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Minich v. People, (Colo.) 9 Pac. Rep. 4, “as such a doubt as would cause a reasonable man to hesitate and pause."

Judge DICK says, in the recent case of U. S. v. Hopkins, 26 Fed. Rep. 443, that "the inherent imperfection of language renders it impossible to define in exact and express terms the nature of a reasonable doubt. It arises from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular event, or the existence of a thing.'

A preponderance of evidence in a criminal case is not necessary to raise a reasonable doubt. State v. Porter, (Iowa,) 20 N. W. Rep. 168; State v. Red, (Iowa,) 4 N. W. Rep. 831.

Neither the preponderance of evidence, nor the weight of preponderant evidence, is necessary to raise a reasonable doubt. See Walbridge v. State, (Neb.) 13 N. W. Rep.

209.

It has been said that "clearly proven" does not mean "beyond a reasonable doubt." State v. Stewart, (Iowa,) 3 N. W. Rep. 99.

An instruction to the jury directing them to determine the question of the fact of proof beyond a reasonable doubt, "just as they would determine any fact in their own private affairs," is not sufficient, Territory v. Lopez, (N. M.) 2 Pac. Rep. 364; and that it is error to charge that "reasonable doubt" means doubt suggested by or arising out of the proof made, and that in considering the evidence, and arriving at a verdict, "what is called 'common sense' is perhaps the juror's best guide."

It is not error to refuse to instruct the jury that if any one of them entertains a reasonable doubt of the defendant's guilt there must be an acquittal. State v. Witt, (Kan.) 8 Pac. Rep. 769.

Each juror is to act upon his own judgment, and, if he entertains a reasonable doubt, is not required to surrender his convictions and render a verdict merely because the other jurors entertain no such doubt. State v. Hamilton, (Iowa,) 11 N. W. Rep. 5.

Proof is deemed to be beyond a reasonable doubt when the evidence is sufficient to impress the judgment and understanding of ordinarily prudent men with a conviction on which they would act in the most important concerns or affairs of life. Polin v. State, (Neb.) 16 N. W. Rep. 898.

Where a criminal charge is sought to be proved by circumstantial evidence, the proof must not only be direct, State v. Clemons, (Iowa,) 1 N. W. Rep. 546, but also consistent with the guilt of the accused, and inconsistent with any other rational conclusion, Walbridge v. State, (Neb.) 13 N. W. Rep. 209; People v. Davis, (Cal.) 1 Pac. Rep. 889. It is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to be established by the prosecution, but they must exclude to a moral certainty every hypothesis except the single one of guilt. People v. Davis, (Cal.) 1 Pac. Rep. 889.

Testimony not believed does not raise a reasonable doubt. Binfield v. State, (Neb.) 19 N. W. Rep. 607.

To establish the defense of an alibi preponderance of evidence is all that is required. Whether a defendant is entitled to acquittal if the evidence of the alibi is sufficient to raise a reasonable doubt of his guilt, quære. State v. Reed, (Iowa,) 17 N. W. Rep. 150. See State v. Hamilton, (Iowa,) 11 N. W. Rep. 5.

It has been held that if there is evidence upon which a verdict of guilty might reasonably be founded, an appellate court will not interfere, whatever may be their opinion as to the weight or preponderance of the evidence. Cornish v. Territory, (Wyo.) 3 Pac. Rep. 793.

(106 Ind. 139)

STATE v. RICE.
Filed April 1, 1886.

HUSBAND AND WIFE-DESERTION OF WIFE-INDICTMENT.

The statute making it a crime for a husband, without cause, to desert his wife, leaving her without provision for comfortable support, does not apply where she is left with means for comfortable support, no matter whether provided by the husband or not; and an indictment charging one with so deserting his wife, “without making provision for her comfortable support," is bad on motion to quash.

Appeal from Warrick circuit court.

W. A. Land, for appellant.

Hardy, Armstrong & Cockman, for appellee.

MITCHELL, J. The state brings this appeal, and asks the reversal of a ruling of the court below in sustaining a motion to quash an indictment. It is charged in the indictment that Isaac M. Rice on a date mentioned, unlawfully and without cause, deserted his wife, Mary E. Rice, without making provision for her comfortable support, contrary to the form of the statute.

Section 2033, Rev. St. 1881, enacts as follows:

"Whoever, without cause, deserts his wife, child, or children, and leaves such wife, or her child or children, a charge upon any of the counties of this state, or without provision for comfortable support, shall be fined," etc.

