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the order fixing the point of crossing interlocutory that the main case is not disposed of, and that there remains to the defendant the right to wage a contention which may overthrow the proceedings on which the order of location is based. In such a proceeding there can in the nature of things be but one final judgment, using the term in the sense in which it is used in the general statute concerning the right of appeal, and that judgment is the one which disposes of the proceeding as it is pending on exceptions to the award. This was the conclusion reached by the Appellate Court in Wabash R. R. Co. v. Cincinnati, etc., R. Co., 29 Ind. App. 546, 63 N. E. 325, wherein an appeal was sought to be prosecuted from an order fixing the point of crossing 'as between two steam railroads. While the statute with which we have to deal expressly gives the right of appeal from the order of location, yet this appeal was irregularly taken and must be dismissed, because appellant has failed to comply with the statute which governs the taking of appeals from interlocutory orders. Section 659, Burns' Ann. St. 1901; Natcher v. Natcher, 153 Ind. 368, 55 N. E. 86; Elliott, App. Pro. $ 109; Ewbank's Manual, $ 92.

Appeal dismissed.

of the cause, but does not adjudicate the ultimate rights of the parties or finally put the case out of court.

An order which does not settle and conclude the rights involyed in the action, and does not deny to the party the means of further prosecuting or defending the suit, is not therefore such a final judgment as to be a proper subject of appeal.” Judgments, § 21. In Elliott's Appellate Procedure, $ 83, it is said: "No order is final in such a sense as to constitute a final judgment, unless it disposes of the main case so far as there is power in the trial court to decide upon the questions presented by the issues, no matter how clearly and decisively the order may indicate what the ultimate judgment will be. Until there is an ultimate judgment the case is not finally disposed of, inasmuch as the trial court may change its rulings, award a venire de novo, grant a new trial, or make some such order, notwithstanding the fact that in other rulings it may have clearly manifested a purpose to carry its rulings into the ultimate ruling or decree.” There are cases in which orders have been treated as final for the purpose of an appeal where the effect was to terminate the controversy, although some further order essential to its enforcement remained to be done, or where the order disposed of some distinct branch of the suit. Cases like these sometimes present questions as to the character of the judgment which are difficult of solution, but they stand as exceptions to the general rule and need not now concern us, for we are persuaded that it is the general rule which governs this case.

It must be remembered that neither the filing of the instrument of appropriation nor the payment of the award into the clerk's office constitutes, in the event an appeal is taken, an appropriation of the interests sought to be condemned. In such a case no title vests, and the company which is seeking to condemn has only the rights of a licensee under the statute to hold possession and proceed with the construction of the road pending litigation. Cleveland, etc., R. Co. v. Nowlin, 163 Ind. 497, 72 N. E. 257; Sowers v. Cincinnati, etc., R. Co., 162 Ind. 676, 71 N. E. 134. The proceeding, after the filing of the exceptions to the award, continues in fieri until the disposition of the appeal (Midland R. Co. v. Smith, 125 Ind. 509, 25 N. E. 153), and, in respect to regularity, is subject to defeat both on the law and on the facts. McMahon v. Cincinnati, etc., R. Co., 5 Ind. 413; Swinney v. Ft. Wayne R. Co., 59 Ind. 205 ; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co., 116 Ind. 578, 19 N. E. 440. It may be, since the proceeding is a special statutory one, that there is no right, on exceptions to the award, to relitigate the question of location (see Morrison v. Indianapolis, etc., R. Co. [Ind. Sup.] 76 N. E. 961; Lake Shore, etc., R. Co. v. Cincinnati, etc., R. Co. supra) ; but it is sufficient to make

(167 Ind. 179) PADGETT V. STATE. (No. 20,828.) (Supreme Court of Indiana. Oct. 9, 1906.) HOMICIDE-ASSAULT WITH INTENT TO KILL

AFFIDAVIT FOR PROSECUTION ARREST OF JUDGMENT.

An affidavit alleging an assault and battery with intent to kill W., but not alleging the person assaulted, does not state a public offense, so that, under Acts 1905, p. 646, c. 169, § 283, a motion in arrest of judgment is properly granted.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, $ 203.]

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Charles Padgett appeals from a conviction. Reversed and remanded.

Jno. H. Spencer and Alvin Padgett, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and H. M. Dowling, for appellee.

