No. 8472.

BOLIN ET AL. v. SIMMONS.

ASSIGNMENT OF ERROR.-Practice.-Demurrer.--Where the record shows the sustaining of demurrers to different answers, an assignment that the court erred in sustaining the demurrer to the answer is too indefinite. The particular answer intended should be designated.

SAME.-New Trial.--Causes for a new trial can not be assigned as error. The proper assignment is upon the overruling of the motion for a new trial. From the Hancock Circuit Court.

R. D. Logan and A. A. Falkenburg, for appellants.

WOODS, J.-Appeal from a decree of foreclosure of a mortgage upon real estate. The appellee has filed no brief. The appellants have assigned the following errors:

1st. The finding is contrary to law.

2d. The finding is contrary to the evidence.

3d. The court assessed the damages too high.

4th. The court erred in overruling the demurrer to the complaint.

5th. The court erred in sustaining the demurrer of the plaintiff to the defendants' answer.

The complaint is unquestionably good. Demurrers were sustained to more than one answer, and to other answers were overruled. It is, therefore, impossible to know to what answer the 5th specification of error refers. Besides the appellants' brief is silent in reference to the rulings on de

murrer.

The first, second and third specifications are proper causes for a new trial, but are not proper specifications in an assignment of errors. The proper assignment would have been that the court erred in overruling the motion of the appellants for a new trial. This has been often decided.

Judgment affirmed, with costs.

Petition for a rehearing overruled.

Pancake v. The State.

No. 10,085.

PANCAKE v. THE STATE.

INTOXICATING LIQUOR.-Beer.-Selling on Sunday.--Evidence.--On trial of an indictment for selling liquor on Sunday, evidence, to wit: "Am sure it was on Sunday. Mr. K. got a glass of beer for himself and one for me. Defendant handed us the liquor; K. paid for it five cents a glass; beer is an intoxicating liquor," shows that the beer so sold was an intoxicating liquor, and is sufficient to sustain a conviction. SAME.--Instruction.--Assuming Fact.-Jury.--On such trial, it was error to instruot the jury: "It would be a legitimate inference for you to draw that the witness, in saying beer was intoxicating, had reference to the beer spoken of by him when he said he had purchased beer of the defendant." The inference from the facts is a question for the jury, and not a matter of law for the court.

SAME.-Construing Evidence.--Practice.--Upon a motion for a new trial, challenging the sufficiency of the evidence, a court is authorized to give a construction to the testimony of witnesses which it may not do when giving the cause to the jury.

SAME.--If the evidence show that liquor was sold on some Sunday within two years prior to the return of the indictment, it need not fix the precise Sunday within that time.

From the Bartholomew Circuit Court.

G. W. Cooper, for appellant.

D. P. Baldwin, Attorney General, W. W. Thornton and W. Dixon, Prosecuting Attorney, for the State.

NIBLACK, J.-On the 19th day of December, 1881, an indictment was returned against Frank Pancake, the appellant, for selling intoxicating liquor, in a less quantity than a quart, to one Charles Knowlton, on the 28th day of August, 1881, being the first day of the week, commonly called Sunday.

A jury returned a verdict of guilty as charged, assessing a fine of ten dollars against the appellant, and, first refusing to grant a new trial, the court rendered judgment upon the verdict.

Questions are made here upon the sufficiency of the evidence to sustain the verdict, and upon certain instructions given to the jury.

Pancake . The State.

* * * * * *

One Parley Dixon testified: "I know the defendant Pancake, and Charles Knowlton, named in the indictment. The defendant was keeping a saloon in the latter part of the year 1881. I saw Charles Knowlton purchase some beer of the defendant in the latter part of the year 1881. It was just after the fair of the Bartholomew Agricultural Society of that year. It was either the first or second Sunday after the fair. It was on Sunday. Am sure it was on Sunday. Mr. Knowlton got a glass of beer for himself and one for me. Defendant handed us the liquor. Knowlton paid for it five cents a glass. Beer is an intoxicating liquor. * * * * * * It was in Bartholomew county, State of Indiana, that what I have stated relating to Charles Knowlton's purchase of beer from defendant took place."

