that no facts are alleged which give plaintiff it then expressly stipulates that the power
any right to sue and recover in its own conferred "is strictly limited to the uses and
name money owing to the association, but purposes herein expressed and to no other
not to itself. It will be observed that the use and purpose.”
complaint does not name any member of the It thus appears that the power of attor-
Indiana Manufacturers' Reciprocal Associa- ney only appointed plaintiff "our attorney
tion except the defendant, and that defendant for us in its name as our attorney" to do
is the only person or corporation named as certain acts in the matter of executing and
having executed the alleged power of attor- canceling certain contracts, and acts incident
ney, the other supposed subscribers being to the performance of such contracts, and the
mentioned only as an indefinite number of adjustment and payment of losses, and to
unidentified "employers of labor”; that nei- collect and receive money due the subscriber,
ther the title nor the opening sentences of with further power to appear for the sub-
the complaint contain any intimation that scriber in all actions, “and to bring, prose-
plaintiff is suing in a representative capac- cute, defend, compromise, settle or adjust
ity of any kind or otherwise than in its own the same," as such attorney in fact, but with-
absolute right; that there is no averment holding all “power to bind us jointly with
that the board of trustees has ordered or any other subscriber," and declaring the
authorized plaintiff to bring suit, whether power thus granted to be “strictly limited to
in its own name or otherwise; that section the uses and purposes herein expressed, and
71, supra, of the statute relied on as giving to no other use or purpose, and subject to
authority for the formation of such associa- the conditions and restrictions prescribed
tion, makes no provision whatever for bring- by the Industrial Board," as above set out,
ing suit in any other manner than is author- and that it provides for a board of trustees
ized by the general law; that the alleged con- chosen by the subscribers, and that one of
ditions and regulations for the formation of their number shall countersign all checks.
such associations promulgated by the Indus- Such power of attorney did not give the
trial Board do not contain any statement plaintiff title to the unpaid premiums due
that the attorney in fact shall have power to the association, nor did it make the plaintiff
sue in its own name for money due the as a “trustee” of such funds by designating him
sociation, even if they could give such right, only an "attorney in fact” for each individ-
but provide for the election of a board of ual employer who became a subscriber, with
trustees, with power to direct, manage, and strictly limited powers. And the power “to
control the business of the association, in- bring and prosecute” actions only purported
cluding the collection, safekeeping, and dis- to confer authority to do so as such attor-
bursement of its funds, and to choose a treas- ney, while the ultimate control was vested in
urer, and provide for the acceptance of sery- the board of trustees.
ice of process on behalf of each employer, So far as its language is pertinent to the
and for entering the personal appearance of questions now under consideration, the Civil
each employer, in case of an action on a con-Code provides as follows:
tract made by the attorney in fact in behalf
of the association; and the power of attor- the name of the real party in interest, except

Sec. 3. Every action must be prosecuted in ney alleged to have been executed by defend- as otherwise provided in the next section. ant and others only authorizes Sherman & * Ellis, Inc., to act "for us in its name as "Sec. 4. An executor, administrator, a trusour attorney' in the many things authorized tee of an express trust, or a person expressly to be done, which include authorizing the authorized by statute, may sue, without joinchairman of the Industrial Board to accept ing with him the person for whose benefit the service of process upon the principal and en- action is prosecuted. A trustee of an express ter his appearance, and to appear for him be construed to include a person with whom, or

trust, within the meaning of this section, shall in suits, and to bring and prosecute the same. in whose name, a contract is made for the beneBut it does not purport to give authority to fit of another. do anything otherwise than "for us in its Sections 251, 252, Burns' 1914; sections 251, name as our attorney,” and fails to suggest 252, R. S. 1881; sections 3, 4, Acts 1881, p. any purpose to confer authority to maintain 240. an action for money due the association by suing merely as "Sherman & Ellis, Inc.” [1] To be sufficient as a complaint by the And it also contains an express proviso that trustee of an express trust the pleading must "said attorney shall have no power to bind clearly disclose that the plaintiff is acting in us jointly with any other subscriber.” And, a representative capacity, and should disclose having provided for a board of trustees, chos- | the name of the cestui que trust, so that en by the subscribers, it authorizes the trus- | issue may be taken upon that allegation, if tees to make disposition of the funds of the necessary, and also that the cestui que trust subscribers, and requires all payments there may be bound by the judgment or decree. from to be countersigned by a trustee, act- Marion Bond Co. v. Mexican C. & R. Co., 160 ing as treasurer, under bond. Having thus Ind. 558, 563, 65 N. E. 748. And a mere limited the authority of the attorney in fact, agent in the making of a contract on behalo

