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them anywhere in that territory was reserved by the city charter, and hence was never lost. The answer to this is that the constitution expressly prohibits an elector from voting elsewhere than in the district where he resides, and it impliedly prohibits the inclusion of the same territory in more than one election district at the same time. Its object is to secure purity of elections by requiring the voter to cast his vote in the place where he is best known, or as near to his own home as possible. As the supreme court of Pennsylvania said, under somewhat similar circumstances: "Without the district residence no man shall vote, but, having had the district residence, the right *

is to vote in that district. Such is the voice of the constitution. Whoever would claim the franchise which the constitution grants must exercise it in the manner the constitution prescribes." Chase v. Miller, 41 Pa. St. 403, 427. For these reasons I think that the judgments of the courts below should be reversed, and a new trial granted, with costs to abide the event.

BARTLETT, HAIGHT, and MARTIN, JJ., concur with O'BRIEN, J., for affirmance. PARKER, C. J., and GRAY, J., concur with VANN, J., for reversal.

Judgment affirmed.

GATES et al. v. HAW et al. (Supreme Court of Indiana. April 27, 1898.) APPEAL-RECORD OF EVIDENCE-INTOXICATING LIQUORS-LICENSE.

1. A bill of exceptions stating that the cause was submitted on an agreed statement of facts which it recites, and then stating that such statement contained all the "facts" agreed on, and which were admitted to the court, and all the "facts" heard or considered by the court in determination of the cause, sufficiently shows that such "facts" constitute all the "evidence" given in the cause, since the words "facts" and "evidence" will be construed as synonymous.

2. The fact that the granting of a license to retail liquors in a certain room would probably violate Acts 1895, p. 250, § 4, providing that the room shall be so arranged that all parts of it can be seen from the street or highway, and imposing penalties for its violation, is not a ground for refusal to grant such license.

Appeal from circuit court, Hancock county; Chas. G. Offutt, Judge.

Application by Thomas Haw and others, to Henry Gates and others, composing the board of commissioners, for a liquor license. From the refusal of the board to grant such license, applicants appealed to the circuit court, from whose judgment for applicants the board appeals. Affirmed.

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county by the appellees to obtain a license to sell intoxicating liquor in a less quantity than a quart at a time to be drank on the premises. From the determination of said board, there was an appeal to the circuit court. The appellants remonstrated on the ground, among others, that the room in which it was proposed to conduct such sales was so situated and constructed as that such sales therein would violate the fourth section of the Nicholson law. Acts 1895, p. 250. A trial of the case in the circuit court resulted in a finding for the applicants, and judgment awarding a license to them, as prayed for, over appellants' motion for a new trial on the ground that the finding was contrary to law.

Error is assigned on the action of the circuit court in refusing a new trial. The trial was upon an agreed statement of facts. It was not in the form of an agreed case under the statute, but the facts agreed upon took the place of the evidence, as was the case of City of Shelbyville v. Phillips (Ind. Sup.) 48 N. E. 626, and cases there cited. But we are met with the objection that the bill of exceptions incorporating the agreed statement of facts does not show that such facts constituted all the evidence given in the cause, and the case just cited is referred to as authority for so holding. This case, however, is somewhat different from that. It was stated in the bill of exceptions here that "the cause was submitted to the court for trial without the intervention of a jury on the following agreed statement of facts:

* The parties hereto hereby stipulate by their respective attorneys that, for the purpose of the trial of this cause, the following facts are agreed upon and admitted;" and then follows the statement of facts. Immediately following the statement of facts the bills states "that the above agreed statement of facts contains all the facts agreed upon, and which were admitted to the court, and all the facts heard or considered by the court in the determination of said cause." It is insisted by the appellees that this language does not show that the agreed statement of facts contains all the evidence given in the cause. It is true there is a broad distinction, as a general rule, between evidence and facts. Webster defines the word "fact" to be an effect produced or achieved; and he defines the word "evidence" to mean that which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. It is said in note 4, p. 658, 7 Am. & Eng. Enc. Law, that "facts constituting a cause of action are those facts which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of the facts." To further illustrate the distinction between a fact and evidence, it is said by Ram on Facts (page 5) that "a fact once in complete existence, once ended, admits of no addition, no

