the felonious elements of larceny. Fleming 2. SAME-PARTIES. V. State, 136 Ind. 149, 36 N. E. 154. That

In a proceeding before a board of county

commissioners to vacate streets, lots, and alleys the money was given up with the owner's

disannexed from a city or town, where remonconsent and without expectation of its return strators signed a single document in which their can make no difference, if the possession was several interests were distinctly shown, one obtained by a fraudulent trick or deception,

of them might prosecute a separate appeal from

the decision of the board. and with the felonious intent not to return it,

3. SAME-DECISIONS REVIEWABLE-NATURE OF nor use it for the purpose represented by DECISION. him and intended by the contributors, but An order of a board of county commisto appropriate it to the taker's own use.

sioners vacating streets, lots, and alleys dis

annexed from a city or town is a judicial act Stillwell v. State, 155 Ind. 552, 559, 58 N.

from which an appeal may be taken to the E. 709; Crum v. State, 148 Ind. 401, 407, 47 circuit court. N. E. 833; March v. State, 117 Ind. 547, 20

Appeal from Circuit Court, Adams County ; N. E. 444. The reason of the rule is thus

Richard K. Erwin, Judge. stated: “Where the defendant, with a pre

Proceeding by Penina Silvers before the concerted design to steal the property, ob

board of commissioners of Jay county to vatains possession of it by fraud, the taking

cate certain lots, streets, and alleys. From an of it is larceny, for the reason that, as the

order overruling objections by Walter F. Macfraud vitiated the transaction and left the

Ginnitie and others, he appeals to the circuit title in the original owner, he still retains

court, and from an order dismissing that a constructive possession of the goods, and a

appeal he appeals to the Appellate Court. conversion of them by the defendant is such

This cause was transferred from the Appela trespass to that possession as makes lar

late Court under the provisions of section ceny.” Gillett, Crim. Law (2d Ed.) § 540.

1337u, Burns' Ann. St. 1901. Reversed and There was evidence justifying the jury in

remanded. finding the defendant guilty of larceny.

While the state was delivering its evidence, F. B. Jaqua and D. B. Erwin, for appela witness, on direct examination, after testi lants. Smith & Moran, for appellee. fying to certain statements made by the defendant, was asked by the prosecuting at MONTGOMERY, J. This proceeding was torney the following question: "You may commenced by appellee before the board of state what he said, if anything, as to what

commissioners of Jay county, to vacate the institution he was connected with in raising lots, streets, and alleys of a certain plat of the money." All the evidence goes to show

ground which had theretofore been disanthat appellant represented publicly and pri

nexed from the city of Portland. The provately that he was the agent and general ceeding was founded upon the following statsecretary of a benevolent association at Bat ute: "That the owner or owners of real tle Creek, Mich., and it was the theory of estate which may or has been disannexed the state that this representation was false,

from any city or town in this state, accordand but a part of the defendant's scheme to ing to the provisions of section 3247 of the deceive the people. In support of the theory

Revised Statutes of 1881, may have the lots, the question was proper.

streets, and alleys vacated on petitioning the Judgment affirmed.

board of commissioners of the county in which said city or town is situated reciting the

fact that of the desire of such owner or (167 Ind. 321)

owners to have the lots, streets and alleys MacGINNITIE et al. V. SILVERS. (No.

of such disannexed territory vacated. Notice 20,847.)

of the filing of such petition and the substance

thereof, shall be published for one week in (Supreme Court of Indiana. Nov. 2, 1906.)

