thus: "The guilt of the accused must depend on the circumstances as they appear to him." 1 Bish. New Cr. Law, § 303, subd. 3; Dotson v. State, 62 Ala. 141, 34 Am. Rep. 2.

By charge 18 the court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that the defendant had been a director and president of the bank in controversy continuously for three years prior to the day upon which he received the deposit in question, and that during all of said time he was in the active management and control of the business of the bank, and if they further believed from the evidence that the bank on that day was insolvent, then the presumption would be that the defendant knew of its insolvent condition, but that such presumption would not be conclusive, and that it might be shown, as a matter of fact, that the defendant did not know that the bank was insolvent. The objection urged by the state to this charge is that the court erred in advising the jury that the presumption, under the facts stated, in respect to the defendant's knowledge of the insolvency of the bank, was not conclusive, but might be rebutted. The charge cannot be held to be erroneous upon this ground, for the defendant certainly had the right to overcome such adverse presumption by showing by legitimate evidence that in fact he, without his own negligence or fault, was ignorant of the true condition of the bank at the time the deposit was received. It may be said, however, in this connection, that a trial court, in charging a jury in respect to the presumption of a fact, should not go further than to direct the attention of the jury to their right to draw the inference. It is not proper for the court to attach weight or value to such inference or inferences, as that is the exclusive province of the jury. Smith v. State, 58 Ind. 340. By reason of the errors pointed out in the charge of the court, we are compelled to sustain this appeal at the cost of the appellee. Appeal sustained.

Appeal from circuit court, Wells county; E. C. Vaughan, Judge.

James Barton, convicted of assault with intent to commit rape, appeals. Affirmed.

Martin & Eichorn, for appellant. Wm. L. Taylor, Atty. Gen., A. M. Waltz, Pros. Atty., Frank C. Dailey, Merrill Moores, and C. C. Hadley, for the State.

DOWLING, J. Appellant was charged upon affidavit and information with an assault and battery with intent to commit a rape. Plea of not guilty; trial by jury; verdict of guilty; motion for new trial overruled; and judgment on verdict. The error assigned on this appeal is the overruling of the motion for a new trial. Thirteen reasons were stated, but only the fifth, sixth, seventh, eighth, ninth, tenth, and twelfth are discussed in the brief for appellant. Under the rule of this court, the points not discussed must be regarded as waived. Smith v. State, 140 Ind. 343, 39 N. E. 1060.

The fifth, sixth, and seventh reasons for a new trial relate to supposed errors of the court in giving, modifying, and refusing to give instructions. The condition of the record is such, however, that we cannot review the action of the trial court in respect to these rulings. While certain instructions are properly set out in the bill of exceptions, it does not appear that these were the only instructions given. The rule governing this court in criminal cases is that, unless the bill of exceptions affirmatively shows that it contains all the instructions given by the court, it will be presumed that other instructions were given which contained the substance of all instructions properly asked for, and withdrawing or correcting all erroneous instructions which appear to have been given. State v. Winstandley, 151 Ind. 495, 51 N. E. 1054, and cases cited.

The eighth reason assigned for a new trial was the admission in evidence of an entry in the order book of the court showing the failure of the appellant to appear to the indictment according to the condition of his

(154 Ind. 670)

BARTON v. STATE.

(Supreme Court of Indiana. May 29, 1900.) CRIMINAL LAW-APPEAL EVIDENCE-COMPE

TENCY-WITNESSES-IMPEACHMENT.

1. Alleged errors in modifying and refusing to give instructions requested by accused cannot be reviewed where only the instructions given are set out in the bill of exceptions.

2. Entries in the order book of the court showing the forfeiture of defendant's bail are competent evidence of his guilt when offered in connection with proof of his flight and subsequent rearrest.

3. Testimony of a prosecuting witness relating to an immaterial issue cannot be used as a basis for the introduction of impeaching testi

mony.

