We have examined the series of the instructions given in this case, and conclude that, as a whole, the law is fully stated with regard to each count of the affidavit and the evidence applicable thereto. tirety, and not in separate or dissected parts, | 1921. The property consisted of two automoand, even if some particular instruction, or bile tires described in the affidavit, which some portion of an instruction, standing when found on the 4th day of October, 1921, alone or taken abstractedly, and not explain- were in use by the defendant on his automoed or qualified by others, be erroneous, it bile. In explaining his possession of the will afford no grounds for reversal, where tires the appellant claimed that he bought the instructions as a whole state the law cor- them at South Bend at a tire shop kept by rectly. Shields v. State, 149 Ind. 395, 49 N. Smith & Wooley in South Bend; that when E. 351; Baker v. State, 190 Ind. 385, 129 he bought the tires they had been run and N. E. 468. were used ones, but practically in good shape and a bargain for the money. He says he paid $21 for them. He put them in the back of the car in which he was riding, a car belonging to a Mr. Wood, and took them to the Bowman tire shop in Elkhart, and put them in the back end of the store. Afterwards he had a Mr. Dixon, who was working there, to put them on. This testimony of the defendant is not contradicted by any evidence. It is true that the exclusive possession of property recently stolen, when such possession is not satisfactorily explained, raises a presumption that the possessor is guilty of the theft, but in this case the jury found the defendant guilty of receiving stolen property, and do not, in their verdict, find the defendant guilty under the first count of the affidavit, which was for larceny. This, in effect, is a finding of not guilty of the larceny. [4] Before the appellant could be heard to complain of said instruction No. 12, he would be required to tender an instruction covering the law more fully and request the court to give it. Instruction No. 12 is not claimed by appellant to state the law errone ously, but he claims that it is not full enough to state the law clearly upon the second count of the affidavit, but, not having tendered any instruction on the subject, he cannot complain. Bartlow v. State, 183 Ind. 398, 109 N. E. 201; Colondro v. State, 188 Ind. 533, 125 N. E. 27; Underhill v. State, 190 Ind. 558, 130 N. E. 225. The verdict was returned upon the second count of the affidavit, and the appellant claims that the evidence to sustain a conviction upon said count is insufficient because it wholly fails to show that the appellant knew that the property was stolen property. [5, 6] In order to convict a defendant of receiving stolen goods under this count the goods stolen must retain their stolen character at the time received, if received by the defendant. Guilty knowledge on the part of defendant that the goods had been stolen is essential to a conviction, but it is also true that proof of direct knowledge is not necessary, and that evidence of facts and circumstances, sufficient to create in the mind of the accused the belief that the goods were stolen, is sufficient to convict. Guilty knowledge may be shown from any direct facts from which the same can be inferred. In this case, there is no direct proof that the defendant knew that the goods were stolen goods, so, in order to justify a conviction on the second count of the affidavit, it must appear from the circumstances and facts proven in the case that the goods were stolen goods, and that appellant knew it at the time he received them. It appears from the evidence that the goods alleged to have been stolen were stolen about August 22, 1921; that they were found in defendant's possession October 4, [7] The rule that the possession of stolen property, the proceeds of a larceny soon after the commission of the offense, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found, does not apply to the offense of receiving stolen property. People v. Mirabella, 294 Ill. 246, 128 N. E. 374; People v. Lardner, 296 Ill. 190, 129 N. E. 697; State v. Bulla, 89 Mo. 595, 1 S. W. 764; State v. Richmond, 186 Mo. 71, 84 S. W. 880; State v. Adams, 133 N. C. 667, 45 S. E. 553. [8] In order to sustain a verdict of conviction on the second count of the affidavit, there must be some evidence tending to prove each essential element of the offense charged. Knowledge by the defendant when he received it that the property was stolen is essential to a conviction of the crime of receiving stolen property knowing it to be stolen. A thorough examination of the evidence fails to disclose proof of any fact or evidence tending to prove any fact from which the jury could infer that the appellant knew that the property was stolen property at the time he received it. The verdict is not sustained by sufficient evidence, and is contrary to law. Judgment reversed, with instructions to sustain appellant's motion for a new trial. (146 N.E.) prayed by the petition, and concluding with ROST V. INTERNATIONAL ELECTRIC CO. the statement "and this cause is continu et al. (No. 24760.) (Supreme Court of Indiana. March 12, 1925.) 