some newspaper printed and published in 1. COUNTIES COUNTY BOARD VACATING


first day of the meeting of such board of Under Burns' Ann. St. 1901, § 4229, pro commissioners. If the facts in such petition viding that the owner or owners of real estate are found to be true, and there is no valid which may be disannexed from any city or

objection thereto by the owner or owners of town in the state according to Rev. St. 1881, § 3247, may have the lots, streets, and alleys

real estate affected thereby, said board shall vacated on petitioning the board of commis cause an order to be made upon their records, sioners of the countv, and, if the facts in the declaring the lots, streets, and alleys in said petition are found to be true and there is no

disannexed territory vacated, and that such valid objection by the owner or owners of real estate affec.cư therely, the board shall cause

territory thereafter be described as unplatted an order to be made vacating the lots, streets, land.” Acts 1893, p. 41, c. 45; section 4229, and alleys, where a written remonstrance to Burns' Ann. St. 1901. Notice of the proceedsuch a proceeding showed that one of the objectors was the owner of part of the land in

ing was duly given, and in response thereto cluded in the tract in question, he was thereby appellant and others appeared and filed their made a party to the proceeding and was en objections in writing by way of remonstrance titled to appeal to the circuit court from the de

against the granting of appellee's petition. cision of the board without filing an affidavit of his interest and showing that he was ag

The objections were overruled, the prayer of grieved by the decision of the court.

the petition granted, and an order or judg

of resulting damages, its validity would be open to serious question. But, as already said, it is not contemplated that the board will act until petitioned so to do by the owners of all the lots involved, and when, after notice, no showing is made that the proposed vacation will injure private rights or the public convenience or that there is any valid objection to the proceeding. In the determination of these matters the board acts judicially, and from its final order or judgment an appeal is authorized. Elliott on Roads and Streets (2d Ed.) § 359, p. 372; § 876, p. 960; Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; Hanna v. Board, etc., 29 Ind. 170; State ex rel. v. Board, etc., 45 Ind. 501; Grusenmeyer v. City of Logansport, 76 Ind. 549; Board, etc., V. Logansport, etc., Co., 88 Ind. 199.

The court erred in dismissing appellant's appeal, and the judgment is reversed, with directions to overrule appellee's motion to dismiss, and for further proceedings not inconsistent with this opinion.

ment entered vacating the lots, streets, and alleys included in the plat. Appellant appealed from this judgment to the Jay circuit court, and upon application the venue of the cause was transferred to the Adams circuit court. In the latter court, the appeal was dismissed upon appellee's motion, assigning as reasons therefor: (1) That appellant had filed no affidavit of the fact that he was interested in, and aggrieved by, the decision of the board; (2) that the other remonstrators had not joined in the appeal; and (3) that the judgment of the board was wholly legislative and not judicial, and therefore not appealable. The only error assigned is the dismissal of said appeal.

In the remonstrance filed before the board it was shown that appellant owned lots 10, 11, and 12, in block 3 of the plat of ground to be vacated, as well as other lots in the same addition, and that the vacation of the streets and alleys as prayed would affect the means of ingress and egress to and from such property to the great inconvenience of the owner. The publication of notice of the filing and substance of appellee's petition was to afford persons whose property rights might be affected an opportunity to appear and make objections to the proceeding. The statute quoted clearly contemplates that the ex parte petition shall be presented by the owner or owners of all the ground embraced in the plat to be vacated. Appellant's remonstrance disclosed a deficiency in appellee's title, and averred that appellant was the owner of a portion of the tract, and of other rights affected, and thus tendered a “valid objection” and an issue which, if established by proof, would necessarily defeat the proceeding. The appearance and filing of this remonstrance made appellant a party to the proceeding, and sufficiently made known his interest in the matter pending, and no affidavit of his interest and that he was aggrieved by the decision of the board was required. Strebin v. Lavengood et al., 163 Ind. 478, 71 N. E. 494 ; Harris v. Millege, 151 Ind. 70, 51 N. E. 102. The remonstrators signed a single document in which their several interests were distinctly shown, and there can be no question that appellant might prosecute a separate appeal. It follows that the second ground of the motion to dismiss is not tenable.