This evidence was introduced in connection with certain oral proof of the flight of the defendant, and his subsequent rearrest. It was competent, and, unexplained, in connection with other circumstances, afforded some basis from which guilt might be inferred. Hittner v. State, 19 Ind. 48; Whart. Cr. Ev. § 750, note 9, and authorities cited.

The ninth reason for a new trial was in these words: "Because the court erred on the trial in permitting the plaintiff to prove by the witness Samuel Valentine the latter's declaration to Ed. Zoll of the situation of Julia Zoll, the prosecuting witness." The statement of this reason is so vague and ambiguous that the court might well have disregarded it on that account. An examination of the record, however, discloses that no dec

laration whatever was made by the witness to Edward Zoll in regard to the situation of Julia Zoll. All that appears is that, in answer to a question, the witness stated that he went to the residence of Julia Zoll's parents, and had a conversation with Edward Zoll, but nothing said in that conversation was repeated.

The tenth reason for a new trial is not set out in the record.

The eleventh alleges error in the action of the court in permitting a witness (Addie Acton) to testify to a statement made by her to Edward Zoll and his wife, the parents of the prosecuting witness, as to the whereabouts of the latter shortly after the felonious assault upon her. The bill of exceptions shows that no such statement was made.

The twelfth and last point presented is that the court erred in refusing to permit the appellant to prove by one John Horner, a witness for the appellant, that the prosecuting witness had promised to go buggy riding with him (Horner) on the evening the criminal assault and battery occurred. Whether considered as original proof or as impeachment testimony, the proffered evidence was wholly immaterial. The court had permitted counsel for appellant to ask the prosecuting witness whether she had made such an engagement, and she answered that she had not. The fact proposed to be proved, and upon which the prosecuting witness was expected to be contradicted, being an immaterial one, was, therefore, not a sufficient basis for the introduction of impeaching testimony. Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560; Paxton v. Dye, 26 Ind. 393; Brown v. Owen, 94 Ind. 31; Carpenter v. Lingenfelter, 42 Neb. 728, 60 N. W. 1022, 32 L. R. A. 422. Judgment affirmed.

(155 Ind. 18)

TOWN OF NEWCASTLE v. LAKE ERIE & W. R. CO.

(Supreme Court of Indiana. June 6, 1900.) RAILROADS CONSTRUCTION OF STREETS CONSENT OF MUNICIPALITY-PRESUMPTION OF GRANT-PLEADING.

1. In an action by a city to compel a railway company to remove its tracks from its streets, an answer is not demurrable, as not meeting the complaint, because it does not deny the use of the tracks for switching and storage purposes, where defendant claimed a lawful right to use the streets, and the complaint did not show any use of the street that would be unlawful, except on the basis that defendant had no right to the street.

2. Rev. St. 1881, § 3903 (Horner's Rev. St. 1897, § 3903; Burns' Rev. St. 1894, § 5153), authorizing any railroad company to construct its road upon or across any highway which it intersects, but requiring it to restore any highway so intersected, does not give a railway company the right to construct its road longitudinally on streets without the consent of the municipality.

3. Municipalities, under their general powers, may grant railroad companies the right to lay their tracks longitudinally on their streets. where such use does not destroy or unreason

ably impair the street as a highway for the general public.

4. A railway company's construction of its tracks in a street, and their continued and peaceable use for 30 years with the knowledge and acquiescence of the municipality, raise a conclusive presumption of a grant.

Appeal from circuit court, Hancock county; C. G. Offutt, Judge.

Action by the town of Newcastle against the Lake Erie & Western Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

M. E. Forkner and Marsh & Cook, for appellant. John B. Cockrum, Eugene H. Bundy, W. A. Brown, and W. E. Hackedom, for appellee.

