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firmed.

KILEY V. STATE.

(120 Ind. 65)

(Supreme Court of Indiana. Sept. 19, 1889.) CRIMINAL LAW - PERMITTING MINOR TO PLAY

POOL-INDICTMENT-INSTRUCTIONS.

1. An indictment for permitting a minor "to

fense, under Rev. St. Ind. 1881, § 2087, providing that any person who shall allow any minor "to play billiards, bagatelle, pool; or any other game" upon his table, shall, upon conviction "for such to be played, be fined, " game so allowed *

etc.

*

*

2. In such case, on cross-examination of the minor as a witness, the question whether he was not the same person "who had been a witness in several liquor cases" is improper.

3. Under such statute, an instruction on such trial allowing the jury to "take into consideration the number of games played, * * if more than one," is proper.

Appeal from circuit court, Grant county; A. T. ST. JOHN, Judge.

Steele & Kersey, for appellant. S. W. Cantwell, Pros. Atty., for appellee.

and it is now contended in argument that | find no error in the record for which the these facts do not sustain an action of that judgment should be reversed. Judgment afkind. The general principle governing actions for money had and received is that the defendant must have come to the possession of money which he cannot conscientiously withhold from the plaintiff. To maintain an action for money had and received it must be shown that, before the action is brought, the defendant actually received the money, or something which, in reality or presumptive-play four games of pool," charges but a single ofly, was converted into money, or that that something was received as money, or instead of it. For money had and received the action is equitable, and is based, not upon a promise, but upon the fact of the receipt of money by one from another through the medium of oppression, imposition, extortion, or deceit, or by mistake of fact, or without consideration, or upon a consideration that has failed, from which the law implies a promise to repay. Hatten v. Robinson, 4 Blackf. 479; Lemans v. Wiley, 92 Ind. 437. But we do not understand this to be an ordinary action for money had and received. It is clear from the complaint and the bill of particulars filed therewith that the appellee was seeking to recover from the appellant the amount of money she paid to Nix, and had paid for taxes at the request of the appellee. If the theory of the appeilee be correct, the appellant never at any time parted with the equitable title to his property. The deed to Augustine Meisch and Catherine Meisch amounted to a mortgage and nothing more. Butcher v. Stultz, 60 Ind. 170; Crane v. Buchanan, 29 Ind. 570; Wheeler v. Ruston, 19 Ind. 334. As to the effect of the other conveyances it is unnecessary to inquire, as they have but little, if any, bearing upon the questions involved in the case. It is true that there is no express promise averred in the complaint to repay the money advanced by the appellee at the request of the appellant, but the law would imply a promise to repay it. If the appellee advanced the money named in her complaint to Nix and others, upon the express promise of the appellant to repay it, we know of no reason, either legal or equitable, why he should not do so. While it may be true that the complaint is based upon an implied promise to repay the money paid out by the appellee, we think that the proof showing an express promise is an immaterial variance, and that the appellee might have amended her complaint, after trial so as to make it conform to the evidence. Section 391, Rev. St. 1881; Farley v. Eller, 29 Ind. 322. We do not think the court erred in admitting the evidence to prove the facts above set out, and we are also of the opinion that the evidence tends to support the finding of the circuit court.

OLDS, J. This is a prosecution for unlawfully permitting a minor to play pool. The indictment charges that the defendant, John Kiley, on the 4th day of September, A. D. 1888, at said county of Grant, and state of Indiana, did then and there own and have the care, management, and control of a certain pool table then and there situate, and did then and there unlawfully allow, suffer, and permit one John Windal to play four games of pool at and upon said table, with one Isaac Wagoner, he, the said John Windal, being then and there a person under the age of 21 years. There was a trial, and the defendant found guilty, and his punishment assessed at a fine of $20. There was a motion for a new trial by the defendant, which was overruled, and exceptions taken, and the defendant then moved the court in arrest of judgment for cause that the facts stated in the indictment do not constitute a public offense; which motion in arrest of judgment was overruled, and exceptions taken, and the rulings of the court, in overruling the motions for a new trial and in arrest of judgment, assigned as error.