The charge is that the defendant, without cause, deserted his wife "without making provision" for her comfortable support. On behalf of the defendant it is contended that the crime consists in the causeless desertion of a wife by a husband, the wife being at the time without provision for comfortable support. Accordingly it is argued that if the wife had, at the time she was deserted, sufficient provision for her comfortable support, it was no offense, within the statute, that the husband deserted her without making such provision. This is the view upon which the court sustained the motion to quash. We think it was correct. The penalty of the statute is denounced against the husband or father who, without cause, deserts and leaves his wife, child, or children without provision for comfortable support. Where, however, the wife, child, or children are, at the time of such desertion, left with a comfortable support, whether such provision was made by the husband or father, or is possessed in the right of the wife, child, or children, the desertion is not criminal within the statute. If it were otherwise, a worthless husband might be fined for deserting his wife, even though she possessed a fortune amply sufficient for her support. The offense should have been charged in the language of the statute. As charged, it nevertheless remained open to inference that the wife may have been left with abundant provision for her comfortable support, although such provision was not made by the husband.

The judgment is affirmed.

(106 Ind. 141)

JAQUA v. CORDESMAN & EGAN Co.

1. PLEADING-COMPLAINT

Filed April 1, 1886.
ACCOUNT.

A complaint on an account for work and labor performed at the request of the defendant, which avers that the defendant is indebted to the plaintiff, is good, although it does not allege that the debt is due and unpaid.

2. TRIAL INSTRUCTIONS.

Where the plaintiff requests the court to instruct in writing, but no such request is made by the defendant, and the court gives oral instructions, the defendant cannot successfully complain of the action of the court in giving oral instructions.

Appeal from Jay circuit court.

Taylor, Smith & Bailey, for appellant.
Headington & Lafollette, for appellec.

ELLIOTT, J. A complaint on account for work and labor performed at the request of the defendant, which charges that the defendant is indebted to the plaintiff, but omits to allege that the debt is due and unpaid, is good. Pittsburgh, etc., Co. v. Thornburgh, 98 Ind. 201; Hartlep v. Cole, 94 Ind. 513; Heshion v. Julian, 82 Ind. 576; Mayes v. Goldsmith, 58 Ind. 94.

The appellee requested the court to instruct in writing, but the appellant did not, and the court gave an oral instruction. The appellant cannot have a judgment of reversal on the ground that the court denied his adversary's request. "Charging the Jury," §§ 106, 107; Columbus, etc., Co. v. Powell, 40 Ind. 37. In the present instance the appellee, by the request for a further instruction, practically withdrew the request to instruct in writing, so that there was really no ruling upon the request of which even the appellee could rightfully complain.

Exceptions to instructions, made for the first time in the motion for a new trial, are too late to be available. Judgment affirmed.

(105 Ind. 81)

ALEXANDER and others v. SWACKHAMER.

Filed April 1, 1886.

SALE-FRAUD on Owner-BONA FIDE PURCHASER FROM PARTY IN POSSESSION BY FRAUD-CONVERSION.

Alexander v. Swackhamer, 4 N. E. Rep. 433, adhered to, on petition for rehearing.

Appeal from Marion superior court. On petition for rehearing.
John A. Holman and F. Winter, for appellants.

McDonald, Butler & Mason, for appellee.

MITCHELL, J. It is contended, in support of the petition for a rehearing, that by delivering his property to the impostor, under the circumstances disclosed, the appelle is estopped to assert, as against a good-faith purchaser, that he had not by such delivery invested the impostor with apparent authority to sell the property. It is said the question is not whether the title passed by the transaction between the appellee and the swindler, but whether such an appearance of authority was created by delivering the cattle into his possession, with knowledge that they were to be shipped to a firm engaged in selling on commission, as that the appellee may not now assert anything to the contrary. In the consideration of this question at the former hearing, our opinion was adverse to the view of the appellants in this regard. We held that, as one of the essential factors to a contract one of the contracting parties-was entirely wanting, no contract resulted, and hence no title passed, and that a delivery under the erroneous supposition that a sale had been made neither invested the person to whom the delivery was made with title, nor with an apparent authority to sell or dispose of the property thus delivered. We adhere to this conclusion.

