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additional securities which she possessed, $8,500 thereof were purchased by her from the proceeds of the mortgage notes which came to her from the estate of her husband, William French, deceased. There is, of course, no question as to the $4,100 in government bonds, which is the identical property which came to Clara B. French from the estate of William French, deceased. The question presented is whether, under the statute, property which is not the identical property which came from the deceased husband, but which was purchased from the proceeds of property which came to the wife from the deceased husband, should be distributed in accordance with the provisions of section 8577, General Code. By virtue of the provisions of that section, when the relict of a deceased husband or wife dies intestate and without issue, possessed of any real or personal property which came to such intestate from a former husband or wife by deed of gift, devise, or bequest, or under the provisions of section 8574, General Code, and there are no children or their legal representatives of the deceased husband or wife, such estate, real and personal, shall pass and descend one-half to the brothers and sisters of such intestate or their legal representatives and one-half to the brothers and sisters of such deceased husband or wife from whom such personal property or real estate came, or their legal representatives.

If in the provision, "real estate or personal property which came" to the wife from the husband under this section, there is included property thereafter purchased with the proceeds of the real or personal property which came from the husband, and the only test to be applied is whether it is possible to trace the proceeds of such property left by the husband to some property possessed by the wife at the time of her death, the same rule must be universally applied, regardless of the period of time that may have elapsed, the number of transactions involving the exchanges or purchases of property real or personal, or the extent to which there may have been an intermingling of assets from the property received from the husband's estate with the property owned and possessed by the wife, or the extent of the natural increase and accumulation thereof. Some of the difficulties are thus indicated which would arise if the statute under consideration were held to direct that not only the property, but the proceeds of the property which came from the husband, so far and so long as traceable, should descend and be distributed under section 8577, General Code. That would be the effect if interpreted and

applied as contended for by counsel for defendants in error.

The

We are therefore asked so to construe the language employed by the Legislature as to include that which is not covered by the terms of the statute. Such construction and application of these provisions would have the effect of taking property from the course of descent directed by the clear and express provisions of one statute and placing it in an entirely different course of descent under another statute. That would not be statutory construction; it would be legislation. court is authorized only to interpret and apply the laws enacted by the Legislature, and, when the language employed is clear and unambiguous, no interpretation is required. Slingluff v. Weaver, 66 Ohio St. 621, 64 N. E. 574; Scheu v. State, 83 Ohio St. 146, 93 N. E. 969; Board of Education of Zaleski School Dist. v. Boal, 104 Ohio St. 482, 135 N. E. 540; Mahoning Park Co. v. Warren Home Development Co., 109 Ohio St. 358, 142 N. E. 883.

The provisions of section 8577, General Code, require no construction, and its terms should be applied in accordance with the plain meaning of the language employed. The widow was at liberty to do as she pleased with any of the property left to her by her deceased husband; she could consume it all; she could give it away during her lifetime, or dispose of it by will if she chose. It was her property, and she could sell it and invest the proceeds in other property as she pleased. The brother and sister of her deceased husband had an interest only in the event the widow died intestate without children or their legal representatives and in possession of the same property which came to her from her husband. The $8,500 of securities in question, owned and possessed by Clara B. French at the time of her death, were not "property which came" to her from her deceased husband. Regardless of the time when the same were acquired by the widow, those bonds constitute property which came, not from the husband, but by purchase, and upon the death of the widow they pass under the statute to her heirs.

It is our conclusion, therefore, that only the $4,100 in government bonds was subject to distribution under the provisions of section 8577, General Code. The judgment of the Court of Appeals will therefore be modified as above indicated.

Judgment modified and affirmed.

MARSHALL, C. J., and DAY, ALLEN, KINKADE, ROBINSON, and JONES, JJ.,

concur.

(162 N.E.)

WIERNASICIWICZ v. STATE. (No. 24972.)
Supreme Court of Indiana. June 20, 1928.
I. Criminal law 1104(5)—Record without in-
dex and in part without marginal notes does
not comply with rules, notwithstanding mar-
ginal notes and index to bill of exceptions
(Supreme Court Rule 3).

Record on appeal from judgment of conviction disclosing no attempt to make marginal notes to first 39 pages of the record, which was the clerk's transcript of all papers filed and order book entries made prior to and after trial, and record not being indexed, though there was an index to the bill of exceptions containing the evidence and marginal notes to the bill, held not prepared in compliance with Supreme Court Rule 3.

2. Criminal law

1130(5)-Brief having no propositions, points, or authorities supporting assignments of error does not present any question for review (Supreme Court Rule 22, cl. 5).

