Ransdel v. Moore, 153 Ind. 393, 53 N. E. 767, confidence in the grantee, it must further 53 L. R. A. 753. We think that the facts shown by the part of finding 14 to which we have referred show that, at the time the deed was executed, the son knew that the father intended that the real estate described therein should go to him and his two sisters, and that he agreed with his father to hold the land, which the deed conveyed to him absolutely, in trust for himself and appellees. This agreement rested in parol, as there is no finding that it was ever reduced to writing as part of the deed or otherwise, and it does not appear that anything was omitted from the deed which was intended to be embodied in the writing. To enforce this agreement would be to impress a trust created by parol upon a deed absolute on its face. [14] A constructive trust cannot be declared unless the facts found are sufficient to show actual or constructive fraud. The mere fact that appellant refused to carry out the contract made with his father cannot surely constitute fraud, any more than a failure to carry out any other contract would amount to a fraud. To withdraw a case from the operation of the statute on account of the violation of an oral agreement to hold in trust, which the statute provides shall not be made except in writing, is to annihilate the statute. If the trust does not exist, then the refusal to carry it out would be no fraud, and proof of the existence of a parol trust is the thing which the statute forbids. If the refusal to comply with a parol agreement, by which an attempt is made to impress a trust on a title, is a fraud which takes the case out of the statute, then no case can be within it, for a party would have only to allege and prove that a person who made such a contract by parol has refused to comply with his agreement, which he must do in every case, or there would be no necessity in resorting to a court of equity to enforce the trust, and a case to which the statute does not apply would be made out. The mere fact that a grantee in a deed absolute on its face orally agreed to hold the land in whole or in part for the benefit of another, and that he later refused to carry out such agreement, does not constitute such a fraud as will justify a court in declaring and enforcing a constructive trust. [15] The further fact found, that the father reposed confidence in the son, is not enough to show that a fraud was practiced. The grantor who conveys real estate to another by a deed absolute on its face, upon the parol promise of the grantee to hold it in trust for the grantor or another, must always repose confidence in such grantee; for it cannot be supposed that any person in his right mind would trust another in whom he did not have the utmost confidence to carry out an agreement of this kind. In ad appear that the grantee, at or before the time of such conveyance, abused the confidence reposed in such a way as to improperly influence the grantor, or to mislead or overreach him, and thus to obtain an unconscionable advantage for himself, or the relations shown between the grantor and the grantee must be of such a character that the exercise of such improper influence can be presumed as a matter of law. It does not appear from the finding in this case that at the time the conveyance was made, or prior thereto, appellant exercised any improper influence which controlled the free will of the grantor, or that the grantor was at the time misled or deceived by any statement or promise of the grantee as to his present purpose or intents. The finding does not show that at the time the conveyance was made the grantee intended to obtain the title to the land by means of the promise, and then to hold it for his own use and benefit, and that he then had the formed intention of not carrying out his promise. Such facts, if found, would show a fraud inherent in the transaction, which would render it voidable from its inception, and which would be sufficient to justify a court of equity in annulling the whole contract and in declaring a constructive trust. We find no authority which justifies the application of the principle just announced to a case such as the one at bar; but the principle has been frequently applied in cases where a purchaser of personal property had the fixed intention of not paying the purchase price at the time of the contract of sale, and we can see no reason why the principle should not be applied in a case such as this. Scandinavian, etc., Co. v. Skinner, 105 N. E. 784; Tenn., etc., Co. v. Sargent, 2 Ind. App. 458, 28 N. E. 215; Levi v. Kraminer, 2 Ind. App. 594, 28 N. E. 1028; Brower v. Goodyer, 88 Ind. 572. [16] Facts not found in a special finding amount to a finding, as to such omitted facts, against the party having the burden of proof. The burden rested upon appellees to establish fraud or undue influence as inherent in the contract which resulted in the conveyance. The failure to find that, at the time of the conveyance, appellant had no intention to perform the promise to the grantor, and the failure to find that he at that time intended to hold the title for his own use and benefit, amounts to a finding against appellees as to such facts. Such facts do not follow as a necessary inference from the other facts found. The facts found do not show any fraud or undue influence inherent in the transaction coexistent with or antecedent to the execution of the deed. In the absence of such fraud, the deed is not voidable. The conveyance stands, but the trust attempted to be ingrafted thereon by parol fails. Such an attempt to create a parol trust in lands falls clearly within the Evidence held insufficient to sustain a conviction for perjury, where it did not exclude evto ery reasonable hypothesis except that of accused's guilt. [Ed. Note.