BAKER, J. Suit by appellant to compel appellees to remove their railroad tracks from a street. The complaint, in substance, alleges that Locust street, as originally platted, was 50 feet wide, and ran north and south from the north line of the original plat of the town of Newcastle to Broad street, which was the second cross street south; that Locust street has been continuously, for more than 65 years, opened, improved, and maintained as a public street of the town; that the appellees and their grantors without right entered upon the street and constructed and maintained, and appellees now maintain and operate, a permanent side track in and along the east side of the street from its northern terminus to Broad street; that they, without right, constructed and now maintain a permanent side track from the northern terminus of Locust street, crossing the alley entering Locust street at the northern terminus, and running south, bearing to the west, along the west side of Locust street, to within the limits of the street, a distance of 350 feet; that by the construction and maintenance of the side tracks the northern terminus of the street and the alley entering therein are wholly obstructed; that appellees use the tracks for switching, yard, and storage purposes, standing their cars across the alley, and encroaching upon Locust street, limiting its width by the extent of the width of the side tracks; that the side tracks constitute a permanent and unlawful obstruction of Locust street and the intersecting streets and alleys, and are a nuisance to the citizens of the town and the public in general, and by reason thereof the street cannot be properly improved, and cannot be used for the ordinary purposes of a street; that appellees have been duly notified to remove their tracks without the limits of the street, but have failed and refused to remove them, and claim the right to maintain their tracks within the limits of the street, and to use the same and appropriate the street to their exclusive use, to the injury of all the citizens of the town and the public generally; that to allow their tracks to remain in the street will permanently obstruct the street and the travel thereon, and will be a permanent and

lasting injury to the general public and the citizens of the town. Answer in general denial and two affirmative paragraphs. Demurrer to each affirmative answer overruled. Reply in denial. Trial by court. Special finding of facts and conclusions of law. Exceptions reserved to each adverse ruling. The errors assigned are: "Overruling appellant's demurrers to the affirmative answers, overruling motion for a new trial, and that the court erred in its conclusions of law stated on the special finding of facts." The second paragraph of answer avers "that appellees for more than thirty years have used and maintained the side tracks and switches named in the complaint by leave and license of the town of Newcastle, and have expended large sums of money in building, maintaining, and equipping said side tracks and switches, with full knowledge and consent of the plaintiff, and without objection on her part." Appellant claims that this answer does not meet the complaint, because it neither denies nor justifies the use of the tracks "for switching, yard, and storage purposes." The complaint shows that the town demanded that appellees remove their tracks from the street, and that appellees refused because they claimed to have a lawful right to maintain their tracks in the street. The complaint does not show any use of the street for switching, yard, and storage purposes that would necessarily be unlawful, except on the basis that appellees have no right in the street at all. If appellees had a valid right to use the street, the town's governmental and police powers would not be abated or diminished. Elliott, R. R. 1082. The complaint, however, is not based on appellees' refusal to obey regulations of the use, but is founded on the claim of appellees' usurpation. Therefore this paragraph is not a partial answer.

In substance, the third paragraph of answer is that in 1868 appellees' predecessor constructed a side track 300 feet in length along the west side of Locust street, from the main line of appellees' railroad, at the northern terminus of Locust street, to Vine street, which was the first cross street south; that at the same time appellees' predecessor built another side track along the east edge of Locust street, from the north end of Locust street, where it crosses appellees' main track, south to the north line of Broad street; that in order to build this track it was compelled to, and did, build a high embankment on and along the east side of Locust street, and lay its tracks on the embankment thus built; that the track was laid in 1866, and forms the west bank of a ravine; that they have since that time kept up and maintained the side tracks, at a large expenditure of money, without any objection by appellant; that the side tracks are not now, and never have been, any impediment or obstruction to the free use of Locust street by the general public; that the side tracks