(144 N.E.) of another which was not made “with him, I would run directly north along the east side in his name, for the benefit of” his princi- of the said tract, passing east of the creek pal, but was really negotiated by him be- and not crossing any stream except a small tween the principal and the other contract- branch, the water of which at a point where ing parties, is not within the statute, Mitch- | it was proposed to cross could all be carell v. St. Mary, 148 Ind. 111, 115, 47 N. E. ried (witnesses said) by a 20-inch sewer pipe. 224. The mere fact that plaintiff, as attor- The viewers and also the reviewers reportney in fact, was to receive as compensation ed in favor of making the proposed change, 30 per cent. to be deducted from all moneys and an appeal was taken to the circuit court, received by it to the credit of each subscriber where a jury also found in favor of the peexecuting a power of attorney in the form titioners. The sufficiency of the evidence to used by all of them in common, neither gave sustain the finding is the only question preit title to the unpaid premiums or made it sented for review. the “trustee of an express trust" embracing There was evidence that the 40-acre tract such premiums.

crossed by the highway was the north hall [2] It follows that the facts alleged in the of a farm owned by appellee Conway; that complaint did not show that plaintiff had a highway along which was a "good pike" the right to sue for and recover in its own ran east and west at the north end of the name the premiums alleged to be due and farm, on which Conway's residence faced, 18 unpaid. Therefore the demurrer to the com- rods east from its northwest corner, being plaint was properly sustained. Hammond v. situated immediately west of where the road Cline, 170 Ind. 432, 84 N. E. 827; State ex to be changed ran into the east and west rel. v. Liberty Tp., 30 Ind. App. 208, 210, 98 highway; that the road to be changed ran N. E. 149.

between Conway's house and his barn, and The complaint being bad for the reasons thence southeast about 40 rods, down a little indicated, we need not consider and do not hill with a 4 per cent. grade into a ravine decide whether or not it would have been at the bottom of which was a stream that sufficient in other respects.

was crossed on a bridge which had cement The judgment is affirmed.

abutments and a plank floor, and was approached by a fill on either side; that one fork of the stream washed against the fill for a distance of 150 feet, where the east side

of it had been protected by a wall, but the WRIGHTSMAN V. BROWN et al.

wall had caved in, so that there was abrupt (No. 24091.)

drop at the side of the wagon track of 4

or 5 feet to the bottom of the stream, and the (Supreme Court of Indiana. June 6, 1924.) dirt had washed from under one abutment of

the bridge for nearly one-half of its length, 1. Highways Ow72(4)-Evidence held to sus.

tain Jury's finding in favor of petitioners for and the roadbed there was only 10 or 12 vacation of old and location of new highway. feet wide; that the abutments of the bridge Evidence on question of public convenience were broken and “in very bad shape”; that and usefulness held to sustain jury's finding the road along there washed out frequently, in favor of petitioners, petitioning for vaca- and at the time of the trial part of the dirt, tion of a diagonal highway and its relocation as well as the wall, had "caved in"; that the in direct north and south course.

cost of a new bridge there would be $750,

and the cost of repairing the old bridge and Appeal from Circuit Court, Henry County; the retaining wall so as to make a permanent Fred Gause, Judge.

improvement would be $450; that the proProceedings in which Harvey E. Brown of Conway (one of the petitioners), and the

posed change would be wholly on the land and others petitioned for a change of a high- proposed new road from where it would turn way, and in which James Wrightsman ap straight north, up to the pike, would be 319 neared in opposition. From a judgment for feet shorter than the diagonal road then in petitioners, Wrightsman appeals. Affirmed.

use; and that the lowest point on the proJeffrey & Jeffrey, of New Castle, for appel- posed road would be 4 feet higher and the lant.

highest point 3 feet lower than the correPaul Brown and Brown & Morris, all of sponding lowest and highest points, respecNew Castle, for appellees.

tively, on the road before it was changed,

and the greatest fill required on the new EWBANK, J. Appellees petitioned to road would be 212 feet; that the steepest change a highway which ran diagonally grade required would be 234 per cent., as northwest across the east three-fourths of a against a grade of 4 per cent, on the old 40-acre tract of land, crossing on a bridge road; that to construct the proposed new over a small creek at the bottom of a ravine, road, including the cost of a gravel surface and running along the top of a fill that often and a sewer pipe under the roadway at the washed out, and to relocate it so that it little branch, would be $600 or less; that a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

mail route passes over this road and turns Appeal from Criminal Court, Marion Coun. east along the pike, and for a person going in ty; James A. Collins, Judge. that direction the distance would be 1,006

Willie Carey and another were convicted of feet shorter, while for a person going west petit larceny, and named defendant appeals. on the pike it would be 680 feet longer; that

Reversed, with instructions. another road ran south from the pike along the west side of Conway's farm, only 20

Frank A. Symmes, Arthur R. Robinson, rods west of where the diagonal road came and Garth B. Melson, all of Indianapolis, and out upon the pike being so rods from the Frank S. Roby, of Zionsville, for appellant. proposed line of the new road; that the diag.