1. Receivers 199-Ex parte allowances by court to receiver, subject to be set aside on exceptions to final report. ed." Four months later appellant, Rost, filed a verified motion to set aside "so much of said order as makes final allowance to the receiver and his attorney," in amounts as stated, respectively, setting out certain alleged reasons for asking such acEx parte allowances by court to receivers, tion. Nothing more appears to have been in charge of trust while in process of being ad-done in the matter for more than 7 months, ministered, without notice to parties in inter- when the court, on June 4, 1924, 'overruled est, are subject to be reviewed and set aside the motion, to which ruling appellant excepton exceptions to final report. ed, and was granted 10 days in which to file an appeal bond. 2. Receivers 199-How appeal from order overruling exceptions to allowance to receiver may be perfected, stated. Appeal from order overruling exceptions to allowance to receiver, if assumed to be appealable order for payment of money, can only be taken by filing transcript and assignment of errors, together with appeal bond, within 30 days from date of order, as required by Burns' Ann. Supp. 1921, § 1392b; Acts 1921, c. 251, § 2. The bond was filed on June 10th, and on the 60th day thereafter, being 70 days after the motion was overruled, and almost 14 months after the allowances were made, appellant filed his transcript and assignment of errors in the Supreme Court. Appellees have filed a verified answer to such assignment, alleging that the receivership is still pending in the trial court; that, at the time appellant's motion to set aside the orders of 3. Receivers 199-Appeal from overruling allowance was overruled, the judge of that exceptions to allowance to receiver, barred. court orally advised appellant's attorney That receivership was still pending, and that when the receiver should file his final rereceiver had filed final report to which excep- port showing the payment of the money so altions to allowance to receiver and his attorney were taken, determination of which was pend-lowed to himself and his attorney, exceptions ing in probate court awaiting trial, held to bar to that report might be taken on which the appeal from order overruling exceptions to allowance made four months thereafter. Appeal from Probate Court, Marion County; Mahlon Bash, Judge. matter would be set down for trial, and evidence could then be introduced covering the whole question of the right of the receiver and his attorney to receive such allowances, and the validity of appellant's exceptions Proceeding by Carl Rost against the Inter- thereto; that on August 4, 1924, before this national Electric Company and others to set appeal was perfected, said receiver filed his aside an ex parte order. From an order final report, and on September 10th appeldenying his motion, he appeals. Demurrer lant filed exceptions to it by which he chalto the answer in bar of his assignment of lenged the allowances to the receiver and errors, overruled. his attorney, which exceptions are now pendThomas H. Fittz, of Indianapolis, for ap-ing in the probate court awaiting trial; and pellant. E. C. Miller, Ralph B. Gregg, and John W. sented to the probate court for decision Kern, all of Indianapolis, for appellees. that the same questions are thereby pre which are sought to be presented by this ap peal. Appellant has filed a demurrer, for want of facts sufficient to bar the appeal, to this plea. [1] It has been decided many times that allowances made ex parte by the court to its officers in charge of a trust while it is in process of being administered, and without notice to the parties in interest, are only interlocutory, and are subject to be reviewed and set aside on exceptions to the final report of such officers. Collins v. Tilton, 58 Ind. 374, 377, 378; Fraim v. Millison, 59 Ind. 123, 129, 130; Parsons v. Parsons, 67 Ind. 489, 499; Candy v. Hanmore, 76 Ind. 125, 128; Goodwin v. Goodwin, 48 Ind. 584, 589; Pfeiffer v. Crane, 89 Ind. 485, 489; Hord v. Bradbury, 156 Ind. 30, 32, 59 N. E. 31; Shuey v. Lambert, 53 Ind. App. 567, 571, 102 PER CURIAM. On June 29, 1923, the receiver of the International Electric Company filed a current report, setting forth his receipts and expenditures to that date, which was approved; and he then filed a petition for instructions as to the conduct of the trust, in which he asked the court to authorize certain settlements to be made, and to "fix further and final allowances for this receiver and his attorney * * * for their services in full, and that said receiver be authorized to pay said allowances at this time," and be also authorized to pay a dividend to the creditors. The court thereupon, without notice to anybody, made an order fixing the allowances of the receiver and of his attorney "in full for services," authorizing certain settlements to be made, and directing N. E. 150. the payment of a dividend to creditors, as [2] Assuming, without deciding, that the For other cases see same topic and KEY-NUMBER in all Key-Numbered-Digests and Indexes examination as to matters pertaining to investigation of accused's connection with larceny