were built at a great cost, and have been maintained and repaired at a large expense each year since; that they are now, and always have been, necessary to the proper management of appellees' road and its business; that for more than 30 years appellant has stood by, with full knowledge of all the facts, without any objection. The court found the existence of Locust street as stated in the complaint; that the street was laid on the edge of a ravine; that in 1868 appellees' predecessor built a side track along the east side of Locust street, and within the platted limits thereof, by constructing an embankment from 10 to 12 feet high, which was on a level with the street, and formed a bed and retaining wall for the street; that this east side track did not encroach upon the traveled portion of the street, and has never interfered with or diminished the travel upon the street, or the means of travel thereon; that in 1868 appellees' predecessor built a depot and platform, upon piling, in the ravine, just east of this east side track, which has been continuously used as a freight depot since 1869; that at about the same time appellees' predecessor constructed its west side track, but no part thereof is now, or ever has been, within the limits of Locust street, except 40 feet of the east rail at the south end; that all that part of Locust street lying west of the west rail of the east side track is of the average width of 36 feet, and is convenient for travel; that the side tracks were constructed at a cost of $2,000, and the depot $800, and have been maintained at an annual expense of $280; that the side tracks have been used in the ordinary course of business, and in a reasonable and proper manner; that the side tracks and depot have been regularly listed for taxation for state, county, and municipal purposes; that neither the town nor any of its officers has ever made any objection to the side tracks being so located, or to the uses made thereof, but the town and its officers have stood by for more than 30 years, having full knowledge that the companies had expended their money in constructing and maintaining the side tracks and depot, and exacting municipal taxes thereon. On these facts the court concluded that the law was with the appellees. Appellant claims that, under the third paragraph of answer and the finding of facts, appellees have no right to maintain their side tracks in Locust street. Appellees contend: First, that the statute for the organization of railroad companies gives them the right to go upon streets without the consent of the municipality; and, second, that, if a grant from the municipality were necessary, appellant is estopped from denying that a grant exists.

The fifth subdivision of section 3903, Rev. St. 1881 (section 3903, Horner's Rev. St. 1897; section 5153, Burns' Rev. St. 1894), relating to the general powers of railroad companies, reads: "To construct its road upon or

across any stream of water, water-course, road, highway, railroad or canal, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the stream or water-course, road or highway, thus intersected, to its former state, or in a sufficient manner not to necessarily impair its usefulness or injure its franchises." The control of streets, as well as of all other public highways, is primarily in the legislature. But the legislature has delegated to municipalities the exclusive control of their streets and alleys. As the legislature gave, so that body may take away or modify, the power. There is no doubt of the legislature's authority to grant railroad companies the right to lay their tracks longitudinally upon the streets of a municipality without its consent or over its objection. Dill. Mun. Corp. § 701; Elliott, R. R. § 1076; City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; Chicago, N. & S. W. R. Co. v. Mayor of Newton, 36 Iowa, 299; Ingram v. Chicago, D. & M. R. Co., 38 Iowa, 669; Cook v. Chicago, M. & St. P. R. Co., 83 Iowa, 278, 49 N. W. 92; Borough of Millvale v. Evergreen Ry. Co., 131 Pa. St. 1, 18 Atl. 993, 7 L. R. A. 369. The question is, to what extent does the statute above quoted impair the control of a municipality over its own streets? If the words "to construct its road upon or across any highway" were not limited by any other parts of the sentence, it might be claimed that railroad companies were given the right to go upon highways longitudinally. But they are limited to going upon or across any highway that their railroads intersect, and are commanded to restore to its former state, as nearly as practicable, any highway thus intersected. The legislature may well have believed that it was proper and necessary for railroad companies to have the right to cross streets without the consent of the municipality, and at the same time that it was neither proper nor necessary for them to have the power to occupy streets longitudinally; and the sentence, as a whole, indicates that such was the legislative intent. The word "upon" is not eliminated by the construction; for the legislature, if it chose, might have restricted the right to cross a highway to going under or over it, and not upon it at grade. "The usual and ordinary powers of municipal corporations to regulate streets and keep them free from obstructions are not sufficient, it is believed, to empower them to authorize the use thereof for the purpose of constructing and operating thereon a steam railway, as these powers are not to be enlarged by construction, and were not conferred for this purpose." Dill. Mun. Corp. § 705. If the question were an open one in this state, it would be well to inquire if Dillon has not enunciated the correct rule. But by a long line of decisions it seems to have been thor