The objection urged by counsel for appellant to the indictment is that it charged four separate and distinct offenses; that the playing of one game of pool constituted an offense, and the indictment charges the playing of four games; and that the indictment is bad for duplicity. It is the well-settled doctrine that an indictment is bad which charges in one count two or more separate and distinct offenses. State v. Weil, 89 Ind. 286; It is also claimed by the appellant that the Knopf v. State, 84 Ind. 316. A motion to amount assessed by the circuit court is ex- quash such an indictment, made at the proper cessive. In this, however, we think he is time, would have to be sustained, but the mistaken. The amount paid out by the ap-question in this case is as to whether or not pellee, with the interest thereon, largely ex- the indictment charges more than one ofceeds the amount assessed by the court. We fense. The statute upon which the prosecu

QUALTER v. STATE.

(120 Ind. 92)

(Supreme Court of Indiana. Sept. 20, 1889.) INTOXICATING LIQUOR-ILLEGAL SALE-AFFIDAVIT

-JUDGMENT.

1. On the day of a special election, in a certain of such ward, is in violation of Rev. St. Ind. § 2098, ward, a sale of liquor in the city, though outside prohibiting the sale of liquor "upon the day of any election in the township, town, or city where the same may be holden."

tion is based reads as follows, (section 2087, Upon cross-examination of the witness Rev. St. 1881:) "If any person owning or hav- Windal in rebuttal, the appellant asked him ing the care, management, or control of any the question as to whether "he was not the billiard table, pool table, or any kind of gam- same Windal who had been a witness in seving table, bagatelle table, or pigeon-hole eral liquor cases," to which 'question the table, shall allow, suffer, or permit any state objected, and the court sustained the minor to play billiards, bagatelle, pool, or objection, and this ruling is assigned as any other game at or upon such table or error. It does not appear that the testimony tables, he shall, upon conviction thereof, for to be elicited by this question would have any each game so allowed, suffered, or permitted materiality. From anything that appears in to be played; be fined in any sum not more the case, it was immaterial whether the witthan fifty dollars, nor less than five dollars." ness had been a witness in other cases or The offense, as we regard it, consists in allow- not, and the objection was properly susing, suffering, or permitting a minor to play tained. at or upon such table, and the punishment There is no error in the record for which which shall be assessed depends upon the the judgment should be reversed. Judgment number of games. That is to say, the per-affirmed, with costs. son owning or having the care, management, or control of a pool table is liable to a separate prosecution for each time he allows, suffers, or permits a minor to play at or upon such table, and when so allowed to play, if the minor plays one game, the person is liable to a fine of not more than fifty nor less than five dollars. If the minor plays two games, the person so permitting him is liable to a fine in double the amount, and so on in proportion to the number of games played under the one permission to play. Each time permission is given, or the minor is suffered or allowed to play, constitutes a separate and distinct offense; but when once permission is given, or the minor is allowed or suffered to play, the number of games played at one continuous sitting or playing, constitutes but one offense, although several games may be played in succession; but if such minor ceases to play and is again allowed, suffered, or permitted to play, such subsequent playing constitutes a separate offense. This we think the fair and reasonable construction to be placed upon this section of the statute. To construe it otherwise, we think, would be placing an unnecessary burden upon the state, and inflicting a corresponding hardship upon the defendant by compelling the state to institute separate prosecutions for each game played, and subject the defendant to the payment of the costs of the several prosecutions for the doing of what is, in fact, but one unlawful act; and we think this construction fairly supported by the authorities. Nace v. State, 117 Ind. 114, 19 N. E. Rep. 729; Freeman v. State, 21 N. E. Rep. 1101, (this term;) Moore v. State, 65 Ind. 213. The indictment charges the playing of four games of pool at one time and place. The motion in arrest was properly overruled.

