For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

13 (Ind.) Act making transportation of liquor in automobile offense held not void as not designating place of imprisonment of offender under 30 years of age.-Simpson v. State, 146269 (Ind.) Accused may plead to charges against him, either orally or in writing.-Andrews v. State, 146 N. E. 817.

cused.

(C) Other Offenses, and Character of Ac-522(1) (N.Y.) Confession induced by fear, caused by express or implied threat, inadmis371 (4) (Ill.) Proof of threats competent, sible.-People v. Pantano, 146 N. E. 646. notwithstanding it tends to prove another of- 528 (I.) Admission of defendants' confesfense.-People v. Dabney, 146 N. E. 166. sions against each other held erroneous.-Peo

(D) Materiality and Competency in Gen-ple v. Rupert, 146 N. E. 456. Admission of witnesses' testimony held erroneous as admission of one defendant's state

eral.

383 (Mass.) Question to prosecuting wit- ment against the other.-Id. ness in robbery, as to whether he saw any-538(3) (N.Y.) Voluntary admission of givthing indicating that defendant knew men that ing information on promise of reward conclurobbed him, rightly excluded.-Commonwealth sively establishes guilt of murder committed v. Baldi, 146 N. E. 11. in acting thereon.-People v. Pantano, 146 N.

393 (2) (Ill.) Evidence of facts disclosed E. 646. at physical examination, held not to vitiate accused's constitutional privilege of not giving evidence against himself.-People v. Krauser, 146 N. E. 593.

394 (Ind.) Accused could not complain of defects in warrant to search house of another and suppression of evidence obtained under search properly denied.-Snedegar v. State, 146 N. E. 849.

(L) Evidence at Preliminary Examination or at Former Trial.

547(2) (Mass.) Admitting testimony of medical examiner at former trial in district court held without error.-Commonwealth v. Caruso, 146 N. E. 664.

(M) Weight and Sufficiency.

(E) Best and Secondary and Demonstra-552(3) (Ind.) To sustain conviction cirtive Evidence.

146 N. E. 434.

400 (4) (N.Y.) Compared transcript of alleged immoral drama admissible in prosecution for production thereof.-People v. Weinberger, Record of past recollection admissible without exhausting present recollection.-Id. (F) Admissions, Declarations, and Hear--People v. Krauser, 146 N. E. 593.

cumstantial evidence must be conclusive, and innocence.-Henry v. State, 146 N. E. 822. must exclude every reasonable hypothesis of

561 (I) (III.) Proof beyond reasonable doubt required, however bad the character of accused may be. People v. Miller, 146 N. E. 501. 570 (2) (Ill.) Not necessary to prove insanity clearly or by preponderance of evidence.

say.

407(1) (III.) Witness' statements made in defendants' presence and not denied by them held admissible.-People v. O'Donnell, 146 N. E. 490.

572 (III.) Rule as to sufficiency of evidence to prove an alibi stated.-People v. Schladweiler, 146 N. E. 525.

Evidence as to alibi insufficient, if it does not cover sufficient time to render presence of defendant impossible or highly improbable.-Id. Evidence held to sustain conviction for tak

412(2) (Mass.) Defendant's statements at time of arrest rightly_admitted.-Common- ing indecent liberties with child as against wealth v. Festo, 146 N. E. 700.

413(1)(Mass.) Self-serving declaration of defendant, in conversation day following robbery, rightly excluded.-Commonwealth Baldi, 146 N. E. 11.

V.

(H) Documentary Evidence and Exclusion
of Parol Evidence Thereby.
429(2) (Mass.) Reading plaintiff's testi-
mony taken stenographically in civil action
competent to show issues.-Commonwealth v.
Aronson, 146 N. E. 14.

(I) Opinion Evidence.

450 (Mass.) Evidence calling for witness' opinion rightly refused.-Commonwealth Levenson. 146 N. E. 5.

434.

V.

470 (III.) Permitting expert to testify that accused was feigning insanity was without ror.-People v. Krauser, 146 N. E. 593.

plea of alibi.-Id.