oughly settled that municipalities in this state, under their general powers, have authority to grant railroad companies the right to lay their tracks longitudinally upon a street, provided that the use does not destroy or unreasonably impair the street as a highway for the general public. Elliott, R. R. § 1089. In Tate v. Railroad Co., 7 Ind. 479, it was said, "Nor is it intended to intimate that it is not in the power of the city to authorize the railroad company to lay a track at the grade of Williams street, and thus use it for the passage of their cars in common with other public and private conveyances. To that extent the municipal authority may be conceded." The court said in Indianapolis & C. R. Co. v. State, 37 Ind. 489: "We are of the opinion that the common council of a city have no authority to make contracts for the sale or letting of any public street or any portion thereof. They may, it is true, grant an easement in the street to a railroad company, to use the street in common with the public." From Burkam v. Railway Co., 122 Ind. 344, 23 N. E. 799: "We have no doubt that an abutting owner has a proprietary right in the street, of which he cannot be deprived without compensation. But it by no means follows from this that a city, in granting a right to a railroad company to use a street, deprives the abutter of his property. The grant by the municipal corporation transfers no proprietary rights of the abutter. It simply grants the privilege the city has power to grant. In granting such a privilege a city exercises a power delegated to it by the sovereign, and it is not liable for exercising such a power." The same doctrine is expressly or impliedly recognized in the following cases: Protzman v. Railroad Co., 9 Ind. 467; Railway Co. v. Boden, 10 Ind. 96; Railroad Co. v. O'Daily, 12 Ind. 551; Cox v. Railroad Co., 48 Ind. 178; Railway Co. v. Smith, 52 Ind. 428; Railroad Co. v. Scott, 74 Ind. 29; State v. Louisville, N. A. & C. Ry. Co., 86 Ind. 114; Kistner v. City of Indianapolis, 100 Ind. 210; White v. Railroad Co., 122 Ind. 317, 23 N. E. 782, 7 L. R. A. 257; Railway Co. v. Eisert, 127 Ind. 156, 26 N. E. 759; Haus v. Railroad Co., 138 Ind. 307, 37 N. E. 805. These decisions cover a period of more than 40 years, and the doctrine has be come a rule of property. Nearly every town and city in the state has a railroad running longitudinally along some street. It is too late now to inquire into the justness and validity of the rule.

The finding does not state that appellees' predecessor entered upon Locust street under a grant from the municipality. From this, appellant argues that the tracks are now unlawfully in the street, and that the town is not estopped from requiring their removal. It is true that the facts pleaded in the third paragraph of answer and the facts found by the court do not constitute an estoppel by conduct. There was no concealment or

misrepresentation by the town. Nor did the other elements of estoppel by conduct exist. Abicht v. Searls (Sup.) 57 N. E. 246. But the question is whether appellant is not estopped by its laches; that is, whether appellees have not acquired a prescriptive right. Appellant says that the construction and maintenance of the tracks in the street without an express grant from the town constituted a public nuisance per se, and that no right by prescription could be acquired. A particular method of construction or operation may be a nuisance, but the mere fact that a railroad is constructed in a street does not make it a nuisance. State v. Louisville, N. A. & C. R. Co., 86 Ind. 114. The legislature has given the company the power to accept, and the municipality to grant, the right to lay tracks in the street. City of Valparaiso v. Bozarth, 153 Ind. 536, 55 N. E. 439, and the cases therein cited, which hold that a structure built upon a street by a private person is a public nuisance per se, and that no prescriptive right would accrue from any length of user, are not applicable. The private structure is a nuisance per se because the law would not permit the municipality to authorize its erection. Prescription is the presumption of a grant. There can be no presumption of a grant if the alleged grantor is lacking in legal capacity, and if the subjectmatter of the grant is unlawful. No length of user would give a railroad company the absolute ownership of a street, for that is not the municipality's to grant. Railroad Co. v. Ross. 47 Ind. 25. But property that a municipality has the power to convey may be acquired from it by prescription. City of Bedford v. Willard, 133 Ind. 562, 33 N. E. 368, 36 Am. St. Rep. 563, and note. In Jorgensen v. Squires, 144 N. Y. 280, 39 N. E. 373, and in People v. Collis (Sup.) 45 N. Y. Supp. 282, it was held that, the legislature having authorized municipalities to grant property owners the right to build and maintain certain structures in the streets, the continued use of such a structure for more than 20 years, with the knowledge and acquiescence of the municipality, raised the conclusive presumption of a grant. If the grant in this case be considered in the nature of a mere license, it has become irrevocable by reason of appellees' expenditures with the knowledge of appellant. Buchanan v. Railroad Co., 71 Ind. 265; Joseph v. Wild, 146 Ind. 249, 45 N. E. 467, and cases there collated.