JORDAN, C. J. This prosecution was commenced on February 5, 1906, by the state of Indiana, through its proper prosecuting attorney, by filing an affidavit in the lower court, wherein it was sought to charge appellant with having committed the crime of assault and battery with intent to commit murder. He waived an arraignment and entered a plea of "not guilty." There was a trial by jury, and a verdict returned, finding him guilty of assault and battery with intent to kill, as charged in the affidavit, and that he was of the age of 28 years. He filed a written motion in arrest of judgment, alleging

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therein that the facts stated in the affidavit do not constitute a public offense. This motion, over the exceptions and objections of appellant, the court denied, and thereupon rendered a judgment upon the verdict, senten cing the appellant to be committed in the Indiana Reformatory Prison for a period of not less than 2 nor more than 14 years, and that he be fined in the sum of $5, etc. From this judgment he prosecutes this appeal, assigning that the court erred in overruling the motion in arrest of judgment.

The affidavit upon which appellant was tried and convicted, omitting the formal parts, is as follows: "Harry Wolfe swears that Charles Padgett, late of the county of Daviess, state of Indiana, on or about the 2d day of February, 1906, did then and there, at and in said countr and state aforesaid, unlawfully, felonious.,, purposely and with premeditated malice, and in a rude, insolent, and angry manner, unlawfully and feloniously touch, cut, beat, and strike with his fist, and with a knife, which the said Charles Padgett then and there had and held in his hand, with intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely, and with premeditated malice to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” It is evident that the crime which the pleader attempted to charge in this affidavit was that of an assault and battery with an intent to commit murder in the first degree. It is certainly manifest that the affidavit is fatally deficient for the reason that it wholly fails to charge the comission of assault and battery upon any person. It merely alleges that Charles Padgett, late of Daviess county, state of Indiana, on the date named, did then and there, at and in said county and state, "unlawfully, feloniously, purposely and with premeditated malice, and in a rude, insolent and angry manner, unlawfully and feloniously touch, cut, beat and strike with his fist, and with a knife,

* with the intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely and with premeditated malice to kill and murder.” The ipere fact that the accused did "in a rude, insolent and angry manner, touch, cut, beat, and strike with his fist and with a knife," falls far short of charging an assault and battery, without showing that some person named was assaulted, "touched," "cut,” and “beat” by the accused. The fact that he perpetrated these acts “with the intent thereby him, the said Harry Wolfe, purposely to kill and murder" is certainly not sufficient to show that the latter was the person assaulted, unless we resort to surmise or conjecture, and this we are not permitted to do.

By section 354 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, p. 661, c. 169), an assault and battery is defined as follows: "Whoever, in a rude, inso

lent, or angry manner, unlawfully touches another, is guilty of an assault and battery, and, on conviction, shall be fined,” etc. Section 352 of the same act provides that: “Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, on conviction, be imprisoned in the state prison not less than two years, nor more than fourteen years, and be fined not exceeding two thousand dollars." Section 283 of the same statute provides that a motion in arrest of judgment may be granted by the court "where the facts stated in the indictment or affidavit do not constitute a public offense." It is contended by the state that the infirmity of the affidavit in question is of such a character that it was cured by the verdict of the jury, and that therefore the motion in arrest was properly denied. It is true that if the affidavit could be said to contain all of the essential elements constituting a public offense, then, although the facts therein alleged may have been defectively stated, nevertheless, under the circumstances the pleading would be sufficient to withstand a motion in arrest of judgment. Lowe v. State, 46 Ind. 305; Greenley v. State, 60 Ind. 141; Graeter v. State, 105 Ind. 271, 4 N. E. 461; Chandler v. State, 141 Ind. 106, 39 N. E. 444.

It is settled that uncertainties existing in a criminal pleading in the statement of the facts constituting the offense can only be assailed by a motion to quash and not by one in arrest of judgment. Stewart v. State, 113 Ind. 505, 16 N. E. 186; Chandler v. State, supra. But where the pleading does not contain all of the essential elements constituting a public offense, either a motion to quash or one in arrest of judgment must be sustained. Hoover v. State, 110 Ind. 349, 11 N. E. 434; Hanrahan v. State, 57 Ind. 527; Nichols v. State, 127 Ind. 406, 26 N. E. 839. Section 1832, Burns' Ann. St. Supp. 1905, the same being section 191 of the act of 1905, supra, provides that the indictment or affidavit is sufficient if it can be understood therefrom."

