(108 A.) the verdict. Lindauer v. Teeter, 41 N. J. Law, 259. Of course misconduct on either the part of the jury or the court officers in charge of the jury may be shown by proper testimony, or that any improper influence was exerted to induce a verdict. Duffy v. McKenna, 82 N. J. Law, 64, 81 Atl. 1101. But the testimony does not show any such circumstances in this case. the question appears by the evidence to be he has joined, or of proving the ground of disputed, the question of the person with whom a contract was made should be left to the jury. Diament v. Colloty, 66 N. J. Law, 295, 49 Atl. 445, 808; Longstreth v. Korb, 64 N. J. Law, 112, 44 Atl. 934; 19 Cyc. 286; 9 C. J. 658. The trial judge submitted this question to the jury, and concluded by saying, "The plaintiff cannot recover in this case, unless the sale was to William A. Read & Co." A verdict that rests upon inferences, such as jurors are permitted to draw, is normally conclusive. Smith v. Lorillard Co., 67 N. J. Law, 361, 51 Atl. 928. The court should not set a verdict aside even although in its opinion the jury might, upon the evidence, have found otherwise. Knickerbocker Ice Co. v. Anderson, 31 N. J. Law, 333. To justify the setting aside of a verdict, as against the weight of evidence, it must be so clear as to give rise to an inference that it was the result of mistake, passion, or prejudice. Floersch v. Donnell, 82 N. J. Law, 357, 82 Atl. 733. [5-7] After the verdict was found by the jury, complaint was made to the trial court that the jury had been improperly influenced by the constable in charge of the jury. This complaint was investigated by the prosecutor of the pleas of Atlantic county, at the request of the trial court, each of the jurors was sworn, and the testimony taken down and transmitted to the court, which has been returned with the record of the case to this court, on which a reason is based for a new trial. We have examined this testimony, and find nothing therein which justifies the allegation that the jury was influenced by the constable in charge in reaching a verdict. While the action of the constable in charge was highly improper, we cannot say, that it in anywise influenced the jury in reaching the verdict. This subject was discussed by this court in the case of Consumers' Coal Co. v. Hutchinson, 36 N. J. Law, 24, where it was said: "Affidavits of jurors, * when offered for the purpose of contradicting or destroying the verdict, * have been regarded always by this court as against the policy of the law, and on that ground have been invariably rejected." Such testimony should be be excluded on grounds of public policy. The affidavit of a juror will not be received for the purpose of impugning or destroying the verdict in which The verdict was for the plaintiff for $450,452, at the rate of 50 cents a share. Thé plaintiff alleged the contract was $1 a share and so testified. The defendant claimed the contract was only 25 cents a share, and so testified. Nobody claimed that it was 50 cents a share. There are only two references in the testimony to 50 cents a share. The trial judge submitted to the jury to determine whether the contract for compensation was $1 per share or 25 cents per share. The amount of the verdict was therefore contrary to and inconsistent with the issue raised by the pleadings, contrary to and inconsistent with the evidence produced in support of the issue made by the pleadings and also with the charge of the court. [8] A verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. Sensfelder v. Stokes, 69 N. J. Law, 86, 54 Atl. 517; Cook v. American, etc., Gunpowder Co., 70 N. J. Law, 65, 56 Atl. 114. The evidence must show a case within the legal rules, upon which the court submits the case to the jury. Bowlby v. Town of Phillipsburg, 83 N. J. Law, 377, 84 Atl. 1051. The verdict must be supported by the evidence is elementary. But under the Practice Act (P. L. 1912, p. 397, pars. 72, 73), a new trial shall only be granted of the question or questions with respect to which the verdict or decision is found to be wrong, if separable, or, when the new trial is ordered because the damages are excessive or inadequate, and for no other reasons, the verdict shall be set aside only in respect of the damages, and shall stand good in all other respects. This case is within the provisions of that act. Young v. Society, etc., of Verona, 91 N. J. Law, 310, 102 Atl. 358. The only question with respect to which the verdict is found to be wrong is the measure of damages. The rule will be discharged as to liability, a new trial will be granted, but limited to the question of damages only; the verdict shall stand good in all other respects. ed as showing the amount justly due at the NEWMARKET ELECTRIC CO. v. CHASE time it was rendered. (79 N. H. 280) et al. SAME v. SOPEL et al. 7. EMINENT DOMAIN 247(1)-INTEREST ON AWARD OF DAMAGES. (Supreme Court of New Hampshire. Strafford. est on an award of damages in a proceeding Nov. 9, 1919.) 