solidated into one new corporation organized under the laws of the state of Indiana, known as the Wabash Railroad Company. That the Wabash Western Railway Company, the original lessee, was a railroad corporation organized under the laws of Missouri, and owned no railroad in Indiana. That at the time of the execution of the said lease it was a part of the contemplated plan to consolidate several railroad companies in Missouri, Illinois, Indiana, Ohio, and Michigan under the name of the Wabash Railroad Company, and as a part of such plan said lease was executed to said Wabash Western Railway Company, so that said consolidated Company, when formed, might acquire or absorb said Eel River Railroad, a competing line with the main line of the Wabash Railroad Company eastward. That said plan of consolidation was fully carried out, and the Wabash Western Railway Company turned over to the Wabash Railroad Company, and said latter company took possession of all the property, real and personal, and franchises of the Eel River Railroad Company; all of said facts as to such consolidation and the purposes of the said lease being known to the said Eel River Railroad Company. That said Wabash Railroad Company, by virtue of the said lease, and not otherwise, entered upon and took possession of the said railroad and property with the consent of the said Eel River Railroad Company, and has ever since exercised the functions and franchises of said Eel River Railroad Company, and received the tolls and profits thereof, and that it still continues to hold the same without any authority of law. At the time the officers, agents, and employés of the said Eel River Railroad Company left the state of Indiana, the principal offices and shops of the said company were located at Logansport, Cass county, in said state, where its superintendent and general manager resided, and from which point the said road was operated. That since said offices were abandoned said company has performed no corporate acts within the state of Indiana. That before the commencement of this suit attempts were made to hold annual meetings of stockholders of the Eel River Railroad Company at Butler, in Dekalb county, Ind., but that said meetings were void for want of proper notice, and because they were held under orders made by the board of directors in the state of Massachusetts, and not otherwise. That the said Wabash Railroad Company owns and operates a competing line of railroad extending from Kansas City, Mo., and other western points to Toledo, Ohio, whose main line parallels the said Eel River Railroad through its entire length, and whose interests are antagonistic and adverse to the Eel River Railroad Company. That since coming into the possession of the said Eel River Railroad the said Wabash Railroad Company, with the permission of the said Eel River Railroad Company, has used the same to destroy its

competition, and as a feeder for its own main line, operating it for the benefit of its own traffic, and dwarfing and ignoring the proper business of the Eel River Railroad Company, and the accommodation of its patrons along its line. That the Wabash Railroad Company, with the consent of the Eel River Railroad Company, has abandoned that portion of its road extending from Logansport to Chili, a distance of 22 miles, has torn up and destroyed the switches and sidetracks, permitted its track, buildings, and bridges to go to decay, has dismantled and destroyed the roundhouse and machine shops at Logansport, and removed them to Peru, on its own main line, and intends to dismantle and destroy the roundhouse and machine shops at Butler, and to remove them to its own main line. That the said Eel River Railroad was projected and built as a competing line of the Wabash Railroad, and that for the purpose of obtaining such competing line the people along the line of said railroad voted and contributed $300,000 in aid of its construction. It was further charged that the Wabash Railroad Company holds possession of the Eel River Railroad, its property and franchises, without right; that it has usurped, intruded into, and unlawfully exercised the corporate franchises of said company, and is unlawfully operating said railroad and exercising such franchises. Prayer that the charter and franchises be declared forfeited, that the defendants be ousted from said railroad and franchises, and that a receiver be appointed to take possession of said railroad, its property, etc., and wind up the affairs of the said Eel River Railroad Company.