4th. That the offense charged is clearly set forth in plain and concise language, without unnecessary repetition. 5th. That the offense charged is stated with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case." The next section provides that "no indictment or affidavit shall be quashed, * * * nor judgment or other proceedings be stayed or arrested, or in any manner affected for any of the following defects," enumerating certain defects, “or for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." Under these provi. sions of the statute, an indictment or affidavit is required to charge the offense with reasonable certainty. Waggoner v. State, 155 Ind. 341, 58 N. E. 190, 80 Am. St. Rep. 237.

*

*

The injured party, or any other person, whose name it is essential to set out in charging an offense must, if known, be stated in the indictment or affidavit with certainty. This requirement is necessary in order to identify or give certainty to the transaction or offense upon which the pleading is based. In other words, the law exacts that the name of the person upon whom the offense was committed shall be given in the pleading in order that the accused party may be fully advised in respect to the crime which he is charged to have committed. 1 Archibald's Criminal Procedure and Pleading, p. 265 (*79); Black v. State, 57 Ind. 109; McFarland v. State, 154 Ind. 442, 56 N. E. 910, and cases there cited; McBeth v. State, 50 Miss. 81; State v. Bitman, 13 Iowa, 485; Ranch v. State, 5 Tex. App. 363; Gillett's Criminal Law, § 129. In

In fact, the name of the injured party is an essential element in the description of a public offense, and the failure to disclose who such person was, in the absence of a sufficient excuse being stated, is a fatal omission, and renders the pleading bad on a motion to quash or in arrest of judgment. McFarland v. State, 154 Ind. 442, 56 N. E. 910, and cases there cited; MCLaughlin v. State, 52 Ind. 279. Certainly then, when tested by the authorities cited, there can be no sufficient charge of an assault and battery, or of an assault and battery with the intent to commit a felony, without giving or stating, if known, the name of iile injured person, for in a criminal pleading nothing can be taken by intendment and ali reasonable doubts which may arise upon the averments therein must be solved in favor of the accused party. Funk v. State, 149 Ind. 338, 49 N. E. 266.

It is evident for the reasons stated that the affidavit in this case is fatally defective. and the court erred in overruling the motion in arrest of judgment, for which error the judgment is reversed and the cause remanded, with instructions to the lower court to sustain said motion. The clerk will issue the proper warrant for the return of appellant to the sheriff of Daviess county.

3. SAME-SURROUNDING CIRCUMSTANCES.

Parol evidence may be given of the situation and relation of the parties and the surrounding circumstances in the construction of a contract governed by the statute of frauds. 4. SAME-COMPLAINT-DESCRIPTION OF LAND.

A complaint seeking to recover for the breach of a contract to convey land alleged that the land was described as “120 acres of land more or less, owned by H. of Dana, Ind., and located about three miles west of Winamac, Pulaski county, Ind., in sections 17, 18, township 30 N. of range 2 W.Held, that this description was prima facie sufficient, and the complaint need not allege that defendant, H., had only one tract answering such description; but if he in fact had more than one tract answering the description, thereby destroying the means of identifying the property, it was a matter of defense. 5. SAME-WRITING--CONSIDERATION - UNCERTAINTY.

A complaint for damages for breach of contract to convey land alleged a contract by which plaintiff offered to exchange his stock of groceries, etc., to be invoiced at cost price for land owned by defendant, but the contract concluded, “I am to pay for said farm $50 per acre in merchandise and fixtures. When merchandise has been invoiced at cost, I am to deduct therefrom the sum of $246, and the remainder is the amount that I am to receive for said stock.” Held, that it appeared from the contract that the parties expected that the value of the merchandise as fixed by invoice less $246 would equal or exceed the sum at which the land was to be taken by plaintiff, and that he was to pay in cash any excess in value of the land over the merchandise, and, therefore, the contract was not indefinite and uncertain within the meaning of the statute of frauds. 6. DAMAGES-LIQUIDATED DAMAGES-PENALTY.

Where a contract providing for the exchange of a stock of merchandise for 120 acres of land valued at $50 per acre stipulated that either party agreed to forfeit to the other $500 as liquidated damages if he failed to carry out the agreement, such provision was not to be construed as a penalty. 7. SAME-PLEADING-LIQUIDATED DAMAGES.

