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(125 N.E.)

the witness, and thereby showing that the letters in the face of the warrant, to wit, "G. R. C. Fund," mean Gravel Road Construction or Expense Fund, objected, and stated substantially the same ground as stated in objection to the claim. The objection should have been overruled.

[3] Appellant's further complaint is that the court erred in refusing to permit a witness, who was a member of the grand jury which returned the indictment against defendant, to repeat what defendant, who had been subpoenaed as a witness before the grand jury, had stated to the grand jury, the purpose being to show that defendant admitted that the claim was not for expenses he had personally incurred; the purpose not being to thereby convict defendant of perjury upon a trial of defendant on a charge of perjury; nor to ascertain whether the later testimony of the witness was consistent with his testimony before the grand jury. The objection of defendant should have been overruled. Hinshaw v. State, 147 Ind. 334, 47 N. E. 157, and cases cited.

As stated in appellant's brief, all other points made are covered by the rules above announced.

The appeal is sustained at the costs of appellee as to the appeal.

TOWNSEND, C. J. Appellant was convicted in the city court of Indianapolis for violation of the liquor laws. He appealed to the criminal court, was tried by jury, and convicted again.

[1] He says the court erred in permitting the jury to take the affidavit with them when they retired to deliberate on their verdict, because it had the finding and judgment of the city court indorsed thereon. If the court did this, he committed error. Lotz v. Briggs, 50 Ind. 346, 348; Ogden v. United States, 112 Fed. 523, 526, 50 C. C. A. 380; State v. Tucker, 75 Conn. 201, 203, 52 Atl. 741. But the record does not show that the court did any such thing. True, the record shows that appellant filed a motion asking the court to erase from the back of the affidavit the minutes showing the finding and judgment of the city court. This was overruled, and appellant excepted.

[2] There is no law requiring the court to let the jury have the affidavit while they are deliberating on their verdict. We must assume, therefore, that the court overruled this motion, because he did not care to erase from the back of the affidavit that which he never contemplated letting the jury see.

No error being presented by the record and briefs, the judgment of the trial court is affirmed.

(189 Ind. 88)

MCNULTY v. STATE. (No. 23599.)* (Supreme Court of Indiana. Nov. 25, 1919.)

1. CRIMINAL LAW 260(13)—Jury's POSSESSION OF AFFIDAVIT WITH INDORSEMENT OF PRIOR CONVICTION.

In a prosecution in the criminal court for violation of the liquor laws on appeal from conviction in a city court, it would have been error for the criminal court to permit the jury to take with them the affidavit, having indorsed thereon the finding and judgment of the city court, when they retired to deliberate on the verdict.

2. CRIMINAL LAW 858(3)-JURY'S POSSESSION OF AFFIDAVIT.

There is no law requiring the court to let the jury have the affidavit while deliberating on their verdict.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

Charles O. McNulty was convicted of violating the liquor laws, and he appeals. Affirmed.

(188 Ind. 592)

CLEVENGER v. STATE. (No. 23514.) (Supreme Court of Indiana. Nov. 26, 1919.) 1. CRIMINAL LAW 211(4)-AFFIDAVIT DESCRIBING DEFENDANT AS AGENT DESCRIPTIO PERSONE.

into a

An affidavit under Burns' Ann. St. 1914, § 2425, relating to bribing public officers, statcontract with defendant "agent of the" H. Co., ing that a township trustee entered into is sufficient and cannot be construed as alleging a contract by the agent on behalf of his principal; the words following defendant's name being descriptio persona.

2. CRIMINAL LAW 211(4)—FAILURE IN AFFIDAVIT CHARGING BRIBERY TO ALLEGE THAT DEFENDANT KNEW PARTY PAID WAS PUBLIC OFFICER.

An affidavit charging bribery under Burns' Ann. St. 1914, § 2425, is sufficient as against the objection that it does not állege that defendant knew the party to whom he paid the money allegations of the affidavit make it apparent was then a township trustee, where all the

that defendant must have known that such party was then township trustee.

3. CRIMINAL LAW 1144(18), 1160-REVIEW

OF APPROVED VERDICT.

Where a verdict convicting of bribery was Holmes & McCallister, of Indianapolis, for rendered upon conflicting evidence and sustainappellant.