The acts and omissions for which a forfeiture of the franchises of the Eel River Railroad Company and a dissolution of that corporation are demanded are these: The execution of a lease to the Wabash Railroad Company for a term of 99 years, with the right of perpetual renewal at the option of the lessee; the surrender and abandonment of the possession and control of its railroad by the Eel River Railroad Company; the closing of all its offices, and the discharge of all its agents and employès; the destruction of twenty-two miles of its railroad from Logansport to Chili, with all the side tracks, switches, and bridges on that part of its line; the dismantling and removal of its roundhouse and machine shops; the total diversion of the railroad from the purpose of its construction as a competing line with the Wabash Western Railway Company and the Wabash Railroad Company, and its conversion into an interrupted, subordinate, and tributary road. It is insisted on behalf of the appellants that the leasing of the railroad was authorized by the act of March 3, 1865 (Burns' Rev. St. 1894, §§ 5209-5215), but as that act, in terms, applies to intersecting and continuous lines only, it does not sustain the argument of the appellants. It is also contended that the lease and subsequent surrender and

abandonment of the control of its railroad by the Eel River Railroad Company were sanctioned by the general legislative policy of the state, but we fail to find in any act of the legislature anything which countenances so complete a departure from the objects for which the Eel River Railroad Company was organized, and for which its railroad was constructed. The phrase "legislative policy" is vague at best, and can seldom be regarded as a substantial basis for important legal rights. In the absence of more definite authority, it cannot be held to sanction deliberate violations of the law, omissions of duty to the public and the state, vast and dangerous extensions of corporate privileges, and an abandonment of the objects for which the corporation was created. If it were true, as appellants affirm, that the corporation did not impliedly agree with the state that it would operate the railroad with its own employés, and never transfer its franchises or property, still we think it clear that it did impliedly agree that it would not, without the permission of the state, destroy a part of its line of railroad, change its terminal points, and turn over to a rival and competing company the possession, control, and exclusive management of the whole of its corporate property, and the enjoyment of all its corporate franchises. Although incorporated under the act of March 3, 1865, nevertheless it was subject to the general provisions of the laws of this state, as far as it is possible to construe them together, and there is nothing in the act of March 3, 1865, which relieved the Eel River Railroad Company from the ordinary obligations to the state and to the public to which all such corporations are subject. It was not necessary that the information should aver that the delinquent company had done any act in contravention of a prohibitory statute, or of a statute imposing a definite penalty. A forfeiture of corporate existence and franchises may result although no statute in express terms enjoins or prohibits the acts or omissions complained of. While certain specific acts and omissions may, by statute, be made causes of forfeiture of the charter or franchises of corporate bodies, yet it is generally recognized that misuser and nonuser of such franchises, even where the specific offenses are not particularly defined by statute, are sufficient grounds for proceedings for such forfeiture and dissolution. President, etc., of Bank of Vincennes v. State, 1 Blackf. 267; People v. Kingston & M. Turnpike Road Co., 23 Wend. 193; People v. Directors, etc., of Bristol & R. Turnpike Road, Id. 222; Thompson v. People, Id. 537; People v. President, etc., of Hillsdale & C. Turnpike Road, Id. 254; People v. President, etc., of Bank of Hudson, 6 Cow. 217; State v. Seneca County Bank, 5 Ohio St. 171; St. Louis, & S. C. & M. Co. v. Sandoval, C. & M. Co., 116 Ill. 170, 5 N. E. 370; Ward v. Insurance Co., 7 Paige, 294; In re Jackson Marine Ins. Co., 4 Sandf. Ch. 559; 5 Thomp.