subtraction. Nothing can be put to it, nor anything taken from it. Once in existence, it is irrevocable." Not so with evidence tending to prove a fact. It may be added to, or subtracted from, weakened, strengthened, or destroyed. So that it may be conceded that a fact is one thing, and evidence is quite a different thing, as a general rule, and that competent evidence always tends to prove or disprove an alleged fact in dispute. But it may sometimes happen that the fact in issue and the evidence of that fact are one and the same thing. Railway Co. v. Miller, 141 Ind. 533, 37 N. E. 343. As to the distinction between the facts and the evidence, see Boyer v. Robertson, 144 Ind. 604, 43 N. E. 879. It is a common thing for members of the legal profession to use the words "facts" and "evidence" as synonymous, and in some instances we have seen the fact and the evidence thereof is one and the same thing. In view of all this, and the whole of the language quoted from the bill of exceptions, it is apparent that the word "facts" was used for the purpose of conveying the same meaning as the word "evidence," and the court and counsel manifestly meant by the word "facts" the evidence; and in such a case it is our duty to so construe the language. Harris v. Tomlinson, 130 Ind. 426, 30 N. E. 214. And, so construing the language, it is clear that the agreed statement was all the evidence given in the cause. And the bill of exceptions, incorporating the agreed statement, being properly in the record, it appears that all the evidence given in the cause is properly before us.

The objection, and the sole objection, urged to the finding, is that the situation and condition of the room is such as would make it unlawful to sell therein. It is conceded that the agreed facts entitled appellees to the license, unless the situation and arrangement of the room was such as that a sale therein would violate section 4 of the act in question; and appellants insist that such was the arrangement and situation of the room, and hence that appellees were not legally entitled to a license, and therefore the finding that they were was contrary to law. The appellees, however, contend that, even though such was the situation and arrangement of the room, nevertheless that was not a sufficient legal objection to defeat their application; and they further contend that the agreed statement of facts fails to show that the arrangement and situation of the room are such as that sales therein would violate said section. It reads thus: "Any room where intoxicating liquors are sold by virtue of a license issued under the law of the state of Indiana, for the sale of spirituous, vinous, malt or other intoxicating liquors in less quantities than a quart at a time, with permission to drink the same upon the premises, shall be situated upon the ground floor or basement of the building where the same

are sold, and in a room fronting the street or highway upon which such building is situated, and said room shall be so arranged, either with window or glass door, as that the whole of said room may be in view from the street or highway, and no blinds, screens or obstructions to the view shall be arranged, erected or placed so as to prevent the entire view of said room from the street or highway upon which the same is situated during such days and hours when the sales of such liquors are prohibited by law. Upon conviction of the violation of this or either of the foregoing sections of this act, the defendant shall be fined in any sum not less than $10.00 nor more than $100.00, to which may be added imprisonment in the county jail not exceeding ninety days, and in case of conviction for the second offense either upon a plea of guilty or conviction upon trial thereof, in any circuit, superior, criminal, justice or police court of Indiana, as a part of the judgment, the court may make an order revoking the license of the person convicted, which said judgment shall have the effect to completely annul and set aside such license, and all privileges and rights under the same. And upon a third conviction or plea of guilty entered, the court rendering judgment thereon shall annul and set aside such license and all privileges and rights under the same." This section clearly contemplates that a license may be granted to the applicant, even though a sale under such license may violate some of the provisions of the section, because it provides for a fine of such licensee of not less than $10 nor more than $100 for such violation, and for the second or third offense a revocation of such license. The section contemplates the granting of the license, though a sale thereunder in the room may violate it, or it would not provide for its revocation as a part of the penalty for such violation. It must be conceded that at least a part of the things forbidden by the section, for instance, that "no blinds, screens, or obstructions to the view of said room shall be arranged, erected, or placed so as to prevent the entire view from the street," etc., relates to acts to be done or suffered after the issue of the license; and even though the license issue, and such obstructions to the view are erected, and no sale takes place in such room under such license, there is no violation of the section, it has been held. Hipes v. State (Ind. App.) 48 N. E. 12. If, therefore, the things forbidden in the section relate to acts and things that may transpire after the grant of the license, it would be unreasonable to suppose that a trial of such questions was intended to precede the granting of the license. It is true, some of the things forbidden in the section may not relate to future acts and occurrences; but the provisions of the section make no distinction between existing matters and those which occur in the future.