Where liquidated damages are provided for it is not necessary to allege actual damages.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Action by Daniel V. Howard against Guy Adkins. From a judgment for defendant, plaintiff appeals. Reversed.

Chase Harding, for appellant. Thomas & Foley, for appellee.

(167 Ind. 184)

HOWARD V. ADKINS. (No. 20,863.) (Supreme Court of Indiana. Oct. 10, 1906.) 1. APPEAL AND ERROR-BRIEFS.

An attempt in good faith to comply, and a substantial compliance, with the Supreme Court rules relative to briefing, is sufficient.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $ 3091.] 2. FRAUDS, STATUTE Or-WRITING-DESCRIPTION OF LAND-PAROL EVIDENCE.

Where the description of land in a contract governed by the statute of frauds is consistent, but incomplete, and its completion does nou require contradiction or alteration, nor that a new description should be introduced, parol evidence is admissible to complete the description and identify the property.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, g 375.]

MONKS, J. This action was brought by appellant to recover liquidated damages for the breach of a contract. A demurrer for want of facts was sustained to each paragraph of the complaint, and a judgment followed that appellant take nothing by his suit, and pay the cost. The assignment of errors calls in question the action of the court in sustaining said demurrer. It is objected by counsel for appellee that appellant has not complied with rule 22 of this court (68 N. E. viii) in the preparation of his brief in this: "That it is confused and indefinite with its several parts so intermingled with irrelevant matters and statements” as not to be understood. While it may be true that appellant

sued upon:

has not prepared his brief in all respects as duced, parol evidence may be received to comrequired by the rule mentioned, yet the brief plete this description and identify the propcontains enough to advise each of the judges erty." Tewksbury v. Howard, 138 Ind. 103, of the questions which are presented for de- 105, 106, 37 N. E. 355, and cases cited; Coletermination. It is manifest that appellant rick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; has made a good faith effort to comply with, Torr v. Torr, 20 Ind. 118, 122, 124, and authorand has substantially complied with, our ities cited; Guy V. Barnes, 29 Ind. 103; rules in the preparation of his brief. This Wood on the Statute of Frauds, $ 353; and is sufficient. Stamets v. Mitchenor, 165 Ind. 20 Cyc. pp. 270, 271. It is a well settled rule 672, 675, 75 N. E. 579; Swing v. Hill, 165 that parol evidence is admissible to apply a Ind. 411, 414, 75 N. E. 658; Low v. Dallas, contract to its subject-matter. Wills v. Ross, 165 Ind. 392, 394, 75 N. E. 822.

71 Ind. 13, 40 Am. Rep. 279, and cases cited. The following is a copy of the writing Contracts governed by the statute of frauds