Corp. § 6618; Trustees v. Woodward, 4 Wheat. 518, 4 L. Ed. 629; Mor. Priv. Corp. §§ 1114, 1115; Railroad Co. v. Winans, 17 How. 30; 15 L. Ed. 27; Terrett v. Taylor, 9 Cranch, 52, 3 L. Ed. 650; State v. Minnesota Cent. Ry. Co., 36 Minn. 246, 30 N. W. 816; State v. Portland Natural Gas & Oil Co., 153 Ind. 483, 53 N. E. 1089; Pennsylvania R. Co. v. St Louis, A. & T. H. R. Co., 118 U. S. 290, 6 Sup. Ct. 1094, 30 L. Ed. 83; Id., 118 U. S. 630, 7 Sup. Ct. 24, 30 L. Ed. 284; Board of Com'rs of Tippecanoe Co. v. Lafayette, M. & B. R. Co., 50 Ind. 85; Thomas v. Railroad Co., 101 U. S. 11, 83; Elliott, R. R. §§ 48, 49; State v. Atchison & N. R. Co., 24 Neb. 143, 38 N. W. 43, 2 L. R. A. 564 (s. c. 8 Am. St. Rep. 164, and notes); Elliott, R. R. § 50, note 5. It may be conceded that not every act in excess of corporate capacity will justify a forfeiture, but in the present case a much more serious charge is made. A lease in perpetuity to a competing company; a total surrender of the railroad, its property and franchises; an abandonment of the control and management; the wrecking and destruction of a considerable part of the line of the railroad; the dismantling and removal of roundhouses and machine shops; the closing of all offices and agencies; the discharge of all employés, agents, and officers in this state; the removal of all books and papers relating to the business of the corporation from the state of Indiana; and the management of the affairs of the company by the officers of a competing line of railroad in such manner as to promote the interests of such competing line without regard to the interests or duties of the line so controlled,-constitute a state of facts wholly different in character and legal effect from those acts in excess of corporate capacity which have been held insufficient to authorize a forfeiture.

It is further said by counsel for appellants that the lease was not prohibited by law, nor wrongful in itself, and that the information contains no averment that public injury resulted from the acts complained of. In answer to this it is sufficient to say that the lease to the competing company was not authorized by any statute; that its execution, and the consequent abandonment of its railroad by the Eel River Railroad Company, were against public policy; and that from the facts averred in the information injury to the public may be conclusively presumed. Elliott, R. R. § 49; Board of Com'rs of Tippecanoe Co. v. Lafayette, M. & B. R. Co., 50 Ind. 85; Railway Co. v. Jarvis, 34 C. C. 639, 92 Fed. 735; Central Trust Co. v. Indiana & L. M. R. Co., 39 C. C. A. 220, 98 Fed. 666. The execution of the lease to the Wabash Railroad Company, and the disability resulting from such lease, rendered the lessor company incapable of performing its duties to the state and to the public, and to that extent were violations of its charter, and breaches of the implied conditions upon which its right to exist depended. These facts, in connection

with the other grounds of forfeiture alleged in the information, consisting of a total, and apparently final, suspension of the business and functions of the Eel River Railroad Company; the abandonment of all means and agencies by which that business was carried on, and those functions performed; the acquiescence of the company in the destructiion of a considerable portion of its railroad and other property; and its attempted migration from the state,-were, as we think, sufficient in law to sustain a judgment of ouster and a dissolution of the corporation.

Objection is made that the action was not brought in the proper county, but, for the reasons already given in this opinion, we think the suit was properly commenced in the Cass circuit court. It is also insisted that, when the venue of the cause was changed from Cass county to Howard county, there should have been a change of the relator, and that the prosecuting attorney of the Howard circuit court should have been substituted. We cannot adopt this view. The action was a civil one, and a change of venue did not require a change of parties. Originating, as it did, in Cass county, the prosecuting attorney of that county was the proper relator, and so remained, notwithstanding the removal of the cause from that county. The statute provides that the information may be filed by the prosecuting attorney in the circuit court of the proper county, upon his own relation, whenever he shall deem it his duty to do so, or shall be directed by the court, or other competent authority. Burns' Rev. St. 1894, § 1146. It certainly was not intended that, upon every change of venue, there should be a change of the relator. Counsel for appellants refer us to no authority in support of this position, and we have been able to find none. The analogy to criminal practice and pleading, suggested by counsel for appellants, does not sustain their argument. On a change of venue in a criminal case prosecuted by information, the name of the prosecuting attorney subscribed to the pleading is never changed, nor is any other alteration of the pleading necessary. Whether the prosecuting attorney who filed the information in the nature of a quo warranto can be compelled to go out of his district to prosecute the proceeding is another question, and is not before us. Thompson v. Carr, 13 Bush, 215, therefore, does not apply. Upon the whole information we think it appears that there was a willful misuser and nonuser by the Eel River Railroad Company of its franchises in regard to matters which go to the essence of the contract between the corporation and the state, that the Cass circuit court had jurisdiction of the subject-matter of the action and the persons of the defendants, and that there was no defect of parties. The demurrers of the appellants were properly overruled.

