ing a salary for the time spent in coming from Little Rock to attend the trial, as tending to show his interest in the result of the trial.

[17] After defendant's business manager had testified in chief that he rejected a half carload of sugar delivered in barrels for the sole reason that the contract of June 16, 1920, under which it purported to be shipped, called for delivery in bags (plaintiff's witnesses having testified that he gave a wholly different reason at the time), it was not improper to ask him on cross-examination whether he knew at the time that defendant was under contract to take a half car of the same sugar from plaintiffs, packed in barrels, in that same month. It went to the credibility of his testimony as to what reason was given at the time for rejecting the sugar delivered in barrels.

[18] Overruling an objection to a question is not reversible error, where no testimony was given in answer to it. Appellant complains of a question, the answer to which is not given in its brief. But on looking into the transcript we find that the witness merely said that he could not answer it by yes or no. This was not harmful to appellant.

[19] A witness called by appellant testified that he had a conversation in his office with plaintiff's business manager, the witness thought the first of June, but it was "in 1920, either in June or July-it was the summer time"-but an objection was sustained to a question asking that he "give that conversation." The witness had nothing to do with the business of either the defendant or the plaintiffs, and they transacted no business at his office; but appellant insists that in the conversation inquired about certain admissions against the interest of plaintiffs were made. It is enough to say that the time when and circumstances under which the conversation occurred were not sufficiently proved to show that the supposed admissions by plaintiff's agent were made when acting within the scope of his authority in the transaction of plaintiffs' business. Other parts of the record indicate that to be at all pertinent the admissions must have been made in the last two or three days of July, and as the witness could only say that he thought it was the last of June, but it was either June or July, that it was summer time, the pertinency was not sufficiently shown.

[20] The only evidence that any of the sugar failed to measure up to the quality and grade of "fine granulated sugar" was the testimony of two witnesses that they saw one bag (100 pounds) "right in the doorway of the car," that had been "snagged" so that some of the sugar was spilled out, which was "off color," was "dark sugar," or "a little brown." One witness testified that a bag of "Gottschalk sugar near the door

had quite a hole in it," and that he "took a sample of the Gottschalk sugar" and put it in a paper bag which he produced at the trial, and it was offered in evidence, but the court refused to admit it. The contracts called for a quantity of sugar equivalent to 601 bags, each shipment to be made with a like amount of sugar for another purchaser, being a total of about 1,200 bags. The sample taken from one bag near the car door that had been "snagged" was not shown to be a fair sample of the lot. Neither can we assume that the jurors had such expert knowledge of sugars that they could judge intelligently whether a sample of granulated sugar offered for their inspection would grade as "fine" granulated sugar, or was "off color" because too dark. The ruling complained of was not erroneous. Trego v. Arave, 20 Idaho, 38, 116 P. 119, 35 L. R. A. (N. S.) 1021; Hagee v. Grossman, 31 Ind. 223, 225; Pacific, etc., Co. v. Bravinder, 14 Wash. 315, 44 P. 544. The judgment is affirmed.

LOUISVILLE & N. RY. & LIGHTING CO. v. BECK. (No. 24083.)

(Supreme Court of Indiana. May 22, 1925.) I. Master and servant 149(1)—Train dispatcher's order for two extra trains on single track held not itself actionable negligence.

Where plaintiff motorman operated an extra work car under orders to protect against all trains on a single track on which another extra also operated, in opposite direction, under defendant railroad's rules, the order which the defendant's train dispatcher gave to each operator held not of itself actionable negli

gence.

2. Witnesses 275 (2)-Plaintiff held subject to cross-examination as to matters to which he voluntarily testified and as to which defendant had the burden of proof.

Plaintiff held subject to cross-examination as to those matters concerning which he voluntarily testified to rebut anticipated defenses, related to facts as to which defendant had the notwithstanding questions on cross-examination burden of proof.

Appeal from Circuit Court, Clark County; Jas. W. Fortune, Judge.

On petition for rehearing. Petition denied. For former opinion, see 145 N. E. 886. Geo. H. Voigt, of Jeffersonville, for appellant.

Stotsenburg, Weathers & Minton, of New Albany, for appellee.

(Supreme Court of Indiana. May 22, 1925.)

1. Intoxicating liquors 198-Affidavit in prosecution for maintaining liquor nuisance held not bad for duplicity.

Affidavit, in prosecution for maintaining liquor nuisance, charging conjunctively in language of statute doing of all acts declared thereby to constitute nuisance and punishable by same penalty, held not bad for duplicity.

2. Intoxicating liquors 198-Affidavit in prosecution for maintaining liquor nuisance held not bad for duplicity or uncertainty in describing place.

Affidavit in prosecution for maintaining liquor nuisance held not bad for uncertainty or duplicity, in view of Acts 1917, c. 4, § 20 (Burns' Ann. St. Supp. 1921, § 8356t), in describing place alleged to have been maintained.

3. Statutes 114(6)-Forbidding keeping of place where intoxicating liquor is sold held

within title of statute.

6. Intoxicating liquors 236 (9)-Evidence held insufficient to prove defendant guilty of maintaining a liquor nuisance.

Evidence of reputation of place formerly kept by others as liquor saloon, in which defendant had recently opened a soft drink parlor, and possession of a pop bottle filled with whisky in his residence behind soft drink parlor was insufficient to prove defendant guilty of maintaining a liquor nuisance, in absence of evidence that liquor was manufactured or disposed of there, or that persons resorted there for purpose of drinking it.

7. Intoxicating liquors 236 (9)-Possession of half pint of whisky not prima facie evidence that defendant engaged in sale. Possession of a half pint of whisky in a

closet of kitchen of defendant's residence was not prima facie evidence that he was engaged in sale of intoxicating liquor as a beverage.