Appellee's counsel contend that, in proceedings of this character, the board of commissioners exercises a purely arbitrary discretion, and that its decision is final, and no appeal therefrom is authorized. The means of ingress and egress, and ways appurtenant to property constitute valuable property rights which can only be taken by due process of law. If this statute contemplated the destruction of such rights against the owners' will, and without any provision for a hearing of a judicial character upon the question of the public necessity or utility thereof, or for the assessment and payment

(167 Ind. 324) WESTON V. STATE. (No. 20,887.) (Supreme Court of Indiana. Nov. 2, 1906.) 1. HOMICIDE-SELF-DEFENSE-ACTUAL OR APPARENT DANGER.

A person accused of homicide may justify the act as having been committed in self-defense, though, in fact, he was not in imminent danger of great bodily harm or of losing his life at the hands of deceased, where, at the time of its commission, he honestly and reasonably believed the danger was real.

[Ed. Note.-For cases in noint, see vol. 26, Cent. Dig. Homicide, SS 158-162.] 2. SAME.

Where a homicide was committed by the use of the fist alone, without a weapon, the defendant's right to justify the act as having been committed in self-defense was not confined to a situation so grave that the danger to be averted was great bodily injury or the loss of life.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, § 174.] 3. CRIMINAL LAW INSTRUCTIONS ERROR CURED BY SUBSEQUENT INSTRUCTIONS.

Where erroneous instructions were given in a criminal prosecution, the fact that a later correct instruction was given upon the same subject did not cure the error where the defect in an instruction given was so great as to cause uncertainty in the minds of the jurors as to the law after listening to all the instructions.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, $ 1994.]

Appeal from Circuit Court, Huntington County; J. C. Branyan, Judge.

Boston Weston was convicted of involuntary manslaughter, and appeals. Reversed, and new trial ordered.

C. W. Watkins and J. S. Branyan, for appellant. C. W. Miller, W. C. Geake, C. C. Hadley, and H. M. Dowling, for the State.

GILLETT, J. Appellant was convicted in the court below of involuntary manslaughter.

There was testimony of the following state of facts: On the evening of January 30, 1906, a party of six men went from Decatur to Huntington, to attend a minstrel performance and a lodge banquet. The members of the party, or some of them at least, commenced drinking when they reached Huntington. They were quite boisterous at the performance, and various members of the party, or all of them, were drinking at the banquet, which was held afterwards. At 1 a, m. they telephoned for a hack, and appellant, who was a hack driver, came in response to the message, and drove them to the depot. Upon their alighting, an altercation occurred be tween them and appellant over the question as to whether he was entitled to 75 cents in addition to the like sum, which he had already received. The upshot of the quarrel was that appellant struck one of the party, Roman J. Holthouse, with his fist, knocking him down. As the latter fell, his head struck the sidewalk, causing his death. According to the testimony of appellant, while the dispute was in progress the members of the party advanced towards him, forming a semicircle, while he retreated until he stood beside his hack. Their talk was loud and profane, and their manner threatening. Appellant testified that he merely continued to as. sert that he was entitled to the additional fare, when the deceased, calling him a vile name and threatening to knock his head off, stepped quickly towards him. It was in these circumstances, according to appellant, that the blow was struck, and he testified that he was frightened at the time. There was testimony on behalf of the state which tended to put the matter in a different light, but in material particulars appellant was corroborated by other witnesses. No claim is advanced that appellant intended to kill the deceased. If appellant is guilty, it must be on the theory that in striking the blow he committed an assault and battery, and that therefore the case is one in which while he was in the commission of an unlawful act he killed the deceased. On the other hand, if the circumstances were such as to justify appellant in striking the blow as a measure of self-defense, his act was lawful, and the killing was but a homicide by misadventure.