It is further urged that the court erred in giving the ninth instruction to the jury, which is as follows: "If you find the defendant guilty, you will take into consideration the number of games played by the witness Windal, if more than one, which the evidence shows to have been played." What we have said in regard to the indictment disposes of the objection made to this instruction. The instruction was not subject to the objection urged.

2. Where the record, on appeal, shows that the affidavit on which a prosecution for such offense was based was sworn to, the omission of the mayor's seal to the jurat is not ground for reversal. that three days had elapsed without the transac3. A judgment is not erroneous on the ground tion of any business by the court, where one of those days was Sunday; especially as against one who failed to object thereto in the trial court.

Appeal from circuit court, Tipton county; DAN WAUGH, Judge.

Gifford & Fippin, for appellant. W. W. Mount. Pros. Atty., for appellee.

ELLIOTT, C. J. A special election for councilman was held in the First ward of the city of Tipton on the 29th day of May, 1886, and on that day the appellant, who was a licensed liquor seller, sold intoxicating liquor. His place of business, where the liquor was sold, was situated in the Second ward of the city,-in which ward no election was held,and 40 rods distant from the voting place. The prosecution is founded on the statute forbidding the sale of intoxicating liquor on days on which elections are held, and on holidays. That statute declares that it shall be unlawful to sell "upon the day of any election in the township, town, or city where the same may be holden." Rev. St. § 2098.

There was an election held in the city of Tipton, and in that city the appellant did sell intoxicating liquor on the day the election was held. His act was within the express words of the statute, for it declares that it shall be unlawful to sell in any city wherein an election is holden. The offense of the appellant is clearly within the words of the statute, for it forbids a sale where "any election is holden," and applies to an entire town or city. Under the strict letter of the statute, evidence of an election in the city, and of a sale on the day of the election, makes

"The parties to this cause having requested that the facts proven in the trial thereof be found specially by the court, I find that the following facts were proven on the trial: "(1) On the 31st of January, 1880, the defendant William Proctor executed a series of notes, of which the note in suit was the second to become due. This note was for one thousand dollars, due in nine months, payable to Henderson Cole or order, with six per cent. interest and attorney's fees, at the St. Joseph Valley Bank, Elkhart, Ind.

out the offense defined. All elections are of the facts in the cause was made by the embraced in the language of the statute, and court: it would be legislation on the part of the courts to declare that only some elections were meant. We are not prepared to assent to the argument of counsel that the act of the appellant is not within the spirit of the statute. It is obvious that a dram-shop, in full operation across the street from the polls, or 40 rods distant, although in another ward, might do full as much mischief as one within the ward boundaries. If we should adopt the view of appellant's counsel, we should not only legislate, but we should so far cripple the statute as to make it of little effect in remedying the evil it was plainly its object to repress.

The record affirmatively shows that the affidavit on which the prosecution is founded was sworn to, and the omission of the mayor to attach his seal to the jurat is not of such materiality, if, indeed, of any materiality at all, as to warrant a reversal.

"(2) On the same day, and to secure these notes, including the note in suit, the defendants, William Proctor and Frances Proctor, his wife, executed a mortgage to Henderson Cole on the following described real estate owned by them in Elkhart county, Ind., to-wit: Commencing twenty-seven (27) feet south of the north-east corner of lot number sixteen, (16,) corner Main and Jackson Sunday is not dies juridicus, and is not to streets, in the original plat of the town, now be computed in determining the number of city of Elkhart; thence westwardly, parallel days in which the business of a court has not with said Jackson street, one hundred and one been transacted. There is no merit in ap-|(101) feet; thence southwardly, parallel with pellant's argument that the judgment is void said Main street, thirteen (13) feet; thence or erroneous because three days passed with-westwardly, parallel with said Jackson street, out the transaction of any business, for Sunday was one of the days which he includes in his reckoning. The appellant agreed to a submission of this cause to the court for trial after the alleged improper cessation of business, and made no objection to the action of the court in suffering three days to elapse without transacting business, so that, even if Sunday is to be reckoned as a judicial day, he is not in a situation to now successfully complain. Judgment affirmed.

