able to find her own bed. She said she was "turned around" and that she slept on the floor. The next forenoon she was out in her flower garden picking flowers for a sick neighbor. She had had no breakfast and this was supplied by one of the neighbors. On the afternoon of this day Mrs. Bickford took her to her home to care for her. This was on Saturday. On Monday, October 4th, the deed in question was executed. A notary came at the request of Mrs. Bickford and drew the deed and supervised its execution. The deed recited a "consideration of the sum of $5 and other valuable considerations including services rendered in hand paid by Charlotte J. Bickford."

ly appears from the record that her attitude has been a guarded one in that regard, and that she has always refrained from committing herself to such an undertaking. It does not affirmatively appear that there were any negotiations concerning the conveyance in advance thereof. It does not appear that Mrs. Bickford either before the making of the deed or afterwards agreed to care for the grantor during life. On the contrary, her attitude at various times quite contradicted such an inference. As noted, the deed recites a completed consideration received. To inquiries made by the relatives of the grantor at about the time of her departure from the Bickford home Mrs. Bickford stated that she had paid for the property. In her answer filed herein during the lifetime of the original plaintiff she recited the alleged consideration as follows:

"At the time of the execution of said deed, and before and a long time thereafter, the defendants furnished and continued to furnish and provide said Sarah Casaday with care, maintenance, and support, and thereby paid the full consideration for the property, and they have at all times been ready, willing, and able to perform all formed said Sarah Casaday, and she well knew their obligations in reference thereto, and so inthe same. The contract and arrangement with said Sarah Casaday in reference to matters involved in this suit were her desire and for her with him and the interveners and those joining best interest, and the plaintiff and those joining with them in this suit forcibly, willfully, and against her will and the will of these defendants deprived said Sarah Casaday of some of her rights therein. These defendants have made and placed improvements on the property conveyed by said deed, and made the property much more valuable thereby."

The contention of the plaintiff appellant generally stated is that the grantor was in a weakened mental condition and unable to fully comprehend the nature of her act and that the grantee knew it; that the conveyance carried only a nominal consideration; and that the grantee took advantage of the weakened condition of the grantor and her dependence upon the grantee for the time being to obtain from her the conveyance, which was essentially improvident. The contention of appellee concentrates upon two general propositions: (1) That want of consideration is not a ground for setting aside a completed conveyance; (2) that there was a good and sufficient consideration in an undertaking by Mrs. Bickford to care for Miss Casaday for the rest of her life, she having then an expectancy of about 5 years. [1] It must be found upon this record that there was serious impairment of the mental condition of the original plaintiff at the time of the execution of such conveyance. Whether the impairment was such as to render her wholly incapable to transact any business at that particular time would be a somewhat different question which we do not find it necessary to determine. Contracts of persons of impaired mental condition are often sustained where they are entered into innocently by the other party and where a fair consideration is found. It is true as contended by appellee that want of consideration is not of itself a ground for setting aside a completed conveyance. If it were, then even a completed gift would become always subject to revocation. The fact remains that where marked impairment of mental condition is shown the question of fair consideration becomes a very important and often controlling circumstance as bearing on the question of fraud either actual or constructive. The argument of appellee that an undertaking to care for the grantor for the rest of her life was a good and fair consideration presents the most plausible ground upon It is to be recognized that as a witness which this conveyance could be sustained. Mrs. Bickford would have been under the inBut we are unable to find in the record a hibition of the statute from testifying to perword of evidence to sustain it. It does not sonal transactions with a grantor since deappear that Mrs. Bickford ever bound her- ceased. She was under no such disability, self, either orally or otherwise, to such an however, in the framing of her pleading and

If there was in fact an existing agreement for the care of the grantor for the period of her life, then the foregoing answer would have to be construed as an intentional evasion by the defendant from committing herself thereto. Shortly after the grantor left the home of Mrs. Bickford, the latter caused a letter to be written and to be served by the sheriff upon the grantor which was as follows:

It is not

"I desire to carry out my arrangements with you and perform every obligation just as we agreed. Can you not come back and live with me according to our arrangements? possible for me to come to see you, but I send this to let you know that I have not forgotten you and am anxious to do what I can for you. [Signed] Mrs. E. A. Bickford."