Ele Stansbury, of Indianapolis, and Dale F. Stansbury, of Covington, for the State.

ed upon motion for new trial by the judge, who heard the evidence and saw the witnesses, it will be presumed that the trial court considered

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

and weighed all the evidence, and the Supreme | viction, shall be fined not less than $300 or Court, which cannot weigh the evidence, cannot more than $5,000 and be imprisoned in the set aside the verdict as not sustained by the state prison not less than two years nor more evidence. than fourteen years, and be disfranchised and 4. CRIMINAL LAW 371(11), 673(5)-EVI- rendered incapable of holding any office of

DENCE IN PROSECUTION FOR BRIBERY OF OTH-
ER OFFENSES AS BEARING ON PURPOSE OF

PAYMENT ONLY.

In a prosecution under Burns' Ann. St. 1914, § 2425, for paying a bribe to a township trustee, evidence of payments by defendant to such trustee in counties other than that of venue would not be evidence of the payment charged in the county of venue, but could only be considered as bearing on the purpose of payment, and it was error to refuse a request to so instruct.

5. CRIMINAL LAW

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as such trustee, Carl A. Biller entered into a contract with Earl L. Clevenger, agent of the Hoosier Warming & Ventilating Company, to repair the heating furnaces in the township high school building near Staunton, in 1173(2)—FAILURE TO said Posey township, for said school town

LIMIT EVIDENCE OF OTHER CRIMES TO PUR-
POSE, PREJUDICIAL ERROR.

In a bribery prosecution where the evidence sharply conflicted as to the fact of payment of the bribe alleged, held, that such fact was not so clearly and conclusively proved by other evidence as to render harmless the court's failure to instruct that evidence of other payments to the same public officer in other counties could be considered only as bearing on the purpose of payment.

Appeal from Circuit Court, Clay County; George W. Brill, Special Judge.

Earl L. Clevenger was convicted, under Burns' Ann. St. 1914, § 2425, of paying a bribe to a public officer, and he appeals. Reversed, with instructions to sustain defendant's motion for new trial.

White & Haymond, of Muncie, and Bernard M. Robinson, of Akron, Ohio, for appel

lant.

Ele Stansbury, of Indianapolis, Dale F. Stansbury, of Covington, and W. L. Slinkard, of Bloomfield, for the State.

ship. It was further charged in the affidavit that on or about the 23d day of January, 1918, in the county of Clay and the state of Indiana, the said Earl L. Clevenger having said contract as aforesaid did then and there, unlawfully, feloniously, and corruptly, pay to said Carl A. Biller, trustee as aforesaid, $40 lawful money of the United States of America as a percentage, reward, drawback, premium, and profit on such contract, contrary to the form to the statute.

The sufficiency of the affidavit was questioned by a motion to quash and also by a motion in arrest of judgment, both of which motions were overruled.

[1] The first objection urged to the affidavit is that it does not state with sufficient certainty that the contract on which the money was alleged to have been paid was a contract of the trustee with appellant. The charge is that Carl A. Biller as trustee entered into the contract with Earl L. Clevenger, agent of the Hoosier Warming & Ventilating Company. The words following the name of appellant in the last sentence are regarded as descriptio personæ, and cannot be construed to mean that appellant, as agent of the company named, made the contract for and on behalf of his principal. State v. Simpson (1905). 166 Ind. 211, 76 N. E. 544, 1005; Allen v. State (1876) 52 Ind. 486; Weaver v. State (1856) 8 Ind. 410. The affidavit is sufficient to charge that appellant entered into the contract described in his personal capacity, and that, while he had such contract, he paid to Biller, as trustee, $40 with the intent and purpose stated in the affidavit.

LAIRY, J. Appellant was charged by affidavit and convicted in the Clay circuit court of a crime defined by section 2425, Burns' 1914. The section cited defines two offenses. The first part of the section makes it a felony for any person to pay any money or to deliver anything of value to any persons holding certain offices named therein, for the purpose of obtaining any contract for the construction of certain public buildings and other works of a public nature named therein, or for the performance of any work [2] A further objection is made to the affior the furnishing of any material to any davit on the ground that it fails to charge state, county, town, or city, over which such that appellant knew, on the 23d day of Janperson has any jurisdiction. Appellant was uary, 1918, the date on which the money was charged and convicted of the offense defined alleged to have been paid, that Biller was by the last part of the section which provides, trustee at that time. When all of the allegain substance, that any person who, having tions of the affidavit are considered together, any such contract, shall pay or agree to pay to it becomes apparent that appellant must have any of the officers or persons above named known and did know the official character any money, percentage, reward, drawback, of Biller at the time the money was alleged premium, or profits on such contract, on con- to have been paid. The affidavit must be

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(125 N.E.)