like other contracts are to be read "by the "New Ross, Ind., Oct. 15, 1904. I hereby light of surrounding circumstances.” It folsubmit the following proposition: I will ex- lows therefore that parol evidence may be change my stock of dry goods, groceries, given of the situation and relation of the boots, and shoes, fixtures, etc., owned by me parties and the surrounding circumstances. and with which I am doing business in the Wills v. Ross, 77 Ind. 1, 12, 13, 40 Am. Rep. Odd Fellows Building at New Ross, Indiana, 279, and cases cited; Ransdel v. Moore, 153 said stock to be free from liens of every kind Ind. 393, 400, 401, 53 N. E. 767, and authoriand character, and to be invoiced at first ties cited; Mace v. Jackson, 38 Ind. 162, 166, cost price---said price to be obtained from 167; Colerick v. Hooper, 3 Ind. 316, 56 Am. bills for said goods from wholesale houses Dec. 505; Torr v. Torr, 20 Ind. 118, 122, 124; from which they were bought-for one hun- Guy V. Barnes, 29 Ind. 103; Tewksbury V. dred twenty (120) acres of land, more or less, Howard, 138 Ind. 103, 105, 106, 37 N. E. 355; owned by Daniel V. Howard of Dana, Indi- Johnson v. Buck, 35 N. J. Law, 344, 10 Am. ana, and located about three (3) miles west Rep. 243; Bacon v. Leslie, 50 Kan. 494, 31 of Winamac, Pulaski Co., Indiana, in sections Pac. 1066, 34 Am. St. Rep. 134, 136, 137, and seventeen (17) and eighteen (18) township note page 141; Mead v. Parker, 115 Mass. 413, thirty (30) north of range two (2) west; said 15 Am. Rep. 110; Hurley v. Brown, 98 Mass. land to be free from liens and incumbrances 545, 96 Am. Dec. 671, and note page 675; of every kind and character except a mort- Preble v. Abrahams, 88 Cal. 245, 26 Pac. 99, gage of two thousand ($2,000.00) dollars, and 22 Am. St. Rep. 301, and note page 306; interest thereon from this date and possession Lente v. Clark, 22 Fla. 515, 1 South. 149; Wilto be given on or before March 1st, 1905, liams v. Morris, 95 U. S. 444, 456, 24 L. Ed. nothing reserved. I am to have all loose 360, and cases cited; Hodges v. Kowing, 58 timber, tiling, posts, etc., now on said farm, Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Moayon v. but am not to have any interest in any of the Moayon (Ky.) 72 S. W. 33, 60 L, R. A. 415, crops or rent of said farm for the year 1904. 423, 424, 102 Am. St. Rep. 303; Pomeroy I am to pay for said farm fifty dollars on Cont. (2d Ed.) $$ 90, 152, 161, and notes; ($50.00) per acre in merchandise and fixtures. 1 Beach on Cont. 581; Clark on Cont. p. When above mentioned stock of merchandise 120; Wood on Stat. of Frauds, 88 395, 396, and fixtures has been invoiced at cost, I am 449, and notes; Browne on Stat. of Frauds to deduct therefrom the sum of Two Hundred (5th Ed.) § 385; 1 Reed on Stat. of Frauds, Forty-Six dollars ($246.00) and the remainder $ 416; Tiffany on Sales, pp. 70, 71, and notes is the amount that I am to receive for said 173, 174, 673, 674; 17 Cyc. pp. 317, 318. stock. I am to give possession as soon as In Warvelle on Vendors (2d Ed.) 8 135, stock of merchandise and fixtures has been it is said that a description as “my house invoiced and trade closed, which is to be as and lot" imports a particular house and near October 20th as possible. Either party lot, rendered certain by the description to this agreement hereby agrees to forfeit to that it is the one that belongs to "me.” The the other five hundred dollars ($500.00) as following descriptions have been held suffiliquidated damages if he fails to carry out cient: "My lot on the plat in the town his part of said agreement. Guy Adkins & Co. of South Bend, on the plat of said town, on

"I hereby accept the foregoing proposition. the river bank” (Colerick v. Hooper, 3 Ind. Daniel V. Howard."

316, 56 Am. Dec. 505); the “Snow farm” Appellee first insists that, as the contract (Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536); is within the statute of frauds, no damages “H.'s place at S.” (Hodges V. Kowing, 58 can be recovered for the breach of the same Conn. 12, 18 Atl. 979, 7 L. R. A. 87); the because this 120 acres of land cannot be lo- “Knapp home property" (Goodenow v. Curtis, cated from the description given. The rule 18 Mich. 298); an agreement to convey land recognized in this state is that “when the described as "occupied" by the vendor or description given is consistent but incom- a third person (Angel v. Simpson, 85 Ala. plete and its completion does not require the 53, 3 South. 758; Towle v. Carmelo Land, contradiction nor alteration of that given, etc., Co. 99 Cal. 397, 33 Pac. 1126; Docter v, nor that a new description should be intro- Hellburg, 65 Wis. 415, 27 N. W. 170). In all

