost extent to which appellant could rightfully go in that direction. Therefore there was no error in sustaining the objection.

It is next contended that the evidence is not sufficient to sustain the verdict, but we think it was amply sufficient. It is true there was some conflict in it. If even the preponderance of the evidence was against the verdict, if that part of the evidence tending to support the verdict is legally sufficient to establish all the essential facts to constitute the crime the defendant was found guilty of, we cannot reverse, because that would be reversing for an error of fact, and not of

law. We can only reverse for errors of law. Deal v. State (at this term) 39 N. E. 930, and authorities there cited. But we are inclined to think a fair preponderance of the evidence supports the verdict. At all events, there was amply sufficient evidence to warrant the jury in finding that the appellant drew a revolver, a deadly and dangerous weapon, upon his wife, in violation of the statute, though not intending to kill her; that while engaged in that unlawful act the revolver was accidentally discharged, shooting her, from which she immediately died.

The next error urged is the giving of a certain instruction, No. 26. Counsel for appellant, in their able brief, have cited us to the page and lines of the record where it is found. While the instruction, philologically and legally speaking, in the strict sense, is quite meaningless, yet we think it ought never to have gone to the jury, on account of its liability to mislead them; yet the appellant is not in a situation to avail himself of the error, if error there was, in giving it. In his motion for a new trial, he complains that the court erred in giving to the jury 31 different instructions on its own motion, specifying them by their numbers, and relies on the giving of each of them as an error for which a new trial is asked. But there is no one of them that is numbered 26. The bill of exceptions shows that the court did give to the jury on its motion the instruction complained of in the brief, and it is numbered 26.

But the giving of that instruction is not specified in the motion for a new trial as a ground or reason therefor. Another paragraph of the motion for a new trial specifies the giving of a large number of instructions given by the court at the request of the state, specifying them by number, and instruction 26 is among them, but it is not the instruction complained of in the brief of counsel. Having failed to assign the giving of instruction 26 on the court's own motion as a cause or reason for a new trial, the error in giving it, if any there was, is not presented by the record before us.

The next point made in appellant's brief for a reversal is the giving a certain instruction, No. 23. We find the instruction in the record at the place pointed out in the brief, and it is among a series of instructions purporting to have been asked by the state. As to those instructions the bill of exceptions reads thus: "That on the trial of said cause the state asked the court to give the following instructions." Then follows the series of instructions last mentioned. Immediately at the end of the instructions follows this language, to wit: "To the giving of all and each of which the court gave to the jury, to the giving of which instructions, and each of them, the defendant excepted." This was nothing more than an exception to the giving of each of the instructions, and, to be available as an exception, it must appear af

firmatively that the ruling excepted to was actually made by the court. Elliott, App. Proc. 593, and authorities there cited. Whether this series of instructions was actually given by the court is not stated in the bill of exceptions. It is stated that the state requested the court to give them, but whether the court actually gave them is not stated. If we construe the first part of the sentence as a feeble attempt to express the idea of actually giving instructions, we would still be left in doubt as to what ones of the series were given. "To the giving of all and each of which the court gave to the jury" would seem to indicate a purpose to except to each of the instructions that the court had given, without indicating what particular ones in the series had actually been given. Here the most that can be said in favor of the statement is that it may be inferred or presumed that the court had given the instructions, or it would not have allowed an exception to the giving of them, or any of them. Judge Elliott, in his work last cited, says: "If the appellate tribunal is compelled to resort to presumptions, it will choose that which will sustain the proceedings of the trial court, and reject that which would overthrow them. If the condition of the record is such as to require the higher court to act upon a presumption, it will, without hesitation, adopt the presumption that upholds the judgment upon which the appeal is prosecuted. It has been held, upon this general principle, that it is not enough to show that 'error may have been committed,' but it must be shown that error was actually committed." Elliott, App. Proc. § 709, and authorities there cited. The record, therefore, is not in a condition to present to us the question of the correctness of said instruction. Instruction 24, complained of, belongs to the same series, and is in the same fix.

It is next complained that the court erred in refusing instruction 31, asked by the defendant in a series asked by him. There was no error in this refusal, because the court had already substantially so instructed in the series given on its own motion. Instructions 34 and 37, belonging to the same series, are in the same fix, having been substantially given in the series given by the court on its own motion. There was therefore no error in their refusal.

The next point made in appellant's brief is that the court erred in modifying instructions 10, 11, 14, and 41, asked by the defendant. We have examined these instructions as originally asked and as modified. To set them out here would needlessly extend this opinion, for they are very lengthy. It is sufficient to say that the modification scarcely made any material change in them. The court did not err in the modification.