held reversible error. orders of allowance in question were orders [ 7. Witnesses 266-Refusal to permit crossfor the payment of money from which an appeal would lie, as suggested by the case of Bossert v. Geis, 57 Ind. App. 384, 389, 107 N. E. 95, such an appeal could only be taken by filing the transcript and assignment of errors, as well as the appeal bond, within 30 days from the date of the order appealed from. Section 1392b, Burns' Supp. 1921; section 2, c. 251, p. 741, Acts 1921. [3] The facts alleged in the answer to appellant's assignment of errors, if true, taken in connection with the facts shown by the record, are sufficient to bar this appeal, and appellant's demurrer to the answer in bar of his assignment of errors is overruled. HENRY v. STATE. (No. 24720.) (Supreme Court of Indiana. March 10, 1925.) 1. Criminal law 946-Cause for new trial deemed waived or abandoned on failure to cite authorities, or to present alleged error. Cause for new trial is deemed waived or Refusal to permit cross-examination as to what was said and done at and during the inVestigation testified to, as to accused's connection with a larceny. held reversible error, as being abuse of discretion. 8. Criminal law 552(3)-To sustain convlc- dence must be conclusive, and must exclude To sustain conviction circumstantial evi Absence of an essential link in the chain of circumstantial evidence requires court of last resort to hold evidence insufficient to sustain conviction. 10. Criminal law 1159(1)—When finding or verdict is error of law reviewable and subject to correction stated. A finding or verdict is error of law reviewable and subject to correction on appeal, where abandoned on failure to cite authorities, or to it is not supported by evidence, or by evidence present alleged error. 2. Larceny 65-Evidence held insufficient to sustain conviction of petit larceny based on stealing chickens. Evidence held insufficient to sustain conviction of petit larceny based on stealing chickens. necessary to support an essential fact neces- 327-Commission of act constituting offense, and its commission by person charged, must be proved to sustain criminal charge. Commission of act constituting offense, and proved to sustain criminal charge. 3. Criminal law 1153(4)-Witnesses267 its commission by person charged, must be -Extent of cross-examination permitted is within sound discretion of trial court, abuse of which is only ground for reversal. Extent of cross-examination permitted is within sound discretion of trial court, abuse of which is the only ground for reversal. 4. Witnesses 269(1)-Opening of subject on examination in chief opens it to full and detailed investigation on cross-examination. Opening of subject on examination in chief opens it to a full and detailed investigation on cross-examination. 5. Witnesses 268 (2)—Unfavorable inference, drawn from facts elicited from witness, opens door for admission on cross-examination of knowledge of witness tending to rebut such inference. Unfavorable inference, drawn from facts elicited from witness, opens door for admission on cross-examination of knowledge of witness tending to rebut such unfavorable infer ence. of Appeal from Circuit Court, Johnson County; Fremont Miller, Judge. William Floyd Henry was convicted of petit larceny, and he appeals. Reversed, with instructions to grant new trial. Featherngill & Drybread, of Franklin, for appellant. U. S. Lesh, Atty. Gen., for the State. GEMMILL, J. Appellant was prosecuted upon an indictment charging him with grand larceny. The charge was that, on July 17, 1923, in Johnson county, he did then and there unlawfully and feloniously steal, take, and carry away of the personal goods and chattels of Ossie Brann 50 chickens of the value of $40. The trial was by jury and he was found guilty of petit larceny. A motion for a new trial was overruled and judgment rendered on the verdict. 6. Witnesses 266-Cross-examination [1] It is assigned as error that the trial witness is absolute right, denial of which on court erred in overruling appellant's motion material matter is reversible error. for a new trial. The motion for same conCross-examination of witness is an abso-tains nine separate and distinct causes. lute right, denial of which on a material mat- Causes numbered 1, 2, 3, 4, 5, and 6 are alter is reversible error. leged errors of the court in excluding cer (146 N.E.) tain testimony therein set forth, offered on cross-examination. Cause numbered 7 is an alleged error of the court in giving to the jury of its own motion instructions numbered 1 to 16, inclusive, and in giving each of said instructions. Cause numbered 8 is that the verdict of the jury is contrary to law. And cause numbered 9 is that the verdict of the jury is not sustained by sufficient evidence. Cause numbered 7 for a new trial, which is the giving of instructions, is not urged in this appeal, and, by reason of failure to cite authorities or to present the alleged error, it must be deemed waived or abandoned. [2] The evidence, on behalf of the state, was wholly circumstantial. From same it appears as follows: At 1 o'clock on the morning of the day named in the indictment one Ossie Brann who lived three-fourths