4. Were the appellants entitled to judg

ment on the special findings of the jury? The findings of fact closely pursued and fully sustained the allegations of the information and it is not necessary to set them out Special answers separately filed by the appeilants set up the defense that the cause of action did not accrue within 15 years before the commencement of the action. The verdict finds that on the 6th day of October 1887, the lease mentioned in the information was executed, and that thereupon the Eel River Railroad Company surrendered the absolute control and possession of its railroad, its equipments and franchises, to the Wabash Western Railway Company. Nothing is said in the special finding concerning the execution of a lease in 1879, or at any date other than October 6, 1887. But, if a previous lease has been made, the execution of another instrument of like character by and between the same parties, or their successors, in 1887, may have annulled or merged the former agreement, and it undoubtedly had the effect of a new and substantive violation of the duties and obligations of the Eel River Railroad Company. The state had the right to challenge the validity of this lease, and to demard a forfeiture of the franchises of the corporations on account of its execution and the subsequent proceedings of the two companies under it. The information was filed May 1, 1893, less than six years after the lease was executed, and, as to the Eel River Railroad Company, the action was commenced February 13, 1896. But we think the bar of the statute of limitations does not, in civil actions, apply to the state, nor, as a general rule, is its right of action lost by laches upon the part of its officers. Burns' Rev. St. 1894, § 305; Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 937; Com. v. Erie & N. E. R. Co., 27 Pa. St. 360; State v. Halter, 149 Ind. 292, 47 N. E. 665; Schuylkill Co. v. Com., 36 Pa. St. 524. Besides, we think the misuser of the franchises of the Eel River Railroad Company constituted a continuing wrong. Peck v. City of Michigan City, 149 Ind. 670, 49 N. E. 800; Gunder v. Tibbitts, 153 Ind. 591, 55 N. E. 762. The special findings of fact were entirely consistent with the general verdict, and there was no error in overruling appellants' motion for judgment in their favor.

5. Upon a careful examination of all the reasons for a new trial discussed by appel lants' counsel, we are satisfied that the ac tion of the court in overruling the motion. was correct. We think the verdict and the special findings were sustained by sufficient evidence, and were in accordance with the law; that no error was committed in giving or refusing to give instructions; and that the court did not err in refusing to compel the jury to answer interrogatories numbered 15 and 16 filed by appellants. In determining the questions arising upon the decision of the court on the motion for a new trial we do not deem it necessary to take them up

in detail, or to extend this opinion by comment upon their merits. The views we have expressed upon the controlling questions in the cause sufficiently indicate our reasons for the rulings upon this branch of the case, and we regard these reasons as decisive of the several points made under this assignment of

error.

6. The statute expressly authorized the appointment of a receiver in the event that judgment was rendered against the corporation. The judgment in case of a forfeiture is that the franchise be seized into the hands of the state, and that the corporation be dissolved. 2 Kent, Comm.; President, etc., of Bank of Vincennes v. State, 1 Blackf. 267; The Ryan v. Vanlandingham, 7 Ind. 416. appointment of a receiver to take possession of the property of the company was necessary, and, in the exercise of its general powers, we think the court was authorized to make such appointment It was asked for in the information, and no harm could result from the appointment as a part of the proceedings in the cause. Had it not been made until after judgment, the court would doubtless have had the right to make the appointment on the motion of the prosecuting atto ney, and without further notice. A correct result having been reached, we do not think the action of the court should be disturbed, or that any reason exists for a modification of its judgment. Judgment affirmed.

(154 Ind. 573)

WHITNEY v. STATE.

(Supreme Court of Indiana. May 10, 1900.) CRIMINAL LAW HOMICIDE ASSAULT WITH INTENT TO MURDER-WITNESSES-EVIDENCE OBJECTIONS-INSTRUCTIONS.