1. EMINENT DOMAIN 74-ERECTION OF DAM GIVES PREFERENTIAL RIGHT IN STREAM AUTHORIZING DAMAGES. Under Pub. St. 1891, c. 142, §§ 12-18, as amended by Laws 1893, c. 50, a preferential right in a stream is obtained by a mill owner when he erects a dam with intent to flow, and the duty to pay arises as soon as the extent of the right is determined or located by flowing. 2. EMINENT DOMAIN 148-MEASURE OF DAMAGES FOR FLOWAGE OF LAND. Under the flowage acts (Pub. St. 1891, c. 142, §§ 12-18, as amended by Laws 1893, c. 50; Laws 1911, c. 114) the rule of damage to landowners whose land is flowed or is to be flowed is compensation for the rights taken, which, if correctly applied throughout the proceedings, immaterial, and it is only important that the same rule be applied by those who assess the damage and those who compute the interest on the amount found. makes the time from which interest is allowed Since in proceedings under Laws 1911, c. 114, for the assessment of damages prior to flowage of lands the rule is compensation and all items must be brought to a common date, interest to that date is added to all overdue items, and items not yet due are discounted to the same date. In view of Pub. St. 1901, c. 228, § 1, interunder Laws 1911, c. 114, to assess damages prior to flowage of lands, should be computed from the date of filing the award, where there is no evidence of a departure from the established practice. 8. EMINENT DOMAIN 246(2)-PROCEEDING TO ASSESS DAMAGE CANNOT BE ABANDONED AFTER REPORT OF COMMITTEE. 1911, c. 114, for the assessment of damages A proceeding by a mill owner under Laws prior to flowage of land is not a mere preliminary proceeding, and cannot be abandoned by the mill owner after the committee has made its report. 9. EMINENT DOMAIN 245-DAMAGES FOR FLOWAGE OF LAND DUE PRIOR TO FLOWAGE. Where damages are assessed prior to flowmediately due, and execution may issue against age under Laws 1911, c. 114, they become imthe mill owner, notwithstanding Pub. St. 1891, have no title until damages are paid. c. 142, § 18, providing that mill owner shall 10. EMINENT DOMAIN 74-PAYMENT OF A mill owner who has not taken advantage of Laws 1911, c. 114, and had damages assessed 4. EMINENT DOMAIN 124-AWARD OF DAM- prior to flowage, is a trespasser and liable as AGES FOR FLOWAGE NOT DEPENDENT ON TIME OF PASSAGE OF TITLE. Since the right of a mill owner to flow lands is a mere easement, and the rest of the title remains in the landowner, it is not very material upon the question of assessment of damages prior to flowage under Laws 1911, c. 114, when full title to the right of flowage passes, the fact that the owner's use of his land may be limited by the incumbrance, or inchoate claim, originated by the filing of the petition being affected by the fact that he will have some use of the land until actual flowage. In a proceeding under Laws 1911, c. 114, for assessment of damages prior to flowage of land, a mill owner is entitled to reduce the award of damages by stipulating that he will not flow the land before a certain date. 6. EMINENT DOMAIN 247(1)—VERDICT AS SHOWING AMOUNT DUE AT TIME RENDERED. In view of Pub. St. 1901, c. 228, § 1, providing that in rendering judgment for damages found by verdict, report, or otherwise interest shall be added from the time of the finding, a report finding flowage damages must be regard such. BE ENTERED UPON ACCEPTANCE OF REPORT ON ASSESSMENT OF DAMAGES. The provision of Pub. St. 1891, c. 142, § 16, that upon acceptance of the report the court "shall render judgment thereon," is applicable in a proceeding brought by a mill owner under Laws 1911, c. 114, for assessment of damages prior to flowage, meaning a judgment collectible in the ordinary course of procedure. 13. EMINENT DOMAIN 167(3)-PROCEDURE BY MILL OWNER TO OBTAIN FLOWAGE RIGHTS. A mill owner need not proceed under Laws 1911, c. 114, to have damages assessed prior to flowage, but may elect to proceed under Pub. St. 1891, c. 142, §§ 12-18, as amended by Laws 1893, c. 50, and erect his dam, flow the land, and pay damages as a trespasser. Transferred from Superior Court, Strafford County; Marble, Judge. Petitions by the Newmarket Electric Company against George L. Chase and others and Joseph Sopel and others for assessment of damages under the flowage acts. A judgment assessing damages was entered, and (108 A.) the petitioner moved for stay of execution, and defendants moved for interest from the date of the petitions. Transferred without