Trustees of Columbia College in City of New York v. New York Elevated R. Co. (N. Y.)..... Waterbury Co., Wire & Telephone Co. of America v. (N. Y.)... ..1134 .1132 Trustees of Presbytery of New York, Westminster Presbyterian Church v. (N. Y.) ....1134 Tucker, Grant Trust & Savings Co. v. (Ind. App.). . 487 ...1096 Tupper, Trowbridge v. (Mass.). ... Watertown Engine Co., Massa v. (N. Y.)..1122. ... 954 967 518 .1043 .1135 127 658 136 826 206 991 872 United Bldg. Material Co. v. New York (N. Y.). .1134 1133 United Coal Min. Co. v. Daugherty (Ind. West 177th St. in City of New York, In re (N. Y.)... ..1134 App.) 477 Whalen, Porter v. (N._Y.). 416 United Engineering & Contracting Co., Cobb v. (N. Y.). 1112 United States Fidelity & Guaranty Co., Brandly v. (N. Y.). ..1110 United States Mortgage & Trust Co., Porges v. (N. Y.).. 424 United Traction Co., Engel v. (N. Y.).... 731 Wheeler, Cary Brick Co. v. (Mass.)..... 800 Wheeler v. Phenix Ins. Co. of Brooklyn 452 (N. Y.)... White Sewing Mach. Co. v. Harris (Ill.).. 857 156 Whiteneck, State v. (Ind.). Whiting v. Fidelity & Mutual Life Ass'n Whiting Mfg. Co., Bulkley v. (N. Y.).....1111 of Philadelphia, Pennsylvania (N. Y.)..1134 Whitney, In re (N. Y.). Whitney v. Cheshire R. Co. (Mass.). 676 Willett, Holt v. (Ill.). 848 William G. Webber Co., Leary v. (Mass.) 136 William J. Aschenbach's Sons Harness Co., Le Compte Mfg. Co. v. (N. Y.). .1119 ..1134 ..... Vandalia R. Co. v. Clem (Ind. App.). 789 Vaughn v. Smith (Ind.). 594 Van Schaick v. Heyman (N. Y.) 1133 Williams v. Citizens' Steamboat Co. of Troy (N. Y.).... .1134 ..1124 Williams, Millen v. (Mass.) ..1103 Village of Barnesville v. Ward (Ohio).... 937 Village of Brockport, Brockport-Holley Water Co. v. (N. Y.).... 745 Village of Dresden, Carson v. (N. Y.)...1111 Village of Norris v. Lyon (Ill.). Williams, People ex rel. Forest v. (N._Y.)1126 ..1127 763 236 Village of North Tarrytown, Arnold v. (N. Wilson v. Central Ins. Co. (N. Y.). Wilson v. Hagey (I.). .1134 277 THE NORTHEASTERN REPORTER VOLUME 96 MALONE v. STATE. (No. 21,843.) (Supreme Court of Indiana. Oct. 13, 1911.) 1. CRIMINAL Law (§ 1170*)—APPEAL-HARMLESS ERROR. Any error in excluding an offer in a prosecution for assault with intent to kill to prove what the person assaulted said about causing trouble on the night of the cutting was harmless to accused, where witness afterward answered that he never heard such person say anything. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.*] 2. HOMICIDE (§ 190*)-EVIDENCE-THREATS. Evidence of some overt act by the person assaulted toward accused was essential before threats of such person toward accused is admissible in evidence in a prosecution for assault with intent to kill. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*] 3. HOMICIDE (§ 187*)-EVIDENCE-THREATS BY THIRD PERSONS. Where, in a prosecution for assault with intent to kill at a dance after accused and his crowd had quarreled with boys from another town, evidence of threats against accused by such boys other than the one assaulted was not admissible, in absence of prima facie evidence that such boys were acting with a common de sign to harm accused or some one from his crowd. [Ed. Note.-For other cases, see Homicide, Dec. Dig. § 187.*] 4. CRIMINAL LAW ($ 670*)-TRIAL-OFFER OF EVIDENCE-CONCLUSIONS. In a prosecution for assault with intent to kill, committed while accused and others were at a dance, when some hard feeling arose between boys from different towns, accused offered to show by a witness that several boys named had agreed to drive accused and his friends from the grounds, and were especially bitter toward accused, and said they would drive him away even if they had to hurt him bad, and that the person cut by accused joined the others mentioned for the purpose of driving accused from the grounds, and that such threats had been communicated to accused before the cutting, held, that the offer was properly excluded as largely involving conclusions of the offerer, and not the facts themselves. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1593-1596; Dec. Dig. § 670.*] 5. CRIMINAL LAW (§ 829*) — REQUESTS — IN STRUCTIONS ALREADY GIVEN. error. 6. HOMICIDE (§ 300*) - INSTRUCTIONS - REQUEST-SELF-DEFENSE. Where instructions given on self-defense are abstract, it is error to refuse proper requests thereon correctly applying the law to the particular facts. [Ed. Note. For other cases, see Homicide, Dec. Dig. § 300.*] 7. CRIMINAL LAW (§ 814*)—INSTRUCTIONS— REQUESTS. A requested charge which included in its hypothesis facts which there was no evidence to establish was properly refused. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1979; Dec. Dig. § 814.*] 8. CRIMINAL LAW (§ 945*)-NEWLY DISCOVERED EVIDENCE. In a prosecution for assault with intent to kill, accused testified without contradiction that just before he cut the injured person some one slipped the open knife into his hand with which he did the cutting. The affidavits for a new trial for newly discovered evidence offered to show that K. was the person who slipped the knife into accused's hand, and would so testify on a new trial. Held, that the alleged newly discovered evidence would not have changed the result by supporting the defense of self-defense, and hence was not ground for a new trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327; Dec. Dig. § 945.*] 9. CRIMINAL LAW (§ 941*)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE. Accused is not entitled to a new trial for cumulative. newly discovered evidence, which is wholly Law, Cent. Dig. §§ 2328-2330; Dec. Dig. § [Ed. Note. For other cases, see Criminal 941.*] 10. CRIMINAL LAW (§ 1159*)-APPEAL-FIND INGS. The Supreme Court cannot determine the credibility of witnesses; that being for the jury. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3077; Dec. Dig. § 1159.