This was served upon Sarah J. Casaday November 2, 1915. The foregoing letter implies the existence of an obligation to carry out arrangements, but the defendant did not therein commit herself to any statement of her understanding as to what the arrangement was.

a witness in disregard of the statute without offering any testimony in support of this alleged consideration. The only reference thereto is contained in the last question and answer of her redirect examination which was as follows:

"Q. Have you at all times since been able to comply with your agreement to care for and keep Sarah Casaday? A. Yes, sir; and have at all times since then during her lifetime been willing to do so, if she had come to my house."

As against her an inference might properly be drawn from the foregoing that she had entered into such an undertaking, but she is not entitled to build her proof of consideration upon evidence quite so scant and vague. It further appears without dispute that after receiving the deed Mrs. Bickford took possession of practically all the contents of the house, including the grantor's personal assets. These were the note of the brother and a certificate of deposit. She kept these until after this suit was begun. This conduct indicated that she herself regarded her grantor as not capable for some reason to care for the same. It appears also that the notary who prepared the deed advised that in view of the circumstances witnesses to the same had better be procured. Two witnesses were later procured.

A paving tax had been levied upon the property. Two hundred dollars of this tax was unpaid at the time the deed was executed. This amount was paid by or on behalf of the grantor herself about the 15th of October, while she was at the home of Mrs. Bickford.

propriate expenditures incurred for taxes and betterments.

Reversed and remanded.

PRESTON, C. J., and LADD and SALINGER, JJ., concur.

STATE v. MOSS. (No. 31836.) (Supreme Court of Iowa. June 24, 1918.) 1. WEAPONS 17(4)-SHOOTING AT DWELL

ING-EVIDENCE-SUFFICIENCY.

In prosecution under Code, § 4799, for shooting at a dwelling with intent to injure and dedefendant and sustain verdict of guilty. face the same, evidence held sufficient to identify 2. WEAPONS 15-SHOOTING AT DWELLINGELEMENTS OF OFFENSE-MALICE.

CIRCUM

In prosecution under Code, § 4799, declaring that if any person with intent to injure or terrorize the inhabitants of any dwelling house shoots thereat with such intent shall be punished, evidence of troubles between the parties was admissible to show malice as well as motive; of the crime proper to be shown. the evil purpose being an essential ingredient 3. CRIMINAL LAW 763, 764(13) · STANTIAL EVIDENCE-INSTRUCTION. Where circumstantial evidence only was adduced by the state, an instruction dealing solely with evidence tending to show guilt was without error, although it in effect told the jury that circumstantial evidence is often more conclusive than direct evidence. 4. CRIMINAL LAW

OF COUNSEL.

706-TRIAL-CONDUCT

In a prosecution under Code, § 4799, for shooting into a dwelling, that county attorney asked questions relating to defendant's conduct toward occupants ought not to be denominated prejudicial error, where the questions were not persisted in or asked merely for the purpose of insinuating prejudice against defendant.

5. WITNESSES 361(1)-IMPEACHING CHAR-
ACTER OF ACCUSED-CROSS-EXAMINATION.
On cross-examination of witnesses who had
testified that defendant's moral character was
good, questions relating to what they had heard
concerning defendant were within the bounds of
propriety.