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(20) feet; thence southwardly, parallel with said Main street, fourteen (14) feet; thence east, parallel with said Jackson street, one hundred and twenty-one (121) feet, to Main street; thence northwardly with said Main street, to the place of beginning, twentyseven (27) feet. This mortgage was duly acknowledged on the same day, and on the 2d day of February, 1880, was duly recorded in Mortgage Record 24, on page 89 of the records of Elkhart county, Ind.

"(3) On the 23d day of February 1880, Henderson Cole sold and assigned the note in suit to the plaintiff. The assignment was not indorsed on the note at the time, but a written assignment was made on a separate paper in these words: Elkhart, Feb'y 23, transfer to Erastus B. Cole three certain 1880. For value received, I sell, assign, and notes signed by William Proctor, dated January 1, 1880. One for one thousand dollars, due in nine months from date. The second for one thousand dollars, due in eighteen months from date. The third one for one thousand eighty-eight 84-100 dollars, due twenty-four months after date,-all payable at the St. Joe Valley Bank. HENDERSON COLE.' At the same time Henderson Cole delivered to the plaintiff a written order to his attorney, in whose possession the notes then were, asking him to deliver the notes to the plaintiff. The order was in these words: Elkhart, Feb'y 23, 1880. Mr. Mitchell-Sir: Please let my son, E. B. Cole, have those Proctor notes, and oblige, H. COLE.' this order the plaintiff got the notes on the 26th of February, and on that day Henderson Cole indorsed them to the plaintiff. That said indorsement was made after the plaintiff had notice of the injunction. The indorse

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ment on the note in suit was in these words: 'Feb'y 23, 1880. Pay to E. B. Cole. or order. HENDERSON COLE.' Prior to this time the plaintiff had advanced to Henderson Cole, in payments, from $600 to $800, which he had agreed to repay whenever he was able; and the note in suit was assigned to the plaintiff in payment of that indebtedness. There is now due on the note in suit $1,506.50, including an attorney's fee of $100.

"(4) On the 15th of April, 1869, Henderson Cole executed a note for $2,000, payable with ten per cent. interest, and without relief from valuation law, to one M. E. Cole. This note was afterwards indorsed to one A. S. Cook, and afterwards, on the 25th of February, 1880, it was indorsed by A. S. Wells and P. Wells to the defendant, William Proctor, without recourse. At the same time, when this latter indorsement was made, and as a part of the same transaction, an agreement in writing was entered into between the said A. S. Wells and P Wells and the said William Proctor, which agreement was in these words:

"(7) There is now due on the judgment in favor of William Proctor against Henderson Cole the sum of $5,855.22.

"(8) On the 13th day of April, 1880, William Proctor brought a suit against Erastus B. Cole, the plaintiff in this action, and in his complaint he alleged that on the 31st day of January, 1880, he executed to one Henderson Cole his three several promissory notes, -the note here in suit being one of them,due respectively in nine, eighteen, and twenty-four months, drawing interest at six per cent. per annum, the two first-maturing notes being for $1,000 each, and the last being for $1,088.80. Each of said notes was payable to the order of said Henderson Cole at the St. Joseph Valley Bank of Elkhart, Ind., drawing interest at six per cent. per annum, and were negotiable commercial paper; that on the 25th day of February, 1880, the said Proctor purchased, for a valuable consideration, a certain promissory note executed by Henderson Cole on the 15th day of April, 1869, due in one year, promising to pay the sum of two thousand dollars, with interest "(5) This memorandum of agreement at ten per cent. per annum until paid, paymade this 25th day of February, 1880, be- able to the order of M. E. Cole, and by him tween William Proctor and Alma S. Wells, indorsed: Pay Alma Sophia Cook or order. has indorsed a certain note dated April 15, M. E. COLE. July 14, 1869.' That said Alına 1869, for $2,000 to William Proctor, execut- S. Cook afterwards intermarried with one P. ed by Henderson Cole to M. E. Cole, and by Wells, and that said note was, at the time of said M. E. Cole indorsed to Alma Sophia the purchase by this plaintiff, indorsed by Cook, since intermarried with P. Wells. said A. S. Wells: Pay William Proctor Now, in consideration hereof, said William without recourse. A. S. WELLS. P.WELLS.' Proctor has paid one dollar in cash, and agrees And that thereby the said Proctor became the to pay said A. S. Wells an amount equal to legal owner and holder of said note; and he one-half of the net proceeds he may be able further says that, at the time he so took and to make out of said note, either directly, by received said note, he had no notice or knowlway of collection, or indirectly, by way of set-edge that said Henderson Cole had transoff; and, if said Proctor should make noth-ferred any of the notes executed by said Procing, he shall pay said Alma S. Wells noth-tor as aforesaid; that on the same day, to-wit, ing; nor, in such case, shall she be liable to the 25th day of February, 1880, said note exhim for any costs and expenses he may pay or be liable for. The net proceeds shall be found by deducting all court costs and attorney's fees paid by said Proctor in attempting to collect said notes.