To maintain their position, appellants' learned counsel refer us to the first section; but it seems to us that that section is against their contention, and not for it. The part of it cited reads thus: "That hereafter all persons applying for license before any board of county commissioners, under the existing laws of the state of Indiana, to sell spirituous, vinous, malt or other intoxicating liquors, shall, in such application, specifically describe the room in which he desires to sell such liquors, and the exact location of the same, and if there is more than one room in the building in which such liquors are intended to be sold, said applicant shall specifically describe and locate the room in which he desires to sell such liquors in such building." While it is true that to "specifically describe the room" and "the exact location of the same," as provided in section 1, it would be necessary to state that it was "situated upon the ground floor or basement of the building, * * * and in a room fronting the street or highway upon which such building is situated," and to prove these allegations before the board can grant a license, yet it seems to us that it is no part of a specific description of a room to state whether the whole of the interior thereof can be seen from the street in front of it. Every piece of timber, every piece of iron, every pane of glass, and everything about a room, every door, every widow, and every opening in a room, together with its size, length, depth, and breadth and its exact situation as to street and ground floor or basement, can be specifically described without stating whether the whole or any part of the interior of the room can be seen from the street in front of it; just as a tract, lot, or parcel of land can be specifically described without stating whether, from any given standpoint, one can see all over it, and into the hollows or low places in or on it.

If the application is not required to set forth such a description as shows that the interior of the room can be seen from the street in front of it, as we think it is not, it is difficult to see how that question can arise on application for a license. It is claimed by appellants that it was raised by their remonstrance on that ground; but that the interior of the room cannot be seen from the street in front has not been made a ground for remonstrance. The remonstrance authorized by the act we have quoted from cannot be based on any ground. The effectiveness of the remonstrance under it is made to depend upon the question whether the majority of the voters authorized to remonstrate have joined in the remonstrance. they have, the license is defeated; otherwise, not. The only other law authorizing a remonstrance in such cases is the liquor law of 1875. Section 7278, Burns' Rev. St. 1894 (section 5314, Rev. St. 1881; Horner's Rev. St. 1897). That section provides that "it shall be the privilege of any voter of said town

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ship to remonstrate in writing against the granting of such license to any applicant, on account of immorality or other unfitness." The fact that the interior of the room could not be seen from the street in front of it has nothing whatever to do with the question of the applicant's morality or immorality, fitness or unfitness. It has been frequently held that remonstrances under this section must proceed according to its provisions, and not otherwise. Fletcher v. Crist, 139 Ind. 121, 38 N. E. 472, and cases there cited: Head v.. Doehleman, 148 Ind. 145, 46 N. E. 585, and cases there cited. A remonstrance under it can only be based on the immorality or other unfitness of the applicant. Certainly, it would be extremely unreasonable to suppose that the legislature intended that the situation and arrangement of the room, so far as a view of the interior thereof from the street is concerned, should be investigated before the board of commissioners on an application for a license, unless its determination thereof should be final and conclusive on that question if unappealed from. And yet how absurd it would be to say that, in case the licensee should be indicted for a violation of said section 4 as to the view into the interior of the room, he could set up the decision and judgment of the board of commissioners thereon as conclusive in his favor. The fact that no way is provided by which that question can be tried before the board, and a way is provided for trying it on indictment, is strong evidence that the legislative intent was not to try that question until a licensee is indicted for violating said section 4. It follows that the finding was not contrary to law, and hence there was no error in overruling appellants' motion for a new trial. Judgment affirmed.

BOYD v. RADABAUGH et al. (Supreme Court of Indiana. April 29, 1898.) MORTGAGE EXECUTION BY MARRIED WOMANSURETYSHIP-EVIDENCE-SUFFICIENCY.

1. In an action for foreclosure of a mortgage, an answer averring that the note and mortgage were executed by a married woman, on her separate property, to secure antecedent debts of her husband, and for no other purpose or consideration, is a sufficient answer of suretyship, so as to render the mortgage and note void as to such married woman.

2. Evidence that defendant, a married woman, gave a note and mortgage on her separate property, to secure a loan made payable to her by a check, which was to be used, with the knowledge of the mortgagee, to pay debts of the husband, is sufficient to sustain a finding that defendant was only a surety.

3. In determining on appeal the sufficiency of the evidence to support a finding, only the evidence sustaining the action of the court can be considered.

Appeal from circuit court, Jay county; D. D. Heller, Judge.

Action by Jennie May Boyd against Dora B. Radabaugh and her husband. From a

judgment for defendants, plaintiff appeals. Affirmed.

Headington & La Follette, for appellant. La Follette & Adair and J. H. Sell, for appellees.

MONKS. J. This action was brought against appellees to foreclose a mortgage executed by appellee Dora B. Radabaugh and Homer C. Radabaugh, her husband. Final judgment was rendered against appellant.

The only errors assigned are: (1) The court erred in overruling appellant's demurrer to the second paragraph of the separate answer of appellee Dora B. Radabaugh. (2) The court erred in overruling appellant's motion for a new trial.