6. CRIMINAL LAW 730(7) ·
COUNSEL.

ARGUMENT OF

[2] We reach the conclusion that it cannot be said under the pleadings and the evidence that there was anything more than a nominal consideration for this deed; that in view of the impaired mental condition of the grantor and the circumstances under which the deed was obtained it cannot be sustained as a gift; that the deed was therefore clearly an improvident one; and that it was received by the grantee with full knowledge In his closing argument the attorney for the of the impaired mental condition of the state referred to defendant as having been twice grantor. The grantee expended something in acquitted in justice court of alleged offenses by repairs and later in taxes. She also testified being interposed, he withdrew his statement as the testimony of his folks, but, upon objection that her care of the grantor for three weeks to two such acquittals, and said that the matter was worth $10 a week. All this is tendered had been mentioned inadvertently. Counsel for to her by the plaintiff, and she will be allow-defendant insisted that there was no such evied to take the same under the tender. The decree dismissing the petition must be reversed.

In view of the decree below in favor of the defendant she has doubtless continued in possession. The evidence in the record is suflicient for an accounting both for rentals received and expenses incurred up to the time of the trial below. The cause will be remanded to the district court for an accounting from such date to the present. The defendant will account for rents received and she will be entitled to deduct therefrom ap

dence, but the record showed that there had been one acquittal. Some talk between the court and counsel for defendant as to whether there were two acquittals followed, whereupon ber what the testimony was and added, "It is the court remarked that the jury would rememnot the province of the county attorney to teil you what the testimony is." Held, that there was no prejudice.

Appeal from District Court, Guthrie County; W. H. Fahey, Judge.

The defendant was convicted of the crine of shooting with a gun at a dwelling with intent to injure or deface the same, and appeals. Affirmed.

Gwin & Garber, of Adair, and A. M. Fagan, | older, was in Montana at the time of the trial, of Casey, for appellant. H. M. Havner, Atty. Gen., for the State.

Considerable evidence of troubles between these families over the care of chickens and the like was received in evidence over objection, as tending to show motive on the These shells, as well as the 14 found under part of the defendant. Error is sought to the tree, were introduced in evidence. Other be predicated on the proposition that, inasevidence was adduced. Doubt as to the iden- much as malice is not designated in the defitification of the pin mark was raised by oth- nition of the crime, such evidence was not er evidence. An employé testified that he admissible. Though the evidence was introleft the house at about 7:30 o'clock, and that duced to establish motive rather than malice, only he and the defendant made use of this it may as well be said an intent such as degun, and that defendant had said that he scribed in this statute involves malice, for "had quite a bit of ammunition," and that he how else than maliciously might one enterthought it consisted of "22 shorts." The par- tain an intent to injure or terrorize? The ents of defendant denied that they had ever evil purpose is an essential ingredient and

[3] III. The seventh paragraph of the in the light of the evidence adduced, was charge was in language following: without error.

[4] IV. Complaint is made that the county attorney in questioning witnesses propounded questions insinuating the commission of other offenses by the accused, and that, in argument to the jury, he traveled outside the record. Several questions relating to the conduct of defendant toward the Shroyers were asked, but, as these were not persisted in, nor asked merely for the purpose of insinuating prejudice against him before the jury, the mere asking ought not to be denounced as prejudicial error.

"In no case is it necessary, in order to establish the crime charged, that there should be direct proof of his guilt by eyewitnesses who were present and saw him commit the crime, but in criminal as well as civil cases the evidence may be, and frequently is, not direct, but circumstantial; in fact in criminal cases the guilt of the defendant, if shown at all, is most generally shown by the latter kind of evidence; that is, by the proof of such facts and circumstances as establishes the guilt of the defendant. And when the evidence in a case consists of a chain of well-authenticated and proven circumstances it is often more convincing and satisfactory, and gives a stronger ground of assurance of the defendant's guilt than the direct testimony of wit[5] Other questions complained of, were nesses unconfirmed by circumstances. But to justify the inference of guilt from circumstantial put in the cross-examination of witnesses evidence the facts proven from which it is asked who had testified that defendant's moral that the guilt of the defendant be inferred must character was good. As these questions rebe consistent with each other, and must not only lated to what the witness had heard conclearly point to his guilt, but must be inconsistent with any other reasonable hypothesis upon cerning the accused, they were within the which his innocence may be maintained. And bounds of propriety. As some of these witwhere the prosecution relies upon circumstan- nesses had heard disparaging reports contial evidence alone to establish the conviction of a person of a crime charged, the jury must be cerning defendant, it ought not to be assumsatisfied from the evidence beyond a reasonable ed that the inquiries were not made in good doubt that the crime charged has been commit- faith. The facts were not sought to be shown, ted by some one in the manner and form as but merely what the witnesses had heard charged in the indictment, and further that all the circumstances proven are consistent with de- said of him, whom they had sworn to have fondant having committed the crime, and that possessed a good moral character. There the facts and circumstances proven are such was no prejudice. State v. Kimes, 152 Iowa, as to be inconsistent with any other rational 240, 132 N. W. 180. conclusion than that the defendant is the person who committed said act."