ruling. Petitioner's motion denied, and case discharged. Petitions for the assessment of damages under the flowage acts, filed prior to actual flowage under the provisions of Laws 1911, c. 114. The petitions were heard by a committee, whose report was accepted and judgment rendered thereon, with 50 per cent. added. At the hearing before the committee the petitioner stipulated that it would not flow before July 1, 1919, and that fact was considered in making up the award. The petitioner moved for a stay of execution until it flowed the land, and the defendants moved for interest from the date of the petitions. The disposition of these motions was transferred, without ruling, from the February term, 1919, of the superior court. begins, because that was the rule under the Public Statutes. [2] The rule of damage is compensation for the rights taken. Dolbeer v. Company, 72 N. H. 562, 58 Atl. 504. If this is correctly applied throughout the proceeding, the date from which interest on the award is computed is immaterial. It is only important that the same rule be applied by those who assess the damage and those who compute the interest on the amount found. [3] The rule being compensation, and all items having to be brought to a common date in the assessment, interest to that date is added to all overdue items. On the other hand, items not yet due are discounted to the same date. the same date. In this way the present worth of the rights to be taken and paid for is accurately arrived at. Barker v. Company, 78 N. H. 571, 573, 103 Atl. 757, L. R. A, 1918E, 709. [4] Nor is it very material upon the question of assessment to ascertain when full ti Shute & Shute, of Exeter, and Hughes & tle to the right of flowage passes. The right Doe, of Dover, for plaintiff. Scammon & Gardner, of Exeter, Fred H. Brown, of Sommersworth, and Frank A. Batchelder, of Exeter, for defendants. PEASLEE, J. The motions pending in these cases raise certain questions touching the applicability of the decisions under the original flowage act (P. S. c. 142, §§ 12-18), as amended in 1893 (Laws 1893, c. 50), to proceedings under Laws 1911, c. 114. This latter act provides that one proposing to erect a dam "may file in the superior court a petition, setting forth the location, height, and description of the proposed dam and applying for flowage rights in land to be flowed thereby, and if it shall appear that the erection of the dam is or may be of public use and benefit, then the court shall proceed to the assessment of damages for land flowed as nearly as may be in accordance with the provisions of" the existing flowage acts. Id. § 1. being a mere easement, the rest of the title remains in the landowner, and he can use the property accordingly. If technically the right passed to the mill owner upon filing the petition, the fact would remain that it could not be exercised until the dam was built; and in the meantime the landowner would have some use of the property. From the filing of the petition the land is subject to an inchoate claim, and from the time of payment and flowage to a perfected and exercised right. The question for the assessors is: How much of value has all this taken The fact that the from the landowner? owner's use of his land may have been limited by the incumbrance originated by filing the petition may add to his loss, while the fact that he will have some use of the land until actual flowage takes from the damage. [5] In this proceeding the damages are assessed before occupancy by the petitioner. In so making the assessment some future point of time, when the right will be perfected and flowage occur, must be taken into account. If the project were of such magnitude that flowage could not ensue for five years, that fact would be considered in fixing the present value of the landowner's loss. The mill owner having applied for the acquisition of rights, it is natural to infer, in the absence of evidence to the contrary, that he will use them as soon as perfected; that is, upon rendition and satisfaction of judgment. If he desires to reduce the damages, because of the probable lapse of time before flowage, he can protect himself by a stipulation that he will not flow before a certain date. This was the course taken in the present case, and the fact was properly considered by the committee in making their [1] Under the earlier statute the damages are assessed as of the date of flowage, and interest is computed from that time. A preferential right in the stream is obtained when the dam is erected with intent to flow, and the duty to pay arises as soon as the extent of the right is determined or located by flowing. Wright v. Company, 75 N. H. 3, 70 Atl. 290. Under the act of 1911, the rights to be taken are