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ecuted by Henderson Cole being due and wholly unpaid, he brought suit in this court on said note against said maker, and procured an injunction from this court, in due WM. PROCTOR. form of law, enjoining said Henderson Cole "A. S. WELLS. from in any manner transferring or disposBy P. WELLS.' ing of said notes so executed by this plaintiff, "(6) On the same day on which this as- Proctor, which notice of restraining order signment was made, the defendant William and injunction was at once duly served on Proctor brought suit in the Elkhart circuit said Henderson Cole by the sheriff of said court against Henderson Cole on the note as-county; that after the service of said notice signed to him by A. S. Wells, and, on the of injunction and restraining order, and after same day, February 25, 1880, he obtained a said Erastus B. Cole had full notice thereof, restraining order restraining Henderson Cole said Henderson Cole indorsed said note in from disposing of the note here in suit, and blank, and transferred said note executed by this order was duly served on him the same this plaintiff, Proctor, to said Erastus B. Cole, night, and such other steps were taken that, without consideration; that said Erastus B. at the February term, 1880, the injunction Cole, who was then, and still is, wholly inwas made perpetual, and Proctor also recov-solvent, with intent to cheat and defraud this ered judgment on the note against Hender- plaintiff, Proctor, at once took said two son Cole for $4,198. The plaintiff in this notes, maturing in eighteen and twenty-four case, Erastus B. Cole, was not a party to months, and indorsed them to one Reuben that suit; and William Proctor first learned Cole, at Niles, in the state of Michigan, and that the note here in suit had been trans- received therefor the sum of fifteen hundred ferred by Henderson Cole to him, on the sec-dollars in cash, and the note of said Reuben ond day after the temporary order restraining Cole for the sum of $500, dated the first of him was granted. March, 1880, due in seventeen months, with