U. S. Lesh, Atty. Gen., and Mrs. Edward onal road extended two miles southeast from Franklin White, Deputy Atty. Gen., for the this place, and except that it had been chang

State. ed so as to go around the square corner of the next quarter section, extended several EWBANK, J. An indictment in two counts miles northwest ; that there were four farm was returned jointly against appellant and residences on the diagonal road southeast of William Ford. The first count charged robwhere it was proposed to change its course, bery, alleging that the defendants "felobut no schoolhouses; that the existing road niously, forcibly, by violence and putting in cut off 16 acres of the northeast corner of fear,” stole $1.05 from the person of Cless Conway's farm, in a triangular shape, and | Ferguson. The second count charged lar. ran between his house and his barn, while ceny, alleging that defendants "did feloniousthe proposed new road would follow along ly take, steal, and carry away" $1.05 behis east line; that the proposed new road was longing to said Ferguson. Being tried by laid out 30 feet wide. And a witness testi- the court without a jury both defendants fied that in his opinion if the road were to were found "guilty of petit larceny in the be changed as proposed it would afford a second count of the indictment,” and were better route for travel, with the same con- sentenced to imprisonment at the Indiana venience.

State Farm for a term of one year. Section Whatever evidence there may be to the con- 2270, Burns' 1914 (chapter 61, Acts 1907, p. trary must be disregarded in passing on 86); section 9926h, Burns' Supp. 1921 (chapthe question, on appeal, whether or not the ter 33, Acts 1919, p. 81). evidence is sufficient to sustain the finding. [1] Appellant has taken a separate appeal, We think this evidence sufficient.

and has assigned as error the overruling of The judgment is affirmed.

his motion for a new trial, by which he

challenged the sufficiency of the evidence to GAUSE, J., not participating.

sustain the finding.
The prosecuting witness testified:

That he had known appellant 15 years and
Ford 10 or 12 years, and had been with them

ąt different times; that at about 1 o'clock in CAREY V, STATE, (No. 24460.) the early morning he was walking through

Military Park, in the city of Indianapolis, on (Supreme Court of Indiana. June 5, 1924.) his way home from up town. That he saw ap

pellant and Ford, and spoke to them. That 1. Larceny 55-Evidence held not to show

near an alley on West New York street there accused stole or participated in stealing.

was a billboard, “and Bill Ford and Willie In prosecution for larceny, evidence held Carey walked out as far as the curb, and nevnot to show that accused stole or participated er opened his mouth. Bill Ford put his gun in stealing money from person of prosecuting there, and said, 'Give me what you got.' I had witness.

a paper bill and five cents, and he took it. I 2. Criminal law e878(3)-Conviction on one

had 15 cents in my vest pocket he didn't take. count of indictment only,' acquits on other They went on either side of the alley, and I

Willie Carey walked out toward the car track. count.

caught a car and went up to police headquarConviction of petit larceny only, under in- ters and reported them. The $1.05 was my dictment charging robbery and larceny in sep- property. I was afraid of Ford. These matarate counts, amounts to acquittal of robbery. ters occurred in Marion county on or about 3. Criminal law 59(3)—Mere presence of May 13, 1923. I did not say anything to Ford.

accused when crime committed insufficient to He said, "Give me what you got,' and took the prove participation in guilt.

$1.05. He did not call me by name. Carey Under Burns' Ann. St. 1914, $8 2095, 2647 [appellant) did not say a thing; never opened (Acts 1905, c. 169, 88 224, 611), accused's his mouth. He walked out toward the car mere presence when

commits crime is

track." not sufficient to prove his guilt if he is not

Other witnesses testified that Ferguson shown to have conspired with his companion to commit it, nor to have assisted in, counsel- had given his dollar to Ford before they ed, encouraged, hired, commanded, or other- | went to Military Park, as a contribution wise procured its commission.

i toward a fund for the purchase of some whisFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(144 N.E.) ky which Ford went to obtain, and became The judgment is reversed, with directions angry when Ford told him that the bottle of to sustain the motion of appellant for a new whisky got broke, and, after asserting that trial. he was going to have his dollar, boarded the street car, and that appellant gave this account of the transaction when first arrested. There was an intimation that ap BATTS V. STATE. (No. 24388.) pellant had "a police record” known to the trial judge without being proved, and the (Supreme Court of Indiana. June 3, 1924.) prosecuting witness admitted that he had him

1. Criminal law self been twice convicted, and had served

em 1130(2)--Statement in

brief of reason for filing motion to quash af. terms of imprisonment for grand larceny and fidavit held sufficient. for petit larceny, respectively.