XI. TIME OF TRIAL AND CONTINUANCE.

593 (Mass.) Denial of continuance because counsel was actually engaged in another criminal trial held without error.-Commonwealth v. Festo, 146 N. E. 700.

Other conflicting engagements of counsel afford no right to continuance of particular case. -Id.

615 (Mass.) Defendant may waive formal entry of continuance, and consent that case remain in court.-Petition of Finer, 146 N. E. 23. XII. TRIAL.

(A) Preliminary Proceedings.

450 (N.Y.) Opinion evidence held properly 622(1) (III.) Court must exercise sound excluded.-People v. Weinberger, 146 N. E. discretion in overruling motion for separate other.-People v. Rupert, 146 N. E. 456. trial of defendant jcintly indicted with aner-622(2) (III.) Failure to grant separate trial to defendants jointly indicted held reversible error, where only incriminating evidence was statement of one against the other.-People v. Rupert, 146 N. E. 456.

472 (Mass.) Testimony of witness as to hourly quantity of gas passing through burner held competent in murder case.-Commonwealth v. Caruso, 146 N. E. 664.

475 (Mass.) Physician's evidence as to victim's position at time of shooting properly admitted.-Commonwealth v. Festo, 146 N. E. 700.

486 (III.) Permitting nonexpert witness to give opinion on question of insanity without requiring facts on which opinion was based, held erroneous.-People v. Krauser, 146 N. E. 593.

Rule of admission of nonexpert witnesses' opinions as to mental condition, stated.-Id.

Statement of physicians as experts as to accused's statements and conduct at hearing, before plea of guilty was withdrawn, held properly overruled.-Id.

(K) Confessions.

516 (111) "Confession" defined.-People v. Rupert, 146 N. E. 456.

622(2) (Mass.) Motion to monwealth to elect indictment under which it require comwould proceed rightly overruled.-Commonwealth v. Baldi, 146 N. E. 11.

(B) Course and Conduct of Trial in Gen

eral.

652 (III.) Accused held not entitled to test witnesses as to his identity by placing him among group of other men.-People v. Tyler, 146 N. E. 740.

(E) Arguments and Conduct of Counsel. 717 (III.) Permitting state's attorney in argument to read facts of reported case, held erroneous and prejudicial.-People v. Krauser, 146 N. E. 593.

720 (9) (Mass.) Inconsistencies between witnesses' testimony and statements outside courtroom justified district attorney's comment

700.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same tople and KEY-NUMBER thereon.-Commonwealth v. Festo, 146 N. E. in sudden emergency as at other times properly refused.-Commonwealth v. Vartanian, 146 N. ~723(1) (Ill.) Argument of counsel as to E. 682. public sentiment held improper.-People v. Dab-815(5) (III.) Instruction on question of ney, 146 N. E. 166. defendant's guilt of murder, which ignored defense of insanity, held erroneous.-People v. Krauser, 146 N. E. 593.

730(10) (Mass.) Instruction to disregard assistant district attorney's inadvertent reference in argument to fact that accused had not become witness in own defense held to protect defendant's rights.-Commonwealth v. Festo, 146 N. E. 700.

(F) Province of Court and Jury in General.

Instruction referring to implied malice, which ignored insanity defense, should not have been given.-Id.

822(1) (Ind.) Reversal not granted, unless instructions considered as whole are erroneous. Bowers v. State, 146 N. E. 818.

822(6) (Ind.) Charges considered together 736(2) (N.Y.) Whether confession was in-held to state all facts necessary to conviction. duced by fear caused by threat of electrocu-Bowers v. State, 146 N. E. 818. tion held for jury.-People v. Pantano, 146 N. 823 (6) (III.) Instruction on self-defense E. 646. held not misleading in view of other instructions.-People v. St. Lucia, 146 N. E. 183.

747 (III.) Jury's function is to determine on which side of controversy real truth lies where testimony in conflict.-People v. O'Donnell, 146 N. E. 490.

766 (Mass.) Charge held not to leave to jury issue as to whether false testimony was material to issue.-Commonwealth v. Aronson, 146 N. E. 14.

(G) Necessity, Requisites. and Sufficiency of Instructions.