of a mile southwest of Greenwood was awakened by the barking of her dog. She got up, went to the front door and looked south, as she heard an automobile running in that direction. The automobile went south about a quarter of a mile, turned around, and came back, and when it got even with her home she turned on the porch light and saw that it was a Ford roadster. She investigated and discovered that about 50 chickens owned by her of the value of $40 were gone. She notified two parties over the telephone of her loss, and she and her husband got in their automobile and went in the direction she had seen the Ford roadster go. They could see the light of an automobile in the distance,. but never caught up with it. Later Clarence Brann, her husband, and some neighbors inspected the automobile tracks in the road where the automobile she had seen turned around. They found that the tire on the left rear wheel made an impression that resembled the letter H with the long parts out, or a horseshoe or a muleshoe. The other three tires made impressions that resembled the letters I and O, one end of the letters being very dim. Said Clarence Brann and two neighbors, Sam Cutsinger and Leander Browning, the former being an officer, followed the tracks of the said automobile to a point about four miles southwest of the Brann home and back to a cemetery one-half mile north of where Mrs. Brann lived. While the said parties were at that place on the highway about 7 o'clock in the morning, the appellant drove past in a Ford roadster. He came from the direction of Greenwood which was east and went south. Noticing a similarity in the tracks made by the Ford roadster which he was driving to the tracks which they had been investigating, they followed him for a few miles and caught up with him, when he stopped at the side of the road on account of his automobile being out of gasoline. The appellant was asked where he had been all night. He replied that he had been at South port, where he boarded, and also said he was going to Bargersville. He was told that he would have to show that he had been at Southport all night. This he agreed to do. He took Mr. Cutsinger, who was an officer, in his automobile, and the other two men followed in another automobile, and all went to Southport, where Mr. Cutsinger talked to Mrs. Decker, with whom the appellant boarded, away from the appellant, who did not talk to her. After that he was allowed to go, and was not placed under arrest at that time. A day or so later the appellant took his automobile to a garage in Greenwood and had the left rear tire removed and another put in its place, and had the car cleaned out. The party who did the work said that the appellant asked him to hide the tire or to put it away for him where no one could get it, and keep it for him, and said that in the car he found some yellow feathers, some straw, and a sack. The appellant was a barber in Southport, and when seen on that morning he was coming from the direction of the place he lived. When stopped by said parties and questioned by them he was pale and nervous. Most of the stolen chickens, some dead and some alive, were found later in the day in two sacks a short distance from the Brann residence along the side of the road. The witness who removed the tire from the appellant's automobile testified that he had seen two other cars with the same kind of tire, which was on the left rear wheel of appellant's roadster. Appellant claims in the first cause for new trial that error of law occurred at the trial in this, that the court refused to permit the witness Sam Cutsinger to answer a question on cross-examination propounded to him as a witness by defendant's counsel, as to whether or not he said to Leander Browning and Clarence Brann, in the presence of the defendant in Southport, that Mrs. Decker said that he (the defendant) was at home all night. Causes numbered 3, 4, and 5 were alleged errors in the court refusing to permit the said witness to answer other similar questions in regard to what he might have said or the appellant might have said at that time, and cause numbered 6 is an alleged error in the court refusing to permit Leander Browning, a witness, to answer a like question as to what he might have said at that time. The state claims that there was not error in refusing to permit said witnesses to answer said questions propounded to them, as same were not proper cross-examination. [3] It is a settled rule of practice in this state that the extent of the cross-examination permitted is within the sound discretion of the trial court and only an abuse of this discretion is cause for reversal on appeal. And in Ewbank's Indiana Trial Evidence, § 155, it is stated that, in order to justify a reversal on account of the admission or exclusion of questions on cross-examination, there must have been a manifest abuse of discretion to the injury of the complaining party. Appellant insists that, on the direct examination of said witnesses, the state entered upon the general subject of the investigation which was made by them to ascertain by whom the crime had been committed, and that he was in their custody from the time he was apprehended by them on