Appellant insists that the second paragraph of the separate answer of the appellee Radabaugh was not sufficient because it was not alleged therein that she was surety for her husband, or for any other person, or that the contract was to answer for the debt of another. It is averred in said paragraph that said appellee, at the time she executed said note and mortgage, was the wife of her co-defendant, Homer C. Radabaugh, and that the same were given "to secure the debts of her said husband, and for no other purpose or consideration, and that she did not receive any of the consideration of said note, nor was the same or any part of it paid to her or used for her benefit or the improvement of her separate property; that all the consideration of said note and mortgage was used and paid out to liquidate debts of her said husband, which had been contracted and were due long before the note and mortgage sued on were executed." This paragraph alleges that said note and mortgage were executed by her to secure the debt of her husband, and was therefore a sufficient answer of suretyship, under the law as declared in the following cases: Allen v. Davis, 99 Ind. 216; Vogel v. Leichner, 102 Ind. 55, 1 N. E 554; Warey v. Forst, 102 Ind. 205, 26 N. E. 87; Allen v. Davis, 101 Ind. 187; Brown v. Will, 103 Ind. 71, 2 N. E. 283; Cupp v. Campbell, 103 Ind. 213, 2 N. E. 565; Engler v. Acker, 106 Ind. 223, 6 N. E. 342; Crooks v. Kennett, 111 Ind. 347, 12 N. E. 715; Association v. Scanlan, 144 Ind. 11, 42 N. E. 1008; Cole v. Temple, 142 Ind. 498, 41 N. E. 942; Leschen v. Guy (Ind. Sup.) 48 N. E. 344.

Appellant insists that the court erred in overruling her motion for a new trial. The reasons assigned for a new trial in said mo. tion are that the finding was contrary to law and not sustained by the evidence. The note secured by the mortgage called for $131.78, and was payable to Truman O. Boyd and Granville Phillips, who assigned the note and mortgage to Lewis Grisell, November 10, 1894, the day after the same were executed, and he assigned the same to appellant, the wife of said Truman O. Boyd, December 17, 1894. The evidence given on behalf of appellee shows that Homer C. Radabaugh owed

the Singer Sewing-Machine Company $45, and borrowed the money of Truman O. Boyd to pay it; that he told him what he wanted the money for, and that he and his wife would give him a mortgage to secure the same. Prior to this time Radabaugh had been under treatment for the habit of intoxication, and $40 had been borrowed to pay a part of the expense of that treatment, for which Granville Phillips had become security, and which he (Phillips) had paid Mrs. Radabaugh, and her husband had given a mortgage to Phillips to secure this amount. Said Radabaugh also owed one Grisell some borrowed money which Boyd had for collection, and these three items made up the amount of $131.78 for which the note in suit was given. When the note and mortgage were executed, Boyd, instead of paying over the $45 loaned by him, gave a check for the amount payable to Mrs. Radabaugh. The money so borrowed was used to pay the indebtedness of said Homer C. Radabaugh, and no part thereof was used for the improvement or betterment of the separate property of his wife. Said Dora B. Radabaugh was, when the mortgage was executed and until the trial, the wife of her co-defendant, Homer C. Radabaugh, and at the time of the execution of said mortgage said real estate was, and at all times since has been, the separate property of said Dora B. These facts are clearly sufficient to sustain the finding of the court. The fact that the check was made payable to the wife can make no difference. The money was borrowed by the husband to pay his own debts, and he so informed Truman O. Boyd at the time, and the money so borrowed of Boyd was used for that purpose; and Boyd could not, by making the check for $45 or $48 payable to Mrs. Radabaugh, change the legal effect of the transaction or make her a principal, when under the law as declared by this court she was only a surety. The other items that went into the note for $131.78 were outstanding liabilities of the husband. It is true there was evidence given to the contrary on behalf of the appellant, but in determining the question presented we can only consider the evidence sustaining the action of the court. Lawrence v. Van Buskirk, 140 Ind. 481, 40 N. E. 54. Judgment affirmed.

BEALER v. STATE. (Supreme Court of Indiana. April 28, 1898.) CRIMINAL LAW-REVIEW ON APPEAL-RECORDPRESUMPTION FROM RECORD-VERDICT.

1. Instructions in a criminal case can only be brought into the record on appeal by a bill of exceptions.

2. The presumption is that the jury were correctly instructed, unless the contrary appears from the record of a case on appeal.

3. The verdict of a jury in the trial of one accused of receiving stolen property was as follows: "We, the jury, find the defendant guilty as charged in the indictment; and we further

find that he is 32 years of age." Held, that the verdict, in not fixing the punishment, was not defective, as it was expressly authorized by the indeterminate sentence law.

Appeal from circuit court, Morgan county; George W. Grubbs, Judge.

Henry Bealer was convicted of receiving stolen property, and he appeals. Affirmed.