such cases, parol evidence of the situation of the authorities cited that the appellant was the parties and the surrounding circumstan to pay in cash whatever amount, if any, the ces when the contract was made, was ad cost price of the merchandise and fixtures, mitted so that the court might be placed in less $246, exceeded the amount which the the position of the parties, and thus see land was to be taken at. So construed, the with their eyes, and understand the force writing is not indefinite or uncertain in the and application of the language used by them. respect urged by appellee. The fact that the It must be assumed looking at the terms of land is mentioned in the writing as “120 the writing that the parties had in view and acres, more or less,” and the amount to be understood that they were dealing as to a paid therefor is "$50 per acre," does not renparticular tract of "120 acres of land more der the price of the land uncertain as the or less' owned by appellee and located in the number of acres could be ascertained and the section, township, and range mentioned in price determined. said writing. Under this view it is evident It is next claimed by appellee that the that the description of the real estate set out amount named in the writing as liquidated in writing sued upon was, prima facie, suffi damages is a mere penalty, and, as the comcient. In a suit on such writing, it was not plaint does not allege facts showing actual necessary to the sufficiency of the complaint damages, the same is insufficient. Under the to allege that appellee had only one tract rule declared in Bird v. St. Johns, etc., answering such description. 20 Encyc. Plead Church, 154 Ind. 138, 147, 148, 56 N. E. 129, ing & Practice, 450. If appellee had more and cases cited, the amount named as liquithan one tract of “120 acres of land more or dated damages must be so treated. Where less" in said sections answering said descrip-liquidated damages are provided for, it is tion, whereby the sufficiency of the contract not necessary to allege actual damages. It as identifying a particular tract of land follows that the objections urged to the comwould be destroyed, that is a matter of de

plaint are not tenable. fense to be set up in an answer. Lente v.

Judgment reversed, with instructions to Clark, 22 Fla. 515, 1 South. 149.

overrule the demurrer to the complaint. It is urged by appellee that the writing sued upon is indefinite and uncertain, and therefore insufficient under the statute of

(167 Ind. 191) frauds, because there is no provision for the WURFEL V. STATE. (No. 20,794.) payment of any possible difference between

(Supreme Court of Indiana. Oct. 11, 1906.) the value of the farm at the agreed price,

CRIMINAL LAW-REVIEW-MOTION FOR NEW and the stock of goods to be ascertained by TRIAL-RECORD. the invoice. In this state it is not necessary A motion for a new trial in a criminal case that the consideration be stated in writing,

which is not inserted in the transcript as a

part of the statutory record, but is merely but it may be proved by parol. See section

set out in the bill of exceptions, is not in the 6630, Burn's Ann. St. 1901; Hiatt v. Hiatt, record, and the errors assigned will not be re28 Ind. 53. If the writing undertakes to

viewed. state the consideration but states it indefinite

Appeal from Circuit Court, Clark County ; ly, such ambiguity may be relieved to the

C. M. Cook, Special Judge. same extent that it is competent to explain

Edward Wurfel was convicted of an asother ambiguous writings not within the stat

sault and battery with intent to commit rape, ute of frauds. Burke v. Mead, 159 Ind. 252,

and he appeals. Affirmed. 258, 259, 64 N. E. 880, and authorities cited; Martendale v. Parsons, 98 Ind. 174, 178, 181.

Jas. W. Fortune, for appellant. C. W. With reference to the elements of certainty

Miller, W. C. Geake, C. C. Hadley, and H. generally, it is well settled that what the law

M. Dowling, for the State. implies in a contract is as much a part of it as what is expressed, and such contract

JORDAN, C. J. Appellant was charged must be read and construed as if the same

and convicted by a jury in the lower court were written therein. 1 Beach on Contracts,

with having committed an assault and bat§ 710; Burke v. Mead, 159 Ind. 252, 258, tery upon Anna Weidner with the felonious 64 N. E. 880, and cases cited; 1 Reed on

intent to commit rape. Over his motion for Statute of Frauds, $ 400; Barry v. Combe,

a new trial he was sentenced, upon the ver1 Pet. (U. S.) 640, 651, 652, 7 L. Ed. 295; dict of the jury, to be imprisoned in the Ryan v. Hall, 13 Metc. (Mass.) 520, 523; ; Indiana Reformatory for an indefinite period Lawler v. Murphy, 58 Conn. 299, 304–311, of from 2 to 14 years, and was fined in the 20 Atl. 457, 8 L. R. A. 113. It is apparent sum of $1. From this judgment he appeals from the writing that the parties thereto to this court and assigns various errors to understood that the value of the merchandise the effect that the trial court erred in giving and fixtures, as fixed by the invoice, less certain instructions and also in overruling $246, would equal, if not exceed, the sum his motion for a new trial. The several inat which the land was to be taken by the dependent assignments of error based upon appellee; for it is expressly provided there the action of the court in giving the instrucin that he was to pay for the land in “mer tions in question are not legitimate and are chandise and fixtures." It is evident under of no avail. Hence the only proper assign

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