De Camp et al. v. Alward.

of the property owned by De Camp and wife, with a view, as we infer, of showing that they could not bid on the property of the company when sold by the trustee. We do not see that there was any error in this. It was no bar to the action.

There was evidence offered and rejected on certain other points, but we do not see that there was any error in those rulings.

The motion for a new trial presented the question as to the sufficiency of the evidence to sustain the verdict of the jury, and counsel submit that question to us. In the view which we have taken of the case, we think there is no reason for disturbing the judgment on this ground.

The good faith of the directors in the passage of the resolution to make the assignment is discussed; but this is one of the questions decided by the jury, and we cannot say that under the evidence it was not correctly decided.

The same may be said as to the necessity or expediency of the assignment. We cannot say that the course pursued was not the most expedient under the circumstances.

The court instructed the jury at considerable length, giving them, as we think, all the information necessary to a full understanding of the law of the case. It was urged in the motion for a new trial that the court erred in refusing to give instructions five, six, seven and eight, asked by the defendants. We do not see that the giving of these instructions, conceding them to be correct, would have enabled the jury to comprehend and decide the questions involved, any more accurately than they could without them. Having fully presented the questions involved to the jury, it was not the duty of the court to give other instructions.

The special findings of the jury in answer to interrogatories are not inconsistent with the general verdict. One question about which there was much contention was, whether or not Anderson was, on the 29th day of April, 1873, the real owner in his own right of two shares of the stock of the company. The jury found that he was such owner. It was

Wiley v. The State.

found that De Camp was not present at the meeting when the assignment was made, and that Anderson and Bissell, the other two directors, were present and voted for the resolution.

The judgment is affirmed, with costs.

Petition for a rehearing overruled.

WILEY V. THE STATE.

CRIMINAL LAW.-Evidence.—Acts of Accomplice not on Trial.-Where, on the trial of a criminal action, it is shown that other persons, with the defendant, were parties to the crime, though they are not on trial, their acts, doings, and sayings may be given in evidence against their accomplice who is on trial. SAME.-Supreme Court.-Evidence.-Where, on appeal to the Supreme Court in a criminal action, all the evidence is not in the record, the judgment against the defendant will not be reversed because of the admission of evidence set out in the record, which, though otherwise inadmissible, might have been rendered competent by other admissible evidence not in the record.

From the Decatur Circuit Court.

J. S. Scobey, for appellant.

riot against five persons, Trial by the court, withMotion for a new trial urged as error for which The whole evidence is

C. A. Buskirk, Attorney General, for the State. PETTIT, J.—Information for a the appellant only being on trial. out a jury, and finding of guilty. overruled; and this ruling alone is the judgment should be reversed. not in the record, but it is claimed that the court erred in admitting the following evidence:

Witness. "I saw Wm. Myers, on the outside of the house, take off his coat and throw it down, and go into the house. George Jones, Wm. Myers, Oscar Rybolt, Pierce and Hamlin Anderson were intoxicated. I saw Taylor at the post-office, also James R. Wiley, George Jones, Lou Pumphrey, Burney, Oscar Rybolt, Pierce, Wm. Myers,

McLaughlin v. The State.

and Hamlin Anderson, before the fuss at Henderson's. I have seen Barkley since, and saw him shortly after the difficulty at the store. He has a scar on his cheek that will disfigure him for life."

The whole evidence not being in the record, we cannot say that it was error to admit this. It is a well established rule in criminal practice, that when it is shown that other persons were parties to the crime, though they are not on trial, their acts, doings and sayings may be given in evidence against their accomplice who is on trial. It may have been proved that all the persons named were parties to the crime.

The judgment is affirmed, at the costs of the appellant.

52 4761 154 443 156 169

MCLAUGHLIN v. THE STATE.

NAME.-Idem Sonans.—Criminal Law.—Prosecution by affidavit and information for assault and battery, the surname of the defendant being stated in the affidavit as " McGloflin," and in the information as " McLaughlin."

Held, that a motion to quash the information for variance in the name was properly overruled.

SAME.-Recital of Name by Record.—Evidence.—Where the record on appeal recites a name as that of a witness who gave testimony set out, but the name is not contained in what purports to be the statement made by the witness, it does not constitute a part of his testimony.

SAME.-Evidence.-Proof of an assault and battery on the person of Mrs. Grubbs could not sustain a prosecution for an assault and battery on the person of Caroline F. Grubbs.

From the Henry Circuit Court.

J. Brown and J. M. Brown, for appellant.

C. A. Buskirk, Attorney General, and R. D. Doyle, for the State.

BIDDLE, J.-Prosecution against the appellant by affida

McLaughlin v. The State.

vit and information, for an assault and battery on the person of Caroline F. Grubbs.

The affidavit states the name of the appellant as Raleigh McGloflin, and the information states it as Raleigh McLaughlin. The appellant moved to quash the information for this supposed variance in the name. His motion was overruled, and we think properly. There can be no substantial difference in the pronunciation of the name in either orthography. They are idem sonans. We think there is no danger of mistaking the identity of the person on trial on account of so slight a difference in the name; and, if acquitted, there would be no difficulty in pleading the record in bar of a subsequent prosecution for the same offence.

The appellant was tried, convicted and fined. He appeals. The evidence is before us. There is no proof of the name of the injured party. True, the record recites that "Mrs. Caroline Grubbs says, that, about the 29th of April, 1874, I was in the Gem Saloon," etc., etc.; but the part written in the third person is not, and does not purport to be, any part of Mrs. Grubbs' testimony. She testifies throughout her statement in the first person. The recital of a record is no part of a witness's testimony. Wreidt v. The State, 48 Ind. 579. There is evidence in the record tending to show that the appellant committed an assault and battery on Mrs. Grubbs, but whether on Caroline Grubbs or not does not appear. In this respect, this case is the same as McLaughlin v. The State, ante, p. 279, and must be decided the same way.

The judgment is reversed, and the cause remanded, with instructions to grant the motion for a new trial, and for further proceedings.

DOWNEY, C. J., dissents, for the reasons stated in his dissenting opinion in the case of Wreidt v. The State, cited above.

Dawson v. The State.

ABEL V. THE STATE.

From the Marion Criminal Circuit Court.

J. Denton, for appellant.

C. A. Buskirk, Attorney General, and J. M. Cropsey, Prosecuting Attorney, for the State.

PETTIT, J.-Indictment for selling liquor on Sunday. Trial by the court; finding and judgment of guilty.

The only question is as to the sufficiency of the evidence. We have carefully read and considered it, and think the finding is sustained by it. We are referred to Wreidt v. The State, 48 Ind. 579. In that case the name of the person to whom it was alleged the liquor was sold was not proved; and the witness swore positively that he did not buy the liquor of the defendant. The evidence in this case is quite different on these points.

The judgment is affirmed, at the costs of the appellant.

DAWSON V. THE STATE.

CRIMINAL LAW.-Malicious Trespass.-The distinction between the civil action for trespass and the criminal prosecution for malicious trespass should be strictly maintained, and the criminal action should not be sustained as a means of redressing a private grievance, or for the purpose of determining the title to real estate.

SAME.-Malice.-Evidence.-Malice is an essential ingredient of the crime of malicious trespass; and where, on the trial of a prosecution for malicious trespass in removing a fence erected by the prosecuting witness, it was proved that the defendant, in removing the fence, acted under a claim of ownership of the land on which it was erected, through a long line of written title, with a colorable right, and under professional legal advice, and with apparent good faith, there could be no conviction.

From the Dearborn Circuit Court.