Our attention is called to the case of Samuel v. Cheney, 135 Mass. 278. Upon an examination of the case we do not think it supports the appel

lants' contention. The origin of that case was a suit to hold a common carrier liable for goods delivered to a swindler. An imposter falsely personated a merchant in good credit, and ordered goods to be shipped to himself by the name of the merchant personated, at a given number. The goods were delivered by the carrier, according to the directions upon them, to the person who actually sent the order. The consignor supposed the order was from the merchant. The merchant neither gave the order nor received the goods, but the carrier delivered the goods at the place to which they were directed, and to the person who actually ordered them. It was held that the contract of the carrier was not that he would ascertain who is the owner of the goods, and deliver to him, but that it was sufficient to exonerate the carrier from liabilities for negligence if he delivered the goods, according to directions, to the person to whom they were sent. That the consignor directed and sent the goods to a person different from the one he actually intended, could not make the carrier liable for negligence in delivering the goods at the place to which they were directed, and to the very person who ordered them. No question of title or apparent authority was involved in the case. The sole question related to the carrier's negligence.

The appellee was not estopped, on the ground of negligence, in delivering the cattle under the circumstances disclosed. To constitute an estoppel the party sought to be estopped must have designedly done some. act or made some admission inconsistent with the claim or defense which he proposes to set up, and another must have acted on such admission, with his knowledge and consent. The owner of the cattle was induced to believe that he had made a sale to Fort, Johnson & Co. Acting on that belief, he delivered the property, as he supposed, to a member of the firm. For want of a purchaser no contract of sale resulted. No authority, or appearance of authority, was either conferred, or attempted to be conferred, upon the impostor other or different from that which would have attended a sale. When it resulted that no sale took place, the delivery and all the incidents of the transaction were a nullity, and ineffectual to support the claim of the purchaser. It was void ab initio. Unless negligence resulting in injury to another could be imputed to the owner of the property after he discovered or might have discovered the deceit practiced upon him, he had the right to treat the property as his own, and recover as for a conversion. Upon the subject generally, see Edmunds v. Merchants', etc., Co., 135 Mass. 283; Thacher v. Moors, 134 Mass. 156; Rodliff v. Dallinger, 4 N. E. Rep. 805.

The petition for a rehearing is overruled.

(106 Ind. 120)

BARRETT v. LEWIS.
Filed April 2, 1886.

VENDOR AND VENDEE-LIEN-PURCHASE PRICE OF LAND.

Where it appears that a debt is in fact a part of the purchase price of land acquired in the transaction out of which the debt arose, a court of equity, no obstacle intervening, will declare a lien on such land in favor of the person to whom such debt is due, although the technical relation of vendor and vendee may not exist between the parties.

Appeal from Marion superior court.
Dailey & Winpenny, for appellant.
R. E. Smith, for appellee.

MITCHELL, J. Hester A. Lewis conveyed a tract of land in Marion county to Gottfried Muhlman, and to secure part of the purchase price took back a mortgage. Subsequently she obtained a decree of foreclosure, and upon a sale of the land made in pursuance of the decree she became the purchaser, and received from the sheriff a certificate of purchase in due form. Before the period for redemption expired, she sold and assigned the certificate, and all her rights thereunder, to Lucy B. Barrett, who paid part of the consideration for the assignment in cash, and for the residue executed her promissory note, due in two years. It was stipulated in the note that it was given for "purchase money for real estate." At the expiration of the year for redemption, which was about four months after taking the assignment, Mrs. Barrett received a sheriff's deed upon the certificate, and went into possession of and has ever since continued to own the land. The note given in part payment for the assignment of the certificate remaining unpaid, suit was brought by Mrs. Lewis to enforce a vendor's lien upon the land. Upon a special finding of facts, of which the foregoing is the substance, the superior court at special term stated conclusions of law, upon which a decree was given declaring and enforcing a vendor's lien for the amount due upon the note. This judgment was affirmed upon appeal to the general term, and the sole question here is whether, upon the transaction stated in the special findings, a vendor's lien resulted.

The lien which arises in favor of the vendor of land, or of the person to whom purchase money is due, is peculiarly of equitable cognizance. Equity has regard, in such cases, as in others, for the substance, and not the mere form, of the transaction. Disregarding form, a court of equity will not permit substantial equities which are clearly established to be defeated by the interposition of merely nominal or technical distinctions. If, upon looking through the transaction, it appears that a debt is in fact part of the purchase price of land acquired in the transaction out of which the debt arose, no other obstacle intervening, a lien will be de clared upon the land so acquired in favor of the person to whom such debt is due. This is clearly the result of the well-considered case of Dwenger v. Branigan, 95 Ind. 221, and the authorities there cited.

It is elaborately argued that a certificate of purchase vests no title to the land in the holder, and that the transfer of the certificate did not

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