1. A question asked a witness for the state on cross-examination, as to whether he and some other boys had not stoned the house of defendant's brother, where defendant was staying, was erroneous, since such fact did not show hostility of witness to defendant.

2. Where evidence is properly excluded in a criminal case as inadmissible for any reason, it is immaterial that the ground of objection was insufficient.

3. The question asked of a state's witness, on cross-examination, to show hostility of witness towards defendant, "Isn't it a fact that you boys have got it in for the defendant?" is bad in form and substance, as the persons referred to were not named or described, the meaning of the slang phrase was not explained, and the question was not calculated to elicit any declaration or fact of hostility.

4. A question asked a witness for the state, "Isn't it a fact that there is a gang of you that go together, and that you frequently assault people on the street?" was irrelevant on the question of the guilt or innocence of defendant of the particular assault charged.

5. Such question was not proper by way of impeachment, as a witness cannot be impeached by proof of particular acts of misconduct.

6. An objection to the exclusion of the answer to a question propounded to witness must show what it was expected to prove by the witness.

7. An instruction that if defendant was withut fault in bringing on the shooting at a place where he had a right to be, and was assaulted by the injured party, and from said assault de

fendant believed, and had reasonable ground to believe, he was in great danger of losing his life or receiving great bodily harm from the injured party, he would be justified in any defense necessary to protect himself, and in that view of the case he should be acquitted, and if the jury has reasonable doubt as to whether the defendant acted in self-defense when he fired the shot he should not be convicted, does not assume that defendant brought on the shooting.

8. An instruction is not objectionable as assuming that a shooting affray took place, where it was admitted that defendant, and no one else, fired several shots.

9. An instruction on assault with intent to commit murder in the first degree, which authorizes the jury to find defendant guilty, if the facts stated were established beyond a reasonable doubt, and which omits the words, "with premeditated malice," is not misleading to the prejudice of defendant, where the necessity of such premeditation as a necessary ingredient of the crime is otherwise clearly stated, and also given in another instruction.

10. Special instructions will be refused when the substance is covered by the general charge. 11. A new trial will not be granted on the ground of newly-discovered evidence, where such evidence will tend merely to show contradictory statements of a witness.

12. Where, on application for a continuance for absence of a witness, an affidavit is filed stating what is expected to be proved by the witness, a new trial will not be granted after verdict on the ground of newly-discovered evidence of such witness, since by proper diligence the extent of his evidence might have been ascertained.

Appeal from criminal court, Marion county; Fremont Alford, Judge.

Henry Whitney was convicted of assault and battery with intent to commit murder in the first degree, and appeals. Affirmed.

Frank Hendricks, for appellant. Wm. L. Taylor, Atty. Gen., Merrill Moores, and C. C. Hadley, for the State.

DOWLING, J. The indictment in this case charged the appellant with an assault and battery with the intent to commit murder in the first degree. The appellant pleaded not guilty, and, upon a trial by a jury, was convicted of the felony set out in the indictment. A motion for a new trial was made and overruled, and judgment was rendered on the verdict. The error assigned is the decision of the court overruling the motion for a new trial. The grounds of the motion argued by counsel for appellant relate to rulings upon objections made by the state, and sustained by the court, to questions asked of witnesses by counsel for appellant; to instructions given and refused; and to that branch of the motion which was founded upon evidence alleged to be newly discovered.

The facts of the case, as shown by the proof, are, briefly, these: On the night of November 13, 1898, the appellant, who was a youth of about 18 years, in company with a crowd of other boys and young men, was following a political procession through the streets of Indianapolis. Many of the crowd had light sticks or thin boards torn from orange boxes in their hands, and some rough