Exception is taken to that part of the instruction saying that:

"In criminal cases the guilt of the defendant, if shown at all, is most generally shown by the latter kind of evidence" (circumstantial).

The language following that quoted also is criticised for that, as is said, it discriminates in favor of circumstantial evidence as compared with direct evidence, to defendant's prejudice as he testified directly in denial of his guilt. The instruction purports to deal solely with evidence tending to show guilt,

[6] In the closing argument, the attorney for the state referred to the defendant as having been twice acquitted in justice court of alleged offenses by the testimony of his folks, but, upon objection being interposed,

he withdrew his statement as to two such

acquittals, and said that the matter had been mentioned inadvertently. Counsel for the defendant insisted that there was no such evidence, but the record was otherwise as to there having been one acquittal. Some talk between the court and counsel for defendant as to whether there were two acquittals followed. The county attorney sug

gested that, as his folks were present, it might be assumed that they had testified. The court thereupon remarked that the jury would remember what the testimony was, and added:

"It is not the province of the county attorney to tell you what the testimony is"

and none other than circumstantial evidence was adduced by the state. The jury was merely told that circumstantial evidence is often more conclusive than direct evidence; and, of course, this as well as the contrary, often, is true, but, in saying this it is not to be inferred that the one class of evidence is more reliable than the other. The language and the argument proceeded. As nothing could not well have been so construed, but it further appears it may be assumed that the was well calculated to advise jurors that cir- controversy ended here. No prejudice is to cumstantial evidence might not be rejected be inferred. The statement as to two acquitas unreliable. What follows in the instruc-tals was withdrawn, and nothing was claimtion obviates any deduction that reference ed as to the folks farther than that they had was had to defendant's denial of having committed the offense. One accused of crime can do little else save to deny same by proving circumstances, which when considered in connection therewith tend to exculpate him from the charge. The instruction was not open to the criticism of the one reviewed in State

testified concerning some charge in justice court, merely an incidental matter, and that was left to the memory of the jury.

We discover no error, and the judgment of conviction is affirmed.

PRESTON, C. J., and EVANS and SALIN

STATE V. DEMERLY. (No. 4315.) (Supreme Court of South Dakota, June 25, 1918.)

KNOWLEDGE.

gaged in the sheep business. Each had a drove of sheep on neighboring ranges in Butte county. In the vicinity of these ranges were certain sheep pens where sheepmen in the surrounding neighborhood brought their 1. LARCENY 1-THEFT OF SHEEP-GUILTY sheep at shearing time to have them shearIf sheep owner having taken his sheep to ed. During the shearing season of 1916 apthe pen to be sheared had no knowledge that pellant and Bates, by chance, brought their sheep of another owner were mixed with his own, sheep to these pens at the same time. Appeland he had such other sheep sheared and brand-lant had his sheep in two droves, or bands, ed with his brand, he was not guilty of larceny, especially where upon discovering that the other sheep were with his he immediately went to the other owner and allowed him to pick out any of his sheep which he found in the herd.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Larceny.]

2. LARCENY 27-PERSONS LIABLE.

If persons present at a sheepshearing saw the brand of a different owner on sheep sheared for defendant, and said nothing, and after defendant said that he would provide the drinks if they said nothing they still remained silent, they were equally guilty with defendant if larceny were committed.