-For other cases, see Perjury, Cent. Dig. § 117; Dec. Dig. 33(1).] Where defendant railroad railroad undertook transport a car of sewer tile to plaintiff at a point beyond its own line, and the car was delayed in transit, causing plaintiffs damage becaused its sewer caved in in heavy rain for lack of the tile, defendant constituted the connect-2. ing carrier its agent, so that notice to the connecting carrier of the use intended to be made of the tile was notice to defendant. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 766-774; Dec. Dig. 176.] Appeal from Circuit Court, Wabash County; A. H. Plummer, Judge. Action by Al F. Hipskind against the Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Transferred from the Appellate Court to the Supreme Court under Burns' Ann. St. 1914, § 1405. Affirmed. W. O. Johnson, of Chicago, Ill., and Walter G. Todd and Franklin W. Plummer, both of Wabash, for appellant. H. N. Hipskind, of Wabash, for appellee. ERWIN, J. Appellee was a contractor for a sewer in the city of Wabash, and on June 11, 1912, ordered a carload of sewer tile from Akron, Ohio, for use in said sewer. Appellant undertook to carry said car so loaded with tile over its line and the Big Four Railroad to Wabash, via Bolivar, a junction with the Big Four Railroad, and in doing so the same was delayed in transit, and was not delivered until July 2, 1912, and this suit was instituted to recover damages by reason of the excavation caving in on account of heavy rains falling after a reasonable time had elapsed for the delivery of said tile. The right to recovery is based upon notice given to the Big Four Railroad of the use that was intended to be made of the tile, in ample time before the rainfall to have enabled appellant to have delivered the same to appellee. There was a trial by the court without the intervention of a jury which resulted in a finding and judgment in favor of appellee for $75 and costs. PERJURY 34(1)-EVIDENCE-NUMBER OF WITNESSES OR CORROBORATION. A perjury conviction must be supported by the direct and positive testimony of two witnesses or of one witness and corroborative circumstances. [Ed. Note.-For other cases, see Perjury, Cent. Dig. § 125; Dec. Dig. 34(1).] Appeal from Circuit Court, Miami County; Joseph N. Tillett, Judge. Frank Hann was convicted of perjury and appeals. Reversed and remanded. Antrim & McClintic and Albert Ward, all of Peru, for appellant. R. M. Milburn and E. B. Stotsenburg, Attys. Gen. (Omer S. Jackson and Wilbur T. Gruber, Asst. Attys. Gen., of counsel), for the State. LAIRY, J. This is a criminal action, predicated upon an indictment returned by the grand jury of Miami county, Ind., against appellant, charging him with the commission of the crime of perjury, it being alleged in the indictment that appellant swore falsely as a witness while testifying in a cause in the Miami circuit court, entitled State of Indiana v. Frank Revis. [1, 2] About the 1st day of February, 1911, Frank Revis was found in possession of about 4,500 pounds of clover seed, and shortly thereafter was arrested upon the charge of stealing it from the barn of Josiah Hann, who was the father of appellant in this case. vis entered a plea of not guilty, was tried upon the charge of stealing this seed from the barn of Josiah Hann, and was convicted of that crime in April, 1911. At the trial it became necessary to identify the clover seed in question and to introduce evidence tending to establish the ownership of the property. As a part of the evidence so introduced, appellant, Frank Hann, testified that It is conceded by all parties to this appeal while the clover seed was in his father's barn that the only serious contention in this case, in the spring of 1909, he had written the name while it is presented in various ways, is as of his father, Josiah Hann, on three differto whether the forwarding company, the Big ent slips of paper, and placed one of such paFour, was the agent of appellant, so that pers in three separate sacks of the seed. In notice to it of the use for which the tile was August, 1909, the barn of Josiah Hann was ordered was notice to appellant. Under re- burned from an unknown cause, and it was cent holdings of this court, the Supreme discovered that some of his clover seed there Court of the United States, and federal de- stored had been taken away before the fire. cisions, this question is decided adversely In February, 1911, a quantity of stolen clover For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes seed was found in Buffalo, N. Y., where it not the sacks opened at Buffalo. The state had been shipped from Peru, and appellant, was unable to show that appellant had acaccompanied by Mr. John W. Volpert, went cess to the sacks of clover