A person called as a juror, Henry H. Reed, stated on his voir dire that he had formed an opinion as to the guilt or innocence of the

accused, and that, notwithstanding that opinion, he thought he could give the defendant a fair and impartial trial; that he had formed his opinion from reading newspaper accounts of the former trial. Being asked whether he had read that which purported to be the evidence given in the cause on such former trial, he answered: "Yes; a part of it, at least." He then stated that he then had no opinion as to the guilt or innocence of the defendant. The court overruled the challenge. One Joseph Awkerman, called to serve on said jury, answered on his voir dire about the same as the other one, except that he was not positive that his opinion was formed from reading the evidence of the former trial. The appellant challenged both jurors for cause, which the court overruled. It does not appear that the opinion of either of them was formed from reading "the reports of the testimony of witnesses to the transaction." That one has formed or expressed an opinion as to the guilt or innocence of the defendant is ground for challenge by the statute, and it provides that "if it appear to have been founded upon reading newspaper statements, communications, comments, or reports, or upon rumors or hearsay, and not upon conversations with witnesses to the transaction, or reading reports of their testimony, or hearing them testify; and (if) the juror state on oath that he feels able notwithstanding such opinion to render an impartial verdict upon the law and evidence, the court may in its discretion admit him as competent to serve in such case." Opinions formed upon conversations with witnesses to the transaction constituting the crime, and reading reports of their testimony, disqualify, notwithstanding the juror may state that he feels able to render an impartial verdict. The newspaper reports of the evidence, the reading of which is to have the disqualifying effect, are newspaper reports of the evidence of the transaction constituting the crime. The evidence fails to show that the opinion of either of the challenged jurors had been formed on reading newspaper reports of the evidence of the transaction. There was therefore no error in overruling the challenge.

Having carefully gone through all the alleged errors pointed out in appellant's brief, we find no error for which the judgment ought to be reversed. The judgment is affirmed.

141 Ind. 35)

GOODMAN v. STATE.1 (Supreme Court of Indiana. Feb. 26, 1895.) INDICTMENT-RECEIVING STOLEN GOODS-Evi

DENCE.

1. It is proper under Rev. St. 1894, § 1817 (Rev. St. 1881, § 1748), to include in the same

Rehearing denied.

indictment a charge of theft and also of receiv ing stolen property.

2. On a trial for receiving a Jersey cal which had been stolen, and which was found on defendant's premises, there was evidence that no Jersey stock was owned in the neighborhood; that various goods, apparently stolen, were found secreted in defendant's house; and that there was found in his possession a horse which he knew had been stolen by a suspicious character who stayed occasionally at his house. Held, that a verdict of guilty was justified.

3. On a trial for receiving stolen goods, evidence of the character of parties who frequented defendant's house is competent.

Appeal from circuit court, Madison county; A. Ellison, Judge.

Isaac Goodman, convicted of receiving stolen goods, appeals. Affirmed.

Goodykoontz & Ballard and H. D. Thompson, for appellant. R. H. Campbell and Wm. A. Kittinger, for the State.

HOWARD, J. The appellant was convicted of receiving stolen goods. The indictment was in two counts. In the first count the appellant and two others named were charged with stealing a valuable Jersey calf. In the second count the appellant was charged with receiving the said Jersey calf, knowing the same to have been stolen by the two other parties indicted with him in the first count. The verdict of conviction was under the second count of the indictment. The errors assigned and discussed by counsel call in question the correctness of the action of the court in overruling the motion to quash the indictment and each count thereof, and also in overruling the motion for a new trial.

It was not improper to charge the appellant, in one count, with stealing, and in another with receiving, the stolen property. Rev. St. 1894, § 1817 (Rev. St. 1881, § 1748). Neither was there any error in prosecuting jointly, under different counts of the indictment, both those who stole the property, and him who received it, knowing it to have been stolen. Redman v. State, 1 Blackf. 430; Keefer v. State, 4 Ind. 246.