Mitchell & Watson, for appellant. W. A. Ketcham, Atty. Gen., for the State.

MCCABE, J. Appellant was convicted on an indictment charging him with receiving stolen property, knowing the same to have been stolen, namely, two hens, alleged to be of the value of one dollar, and sentenced to the state prison for not less than one nor more than three years, and fined one dollar. The errors assigned, and not waived, call in question the action of the circuit court in overruling appellant's motion for a new trial, for a venire de novo, and in arrest of judgment.

Under the motion for a new trial, the giving and refusing of certain instructions to the jury are complained of; and, as was said in State v. Hunt, 137 Ind. 551, 37 N. E. 413: "None of the instructions are embodied in a bill of exceptions. They are copied into the transcript, with no other authentication of them as parts of the record below than a statement on the margin of each, to wit, 'Given, and excepted to by the state (defendant here), October 17, 1893 (here, this 19th day of November, 1897),'" signed by the attorney for the party and the judge. "It has been held that instructions in criminal cases cannot be incorporated in the record in that way, though they may be so incorporated in a civil case, and that in a criminal case they can only be brought into the record by a bill of exceptions." To the same effect are Chandler v. State, 141 Ind. 109, 39 N. E. 444; Reynolds v. State, 147 Ind. 12, 46 N. E. 31; Reinhold v. State, 130 Ind. 472, 30 N. E. 306; Brown v. State, 111 Ind. 442, 12 N. E. 514; Hollingsworth v. State, 111 Ind. 296, 12 N. E. 490; Meredith v. State, 122 Ind. 514, 24 N. E. 161; Delhaney v. State, 115 Ind. 499, 18 N. E. 49; Leverich v. State, 105 Ind. 277, 4 N. E. 852. The punishment for the offense of which appellant was convicted, as provided in the statute defining it, is the same as that prescribed by the statute for grand larceny; but if the goods are worth less than $25, as was the case here, the punishment is the same as that prescribed for petit larceny. Burns' Rev. St. 1894, 2012; Rev. St. 1881, § 1935; Horner's Rev. St. 1897, § 1935. The punishment prescribed for petit larceny is imprisonment in the state prison not more than three years, nor less than one year, a fine in any sum not exceeding $500, and disfranchisement and incapacity to hold any office of trust or profit for any determinate period, or imprisonment in the county jail not more than one year, and a fine not exceeding $500, and disfranchise

ment and incapacity to hold any office of trust or profit for any determinate period. This prosecution is subject to the indeterminate sentence law, if the case falls within its provisions, because the offense is charged to have been committed on February 2, 1897, after that law took effect. But the offense charged is one that may fall within the provisions of that act, or may not; depending on the determination of the question by the jury or the court trying the cause as to the measure of punishment deserved by the defendant. If, under all the circumstances disclosed by the evidence, either of aggravation or mitigation, the jury or court trying the case should deem a jail sentence, and the other incidental punishment provided in case of such jail sentence, as severe as the defendant deserves, then the finding or verdict, as we have held, should be returned precisely as if the indeterminate sentence law had not been passed, because in that event the case would not fall within either that law or the reformatory act. Hicks v. State (at this term, No. 18,427) 50 N. E. 27. And, on the contrary, if, in all that class of felonies where there may be a jail sentence, and its incidents, instead of imprisonment in a state prison, in the discretion of the court or jury trying the case, such jail sentence, and its incidents, are not deemed severe enough for the defendant's offense by the court or jury trying the case, then the case falls within the provisions of the indeterminate sentence law, or the reformatory act, according to the age of the defendant, he being a male person. Hicks v. State, supra. It was held in that case that it was the duty of the trial court to properly instruct the jury, in such a case, that if a jail sentence, together with its incidents, was as severe punishment as the defendant's offense deserved, they should return their verdict precisely as if the indeterminate sentence law or the reformatory act had never been passed, and if such jail sentence, with its incidents, was not as severe a punishment as the defendant, under all the circumstances, deserved, their verdict should be framed in accordance with whichever of those acts applied to the case. In the absence of a showing by the record to the contrary, as is the case here, the law requires us to presume that the court did so correctly instruct the jury in this case; and, having been so correctly instructed, they returned a verdict reading thus: "We, the jury, find the defendant guilty as charged in the indictment; and we further find that he is 32 years of age." Presuming, as we must, that the jury were properly instructed, this verdict makes the case fall within the indeterminate sentence law. And the circuit court accordingly rendered judgment thereon for a fine of one dollar, and imprisonment in the state prison for not less than one nor more than three years, and disfranchised and rendered the defendant incapable of holding any office of trust or profit for one year, and

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