The trial court gave 48 instructions to the jury. A number of these instructions are complained of by appellant's counsel. Among them are instructions numbered 7 and 17. The material portion of instruction No. 7, so far as present purposes are concerned, reads as follows: "The defendant can justify the attack upon the deceased only on the theory that, at the time he struck the deceased, he, the defendant, was in imminent danger of great bodily harm or in imminent danger of losing his life at the hands of the deceased.” Instruction No. 17 is as follows: "I instruct you, gentlemen of the jury, that the doctrine of self-defense is a humane provision of the law which gives one the right

to repel force by force, when attacked, and to even take human life to avoid great bodily injury or to save one's life. In this case, if you find from the evidence that the defendant, Boston Weston, struck the deceased, Roman J. Holthouse, when he, the defendant, was in no danger of great bodily injury and in no danger of losing his life, then I instruct you, if you so find from the evidence beyond a reasonable doubt that the law of selfdefense would be no defense for the defendant in this action." The principal objection which is offered to the above instructions is that they limit the right of self-defense to a situation of actual danger. We are of opinion that appellant has just cause to complain of said instructions, and particularly of the seventh. It will be observed that by the use of the word "only" in said instruction all claim of a justification for appellant's act was limited to a case in which he was in fact in imminent danger of losing his life or sustaining great bodily harm. While such a situation would have authorized appellant to act in self-defense, yet his counsel properly object to the fact that the instruction denied to him the right to have the jury consider whether he honestly and reasonably believed that the danger was real. Batten V. State, 80 Ind. 394; Bryant v. State, 106 Ind. 549, 7 N. E. 217. Of course the defend. ant was not entitled to claim the benefit of a belief that danger existed unless the facts were such as to make his belief a reasonable one, but, in determining whether he bad reasonable cause to entertain such belief, the matter must be judged from the standpoint of the man himself. As was said by the Supreme Court of Iowa: “The inquiry is, was the danger actual to the defendant's comprehension, not whether the danger existed in fact - not whether the injury was actually intended by the deceased, but was it evident or actual to the prisoner as compared with danger remote or problematical?” State v. Neeley, 20 Iowa, 108. We may further add concerning said instructions, although complaint is not made of that phase of them, that the court erred in the further particular of confining the right of self-defense to a situation so grave that the danger to be averted was the loss of life or serious bodily harm. It must be remembered that appellant only made use of his fist. To justify such a method of defense, it is not required that the danger, real or apparent, should be as great as where resort is had to the use of a deadly weapon. If the deceased committed an assault upon appellant, in such a manner as to bring him into imminent danger of any injury, or to cause such an anpearance of danger as to lead him reasonably to believe that it existed, he was not bound to stand until he received the blow, and, in putting the doctrine of self-defense before the jury, the right of appellant to strike a blow should not have been circumscribed to a situation in which he was in danger of deatb or serious bodily injury. 1 Wharton, Crime

inal L. & 628; State . Sherman, 16 R. I. 031, 18 Atl. 1040; Gallagher v. State, 3 Minn. 270 (Gil. 185). In Clark and Marshall's Law of Crimes (20 Ed.), $ 212, the authors state: “When a man is assaulted, but not in such a way as to endanger his life or threaten great bodily harm, he has a right to defend himself, and, in doing so, to use any necessary force short of taking his assailant's life or inflicting great bodily harm; and, unless the force employed is clearly excessive, he is not guilty of assault and battery.” It was most important to appellant, in view of the unapprehended consequence of the striking of the blow, that the precise quality of his act should have been presented to the jury under clear instructions as to the right of self-defense. The question was whether the blow which he struck was an unlawful one. and death resulted therefrom, he was at the least guilty of involuntary manslaughter (State v. Johnson, 102 Ind. 247, 1 N. E. 377), but if the blow was lawful, he should go acquit. It is true that, in the course of the exceedingly long charge that the court gave to the jury, there was an instruction given, which was tendered by appellant, upon the subject of his right to act upon appearances, but this was not sufficient to obviate the objection which appellant's counsel have pointed out to instructions 7 and 17. While instructions are to be considered as a whole, yet, if the defect in an instruction is so great as to cause uncertainty as to the law in the minds of the jurors, after listening to all the instructions, the cause must be reversed. Somers v. Pumphrey, 24 Ind. 231; Bradley v. State, 31 Ind. 492; Kingen v. State, 45 Ind. 518; Toledo, etc. R. Co. v. Shuckman, 50 Ind. 42; State ex rel. v. Sutton, 99 Ind. 300; Clark v. State, 159 Ind. 60, 64 N. E. 589. We may well quote in this connection the rollowing declaration of this court in one of the older cases : "It is true that upon this subject a correct instruction was given at the request of the defendant. But this di? not repair the error. Contradictory instructions would, if allowed, make the trial by jury a most mischievous institution." Clem V. State, 31 Ind. 480, 483.