To establish the guilt of appellant under the charge of receiving stolen property, it was necessary for the state to prove (1) the larceny by some person; (2) the receiving of the stolen property by the appellant; and (3) that the appellant knew at the time of receiving it that the property was stolen. No serious question is made, as we understand, as to the first two points. The property was a small, unweaned calf, owned on a farm 11 or 12 miles distant from that of appellant, on which it was found. From the evidence we think it very clear that it had not strayed, but was stolen by appellant's son and a confederate. It is contended, however, that the evidence does not show that,

at the time it came upon appellant's premises, he knew that it had been stolen. We have read the evidence carefully, and are satisfied that the circumstances detailed were such as to justify the jury in inferring such guilty knowledge on the part of appellant. Goods of various kinds, apparently stolen, had been found at different times secreted in appellant's house, and about the premises, by one of his sons and by other persons undisclosed. While appellant denied knowledge of how these goods came to be where they were found, yet we think the jury, from all the facts in the case, might reasonably decide against his evidence. Evidence was given tending to show that a horse stolen from a man in Illinois had been found in possession of appellant, and that he had some knowledge that the horse was stolen by a suspicious character who stayed occasionally at his house. This evidence was competent, and might be taken into consideration by the jury, in determining whether, in the present instance, the appellant had knowledge that the calf was stolen. Turner v. State, 102 Ind 425, 1 N. E. 869, and cases there cited. There was also evidence tending to show that the calf was shut in back from the highway, and was kept in such a manner that the jury might infer that there was an effort on the part of appellant to keep it concealed. In addition, the evidence seems to show pretty clearly that appellant took no pains to inform his neighbors or the public of the presence of the calf on his premises. This, too, notwithstanding the circumstance that no Jersey stock was owned in that neighborhood, and that it would therefore appear remarkable that so young a calf should have strayed upon his premises. From the evidence thus adduced, we think the jury might find, as they did, that appellant knew that the property was stolen. See Gill. Cr. Law, § 558, and notes.

The remaining questions discussed in arguing in favor of the motion for a new trial, we think, are covered by what we have said as to the sufficiency of the evidence. The evidence objected to by appellant was introduced for the purpose of showing facts which tended to prove that in receiving the stolen property he must be held to have had knowledge that it was stolen. The character of parties that frequented his house, including certain of his own children, was such as to put him on inquiry as to any property brought by any of them upon his premises.

The assigned error, that the court gave "instructions No. two (2), four (4), nine (9), and eleven (11)," presents no question, as often decided, provided any one of such instructions is correct. We think there is no available error in the record. The judgment is affirmed.

(141 Ind. 483)

MIDLAND RY. CO. v. GALEY.1 (Supreme Court of Indiana. Feb. 20, 1895.) RAILROAD COMPANIES-DAMAGES FOR USE OF LAND -RIGHT TO NEW TRIAL.

The only question being the amount of damages for the occupation of plaintiff's land by a railroad company, plaintiff is not entitled to a new trial as of right.

Appeal from circuit court, Fountain county; J. M. Rabb, Judge.

Action by Benjamin Galey against the Midland Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Crawford, for appellant. Hurley & Clodfelter, for appellee.

HOWARD, J. This was a proceeding for the assessment of damages for the taking of land for a railroad right of way, brought by the appellee, as landowner, against the appellant railway company, under section 917, Rev. St. 1894 (section 905, Rev. St. 1881), and succeeding sections. On the re turn of the writ of assessment of damages, appellant filed its exceptions thereto, averring that at the time of the application for the writ the appellant company was the owner of the easement or right of way in question, free of any lien for damages; that the strip of ground had been taken and appropriated for railroad purposes long prior to that date (pleading the statute of limitations); that in 1874, when the right of way was appropriated, the land was owned by one David W. Galey, who at the time gave a license to the Anderson, Lebanon & St. Louis Railroad Company to enter upon and appropriate the same; that in 1876 said Anderson, Lebanon & St. Louis Railroad Company, having partially completed its said railroad track, mortgaged the same to procure a loan, but, being unable to pay its mortgage, the same was foreclosed, and the appellant, in 1885, became the purchaser of the said right of way, free from the debts or liabilities of the said Anderson, Lebanon & St. Louis Railroad Company. The exceptions also averred that the damages were excessive.

The appellee also filed exceptions to the assessment of damages, as being too low. The appellee then replied to appellant's exceptions by a general denial, and also by special paragraphs. In the special paragraphs it is admitted that in 1874 the said David W. Galey was the owner of the land in question; that the said Anderson, Lebanon & St. Louis Railroad Company then procured from said David W. Galey a written contract by which it agreed to give to him a sum then agreed upon for the said right of way, and to build certain fences and make other improvements agreed upon, and thereupon said Anderson, Lebanon & St. Louis Railroad Company partly constructed a grade and roadbed upon and Rehearing denied, 40 N. E. 801