held to be sufficient. State v. McDonald, 106, terial and the performance of work for that Ind. 233, 6 N. E. 607.

township; (2) that while he had that con[3] The other questions presented arise on tract he paid to Biller $40 or some other the ruling of the trial court on the motion amount of money in Clay county, Ind., within for a new trial. In regard to the sufficiency two years prior to the date on which that of the evidence to sustain the verdict, appel- affidavit was filed; and (3) that the money so lant takes the position that all of the evi-paid was a percentage, reward, drawback, dence, without dispute, shows that the con- premium, or profit on such contract. tract for repairing the heating furnaces, upon The witness Biller testified that appellant which it is alleged the $40 was unlawfully paid him $10 at his office in Staunton on paid was entered into between Biller as trus- the 22d day of January, 1918, at the time tee and the Hoosier Warming & Ventilating witness paid the balance on the heating Company by its agent Roy Alexander; and repairs, and that appellant said that the balthat appellant, at the time the money is al- ance due witness was $95, which he would leged to have been paid, had no contract with pay when witness paid for the pump which the trustee in his official capacity within the had been ordered. This was the only evimeaning of the statute. The testimony of dence as to the payment of any money by Alexander and Biller strongly sustain appel- appellant to Biller in Clay county, Ind. Aplant's position, but it cannot be said that pellant denied making this payment, and furthere is a total want of evidence to sustain ther stated that on the day the settlement a finding by the jury that the contract was was made he and two other men, Limbaugh with appellant. There is evidence to show and Gordon, went from the Davis Hotel in that appellant was engaged in the plumbing Brazil, Ind., directly to the office of Biller business on his own account, and that a large in Staunton; that it was a very cold day; amount of the material for making the re- that both these men went into the office with pairs, which was furnished by W. H. Johnson him and remained there during the time he & Sons Co., of Indianapolis, was shipped to was engaged in making the settlement and appellant at Staunton, and was charged to collecting the balance due on the heating his individual account, which he paid. These repairs; and that, after his business was concircumstances were explained by evidence cluded, one of the other men showed some showing that he was, at the time, president plans to Mr. Biller and talked over some conand general manager of the Hoosier Warm- templated repairs to the school building, afting & Ventilating Company, and that all er which they all left the office together. goods sold by W. H. Johnson & Sons Com- Both Gordon and Limbaugh were produced pany to that company were charged to ap- as witnesses at the trial, and they both pellant personally because he had credit corroborated appellant as to the facts just with W. H. Johnson & Sons Co. There is stated. They both further testified that, duralso evidence to show that checks given ing the entire time appellant was in the office, for labor performed in making the repairs they sat by the stove only four or five feet were signed by appellant, and that the from the desk where the business was transbill rendered for material and labor, and acted, and heard all that was said, and that introduced in evidence, showed that the nothing was said about the $95 or any other account was in favor of Earl L. Clevenger, amount remaining due to Biller, or that applumber, and that the items therein were pellant would pay any balance due when the charged to C. A. Biller, trustee. It was the pump was paid for or at any other time. province of the jury to consider the circum- They both testified that no money was paid stances proved and the explanations made in on that occasion. Mr. Peters, who drove the connection with the direct testimony of the taxicab, also testified that he took these men witness bearing on the question, and decide on the day mentioned, from Brazil to the whether appellant did or did not have the office of Biller in Staunton. Biller testified contract for repairing the furnaces as al- that no one was present at the office with leged in the affidavit. The jury decided, and appellant when the settlement was made and the trial judge, who heard the evidence and the money paid. All of the evidence shows saw the witnesses, has decided, that the evi- that appellant, Gordon, and Limbaugh were dence was sufficient to sustain the verdict in Staunton to see Biller on December 28, on the point under consideration. It will be 1917, and took dinner at his house, and Biller presumed that the trial court considered all testifies that this was the only occasion that of the evidence and weighed it in reaching they were there together, while appellant and the conclusion stated. This court cannot the other two witnesses testified that they weigh evidence. As the evidence is conflict- came again together on January 22, 1918. The ing, the verdict cannot be set aside on the ground stated.

witness Peters testified that he brought them over on both trips. The jury by its verdict [4] The main facts necessary to establish found that the money was unlawfully paid the guilt of the defendant were: (1) That to Biller by appellant in Clay county, and he had a contract with Biller, as trustee of there is some evidence to sustain the finding. Posey township, for the furnishing of ma- If the jury reached this verdict from a con

sideration of competent evidence and under proper instructions, this court cannot disturb it.

met Biller and gave him $15 at a bar in Indianapolis, but stated that he let him have the money as a loan on his representation that he needed the money to pay his hotel bill.