Other questions are discussed by counsel for appellant, but, as it does not appear that they are likely to arise upon another trial, we shall not pass upon them.

Judgment reversed, with an order for new trial. The clerk will issue the proper notice for the return of the prisoner.

ed of the nominees of a convention which has been held at the time and place designated in the call of the regularly constituted party authorities, it is the duty of the board of election commissioners, on presentation of a regular certificate of nomination, to set out the list of names under the regular party name and title, the candidates of the Democratic Party in the first column on the left hand side of the ballot and of the Republican Party in the second column. Held, that where certificates of nomination have been properly filed under such sections, the duty of the election commissioners to arrange the ballot as provided is mandatory. 2. SAME-FACTIONS.

Burns' Ann. St. 1901, § 6215, provides for the preparation of ballots by the election commissioners, and the filing of certificates of nominations made by a convention or primary election. It also declares that, in case of a division in a party, and claim by two or more factions to the same party name, etc., the election commissioners shall give preference of name to the convention held at the time and place designated in the call of the regularly constituted party authorities, etc. Held, that where the nominees of two factions of the Republican Party in a county claim to be the regular Republican nominees, preference should be given to the nominees of the convention called by the chairman of the Republican county central committee. 3. SAME-POLITICAL QUESTIONS-DETERMINATION.

The determination of political questions, arising between factions of a political party, is within the jurisdiction of the regular party authorities, and cannot be determined by the courts.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Elections, SS 134, 136.] 4. MANDAMUS-PETITION-SUFFICIENCY.

Burns' Ann. St. 1901, § 6215, providing for the preparation of ballots by the board of election commissioners, declares that the board shall cause to be printed on the respective ballots the names of the candidates nominated by the party conventions; that the certificate of nomination shall be in writing and shall designate a title for the party or principal which such convention or primary election represents, together with any simple figure or device by which its list of candidates may be designated on the ballots. Held, that where a petition for mandamus to compel election commissioners to place the nominees of a regular Republican convention in their proper place on the ballot did not allege that the certificate of nomination designated the title of the party and the figure or device by which its candidates were to be designated on the baliot, the petition was fatally defective. 5. APPEAL-REVIEW.

The Appellate Court, in reviewing the record on a question of error, will examine the whole record, and if, in so doing, they find in other parts of the record what will justify or neutralize the error assigned, the judgment will not be reversed therefor. 6. SAME — PUBLIC QUESTIONS


Where, in a mandamus proceeding to compel election commissioners to place the nominees of a regular Republican convention on the ballot under the party name and device, instead of the names of candidates nominated at a designated convention, a question of vital public interest was presented, and argued on the merits, it will be decided on appeal, notwithstanding the judgment must be affirmed because of a fatal defect in the pleadings.

Montgomery, J., dissenting.

Appeal from Circuit Court, Marshall County; Harry Bernetha, Judge.

(167 Ind. 276) STATE ex rel. GARN v. BOARD OF ELEC


COUNTY et al. (No. 20,940.) (Supreme Court of Indiana. Oct. 31, 1906.) 1. ELECTIONS - BALLOTS ARRANGEMENT OFFICIAL DUTIES.

Burns' Ann. St. 1901, $8 6215, 6222, provides that where a list of candidates is compos

Petition for a writ of mandate by the state, on relation of Francis Edward Garn against the board of election commissioners of Marshall county and others. From a judgment in favor of defendants, relator appeals. Affirmed.