(H) Requests for Instructions. 825(1) (Ind.) Instruction not referring to lesser offense held not erroneous, in absence of request.-Jeffries v. State, 146 N. E. 753.

In absence of request for submission of additional forms of verdict, complaint may not be made.-Id.

825(2) (Ind.) To be in position to complain of instruction as not sufficiently full, party must tender instruction.-Bowers State, 146 N. E. 818.

V.

~773(4) (III.) Instruction on insanity held erroneous. People v. Krauser, 146 N. E. 593, 775(3) (11.) Instruction as to alibi held 825 (4) (Ind.) Instruction as to jury's duty not erroneous, being merely a definition thereto reconcile testimony, if possible, held not of, and not on probative value of proof thereerroneous, in absence of request for fuller inof. People v. Schladweiler, 146 N. E. 525. struction.-Jeffries v. State, 146 N. E. 753. 7771/2 (Mass.) Judge not required to di-829 (1) (III.) Refusal of instructions prerect jury's attention to indecisive facts.-Com-senting proper questions of law not erroneous monwealth v. Festo, 146 N. E. 700. where covered by given instructions.-People v. St. Lucia, 146 N. E. 183.

778(5) (I.) Instruction making possession prima facie evidence of possession for 829(1) (Ind.) Refusal to give requested inpurpose of sale held erroneous.-People v. structions as to matters sufficiently covered by Tate, 146 N. E. 487. instructions given held not error.-Simpson v. State, 146 N. E. 747.

780(1) (Ohio) When accomplice testimony corroborated, trial court may refuse to in-834 (2) (Mass.) Judge not bound to give struct not to convict on accomplice's uncorrob- requested instruction in exact words.-Comorated testimony.-State v. Reichert, 146 N. monwealth v. Caruso, 146 N. E. 664. E. 386.

(L) Waiver and Correction of Irregularities and Errors.

781 (5) (N.Y.) Refusal to charge that jury must disregard confession, if obtained under circumstances showing it involuntary, held re- 899 (III.) Defendants held not to have versible error.-People v. Pantano, 146 N. E. 646.

782(14) (III.) Instruction that insanity must be so "clearly proven" as to raise reasonable and "well-founded" doubt of defendant's guilt, held erroneous.-People v. Krauser, 146 N. E. 593.

waived

error in admission of confessions against each other by testifying.-People v. Rupert, 146 N. E. 456.

XIII. MOTIONS FOR NEW TRIAL AND IN
ARREST.

934 (Ind.) That verdict 's contrary to 783 (2) (Mass.) That impeaching witness-law held properly presented by motion for new es disclosed identification of defendant and his trial.-Andrews v. State, 146 N. E. 817. silence not error, and instruction fully protect-938(1) (I.) Applications for new trial on ed rights.-Commonwealth v. Festo, 146 N. E. ground of newly discovered evidence not favored. People v. Dabney, 146 N. E. 166. Quality of newly discovered evidence to warrant new trial stated.-Id.

700.

785(3) (III.) Instruction that jury should determine credibility of witnesses as reasonable and intelligent men left them to act on their own discretion.-People v. Krauser, 146 N. E. 593.

785(12) (Mass.) Instruction on effect of impeaching testimony fully protected rights of defendant.-Commonwealth v. Festo, 146 N. E. 700.

941(1) (III.) Denial of new trial on ground of newly discovered evidence, which was merely cumulative, held not error.-People v. Dabney, 146 N. E. 166.

946 (Ind.) Cause for new trial deemed waived or abandoned on failure to cite authorities, or to present alleged error.-Henry v. State, 146 N. E. 822.

796 (III.) Refusal to instruct that unless jury were satisfied that punishment fixed by 951(1) (Ind.) Motion for new trial propverdict was established beyond reasonable erly overruled, where reasons existed when doubt, then verdict was unauthorized, held motion in arrest filed.-Barker v. State, 146 proper.-People v. Krauser, 146 N. E. 593. N. E. 745.

814(1) (II.) Instructions must be based on and applicable to charge contained in indictment.-People v. Tate, 146 N. E. 487.