At the proper time appellant tendered instruction No. 5, which the court refused to give, and did not give any instruction covering the proposition stated therein. This ruling of the court was assigned as a cause for new trial and is presented for review on appeal. The instruction so tendered and refused is in the following words:

The testimony of the witness Biller shows that, after the contract for the repairs to the heating plant was entered into, he met appel- If $15 was paid Biller in Indianapolis, in lant in Terre Haute, Ind., and had a conver- violation of the provisions of the statute, sation with him in which the repairs were that would be a distinct offense of which discussed and in which appellant said that the courts of Marion county would have juhe would treat him right and give him 10 per risdiction, and the same may be said as to cent. of all the work, and asked him if that the payment of the $65, which Biller testiwould be satisfactory, and that witness as- fied was paid to him in Vigo county. Apsented to that arrangement. Biller's evidence pellant was charged with paying money to also shows that he later gave appellant an Biller in Clay county in violation of the order for a pump on which contract appel- statute, and it was incumbent on the state lant agreed to pay him $50, stating that this to establish a payment of money in that amount, together with his percentage on the county in order to authorize a conviction. heating repairs, would make the amount due Clear proof that a payment of money was him $200. About the 22d day of September, made in Marion county in violation of the 1917, according to the testimony of Biller, he statute could not be regarded as any evigave appellant a check for something over dence, either direct or circumstantial, that $1,000 on the heating contract at his office any money was paid by appellant to the in Staunton, at which time appellant said prosecuting witness in Clay county as charged that he would get the check cashed and give in the affidavit. him his commission. Some time in October, Biller testified he met appellant at Terre Haute, here appellant paid him $65 while they were seated at a table in a barroom. There is also testimony to show that appellant was in Indianapolis, on March 11, 1918, when his books were under examination by the state board of accounts, and that on that day he called appellant at Muncie, Ind., by long distance from the phone in the office of "The court instructs the jury that it is the the state board of accounts. After identify be proven guilty of one offense by proving the law of this state that a defendant may never ing appellant, Biller asked him if he could commission of other crimes. Evidence has been not pay him the balance of the $95 due him on introduced in this trial as to certain alleged the job at Staunton. Biller testified to mak-payments which the state claims to have been ing this request and to the entire conversation held by telephone, and two members of the state board of accounts, who listened to the conversation at extension instruments, corroborate him as to the entire conversation. Appellant admitted in his testimony that he had a conversation over the telephone with Biller on the day mentioned, but he denied that any request was made by Biller for the payment of any balance due him on contract. Appellant stated that Biller told him over the wire that he was in trouble and requested him to come to Indianapolis, and that he told Biller that he had business in Indianapolis and that he would come over the next morning on a traction car and meet him at the traction station. The evidence shows that they met at the traction station and went from there to a saloon, where appellant gave Biller $15. This money was taken by Biller to the office of the state board of accounts, where it was sealed in an envelope. This envelope was produced at the trial and identified, and it was opened by a witness in the presence of the jury and the contents submitted to the jury for inspection. Appellant by his testimony admitted that he

made by the defendant, Earl L. Clevenger, to Carl A. Biller, at Terre Haute, and Indianapolis, Ind., while said Biller was township trustee of Posey township, Clay county, Ind., and while said Clevenger had a contract with the said Biller for the repair of the heating plants in the High School Building at Staunton, Ind. The court instructs you that the defendant, Earl L. Clevenger, is upon trial on an affidavit charging but one crime, namely, that on or about the 23d day of January, 1918, while having a contract with Biller, township trustee, to repair certain furnaces in the High School Building at Staunton, Ind., said defendant, Clevenger, paid Biller $40 as a percentage, reward, drawback, premium, or profit on said contract. You are to bear in mind, gentlemen of the jury, that this is the sole and only crime with which the defendant is charged in this case, and in arriving at a verdict in this case you are in no wise to determine or consider the guilt or innocence of the defendant with reference to the two other alleged payments that have been offered in evidence in this cause by the state. I further instruct you, gentlemen of the jury, that you are only permitted to consider the evi

dence with reference to these two transactions in case you first find as a fact beyond every reasonable doubt from the other evidence in the cause that said Clevenger had a contract with Biller as charged, and that while having such

(125 N.E.)