John W. Park, and Merrill Woores, for appellant. Chas. Kellison, L, M, Lauer, and H. A. Logan, for appellees.

GILLETT, J. September 29, 1906, relator, a citizen of Marshall county, filed his petition for an alternative writ of mandate, to require the board of election commissioners of said county, and John R. Jones and Francis Marion Burkett, constituting a majority of said board, to place on the official ballots, to be used at the next general election, a certain list of names of persons, who had respectively been nominated for certain designated county offices, in the second column of said ballot, under the device of the eagle, and accompanied with the designation., “Republican Ticket." An alternative writ was issued by the court, and appellees Jones and Burkett appeared, and filed separate demurrers to the writ. These demurrers were sustained, and final judgment was rendered against relator.

Aside from certain practice questions, counsel for appellees offer but one objection to the complaint, and that is based on the contention that the facts alleged at most show a case wherein the board bas a discretion to determine which of the two tickets it will permit to go upon the ballot as the ticket of the Republican Party. It is alleged in the petition and writ that the manner in which the Republican Party of Indiana is organized is as follows: "In every voting precinct in the state a precinct committeeman is biennially elected by the voters of the precinct at a time fixed by the state central committee. In every county the precinct committeemen constitute the county committee, and choose their own officers under rules established by the state central committee, which consists, and for many years has consisted, of 13 members, chosen one from each congressional district by the Republican voters of the district. In each district is a district committee consisting of the chairman of each county committee and of the member of the state committee for the district. The governing body of the entire organization is the state central committee, to which all local organizations and committees are inferior and subordinate." It fully appears that the adherents of said party in the 33 voting precincts of Marshall county met, pursuant to the call of said state committee, and elected precinct committeemen, who organized and selected relator as the chairman of the county organization; that said county committee and its chairman have at all times been recognized by the state committee; that the list of nominees which the

relator seeks to have recognized as constituting the Republican ticket was selected by a convention held upon a call issued by lelator, by the direction of said county committee and pursuant to the rules of said state committee, to the Republicans of said county; that the convention, whose nominees it is charged that appellees intend to recognize as constituting the candidates on the Republican ticket, was called by persons claiming to be members of the Republican county committee, but who were not such in fact, and that said convention, having been a mass convention, was held contrary to an existing rule of the state committee, which rule is specially pleaded. It is further alleged that although demand has been made up. on defendants that they place the list of nominees of said first-mentioned convention in the second column of the ballot under the name and device of the Republican ticket, said defendants have refused to state what they will do, but that it is their intention and purpose to postpone action until the adjournment of the September term of the Marshall circuit court for the purpose of avoiding mandate proceedings, and that they will then, in the printing of the ballots, cause the other list of nominees to be set out thereon in the place, and under the name and device of the Republican ticket.

The election law provides that “in each county in the state the clerk of the circuit court and two persons by him appointed, one from each of the two political parties that cast the largest number of votes in the state at the last general election, shall constitute a county board of election commissioners. * * * It shall be the duty of such board to prepare and distribute ballots for election of all officers to be voted for in such county other than those who are voted for by all the electors of the state. Section 6214, Burns' Ann. St. 1901. The next section contains the following provisions: “The said board of election commissioners shall cause to be printed on the respective ballots the names of the candidates nominated by the conventions of any party that cast 1 per cent. of the total vote of the state at the last preceding general election, as certified to said boards by the presiding officer and secretary of such convention. * * The certificate of nomination by a convention or primary election shall be in writing, and shall contain the name of each person nominated, his residence, and the office for which he is nominated, and shall designate a title for the party or principle which such convention or primary election represents, together with any simple figure or device by which its list of candidates may be designated on the ballots; said certificate shall be signed by the presiding officer and secretary of such convention, or by the chairman and secretary of the county, city, or township committee, who shall add to their signatures their respective places of residence and acknowledge

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