defined or located by the description contained in the petition. Since the proceedings are to conform "as nearly as may be" to those under the earlier statutes, it is argued, on one hand, that interest should be computed from the date of the petition, because that document defines the rights which were located by actual flowage under the old law. On the other hand, it is argued that the damages are payable only when flowage award. [6] "In rendering judgment for the debt | property rights have been invaded. Section or damages found by verdict, report of an 18 merely reserves to the landowner his conauditor, or otherwise, interest shall be added from the time of such finding to the rendition of judgment." P. S. c. 228, § 1. A verdict "must be regarded as showing the amount justly due at the time it is rendered." Johnson v. Railroad, 43 N. H. 410, 411; Wentworth v. Portsmouth, 68 N. H. 392, 44 Atl. 531. There is nothing in the report to show that this rule was not followed by the committee in making up their report, which stands "like the verdict of a jury found upon the same facts." Pollard v. Moore, 51 N. H. 188, 191. stitutional right to retain and defend his [7] The application of a different rule in Wright v. Company, 75 N. H. 3, 70 Atl. 290, arose from an agreement that the court should adjust the matter of interest. In that situation the jury merely assessed the damage for taking, and the court added interest from that date. In the absence of such agreement, the jury would have been instructed to add interest from the date of taking to the time the verdict was rendered, and the verdict would have borne interest | from its rendition. There being no evidence ment of the damage the flowage causes, he is of a departure from the established practice in the present case, interest should be computed from the date of filing the award. ect. liable in trespass. Littleton v. Company, 73 N. H. 11, 16, 58 Atl. 877; Roberts v. Company, 73 N. H. 121, 59 Atl. 619; Wright v. Company, 75 N. H. 3, 70 Atl. 290; McMillan v. Noyes, 75 N. H. 258, 72 Atl. 759. The act of 1911 was passed at the next session of the Legislature after the announcement of the decision in the case last cited. Its evident [8] The petitioner's motion that execution be stayed until it flows the land is based upon the idea that the whole proceeding is merely preliminary, and can be abandoned by it at pleasure. If execution could be stayed until flowage occurred, one could never issue if the petitioner abandoned the proj-purpose was to afford means whereby such a It seems evident that it was not the situation might be obviated, if the mill ownpurpose of the act of 1911 to permit such a er so desired. It plainly contemplates payresult. It is settled that under the old flow- ment before entry, and not at or after such age law the mill owner could not abandon event. the proceeding after the committee had made its report. Pollard v. Moore, 51 N. H. 188. He "cannot lie by and take the chances of a favorable award until after the damages are assessed." Jones v. Whittemore, 70 N. H. 284, 286, 47 Atl. 259, 260. If there had been a legislative intent to establish a different rule under the new law, it would have been expressed. The procedure asked for in the petitioner's motion would not conform "as nearly as may be" to an assessment under the old law. [9-11] It is insisted that the provisions of Public Statutes, c. 142, § 18, that the mill owner shall have no title, nor be relieved from any liability, until the damages are paid, is applicable to this proceeding. Hence it is said that as a corollary he need not pay until he flows the land. This is a plain non sequitur. Providing that title shall not pass until payment is made falls far short of saying that payment need not be made until [12, 13] The provision of Public Statutes, c. 142, § 16, that upon acceptance of the report the court "shall render judgment thereon" is applicable here. And this means a judgment collectible in the ordinary course of procedure. If the mill owner does not wish to pay until after flowage, he can erect his dam, flow, and proceed under the provisions of the Public Statutes. In so doing he subjects himself to the litigation typified by several late cases. If he desires to avoid these complications and annoyances he may elect to proceed under the act of 1911. he takes the latter course, files his petition, goes to trial and submits his case to the committee, whose report is accepted by the court, he must be prepared to pay the amount assessed as he would any other verdict against him. When The petitioner's motion should be denied. All concur. which he picked up a revolver and shot the officer, killing him instantly. [1] At the trial, G., also a