play took place, in which they struck each other with these sticks and boards. Appellant was hit on the head with a broom by some one, at which he became angry, and wrongfully accused one Arthur Braxton, a boy of 16 years, of the act. Braxton denied the charge, and after some further altercation, in which appellant used threatening language towards Braxton, the parties separated. When the crowd had proceeded some three or four squares from the place of the difficulty, Braxton, with several of his companions, sat down near the curbing on Market street, opposite Tomlinson Hall. While they were there, appellant, who had passed beyond them on another street, came back to Braxton, thrust a revolver near his face, and fired. Braxton dodged, and the first shot missed him. A second shot struck Braxton in the forehead, and came out near his ear. A third entered his left side, near his breast, and lodged in his back. Appellant attempted to discharge two more barrels of his pistol at Braxton, but his revolver missed fire, and he ran away. Braxton was severely wounded, and, in consequence of his injuries, was confined in a hospital two and one-half weeks. The appellant testified that he had been followed by a crowd, of which Braxton was one, and that they had hit him with sticks and stones. To escape from this attack he said that he had taken refuge in English's Hotel (some four squares from Tomlinson Hall), and had left that building by a rear entrance. He further testified that he came upon Braxton and his associates when opposite Tomlinson Hall, unexpectedly; that Braxton immediately attacked him with a stick; that he believed he was in danger of great bodily harm; and that he shot Braxton in necessary self-defense. The evidence, however, very fully sustained the verdict, and no question is made as to its sufficiency.

The first point presented by counsel for appellant is that the court erred in sustaining the objection of the state to the following question, asked by the appellant on the cross-examination of Charles Smith, a witness for the prosecution: "I will ask you if it is not a fact that you and another boy, whose name I do not now recall, on the 24th day of September, went down and stoned the house where Henry Whitney was staying, at his brother's house?" The witness had previously been asked whether he was friendly to the appellant, and he had answered that he was a friend of both parties. It is argued that the question was competent for the purpose of showing that the witness was, in fact, hostile to the appellant. It is undoubtedly true, as stated by the text writers upon Evidence, that, where a man's liberty or his life depends upon the testimony of another, it is of infinite importance that those who are to decide upon that testimony should know to the greatest extent how far the witness is to be trusted. The hostility of

a witness towards a party against whom he is called to testify is always a circumstance affecting his credibility, and may be proved by any competent evidence. It may be shown by the cross-examination of the witness himself, or other witnesses may be Icalled who can swear to facts from which it may be inferred. It is said that it is not a collateral fact regarding which a party is bound by the answer of the witness on cross-examination. If he denies that he entertains any hostility of feeling, other witnesses may be called to contradict him. But where witnesses are so called to discredit another witness, the rule requires that they shall state his declarations of unfriendly or hostile feeling, or the facts which imply hostility. They cannot be permitted to state their own opinions or conclusions on the subject. 1 Greenl. Ev. § 455; Scott v. State, 64 Ind. 402; 29 Am. & Eng. Enc. Law, p. 772, and cases cited in notes. In People v. Brooks, 131 N. Y. 325, 30 N. E. 190, it was held that "this is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his hostility and malice, and, as that may be proved by any competent evidence, we see no reason for holding that he must be first cross-examined as to his hostility; and such, we think, is the drift of the decisions in this state and elsewhere." The supposed fact, referred to in the crossexamination of Smith, was that in September he had stoned a house occupied by appellant's brother, and at which appellant was staying. This fact, if established, would not have authorized the inference that the witness was hostile to the appellant. The motive for stoning the house of a relative of appellant might have been enmity towards that relative which did not extend to the appellant. In the absence of anything connecting the stoning of the house with ill feeling or malice towards the appellant, we think the fact inquired about was immaterial.

Counsel for appellant further contends that the objection should have been overruled for the reason that it was placed on the ground that the evidence was incompetent and immaterial, no more specific defect being pointed out. Where an objection to evidence is sustained, if it appears that the evidence was inadmissible for any reason, and that the decision excluding it was correct, it makes no difference whether the ground of the objection was sufficient or otherwise. Maier v. Board, 151 Ind. 197, 51 N. E. 233. Had the objection been overruled, the failure to point out more particularly the reasons for excluding the evidence might have deprived the party objecting of the benefit of his exception, unless the evidence on its face appeared to be incompetent. Heap v. Parrish, 104 Ind. 36, 3 N. E. 549; McCullough v. Davis, 108 Ind. 292, 9 N. E. 276; Underwood v. Linton,