*] Appeal from Circuit Court, Perry County; Wm. Ridley, Judge. Accused was convicted of assault and battery, with intent to commit manslaughter, and he appeals. Affirmed. Philip Zoercher, for appellant. Thomas Honan, Jas. E. McCollough, Thos. H. Branaman, and Edwin Corr, for the State. COX, J. Appellant was tried by jury, and found guilty of assault and battery with intent to commit manslaughter. His motion for a new trial was overruled, and this rul Where instructions asked were substantially covered by one given, their refusal was not [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*] •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ing of the trial court is the sole error as- | great injury, and that the testimony of this signed in this court. witness should have been admitted. One James Pannett was called as a wit- [1] The question propounded to the witness for the appellant, and, after stating his ness is itself so general as to make it doubtname, his place of residence, that he knew ful whether it called for testimony from the appellant, and that he was in Troy the night witness which was at all pertinent to the of the trouble, the following question was put matter being tried. The witness had not to him: "What, if anything, did you hear testified that he was at the resort at all. about causing the Tell City boys any trouble What the witness had heard, if anything, that night?" Objection to this question was might have been from persons entirely unconmade by the state, and counsel for appellant nected with appellant's trouble with Smith, made the following offer to prove in response and the trouble the Tell City boys were to to the objection: "The defendant offers to be caused, if any, may have been wholly prove by the witness and the witness will disconnected with, and not at all relevant to, testify in answer to the question that Emil the inquiry into the trouble between appelBerger, Spits Paulin, Alvin Gates, and sev-lant and Smith. To save a question on the eral others had agreed to drive the Tell exclusion of evidence for review in this City boys from the grounds, including Malone, court, a pertinent and proper question must and that they were especially bitter in their first be put to the witness. But, aside from reference to Malone, calling him 'a red-headed this, there are good reasons for sustaining -,' and that they would drive him away the ruling of the trial court. So far as the even if they had to hurt him and hurt him offer to prove what Smith said is concerned bad, and the witness would further testify, it may be said that immediately following if permitted to do so, that when Smith came the court's ruling excluding the offer the to the grounds he joined with Berger and judge asked the witness whether anything the others mentioned above for the purpose was said by Smith, and he answered, "No, of driving Malone and the other Tell City sir; I never heard him say anything," so boys from the grounds, even if it was neces- there could have been no harm to appellant, sary to hurt these boys and hurt them bad; as the witness' testimony as to Smith's utthat Smith said, 'We must stand together,' terances would not have made good the offer. and that these threats had been communicated to Malone before the cutting." The court sustained the objection, and counsel for appellant earnestly contends that this was error of law for which appellant should have been given a new trial. We gather from the record that near the town of Troy, in Perry county, at the time of the trouble which led to the prosecution, there was a resort with a saloon and dancing floor as a part of the attractions of the place. On the night of the 1st of October, 1910, a number of young men from Tell City and others from Troy were there. The appellant from the first-named place had engaged in a dance with a girl, and at the end of it was deprived of the privilege of sitting by her side by the greater quickness of one Berger from Troy, who crowded between appellant and the girl. This caused offense to appellant, and, while trouble did not ensue at once, evidently some feeling arose between the young men from the two towns. Profane epithets were exchanged between individuals of the two crowds afterwards and perhaps some threats. Later, about 11 o'clock at night, appellant approached Berger and one Conrad Smith, also from Troy, the victim of appellant's alleged felonious assault, and the latter was cut by a knife in the hands of appellant, and was severely injured and his face marred thereby. It is appellant's claim that he acted in self-defense to protect himself from great bodily harm at the hands of Smith, that he acted under the fear that the young men from Troy were act [2] Moreover, to the time in the trial when this testimony was offered, there had been no evidence given of any attack or overt act on the part of Smith on or towards appellant, and this was necessary to make Smith's threats competent. Gillette, Crim. Law (2d Ed.) § 242; Underhill, Crim. Ev. (2d Ed.) § 326; Leverich v. State (1886) 105 Ind. 277, 4 N. E. 852; Ellis v. State (1898) 152 Ind. 326, 52 N. E. 82. [3] If it can be said that the question and offer to prove were sufficient to show that it was intended to produce testimony of threats upon the part of Berger, Paulin, Gates, and others of the Troy crowd against appellant, yet it is shown by the record that at the time this offer was made no evidence had been produced to establish prima facie directly or circumstantially that there was a conspiracy on the part of the Troy crowd to do harm to appellant, or that the individuals composing that crowd were acting with common design against Malone or any other one of the Tell City crowd. No offer on the part of appellant was made at that time to subsequently show such common purpose. It was therefore proper for the court to exclude the offered testimony. Card v. State (1886) 109 Ind. 415, 9 N. E. 591; McKee v. State (1887) 111 Ind. 378, 12 N. E. 510; Freese v. State (1902) 159 Ind. 597, 65 N. E. 915; Underhill, Crim. Ev. (2d Ed.) §§ 490494; 1 Elliott on Evidence, § 191. [4] Furthermore, it is perfectly obvious from a glance at the offer in question that it involves more conclusions than facts, and for |