the Bargersville road until he was released at Southport, and that he was entitled by cross-examination to bring out every detail of what was done and said by and between said witnesses and the appellant during that period of time. gation made by the witnesses Mr. Cutsinger and Mr. Browning included their direct examination as to pursuing the appellant, conversation with him after he stopped, going with him to Southport, and leaving him there. If either or both of them made any statements or did anything at the time they so left him or if appellant made any statement to them, it was proper to show on crossexamination what was said and done at that time and place. In refusing to permit each of said questions to be answered in regard to what the witnesses or appellant said and did then and there, errors were committed. which without doubt were injurious to the appellant. We believe the court abused its discretion in making the said rulings com witness is the absolute right and not a mere privilege, and its denial on a material matter is reversible error." Underhill's Criminal Evidence (3d Ed.) § 353. [4, 5] "Cross-examination is not necessari-plained of. "The cross-examination of a ly restricted to the specific matter of examination in chief, but may extend to the general subject thereof. There is some apparent conflict upon this proposition and some courts are inclined to limit the cross-exami[8-11] As heretofore stated, the evidence nation to the specific subject or phase of produced by the state, and upon which it rethe general subject gone into on examina- lies, is entirely circumstantial. Circumstantion in chief, but the rule, as we have stat- tial evidence in order to sustain a conviced it, is supported by the weight of authori- tion of a criminal offense must be of conty and the better reasons." Elliott on Evi- clusive character, and must exclude every dence, § 920. "The subject-matter to which reasonable hypothesis of innocence of the ac the cross-examination may relate, however, cused. Falk v. State (1914) 182 Ind. 317, 106 is not to be given a narrow and restricted N. E. 354; Thain v. State (1914) 182 Ind. meaning, but the cross-examining party may 345, 106 N. E. 690; Robinson v. State (1919) go into any and all phases of a general sub- 188 Ind. 467, 124 N. E. 489; Zimmerman v. ject that has been opened up by the direct State (1920) 190 Ind. 537, 130 N. E. 235. This examination, and cannot be confined to ques- court has held that the above rule is for the tions upon the matters particularly brought guidance of the trial court, and has also held out by the original examination." Ewbank's that, where circumstantial evidence is such Indiana Trial Evidence, § 147. "Generally that two conflicting inferences may be reaspeaking, it would seem that when the direct sonably drawn therefrom, one tending to examination opens a general subject, the prove the guilt of the accused, and the other cross-examination may go into any phase, favorable to his innocence, it is not within and cannot be restricted to mere facts which the province of the court on appeal to deconstitute a unity." 28 R. C. L. 196. While termine which inference ought to control. the cross-examination of a witness must be Lee v. State (1901) 156 Ind. 541, 546, 60 N. confined to the subject opened by direct ex- E. 299; Howard v. State (1921) 191 Ind. 232. amination, this rule does not restrict such 237, 131 N. E. 403; Lee v. State (1922) 191 cross-examination to the specific facts devel- Ind. 515, 519, 132 N. E. 582; Rosenberg v. oped by the direct examination, and, when a State (1922) 192 Ind. 485, 488, 134 N. E. 856. subject is once entered on in the examination 137 N. E. 53. But a court of last resort, in in chief, it is opened to a full and detailed in- passing upon the sufficiency of the evidence. vestigation on cross-examination. De Haven where it is circumstantial, will in case an esv. De Haven (1881) 77 Ind. 236, 239; Boyle sential link is wanting, hold the evidence v. State (1885) 105 Ind. 469, 475, 5 N. E. insufficient. Wrassman v. State (1921) 191 203, 55 Am. Rep. 218; Vogel v. Harris (1887) Ind. 399, 402, 132 N. E. 673. "If there be no 112 Ind. 494, 496, 14 N. E. 385; Louisville, evidence to support the verdict or finding, or etc., R. Co. v. Wood (1888) 113 Ind. 544, 555, if there be no evidence to support any fact 14 N. E. 572, 16 N. E. 197; Osburn v. State essential to the support of the verdict or find(1904) 164 Ind. 262, 275, 73 N. E. 601; West- ing, such verdict or finding is an error of fall v. Wait (1905) 165 Ind. 353, 73 N. E. law which may be reviewed or corrected on 1089, 6 Ann. Cas. 788. Where facts, from appeal." Howard v. State, supra. To suswhich an inference unfavorable to the ac- tain a criminal charge, proof of two distinct cused is drawn, are elicited from a witness, propositions must be made: That the act everything within the knowledge of the wit- constituting the essence of the offense was ness tending to rebut said inference is ad- done, and that it was done by the person missible on cross-examination. State v. Har-charged. There is no evidence and there can vey, 130 Iowa, 394, 106 N. W. 938. be no reasonable inference from the evidence |