policeman, was called by the state to testify to the searching of defendant's house immediately after 1. CRIMINAL LAW 371(12) EVIDENCE OF the murder and the finding therein of vari OTHER CRIMES ADMISSIBLE TO SHOW MOTIVE. In prosecution for shooting an officer who went to the home of accused to arrest him, evidence that after the shooting there was found in the house property which accused admitted had been stolen by him was admissible as tending to show motive. ous articles of personal property, together with admissions of the accused that the articles were stolen by him. Counsel for the accused objected. The state contended that evidence was admissible to show motive of accused in re 2. HOMICIDE 307(2)-DUTY OF COURT TO IN- sisting arrest and killing the officer. Citing STRUCT AS TO DEGREE. Since jury may find accused guilty of murder in the first degree as charged in the indictment, guilty of murder in the second degree, guilty of manslaughter or not guilty, it is the duty of the court to define murder in the first degree, murder in the second degree, and manslaughter. 6 Ency. on Evidence, 725, 732, 734; 2 Whart. Counsel for accused replied that the circumstances of the killing having been shown by direct evidence, testimony of other crimes 3. CRIMINAL LAW 561(1)-PROOF OF GUILT Committed by the accused was inadmissible. BEYOND A REASONABLE DOUBT. If upon the whole case there remains in the minds of the jurors a reasonable doubt of guilt growing out of the evidence, or founded on the want of complete evidence and such as would sway the mind of a reasonable man and prevent him from coming to a satisfactory conclusion of guilt, the accused should have the benefit of such doubt. 4. ARREST 63(4) - OFFICER MAY ARREST WITHOUT WARRANT ON SUSPICION OF FELONY. If an officer has reasonable cause to suspect that a person has committed a felony, he has authority to arrest him without a warrant. 5. HOMICIDE 111 - SELF-DEFENSE IN RE SISTING ARREST BY KNOWN PEACE OFFICER. If officer shot by accused at the time he attempted to arrest accused had good grounds to suspect that accused had committed a felony, he had authority to make the arrest, and for that purpose had the right to enter accused's home in a peaceable manner, and use as much force as was reasonably necessary to effect the arrest, and accused had no right to resist, provided he had good reason to know that officer was a peace officer and was given to understand that he was under arrest. Indictment No. 58, November Term, 1919. Lemuel Price was indicted for murder of the first degree. Verdict guilty. PENNEWILL, C. J. Upon the offer of the state to show that immediately after the shooting there was found in the house property which the accused admitted was stolen by him, we admit the testimony, as tending to show motive. PENNEWILL, C. J., charging the jury: The defendant is charged in the indictment with murder of the first degree. The state contends that the defendant on the thirteenth day of November of the present year between the hours of ten and eleven o'clock in the morning, at his home, 818 E. 6th Street in this city, without excuse, justification, or provocation, deliberately, designedly, and with express malice aforethought shot and killed a police officer, Thomas Zebley, while attempting to arrest the defendant for suspected felony. [2] In this case, you may find the prisoner guilty of murder of the first degree, as charged in the indictment, guilty of murder of the second degree, guilty of manslaughter, or not guilty, as the evidence in your judgment shall warrant. It becomes the duty of the court, therefore, to define for you, as clearly as we can, murder of the first degree, murder of the second PENNEWILL, C. J., and BOYCE and degree, and manslaughter. (Which the court RICE, JJ., sitting. did as in State v. Russo, 1 Boyce, 538, 77 Atl. 743.) David J. Reinhardt, Atty. Gen., and P. Warren Green and Frank L. Speakman, Deputy Attys. Gen., for the State. William S. Hilles and Robert H. Richards, both of Wilmington, for the accused. [3] In every criminal case, it is incumbent on the state to prove the guilt of the prisoner beyond a reasonable doubt, and, if upon the whole case there remains in your minds a reasonable doubt of the guilt of the prisoner The state introduced evidence to show that growing out of the evidence, or founded on Z., a police officer of the city of Wilmington, the want of complete evidence, and such as went to the home of the accused to arrest would sway the mind of a reasonable man him. The accused resisted and in doing so and prevent his judgment from coming to a pushed the officer back to a couch from satisfactory conclusion of his guilt, it is a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-25 |