seed in which to Buffalo, to examine it. Some of the 29 the slips were found at any other time after sacks of seed there found were opened and the alleged larceny. In showing that the casually examined, and the shipment was re- seed found in Buffalo and later brought to turned to Peru, where some of it was emptied Peru had been stolen from a freight car in out upon a floor and sifted. At this time two Peru and was part of a shipment of clover slips of paper bearing the name of Josiah seed from Griggsville, Ill., to Toledo, Ohio, Hann were found in the seed and identified it was the purpose of the state to make out by appellant as being the slips placed by him a set of circumstances entirely inconsistent in the clover seed in his father's barn in the and incompatible with the testimony in quesspring of 1909. After Revis was convicted tion, and to show it to have been possible of stealing the clover seed in question from for appellant in his father's barn in 1909 to the barn of Josiah Hann, it was learned that have placed the slips in this seed. Before a quantity of clover seed had been stolen by the evidence could have this effect it was Revis and others from a freight car of the necessary that it be shown that the particuWabash Railroad Company in Peru, and the lar clover seed found to contain the slips indictment in this case was returned. A mo- of paper was part of the shipment from tion to quash this indictment was overruled Griggsville, Ill., or that all of the clover seed and the issues formed by a plea of not guilty returned to Peru from Buffalo, and found were tried before a jury, which returned a to contain the slips, was part of the Griggsverdict of guilty. The court overruled appelville shipment. lant's motion for a new trial and pronounced judgment on the verdict. The error assigned and relied on is the alleged error of the trial court in overruling appellant's motion for a new trial. Under this assignment appellant earnestly urges that the verdict is not supported by the evidence and is contrary to law, and that there was error in the giving of certain instructions and in the refusal of the court to give instruction 33 tendered by appellant. The indictment charges that the statements made by appellant at the Revis trial in respect to the placing of the slips of paper in the sacks of clover seed at his father's barn in 1909 were false. that he did not place them there at that time and place, but "that said Frank Hann did place the said several pieces of paper, bearing the name of Josiah Hann, in said separate sacks of clover seed at some other time and place." In order to prove the falsity of the statements made by appellant the state attempted to show that appellant placed the slips of paper in the sacks of seed in February, 1911, when the seed was examined at Buffalo, or at some time and place other than that testified to by appellant, and also that the seed so found to contain the slips in question had been stolen from the railroad company in Peru. Appellant claims that the evidence is wanting in both particulars. As tending to show that appellant placed the slips of paper in the clover seed at Buffalo, the state introduced two witnesses who were with appellant at the time the seed was there examined. These witnesses testified, however, that one of them was with him during all of the time any sacks were opened, and that they did not see him place any paper in the sacks. One of these witnesses testified that to the best of his belief and knowledge appellant did not do so, and also that the sacks later opened at Peru and found to contain the slips of paper were Revis testified on this trial that he did not steal any seed from Josiah Hann, but that he did, with others, steal 27 bags of clover seed from the freight car. He did not testify, however, that some of his confederates did not steal clover seed from Josiah Hann's barn, or that the shipment to Buffalo made by him and his accomplices was composed solely of the seed stolen from the shipment from Griggsville. The only other evidence concerning the identity of the particular seed containing the slips in question was not favorable to the state. It was to the effect that 16 bags remaining in the Griggsville shipment after the theft at Peru, which remaining seed finally reached Toledo, was new seed, and contained no plantain; that the seed stored in Josiah Hann's barn was old seed and contained plantain, and that part of the seed returned to Peru from Buffalo, and some loose seed found in Revis' house where it had been stored, was old seed and contained plantain. The undisputed evidence shows that the shipment from Griggsville contained 43 bags, or 6,900 pounds, of clover seed, and that Revis and his confederates stole from this shipment 27 bags, or 4,385 pounds. The evidence most favorable to the state is to the effect that 486 pounds of this amount was thrown in the river, leaving 3,899 pounds. The shipment made to Buffalo by these men, and finally found to contain the slips of paper, had been resacked, and amounted to 4,000 pounds. Under this state of the evidence, it is apparent that at least 101 pounds must have been derived from some source other than the amount stolen from the freight car. This being true, the circumstances shown by the evidence most favorable to the state are not irreconcilable with the testimony in question, for the reason that, even under the theory of the state that the clover seed stolen from the freight car and not thrown in the river was later shipped to Buffalo, the excess of seed shipped at that time may have been that in which appellant testified he placed the slips in the barn of Josiah Hann in the spring of 1909. To warrant a conviction of perjury, the evidence must be such as to satisfy the jury to the exclusion of a rational doubt of the WAIVER OF DEFECTS-FAILURE TO OBJECT. lenged by motion to quash for uncertainty, un- ENCY-SCIENTER. 