Statement in appellant's brief that reason [2, 3] Counsel for appellee insist that from for filing motion to quash was that affidavit did the facts proved an inference might be drawn not state “offense or a violation of lawheld that when Ford made the demonstration of sufficient, under Burns' Ann. St. 1914, $ 2065, force with a gun, as testified, appellant was to authorize consideration of motion. "standing by" to give assistance if that 2. Intoxicating liquors Cw222_Affidavit must should be necessary, being present for that allege "unlawful” transportation. purpose. But the defendants were not con- It is not necessary to negative exceptions victed of robbery. On the contrary, the find- in Prohibition Law 1917, c. 4, as amended by ing of guilt only of larceny amounted to an Acts 1921, c. 250, and Acts 1923, c. 23, in af. acquittal of the charge of having taken the fidavit charging transportation of intoxicating money "forcibly, by violence and putting liquor, but act alleged must be characterized as

unlawful. (the owner) in fear." Ward v. State, 188 Ind. 606, 607, 125 N. E. 397; Beaty v. State, 3. Criminal law Ow1 134(3)-Whether finding 82 Ind. 228, 229; Harvey v. State, 80 Ind. was sustained by evidence or contrary to law 142, 144. Being found guilty only of the

not considered where judgment must be relesser offense, and not guilty of robbery,

versed for other error. we need not determine whether the evidence

Whether finding was sustained by sufficient would have justified the suggested inference evidence or was contrary to law need not be in deciding that appellant was guilty of considered where judgment must be reversed:

for erroneous refusal to quash affidavit. robbery, if the trial court had drawn it; but the sole question presented for our con- 4. Searches and seizures Om7-Capture of liqsideration is whether or not there was evi

uor in automobile without search warrant dence to support an inference that appellant

violates constitutional rights. stole or participated in stealing the money

Capture of intoxicating liquor found in aufrom Ferguson, as alleged in the second tomobile at time of occupant's arrest by search count of the indictment. Clearly there was violation of occupant's rights under Const. art.

and seizure of her effects without warrant, is not. The mere fact that appellant was with 1, 8 11 (Burns' Ann. St. 1914, § 56). Ford when Ferguson met and spoke to them,

Unlawful and that he walked out to the curb and then 5. Intoxicating liquors Cm 249

search for liquor not lawful because liquor is out toward the car track, and “never opened

found. his mouth” nor said anything when Ford

Unlawful search for liquor does not betook the money, and that he and Ford then

come lawful because liquor is found. "went on either side of the alley," as Ferguson boarded a street car, taken in connec-6. Criminal law Ow394.Evidence procured by

unlawful search and seizure inadmissible. tion with the undisputed fact that the parties had been acquainted for many years, and

Evidence procured by unlawful search and had been together at different times, fails seizure is not admissible against defendant. to prove that he acted with a felonious intent to assist Ford in stealing Ferguson's Appeal from Circuit Court, Putnam Counmoney, or that he had any part in taking it ty; Thomas W. Hutchinson, Judge. away from Ferguson. Merely being present Stella Batts was convicted of unlawfully when another commits a crime is not enough transporting intoxicating liquor, and appeals. to make a person guilty of the offense so Reversed, with instructions to sustain mo. committed if he is not shown to have con- tion to quash affidavit. spired with his companion to commit it, nor

Little & Little, of Indianapolis, for appel. to have assisted in its commission, nor to

lant. have counseled, encouraged, hired, command

U. S. Lesh, Atty. Gen., and Mrs. Edward ed, or otherwise procured it to be committed. Franklin White, Deputy Atty. Gen., for the Sections 2095, 2647, Burns' 1914 (sections 224, State. 641, c. 169, Acts 1905, pp. 633, 742); Clem v. State, 33 Ind. 418, 432; Wade v. State, 71 WILLOUGHBY, J. This was a prosecu. Ind. 535, 542.

tion charging the appellant with the transFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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portation of intoxicating liquor under the It is not necessary to consider these quesProhibition Law of 1917, C. 4, p. 15, as tions because the judgment must be reversed amended by Acts of 1921, c. 250, p. 736, and for error of the court in refusing to susas further amended by Acts of 1923, c. 23, tain the motion to quash the affidavit, but, p. 70. That act provides that,

in view of the fact that the cause may be "It shall be unlawful for any person to man- tried again upon an amended affidavit, it ufacture, transport,

any intoxicating would be well to consider the evidence upon liquor, except as in this act provided.