814(3) (Mass.) Instruction not resting on evidence rightly refused.-Commonwealth v. Levenson, 146 N. E. 5.

814(5) (III.) Instruction held erroneous because not applicable to charge.-People v. Tate, 146 N. E. 487.

814(5) (Mass.) Request that same degree of judgment and presence of mind not required

958 (I) (III.) Applicant for new trial on ground of newly discovered evidence has burden of showing diligence and of rebutting_presumptions in favor of verdict.-People v. Dabney, 146 N. E. 166.

969 (Mass.) Motion in arrest of judgment not allowable for cause existing before verdict, except it affects jurisdiction.-Commonwealth v. Lewandowski, 146 N. E. 780.

970 (7) (II.) Insufficiency of information to charge offense may be availed of on motion

in arrest or writ of error.-People v. Wallace, 146 N. E. 486.

| 1144(4) (Ind.) Overruling motion to withdraw plea of guilty presumed proper, where facts do not show contrary.-Blackburn v. State, 146 N. E. 398.

970 (7) (Ind.) Motion in arrest of judgment challenging sufficiency of indictment good| in part held properly overruled.-Barker v. 144 (15) (Mass.) Presumed that jury in State, 146 N. E. 745. murder case followed instruction to disregard evidence of conviction of witness for violation of liquor law.-Commonwealth v. Caruso, 146 N. E. 664.

XIV. JUDGMENT, SENTENCE, AND FINAL
COMMITMENT.

1001 (Mass.) Probation must be for defi-1144(15) (Mass.) Presumed that instruction on effect of impeaching testimony was nite period.-Petition of Finer, 146 N. E. 23. Failure to state period of probation held followed.-Commonwealth v. Festo, 146 N. E. 700. not to entitle defendant to discharge.-Id.

XV. APPEAL AND ERROR, AND
CERTIORARI.

(A) Form of Remedy, Jurisdiction, and
Right of Review.

1023 (9) (Mass.) Criminal case may be reported, after verdict of guilty, before sentence; "conviction."-Commonwealth v. Baldi, 146 N.

E. 11.

(B) Presentation and Reservation in Lower Court of Grounds of Review.

1030(2) (11.) Constitutional question to give Supreme Court jurisdiction on writ of error must have been presented to trial court for decision.-People v. Greene, 146 N. E.

504.

1144(19) (Ind.) Appellate Court would presume that signing of record by second special judge was in accordance with law.-Meland v. State, 146 N. E. 746.

1151 (Mass.) Motions for continuance commonly are for presiding judge alone.-Commonwealth v. Festo, 146 N. E. 700.

1153(4) (Ind.) Extent of cross-examination permitted is within sound discretion of trial court, abuse of which is only ground for reversal.-Henry v. State, 146 N. E. 822. against former 1158(1) (Ind.) Finding jeopardy not disturbed on appeal on conflicting evidence.-Hurst v. State, 146 N. E. 331. to be drawn 1159(1) (Ind.) Inferences from evidence for trial court and jury, and not for appellate court.-Dudley v. State, 146 N.

E. 398.

1032 (5) (III.) Insufficiency of information 1159(1) (Ind.) When finding or verdict is to charge offense may be availed of on motion error of law reviewable and subject to corin arrest or writ of error.-People v. Wal-rection stated.-Henry v. State, 146 N. E. 822. lace, 146 N. E. 486.

166.

1159(2) (III.) Conviction not set aside as 1064 (4) (Ind.) Objections not made at tri- against evidence, unless verdict indicates pasal, or on motion for new trial, to admission of sion or prejudice.-People v. Dabney, 146 N. E. letter, not considered on appeal.-Wheat v. 1159(2) (III.) Appellate Court cannot subState, 146 N. E. 581. stitute its opinion for that of jury.-People v. O'Donnell, 146 N. E. 490.

(D) Record and Proceedings Not in Record.

1086(14) (11.) Municipal court's judgment of conviction of misdemeanor not reviewable by Supreme Court, where constitutional question relied on not shown presented to lower court.-People v. Greene, 146 N. E. 504.