None of the matters presented in the motion for a new trial is material. The controlling facts in the case are undisputed. Appellees' possession extended over a period of 30 years. It was peaceable. It was continuous. It was open and known to appellant. It was exclusive to the same extent it would have been exclusive under an express grant; that is, the town, by an express grant, could not deprive itself of governmental and police powers over the part of

the street occupied by the tracks. It was adverse (that is, the use was such as would have exposed appellees, at any time within 20 years, to an action, if in fact they did not have an express grant), and the open dominion of the tracks, and the return thereof for taxation, were as high evidences of a claim of right as any that would follow possession under an express grant. Judgment affirmed.

(154 Ind. 630)

SHENKENBERGER v. STATE. (Supreme Court of Indiana. May 29, 1900.) APPEAL AND ERROR-GROUNDS FOR REVIEW -RESERVATION-HOMICIDE DYING DECLARATIONS-BEST EVIDENCE-NEW TRIAL-REFUSAL TO STRIKE OUT INCOMPETENT EVIDENCE INSTRUCTIONS SEPARATION OF JURY-MISCONDUCT OF COUNSEL.

1. An offer of proof, and an exception to its refusal, made after a question had been propounded to a witness, objected to, and the objection was sustained, and an exception reserved to the ruling, did not reserve the question of the admissibility of the proposed proof, for review by the appellate court.

2. A dying declaration is admissible in evidence in a murder case, although not made in the presence of defendant.

3. In a murder case, it is not error to overrule an objection to testimony of the dying declaration of deceased on the ground that the written statement is the best evidence, where there has been no evidence that decedent's declarations were reduced to writing.

4. A ground of objection to testimony objected to in the trial court on another ground cannot be urged for the first time on appeal as a ground for reversal.

5. A dying declaration of a deceased person to the effect that she knew that her mother-inlaw (defendant) had poisoned her, and that that was the way she met her death, is, in form, the statement of a fact, and not an expression of opinion, and is admissible.

6. In a prosecution for murder, where defendant is charged with poisoning her daughter-inlaw, the dying declaration of deceased in reference to her impending death, that "it was a strange death to die, to be poisoned by her mother-in-law," is merely the statement of a fact, and hence is admissible.

7. The supreme court on appeal will not review a question as to the admissibility of evidence, where no objection was made thereto on the trial, nor any motion to strike out made.

8. It was not error for the trial court, in a murder case, to refuse to instruct that testimony of dying declarations made by deceased was not so satisfactory as the evidence of witnesses appearing personally, and it should, therefore, be carefully scrutinized, since such instruction tends to cast suspicion on the evidence.

9. The court, in a murder case, refused to give instructions, requested by defendant, that: "Where a criminal case is tried by a jury, the law contemplates the concurrence of twelve minds in the conclusion of guilt, before a conviction can be had, and that each juror must be satisfied beyond a reasonable doubt of the defendant's guilt before he can, under his oath, consent to a verdict of guilty, and that each juror should feel the responsibility resting on him as a member of the body, and should realize that his own mind must be convinced beyond a reasonable doubt of the defendant's guilt before he can consent to a verdict of guilty; and if any one of the jury, after having duly considered all of the evidence, and after having consulted with his fellow jurymen, entertain such reasonable doubt, the jury cannot, in such case, find the defendant guilty." The court in-.