One George Buxton testified, that the fair of the Bartholomew Agricultural Society, for the year 1881, commenced on the 29th day of August of that year, and continued until the next Saturday, the 2d day of September. And this was substantially all the evidence given in the cause.

It is most earnestly contended that the evidence set out as above did not either show, or fairly tend to show, that the beer sold by the appellant to Knowlton was an intoxicating liquor, and that hence the verdict was not sustained by the evidence.

Having reference, however, to the connection in which the witness, Dixon, stated that beer was an intoxicating liquor, we are of the opinion that he intended to be understood as saying, and that the fair inference from all he said on that subject was, that the beer, concerning which he was testifying as having been sold by the appellant, was an intoxicating liquor.

Taking several of the instructions together, the court said, in substance, to the jury, that proof of the precise time at which the intoxicating liquor was sold was immaterial, provided it was shown to have been sold within two years prior

Pancake v. The State.

to the 19th day of December, 1881, and on some Sunday within that time.

There was no error in so instructing the jury. Moore's Criminal Law, section 367; Buckner v. The State, 56 Ind. 207.

The authorities cited by the appellant have reference to the necessity of charging some definite time in the indictment, and not to the proof which is required as to the time of the commission of the offence.

The last instruction given by the court, known as No. 15, was as follows:

"If it appears from the evidence that a witness testified that he bought beer of the defendant, and he is asked if beer is intoxicating, and he says it is, and you find that no different kind of beer has been mentioned or spoken of by the witness or others during his examination, then, in such an event, it would be a legitimate inference for you to draw that the witness, in saying beer was intoxicating, had reference to the beer spoken of by him when he said he had purchasedbeer of the defendant."

It is objected to this instruction that it assumed to give an unauthorized construction to the evidence, and thus invaded the province of the jury. That objection is well founded and must be permitted to prevail. What was, and what was not, a legitimate inference from the hypothetical facts enumerated in the instruction, was a question of fact for the jury, and not a matter of law for the decision of the court. instruction can not, therefore, be sustained.

The

Upon a motion for a new trial challenging the sufficiency of the evidence, a court is authorized to give a construction to the testimony of witnesses which it may not do when giving the cause to the jury.

The judgment is reversed, and the cause remanded for a new trial.

The Etna Insurance Company . Kittles et al.

81

96

137 47

No. 8421.

THE ETNA INSURANCE COMPANY v. KITTLES ET AL.

FIRE INSURANCE.-Pleading.-Condition Precedent.-" Fulfilled" and "Performed" Equivalent.—The allegation in a complaint, in an action upon an insurance policy, that "the plaintiffs duly fulfilled all the conditions of said agreement and insurance on their part," is sufficient. The word "fulfilled" is equivalent to the word “performed,” as used in section 84 of the code, R. S. 1881, section 370.

SAME.-Notice, Proof and Demand.-In such case, a further allegation of due notice and proof of loss, and demand of payment, constitutes no part of the general allegation of performance, but only shows that an action had accrued.

SAME.--Insurable Interest at Time of Loss.-Complaint.--A complaint on a policy of insurance must show that the plaintiff had an insurable interest at the time of the loss.

SAME.-Repayment of Premium--Cancellation of Policy.-Answer.-Repayment of unearned premium and a cancellation of the policy constitute a good defence to a complaint on an assigned policy of insurance by the assured.

PLEADING.-Joint Complaint.-The complaint of two or more persons must show a right of action in both.

SAME.-Bad Answer to Bad Complaint.-A bad answer is good enough for a bad complaint.

PRACTICE.-Demurrer Carried Back.-A demurrer to an answer should be carried back and sustained to a bad complaint.

From the Posey Circuit Court.

W. H. De Wolf, S. N. Chambers and W. Loudon, for appellant.

A. P. Hovey, G. V. Menzies and E. M. Spencer, for appellees.

FRANKLIN, C.-This is an action by appellees against appellant upon a policy of insurance upon a dwelling-house, against fire, in the sum of $1,500. A demurrer was overruled to the complaint, and a demurrer was sustained to the second, third, fourth and sixth paragraphs of the answer, to which rulings exceptions were reserved. Trial by court, finding for appellees, and, over a motion for a new trial, judgment was rendered for appellees for $1,000.