6(1)-INDICTMENT-SUFFICI An affidavit for bribery under Burns' Ann. St. 1914, § 2378, which alleged that one S. was prosecuting county attorney, and charged with prosecution of an indictment against accused such knowledge she corruptly offered him $200 to which she knew had been returned, and with influence his official action and induce him to dismiss the indictment, sufficiently alleged acshe offered the bribe; this being plainly implied cused knew S. was prosecuting attorney when in the statement of the act itself, even without the aid of Acts 1913, c. 322 (Burns' Ann. St. 1914, 8, 343a), requiring a more liberal rule in construing criminal and civil pleadings than at falsity of the matter sworn to by the accused, but this evidence must be no less than the direct and positive testimony of two witnesses or one witness and corroborating facts and circumstances. The direct evidence contemplated is not limited to a denial in [Ed. Note.-For other cases, see Indictment ipsissimis verbis of the testimony given by and Information, Cent. Dig. § 479; Dec. Dig. the defendant, but includes any positive testi-143.] mony of a contrary state of facts from that 3. BRIBERY sworn to by him at the former trial, or which is absolutely incompatible with his evidence, or physically inconsistent with the facts so testified to. This evidence must be of such a character as to exclude every other reasonable hypothesis except that of the defendant's guilt. Ex parte Metcalf, 8 Okl. Cr. 605, 129 Pac. 675, 44 L. R. A. (N. S.) 513; People v. Chadwick, 4 Cal. App. 63, 87 Pac. 384, 389; Beach v. State, 32 Tex. Cr. R. 240, 22 S. W. 976. If the evidence is composed of testimony as to certain circumstances which, although they be accepted as true, are not absolutely irreconcilable with the testimony of the defendant, any reasonable possibility which remains unnegatived, Rule 22 of the Supreme Court (55 N. E. v) and which reconciles the circumstances in regard to the preparation of briefs, requiring, shown with the statement in question, should among other things, a concise statement of so be resolved in favor of the defendant and much of the record as fully presents every error his innocence. The record does not disclose other things, to enable each judge to intelligentand exception relied on, was designed, among that there was evidence at the trial risingly consider each question presented without reto the dignity of that required by the rules above recited. The verdict of guilty is therefore not sustained by the evidence, and is contrary to law. ROBINSON v. STATE. (No. 22915.) (Supreme Court of Indiana. June 22, 1916.) 1. INDICTMENT AND INFORMATION 138MOTION TO QUASH-FORM. common law. [Ed. Note.-For other cases, see Bribery, Cent. Dig. § 5; Dec. Dig. 6(1).] 4. CRIMINAL LAW BRIEFS-COURT RULES. sort to the record. 1130(3) - APPEAL [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2966, 2968; Dec. Dig. 1130(3).] 5. CRIMINAL LAW 1048-APPEAL-PRESENTATION OF OBJECTIONS-EXCEPTIONS. Where no exceptions appear to have been taken to the trial court's rulings, they cannot be reviewed. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2656, 2657, 2670; Dec. Dig. 1048.] 1130(3) — APPEAL BRIEFS-SPECIFICATION OF ERRORS. Where appellant alleged error because of the court's sustaining objections to her questions, but her brief showed neither offer to prove nor exception reserved, no question was presented for review. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2966, 2968; Dec. Dig. 1130(3).] Under Burns' Ann. St. 1914, § 2065, cl. 2, providing for motion to quash indictments or affidavits because the facts therein stated "do not constitute a public offense," a motion to quash for insufficiency of statement of facts showing an offense is sufficient if in the language of the statute; the act approved March 4, 1911, § 2 (Acts 1911, c. 157; Burns' Ann. St. Where instructions are complained of, but 1914, § 344), requiring in civil cases a demur- the evidence is not set out in appellant's brief 8. CRIMINAL LAW 1130(3) - APPEAL — BRIEF-NARRATIVE OF EVIDENCE-INSTRUC TIONS. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes in narrative form, as contemplated by rule 22 | fully found in possession of liquors for the as to the preparation of briefs, only the applica- purpose of selling same in violation of the laws bility of the instructions to any state of the of the state of Indiana, contrary to the form of evidence competent under the issues can be con- the statute in such cases made and provided sidered on appeal. and against the peace and dignity of the state of Indiana.' [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2966, 2968; Dec. Dig. m 1130(3).] 