Appeal from Circuit Court, Vanderburgh County; Wm. O. Bohannan, Judge.

violating the prohibition law, and he appeals. Reversed, with directions.

Charles Thompson, Jr., was convicted of

W. D. Hardy, of Evansville, for appellant. U. S. Lesh, Atty. Gen., for the State.

EWBANK, J. [1, 2] On May 1, 1923, an affidavit was filed charging that on April 14, 1923, the defendant (appellant) unlawfully maintained and assisted in maintaining a certain place, room, house, building, and structure located and known as No. 30 Lower Third street, in the city of Evansville, in Vanderburgh county, state of Indiana, where intoxicating liquors were then and there sold, bartered, and given away, in violation of law, and where they were kept to be drunk as a beverage by divers persons to the af

fiant unknown, and where said intoxicating liquors were then and there kept for sale, barter, and delivery, in violation of the law of this state, and where persons were then and there permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and that the said defendant did then and there unlawfully keep intoxicating liquors in and use the same in maintaining said place. Overruling a motion to quash this affidavit is assigned as error. But, where either of two or more acts is declared by a stat

ute to constitute the same offense, and is made punishable by the same penalty, an affidavit which, in the language of the statute, charges the doing of all such acts conjunctively is not bad for duplicity by reason of that fact. Lennard v. State, 191 Ind. 371, 372, 132 N. E. 677. And, since section 20, chapter 4, Acts 1917, p. 25 (section 8356t, Burns' Supp. 1921), declares any place of either kind mentioned in the affidavit to be a

common nuisance if any of the acts charged in said affidavit are done therein and makes it a criminal offense to maintain such a place, the affidavit is not open to the objecttion of duplicity or uncertainty in the matter of describing the place alleged to have been maintained.

[3] Forbidding any person to keep a place where intoxicating liquor is sold, manufactured, bartered, or given away in violation of law is a matter properly connected with the subject of "prohibiting the manufacture, sale, gift, advertisement of intoxicating liquor," as set out in the title of said act of 1917. Alyea v. State (Ind. Sup.) 147

N. E. 144.

*

the manufacture of intoxicating liquor, and for such liquor being therein sold, bartered, and given away as a beverage; and being kept therein with intent so to sell, barter, and give them away in violation of the laws of this state, went to No. 30 on said street, where appellant was operating a “soft drink parlor," and, after having read the warrant to him, searched the room in which soft drinks were sold, and the dining room immediately behind it which opened into it, and the kitchen behind that, being the dining room and kitchen of his residence; that on the drain board in the kitchen sink they found an empty. "pop bottle" which "had the odor of white mule," and that on the floor of a toilet closet that opened off from the other side of the kitchen was another "pop bottle" filled with "white mule whisky"; that the closet was dark, but when an officer entered with a flash light the bottle of whisky was in plain sight; that there was an electric light in the closet which could be turned on, and the bottle was not covered up in any way; that there were 32 one-gallon jugs in the cellar, all empty and clean, and placed on a rack; that former owners had used the "soft drink parlor" as a saloon where intoxicating liquor was sold for several years before the Prohibition Law was enacted; that the building was owned by appellant's wife, who had purchased it about two months before this search was made, and she and appellant had moved there about 26 days before; that appellant had been keeping the soft drink parlor about 2 weeks; that appellant and his wife and children lived in the building, and his wife conducted a rooming house there, the rooms upstairs being let as sleeping rooms; and over objections and exceptions by appellant several witnesses testified that the reputation of No. 30 Lower Third street as being a place where intoxicating liquors were sold and otherwise disposed of and as being a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage was "bad."

[4] The description of the place to be searched as set out in the warrant was "the following premises: Building and all outbuildings commonly known as number 30 Lower Third street, in the city of Evansville." This was a sufficient description to authorize the search of the building at No. 30 Lower Third street, where the bottle was found. Boyd v. State (Ind. Sup.) 143 N. E.

355.

[5, 6] But the mere possession by appellant of a half pint of intoxicating liquor in his residence, at the time the search was made, on April 14, 1923, was not a criminal offense. Powell v. State (Ind. Sup) 139 N. E. 670; Smith 7. State (Ind. Sup.) 144 N. E. 471; Beemer v. State (Ind. Sup.) 147 N. E. 276. And, in the ab

sence of any evidence that liquor was manufactured or was sold or otherwise disposed of, or drank on his premises, or that persons resorted there for the purpose of drinking it, evidence of the reputation of the place formerly kept by others as a liquor saloon, in which appellant recently had opened a soft drink parlor, and that a pop bottle filled with whisky was found in his residence behind the soft drink parlor, was not sufficient to prove him guilty of maintaining a nuisance. Schacklett v. State (Ind. Sup.) 145 N. E. 554; Brown v. State (Ind. Sup.) 147 N. E. 136.

[7] The possession of a half pint of whisky in a closet of the kitchen of appel lant's residence did not constitute prima fucie evidence that he was engaged in the sale of intoxicating liquor as a beverage, and the court erred in giving an instruction to the effect that it did.

For the errors indicated the judgment is reversed, with directions to sustain appellant's motion for a new trial.

Defendant, in action on notes, who pleaded only failure of consideration in that notes had been given for stock in corporations never organized, held not entitled to have placed before jury evidence which would have been admissible under plea of fraud.

2. Bills and notes 493(3), 497 (2)-Defendant pleading failure or want of consideration must show execution without consideration,. and that indorsee is not bona fide holder.

Under plea of want or failure of consideration, defendant has burden of showing that notes were executed without consideration, and that indorsee is not bona fide holder.