(73 Ind. App. 120) WESTERN UNION TELEGRAPH CO. v. HANLIN. (No. 9965.) *

(Appellate Court of Indiana, Division No. 2. April 1, 1920.)

contract, on or about the 23d day of January, 1918, he paid Biller the $40 as alleged in the affidavit, then and then only are you permitted to consider the testimony with reference to the other two alleged payments, and in the consideration of them you are instructed that the evidence of such payments is to be weighed by you only for the purpose of determining the guilty 1. COMMERCE 8(7)-FEDERAL LEGISLATION knowledge, intent, motive, or purpose of said Clevenger in paying Biller the said $40, if you find the same to have been paid as alleged beyond every reasonable doubt."

AS TO INTERSTATE TELEGRAPHIC BUSINESS
EXCLUDES THAT OF STATES.

By Act Cong. June 18, 1910, § 7 (Comp. St. § 8563), making the interstate commerce act applicable to interstate telegraphic business, Congress intended to occupy completely the field of regulating interstate transmission of telegrams, and that act suspends all state laws and decisions in so far as they conflict with valid regulations made thereunder applicable to interstate telegrams.

54(4) —

2. TELEGRAPHS AND TELEPHONES
LIMITATION OF LIABILITY REQUIRING FILING
OF CLAIM HELD BINDING.

Regulation by telegraph company under the authority of Act Cong. June 18, 1910, § 7 (Comp. St. § 8563), including those limiting liability for mistakes in transmitting unrepeated messages and requiring claim to be filed within 60 days which have not been declared within 60 days which have not been declared unreasonable, are binding.

It has been frequently decided that proof of the commission of other criminal acts may be proven for the purpose of showing a criminal purpose or intent or a guilty knowledge, in cases where such purpose, intent, or knowledge are essential ingredients of the crime charged, and where the evidence of such other acts tends to establish such criminal motive, intent, or such guilty knowledge. Thomas v. State (1885) 103 Ind. 419, 2 N. E. 808; Rock v. State (1916) 185 Ind. 51, 110 N. E. 212. In this case it was required to prove, not only that appellant paid the money prove, not only that appellant paid the money to Biller as trustee in Clay county, but also that the money was paid as a percentage, reward, drawback, premium, or profit. If the jury found from other evidence that appellant did pay the money to Biller as trustee, in Clay county, as charged in the affidavit, it might then properly consider ern Union Telegraph Company. Judgment evidence as to other payments by appellant to Biller, in Vigo County and in Marion county, as well as the circumstances attending such payment if shown. Such evidence could not be considered by the jury as lending any support to the fact that appellant paid the $40 to Biller in Clay county as charged in the affidavit, but could be considered only as bearing on the purpose with which the money was paid in case the jury found as a fact from other evidence that such payment was made.

[5] In view of the evidence as set out, the failure of the court to limit the application of the evidence under consideration, as requested by appellant, was clearly prejudicial to his rights. Appellant may be guilty as charged in the affidavit; but, before he can be so adjudged, he has a right to have the facts on which guilt depends determined by a jury under proper instructions as to the law. As appears from the preceding statement, there was a sharp conflict in the evidence relating to the payment of the $40 at Staunton as charged in the affidavit. This court cannot say that this fact is so clearly and conclusively shown by the other evidence in the case as to render harmless the error of the court in refusing to give the instruction quoted.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

Appeal from Circuit Court, Jay County; E. E. McGriff, Judge.

Action by John A. Hanlin against the West

for plaintiff, and defendant appeals. Reversed, with directions to grant a new trial.

Albert Benedict, of New York City, John M. Smith, of Portland, and Barrett, Morris & Hoffman, of Ft. Wayne, for appellant.

MCMAHAN, J. This is an action by appellee to recover damages from appellant for failure to correctly transmit and deliver a telegram sent by a firm of commission merchants in Buffalo, N. Y., to appellee, a stock dealer at Portland, Ind., by reason of which appellee claimed damages. The telegram as delivered to appellant at Buffalo for transmission read as follows: "Prospects look higher for hogs selling fifty-five to-day.” When delivered to appellee, it read "ninetyfive" instead of "fifty-five.”

[1] Appellant contends that the message being interstate commerce was by Act of Congress of June 18, 1910, c. 309, § 7, 36 Stat. L 545 (Comp. St. § 8563), placed wholly under the supervision of the Interstate Commerce Commission. This act amends the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379) and provides that said act shall be applicable to all interstate telegraph business; that, as to all interstate business, telegraph, telephone, and cable companies are common carriers within the meaning and purpose of the act, and, as to their interstate business, telegraph companies must print and

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*Rehearing pending.

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