1092(1) (Ohio) Statutory duties of party as to bill of exceptions are mandatory and must be performed in manner and time prescribed. -Luff v. State, 146 N. E. 892.

1159(6) (Ind.) Absence of essential link in chain of circumstantial evidence requires court of last resort to hold evidence insufficient to sustain conviction.-Henry v. State, 146 N. E. 822.

1165 (2) (II.) Judgment not reversed for mere error of form.-People v. Westerdahl, 146 N. E. 737.

1167 (3) (Ind.) Overruling of motion to quash affidavit in liquor prosecution held harmless.-Barker v. State, 146 N. E. 745. 1092(7) (Ohio) Bill of exceptions avail-1168(2) (Ohio) Admission of privileged able only when filed within time fixed by court, testimony after waiver held not reversible erand not more than 30 days from overruling moror.-Ruch v. State, 146 N. E. 67. tion for new trial.-Luff v. State, 146 N. E. 892.1169 (9) (III.) Evidence of asking accused Where bill of exceptions not timely filed, and errors charged could only be disclosed by bill, judgment must be affirmed.-Id.

(E) Assignment of Errors and Briefs. 1130(2) (Ind.) Questions on motion for new trial waived by failure to set out in brief either motion or substance thereof.-Hatton v. State, 146 N. E. 577.

Brief held to present no question for reviewing alleged errors in instructions given, and in refusing those requested.-Id.

1130(6) (III.) Objection that information charged no crime considered, though raised for first time in reply brief.-People v. Wallace, 146 N. E. 486.

(F) Dismissal, Hearing, and Rehearing. 1132 (Ind.) Court may in its discretion grant request for oral argument made after time allowed for filing briefs.-Dudley v. State,

146 N. E. 398.

(G) Review.

while in jail if he knew certain notorious character, held not prejudicial, court not taking judicial notice of such character.-People v. Krauser, 146 N. E. 593.

117012 (6) (Mass.) Defendant, charged with murder, not prejudiced by ruling on testimony as to conviction of his witness for violation of liquor laws.-Commonwealth v. Caruso, 146 N. E. 664.

~1171(1) (III.) Argument of counsel as to public sentiment held improper, though not reversible error, in view of circumstances.-People v. Dabney, 146 N. E. 166.

1172(f) (Ind.) Instruction not referring to lesser offense held not erroneous, in absence of request, and harmless, if erroneous.-Jeffries v. State, 146 N. E. 753.

1172(2)(Ind.) Instruction pertaining to drinking of liquor from bottle while riding in automobile, as item of evidence of transportation, held not reversible error.-Simpson v.

State, 146 N. E. 747.

1173(2) (N.Y.) Refusal to charge that jury must disregard confession, if obtained 1134(3) (Mass.) Request inapposite to rec- under circumstances showing it involuntary, ord not determined.-Commonwealth v. Leven-held reversible error.-People v. Pantano, 146 son, 146 N. E. 5. N. E. 646.

1141(2) (Ind.) Burden on appellant to present for review record affirmatively showing commission of error complained of.-Hatton v.

1179 (N.Y.) Court of Appeals will not try fact questions on appeal from Appellate Division in criminal case.-People v. Weinberger,

929

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

DAMAGES.

IV. LIQUIDATED DAMAGES AND PEN-
ALTIES.

(C) Estates and Interests Created. 136 (111.) Form of words by which joint tenancy expressly declared not important.Stukis v. Stukis, 146 N. E. 530.

Deed held to create joint tenancy.-Id. Words evidencing intent to create joint tenancy sufficient, in whatever part of deed appearing.-Id.

(F) Loss or Relinquishment of Rights. 177 (111.) That grantor retained possesdetermining 76 (Ohio) Considerations sion and control of property after delivery of whether sum is penalty or liquidated damages, deed does not reinvest him with title.-Standstated.-Jones v. Stevens, 146 N. E. 894. When sum agreed on is regarded as "liquidat-ard Trust & Savings Bank v. Carlson, 146 N. E. 446. ed damages," stated.-Id.