interest at the rate of six per cent. per annum, | proceeds, but the defendant, Cole, the now payable to the order of said Erastus B. Cole plaintiff in this action, averred that said at the First Nat. Bank of Elkhart, Ind.; Proctor ought not to have said action, for that said Erastus B. Cole returned to Elk- that before the said note was transferred, as hart, Ind., and paid over to said Hender- above mentioned, to said Proctor, this deson Cole, who was his father, one thousand fendant, now the plaintiff, had, for a valuable dollars of the money he so received of his consideration to the said Henderson Cole uncle, Reuben Cole, and retained in his pos- paid, become the equitable owner of said session the remaining five hundred dollars in notes in said plaintiff Proctor's complaint cash and the first one of said notes executed mentioned; that in consideration of money by the plaintiff, Proctor, maturing in nine paid to said Henderson Cole, and for money months; that said Henderson Cole is now, laid out and expended for his use and benand for many years last past has been, wholly efit, amounting in the aggregate to between insolvent, with no property or means what- eight and nine hundred doliars, which the ever, save and except the said debt owing to said Henderson Cole owed him, the said Henhim by the said plaintiff, Proctor, and said derson Cole sold, and by a written agreement Erastus B. Cole was ordered to turn over the undertook to transfer, to said Erastus B. five hundred dollars in cash received by the Cole said note first falling due, being the note said Reuben Cole and said note executed by now here in suit, mentioned in said Proctor's this plaintiff, Proctor, maturing in nine complaint; and in consideration that said months; that said Erastus B. Cole at once Henderson Cole was indebted to the defendturned over to the sheriff said two notes, and ant, Erastus B. Cole, and to his sister, in the gave bonds for the payment of the said five sum of three thousand dollars for moneys due hundred dollars in cash, but that said Hen- to them from their deceased mother's estate, derson Cole at once, and before he could be the said Henderson Cole transferred to the arrested, departed out of and from this state, said Erastus B. Cole, by writing, before the taking with him said one thousand dollars in plaintiff, Proctor, became the owner of said cash. He further says that Reuben Cole is a note so procured against said Henderson Cole, non-resident of this state, and he does not as aforesaid, the other two notes mentioned; know whether he is solvent or not, but that the said Henderson Cole being so incharges that he is insolvent. He further debted to the said defendant, Erastus B. Cole, says that, by the aforesaid evil and unlawful and his sister, as aforesaid, by agreement beacts of said Erastus B. Cole, he was damaged tween himself, his sister, and said Cole, he in the sum of four thousand dollars. He fur- executed and delivered to the defendant, ther says that on the 12th day of April, 1880, Erastus B. Cole, on the 23d day of February, he duly recovered judgment in his favor in 1880, a written assignment of said notes, his said suit in this court against said Hen- which was taken and received in payment of derson Cole for the sum of $4,198, and costs, said indebtedness aforesaid; that said notes and obtained a perpetual injunction restrain- at the date of said agreement and assignment ing and enjoining said Henderson Cole, and were not in the possession of said Henderson all other persons claiming by, through, or Cole, but were in the custody of his attorneys under him with notice of said restraining or- at Goshen; that, on the same day on which der issued by this court on the 25th day of the said agreement was made, he received an February, 1880, from asserting any right or order for said notes; that on the 26th day of claim to collect or enforce any one of said February, 1880, he received the said notes, notes executed by this plaintiff, Proctor, to and the same were indorsed to him in writing said Henderson Cole. Wherefore he (Proc- by said Henderson Cole for the purpose of tor) asks judgment for four thousand dollars, transferring to him the legal title, this deand that said Erastus B. Cole be adjudged a fendant having previously become the equitaclaimant of said notes with notice of said re- ble owner in the manner hereinbefore stated. straining order, and to be bound and restrained thereby; and the plaintiff further prays judgment for three thousand dollars damages; and, as said Erastus B. Cole is also insolvent, he prays that his rights to defend himself against said notes in the hands of any other person may be saved to him; and he prays all other proper relief.

"(10) In the second paragraph of his answer the said Erastus B. Cole answered substantially as follows: That the plaintiff herein, William Proctor, ought not to have his action against him, for that said Proctor took and now has the legal title to said notes, and the judgment thereon rendered against Henderson Cole, upon the following express "(9) To this action the plaintiff in this case trust and confidence, expressed in writing in appeared and answered by an answer in two an agreement between himself and A. S. paragraphs, substantially as follows: In the Wells, that he should take the legal title to first paragraph he admitted that said Proctor said note, and whatever sum he could realize executed his several notes payable to Hender- there from above the cost of litigation, either son Cole, as alleged, and that said Proctor, by bringing suit therein against said Cole, or for the nominal consideration of one dollar, by making the same a set-off against the procured a note to be assigned to him by one notes mentioned in plaintiff Proctor's comA. S. Wells, under an agreement that said plaint, should be equally divided between the Proctor should make out of said note what said Proctor and the said A. S. Wells; that he could, and pay the said Wells one-half the said Proctor refused to purchase said note,

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