..which the court made its finding.

[4] There is evidence to the effect that on The appellant filed a motion to quash the March 1, 1923, the sheriff of Putnam county affidavit for the reason that it did not state left Greencastle about 1:30 p. m. with five “an offense or a violation of the law." This deputies, and drove in an automobile out motion was overruled to which ruling of the on the old Rockville road or Ocean to Ocean court the appellant at the time excepted. highway. Two of these men were armed with The appellant then waived arraignment and rifles and the others had revolvers. The pleaded not guilty to the charge against her. sheriff and two of his men went to the top The trial was by the court without a jury, of the big hill east of Walnut bridge, and and the court found the appellant guilty and the other two stopped down along the roadfined her in the sum of $100 and sentenced side by a barn. The sheriff had a signal up, her to the Woman's State Prison for six a red flag; the sheriff said the red flag was months. Appellant then filed a motion for a signal, and that “when you want to stop a new trial, which was overruled, and to anybody it is better to give them a signal which ruling the appellant excepted. From than to try to stop them.” The sheriff said such judgment the appellant appeals, and he had no knowledge of any particular vioassigns as error: (1) The overruling of ap- lations of the law, but searched machines pellant's motion to quash the affidavit; (2) passing along the highway, but did not find the overruling of appellant's motion for a any liquor. When this appellant and her new trial.

husband were seen coming the sheriff said [1] We will first consider the motion to he had no suspicion that anything was wrong quash. The state objects to consideration with them, but he and his deputies walked of this motion because the motion is not set out in the road and were standing in the out in appellant's brief. This, objection is middle of the road. One deputy had a rifle. not well taken. In appellant's brief she says When the appellant's husband saw the red that the reason for filing the motion to flag and the men step out into the middle quash was that the affidavit did not state an of the road, one armed with a rifle and the offense or a violation of law." Section 2065, others with revolvers, he turned around and Burns' 1914, sets out four reasons for which started the other way, going as fast as the an indictment or affidavit may be quashed. car would take them, but the sheriff had The second of these reasons is that the facts placed two men at an old barn at the roadstated in the indictment or affidavit do not side between Walnut bridge and the top of constitute a public offense.' This is substan- the hill. One of the men thus stationed at tially the same as the reason given in appel- the roadside opened fire on the fleeing car, lant's motion to quash, and is sufficient. and was so successful that one front tire and

[2] The appellant says that the affidavit one hind tire were punctured with bullets failed to charge the appellant with having and the radiator disabled, but the car was "unlawfully" committed the offense charged. kept going until they were in front of a An examination of the statute discloses that dwelling house. thinking, as they said, they not all transportation of intoxicating liquor would not be shot in front of the house. is unlawful. The statute says such transpor- There is further evidence to the effect that tations shall be unlawful except as in this when the sheriff stationed these two depuact provided. It is not necessary to nega- ties at the old barn at the roadside they were tive exceptions contained in the statute in instructed by the sheriff to shoot if persons the affidavit charging the offense, but it is did not stop when they ordered them to do necessary to characterize the act alleged to be so. One of these men ordered the appellant a crime as "unlawful." It was error for the and her husband, who was driving the car, court to overrule appellant's motion to quash. to stop. The man who did the shooting tesSee Bishop, Crim. Procedure, $ 503; State tified that he had no warrant for the arrest v. Maddox, 85 Ind. 585; Sovine v. State, of any one, and did not know that any law 85 Ind. 576; Scudder v. State, 62 Ind. 13; had been violated, but he had been told by Stropes v. State, 120 Ind. 562, 22 N. E. 773; | the sheriff that he had a right to stop any State v. Closser, 179 Ind. 230, 99 N. E. 1057; person without a warrant on the highway Asher v State (Ind. Sup.) 143 N. E. 513 (over- although the person was not a violator of ruling petition for rehearing).

the law, and, acting on these instructions, [3] Appellant claims that it was error to he ordered the appellant and her husband to overule her motion for a new trial because stop, and they not stopping he proceeded to the finding of the court was not sustained by shoot the tires with his rifle; "I fired three sufficient evidence and was contrary to law. shots all told," he said. When the appel

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