3. LARCENY 14(1)-ELEMENTS OF OFFENSE -SECRECY.

Where defendant took his sheep to be sheared, and sheep of another owner became mingled with them, and the brands were plainly seen on them, but there was no concealment nor attempt thereat, and all those about the shearing pens knew that such sheep were mingled with defendant's sheep, the manner in which the sheep came into defendant's possession did not constitute larceny, under Pen. Code, § 605, defining larceny as the taking of personalty ac companied by fraud or stealth, with the intent to deprive the owner thereof.

4. LARCENY 16-LOST PROPERTY.

In such case defendant was not guilty of larceny under Pen. Code, § 606, on the theory that the sheep of the other owner were lost, and that he appropriated them without having made an effort to find the owner.

5. LARCENY 55-SUFFICIENCY DENCE.

OF EVI

Evidence held insufficient to support a conviction of larceny.

Appeal from Circuit Court, Butte County; James McNenny, Judge,

The

of about 1,600 or 1,700 head, respectively,
while Bates claimed to have had 1,534 head
in his drove. A herder by the name of Ole-
son had charge of one of defendant's droves
of sheep, while another herder by the name
of Grayson had charge of the other.
Oleson band was taken to the shearing pens
first. The work of shearing this band of
sheep was interfered with and delayed by
rain and bad weather, and it was some eight
or ten days from the time they reached the
pens before the shearing was completed.
While the Oleson sheep were occupying the
the shearing pens, it was necessary that the
other droves of sheep that were awaiting
their turn at the pens be herded and allowed
to graze in the immediate vicinity. It ap-
pears that during the time the Oleson sheep
were in the pens the Bates sheep and the
Grayson band of appellant's sheep were allow-
ed to come in contact, and a few (the exact
number is not shown) of the Bates sheep
mingled with the appellant's sheep. But this
mingling of the sheep was not done with the
knowledge of, or through the connivance or
negligence of, either appellant or Grayson,
but appears rather to have been the result
of negligence on the part of Bates' herder in
allowing the Bates sheep to graze too near to
It does not appear
the appellant's sheep.
that either Bates or his herder knew that
Bates' sheep had become commingled with
appellant's sheep until after the Grayson
sheep had been driven into the shearing
pens and the shearing had commenced. Nei-

William Demerly was convicted of larceny, and from the conviction and order overruling motion for new trial, he appeals. Re-ther does it appear just when Grayson learn

versed.

Robert C. Hayes and John T. Heffron, both of Deadwood, and C. P. Seward, of Bellefourche, for appellant. Clarence C. Caldwell, Atty. Gen., T. F. Auldridge, Asst. Atty. Gen., and Dan McCutchen, State's Atty., of Bellefourche, for the State.

POLLEY, J. Appellant was convicted of the larceny of 50 head of sheep, and, from the judgment of conviction and an order overruling his motion for a new trial, he appeals to this court.

Appellant assigns the insufficiency of the evidence to support the verdict and newly discovered evidence, as well as errors of law committed by the trial court. The larceny is alleged to have been committed under the following circumstances: Appellant and the prosecuting witness, Bates by name, were en

ed that the sheep were mixed, though he admits that he knew, for about a week before he made the fact known to any one else, that some of Bates' sheep were in appellant's herd. As soon as the Grayson sheep reached the pens, the shearers commenced shearing. They assumed that the sheep all belonged to appellant, and the wool, as it was taken off, was all packed together. The sheep, when sheared, were turned into a chute, where they were marked with appellant's brand and then turned out into the open. There was a sharp conflict in the testimony as to how long the shearing of the Grayson sheep had been going on before Bates learned that some of his sheep were in the pens, but as soon as he learned of the fact he went immediately to the shearing pens where he found appellant and told appellant that some of his (Bates') sheep were mingled with appellant's sheep.