IV. PLEADING AND EVIDENCE.

78 (7) (Ohio) When stipulated damages is a penalty as to any covenant it will be held a 194(1) (III.) In case of deed of voluntary "penalty" as to all.-Miller v. Blockberger, 146 settlement, grantor has burden of proving want of delivery.-Standard Trust & Savings Bank v. Carlson, 146 N. E. 446.

N. E. 206.

79(1) (Ohio) Matters considered in determining whether damages stipulated in contract are "liquidated damages" or "penalty" stated.194(2) (III.) Presumption of delivery arises from grantee's possession of duly executed -Miller v. Blockberger, 146 N. E. 206. deed. Standard Trust & Savings Bank v. Carlson, 146 N. E. 446.

Reasonable sum deemed “liquidated damages" where damage resulting from breach difficult of ascertainment in advance.-Id.

80(1) (Ohio) When stipulated sum a penalty.-Miller v. Blockberger, 146 N. E. 206. Sum stipulated considered "liquidated damages" when bearing reasonable proportion to probable damage.-Id.

85 (Ind.App.) Seller, not suffering damage on date of buyer's cancellation of flour order held entitled only to agreed cancellation fee.-H. D. Lee Flour Mills Co. v. Broadlick, 146 N. E. 848.

DEATH.

I. EVIDENCE OF DEATH AND OF SURVI-
VORSHIP.

2(1) (Mass.) Mere absence insufficient to raise presumption of death.-Petition of Talbot, 146 N. E. 1.

When presumption of death does not arise. -Id.

Death of absentee not presumed.-Id.

DEDICATION.

II. OPERATION AND EFFECT.

57 (Ohio) Use of slips to water as streets held not 'inconsistent with purpose of dedication.-State v. Sandusky, M. & N. R. Co., 146

N. E. 58.

207 (11) Decree dismissing bill held not manifestly against weight of evidence, and hence affirmed.-Miller v. Miller, 146 N. E. 469.

208(1) (III.) Evidence held insufficient to show nondelivery.-Standard Trust & Savings Bank v. Carlson, 146 N. E. 446.

DESCENT AND DISTRIBUTION. See Executors and Administrators; Wills. GENERAL. 1. NATURE AND COURSE IN 17 (Ind.) Vested remainder in fee in child of life tenant, held to descend to tenant on death of child.-Burrell v. Jean, 146 N. E. 754.

On death of children, named as remaindermen, of life tenant, latter to inherit parent's share.-Id.

AND

III. RIGHTS
LIABILITIES OF
HEIRS AND DISTRIBUTEES.

(A) Nature and Establishment of Rights
in General.

70 (Ill.) Expectancy of prospective heir may be released.-Alward v. Woodard, 146 N. E. 154.

Child accepting land in lieu of rights as heir bound thereby.-Id.

DISMISSAL AND NONSUIT.

58 (Ohio) Construction of railroad tracks over city streets and across slips, held not to interfere with contemplated use thereof so as to warrant removal.-State v. Sandusky, M. & See Appeal and Error, 781-792. N. R. Co., 146 N. E. 58.

64 (Ohio) To constitute misuse or diver

I. VOLUNTARY.

sion, use must be inconsistent with or inter-6 (Ind.App.) Court's refusal to dismiss on fere with use contemplated.-State v. Sandusky, plaintiff's motion, made before all evidence was M. & N. R. Co., 146 N. E. 58. heard, held error.-Runau v. Wheeler, 146 N. E. 584.

See Mortgages.

DEEDS.

I. REQUISITES AND VALIDITY.
(D) Delivery.

56 (2) (III.) Grantor's intention controlling
fact in determining whether deed has been de-
livered.-Cales v. Dressler, 146 N. E. 162.
~59(1) (III.) Deed delivered to attorney for
recordation and delivery held delivered.-Cales
v. Dressler, 146 N. E. 162.

III. CONSTRUCTION AND OPERATION. (A) General Rules of Construction. 93 (III.) Intention governs construction.Stukis v. Stukis, 146 N. E. 530.

96 (III.) Recitals may be referred to, to ascertain intent.-Stukis v. Stukis, 146 N. E. 530.

146 N.E.-59