9. CRIMINAL LAW 1130(3)—APPEAL-REVIEW-RECORD-STATEMENT OF ATTORNEY— ACQUIESCENCE. Where, on appeal, the assertion of one party as to what is shown by the record is not controverted by the other, the court is authorized to accept such statement as correct without examination of the record. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2966, 2968; Dec. Dig. 1130(3).] Appeal from Circuit Court, Blackford County; Wm. H. Eichhorn, Judge. Bessie Robinson was convicted of offering a bribe to a prosecuting attorney, and appeals. Affirmed. Pursley & Peterson, of Montpelier, and George W. Cromer and Harry Long, both of Muncie, for appellant. Evan B. Stotsenburg, Atty. Gen., Lee F. Sprague, of Hartford City, and Horace M. Kean, Leslie R. Naftzer, Omer S. Jackson, and Wilbur T. Gruber, Asst. Attys. Gen., for the State. Appellant filed a motion to quash on the following ground only: "The facts stated in said affidavit do not constitute a public offense." Section 2065, cl. 2, Burns 1914. The overruling of this motion is assigned as error. [1] It is contended by appellant that the affidavit is fatally defective because it fails to allege that appellant knew Sprague was prosecuting attorney when she offered the bribe, and Banks v. State, 157 Ind. 197, 60 N. E. 1087, State v. Howard, 66 Minn. 309, 68 N. W. 1096, 34 L. R. A. 178, 61 Am. St. Rep. 403, and other authorities are cited in support of the proposition. The Attorney General, among other things, claims that appellant waived her right to a consideration of the question, because of the provisions of section 2 of an act approved March 4, 1911 (Acts 1911, p. 415; section 344, Burns 1914) which, in civil causes, requires a party demurring to specify the defect in the challenged pleading. Hedekin Land & Improvement Co. v. Campbell (No. 22957) this term, 112 N. E. 97. We do not assent to such theory. Section 2065, Burns 1914, provides for motions to quash indictments or affidavits, and is section offers to any 194 of the Public Offense Act of 1905 (Acts *any 1905, p. 626). The statute is a substantial reenactment of section 184 of the Criminal Procedure Act of 1881. Acts 1881, p. 114 (R. S. 1881, § 1759). The second clause of the section performs, in criminal pleading, substan MORRIS, C. J. Appellant was convicted of offering a bribe to a prosecuting attorney under section 2378, Burns 1914, which provides that: "Whoever corruptly prosecuting * * * money * * * attorney * * ** to influence his action in any matter pending * * shall, on conviction, be imprisoned," etc. The affidavit, on which the prosecution rested, charges: tially the same function as did the general demurrer to a complaint in a civil action before said amendment of 1911, while the fourth clause of said section provides a method of challenging the indictment somewhat analogous to the provision of our Civil Code which recognizes motions to make pleadings more definite and certain. Section 385, Burns 1914. We are of the opinion that said act of 1911 was not designed to control motions to quash, and that the latter are sufficient if in the language of the statute. Scott v. State, 176 Ind. 382, 96 N. E. 125; Davis v. State (1879) 69 Ind. 130. "That, heretofore to wit, on the 24th day of July, 1913, at the county and state aforesaid, one Lee F. Sprague was then and there the duly elected and qualified prosecuting attorney in and for the twenty-eighth judicial circuit, of the state of Indiana, and as such officer was charged with the duty of prosecuting an indictment against Bessie Robinson for the crime of keeping, running, and operating a place where intoxicating liquors were sold in violation of the laws of the state of Indiana, and being unlawfully found in possession of such intoxicating liquors to be sold for such purpose (being commonly known as the blind-tiger charge) for which crime Bessie Robinson had then and there been duly indicted by the grand jury of said county, as she, the said Bessie Robinson, then and there well knew, and with such knowledge the said Bessie Robinson did then and there unlawfully, feloniously, and corruptly offer to the said Lee F. Sprague $200, lawful money of the United States of America, with the corrupt purpose then and there to influence the official action of the said Lee F. Sprague as to that of the return of the indictment. as such prosecuting attorney, and to induce the See Wilkinson v. State, 10 Ind. 372; Steeple said Lee F. Sprague, prosecuting attorney, to v. Downing, 60 Ind. 478; 31 Cyc. 87. In dismiss a prosecution against the said Bessie view of the conclusion we have reached, this Robinson upon said indictment returned by the grand jury of the county and state aforesaid, in claim is not determined, and, for the purposthe Blackford circuit court of Indiana, charges of this decision, the averment of knowling her, the said Bessie Robinson, with keeping, running, and operating a place where liquors were unlawfully sold, in violation of the laws of the state of Indiana, and being unlaw It is also suggested by the Attorney Genwell eral that the phrase, "as she knew," relates as well to the averment of the election and qualification of the prosecutor edge is treated as referring only to the re- [2] Where there is an entire absence of |