Defendant's brief, on appeal from conviction, having no propositions, points, or authorities on which he relied to support either of his assignments of error, does not comply with Supreme Court Rule 22, cl. 5, and does not present any question for review.

Appeal from Porter Circuit Court; H. H. Loring, Judge.

Andrew Wiernasiciwicz was convicted of manufacturing intoxicating liquor, in violation of Acts 1923, c. 23, § 1, and he appeals. Judgment affirmed.

Kelly & Loomis, of Valparaiso, for appellant.

Arthur L. Gilliom, Atty. Gen., and George J. Muller, Jr., Deputy Atty. Gen., for the

State.

PER CURIAM. From a judgment upon a verdict finding appellant guilty of manufacturing intoxicating liquor (Acts 1923, p. 70, c. 23, § 1), this appeal was prosecuted, and in this court appellant has assigned as errors the overruling of his motion to quash the affidavit, and the overruling of his motion for a new trial.

Appellee earnestly insists that appellant has failed to comply with rules 3 and 22 of the Supreme and Appellate Courts, and for that reason he has not presented any question for review.

[1, 2] An examination of the record discloses no attempt to make marginal notes to the first 39 pages of the record, which is the clerk's transcript of all papers filed and order book entries made prior to and after the trial, nor is the record indexed. There is, however, an index to the bill of exceptions containing the evidence and marginal notes to the bill. A record thus prepared is not in compliance with rule 3. But were we inclined

to overlook this failure pointed out by the state, we are immediately met with the showing that appellant's brief does not comply with the fifth clause of rule 22, in that it has no propositions, points, or authorities upon which he relies to support either of his assignments of error. This omission has been frequently held to be a waiver of questions not thus supported. Pattison v. Grant Turst, etc., Co., 195 Ind. 313, 318, 144 N. E. 26; Epstein v. State, 190 Ind. 693, 127 N. E. 441, 128 N. E. 353; Earl v. Státe, 197 Ind. 703, 151 N. E. 3, and cases cited; Kaufman v. Alexander, 180 Ind. 670, 103 N. E. 481; Scott v. Baird, 63 Ind. App. 16, 113 N. E. 769; Buckeye, etc., Co. v. Stewart-Carey, etc., Co., 60 Ind. App. 302, 110 N. E. 710; Dillon v. State, 48 Ind. App. 495, 96 N. E. 171.

For the reasons thus suggested, the judgment is affirmed.

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Supreme Court of Indiana. June 19, 1928.

1. Larceny 39-Motion to quash affidavit charging stealing of goods in one county and bringing them into another, wherein prosecution was had, held properly overruled (Const. Bill of Rights, § 13).

In prosecution for grand larceny, motion to quash count of affidavit charging that defeloniously steal and carry away from said fendant did in another county unlawfully and county and did then and there feloniously bring into county of Vigo various articles of aggregate value of $285, held properly overruled, since under Const. Bill of Rights, § 13 (Burns' prosecutions accused should have right to pubAnn. St. 1926, § 65), providing in all criminal lic trial by impartial jury in county in which offense shall have been committed affidavit was sufficient.

2. Witnesses 337(6)—In prosecution for larceny, cross-examination of defendant concerning arrest for violation of liquor law held competent as affecting credibility.

In prosecution for grand larceny, where defendant while on stand as witness was asked on cross-examination if he had ever been arrested

for violating liquor law and compelled to answer, held such evidence was competent as affecting credibility.

3. Witnesses 277 (1), 327, 330(1), 337(2), 365-Accused on stand as witness is subject to cross-examination same as any other witness; accused may be cross-examined to show interest, bias, ignorance, motives, or that he is depraved in character; extent of crossexamination of accused to impair credibility is within discretion of court.

When defendant takes stand as witness, he is subject to cross-examination same as any other witness, and he may be asked questions concerning any fact tending to impair his credibility as witness by showing his interest, bias,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 162 N.E.-4

ignorance, motives, or that he is depraved in character, and extent to which this may be carried is within sound discretion of court.

4. Criminal law 1144(2)-Appellate Court will presume that trial court's action was correct, in absence of error affirmatively shown.

Unless error is affirmatively shown, Appellate Court will presume that action of trial court was correct.

5. Larceny 56-In larceny, corpus delicti may be proven by circumstantial evidence.

Corpus delicti in larceny may be proven by circumstantial evidence.

6. Larceny ~64 (7)—While unexplained possession of another's property may not establish larceny, it, taken with other circumstances, may be sufficient.

While unexplained possession of another's property may not of itself be sufficient to establish larceny, such fact, taken together with other circumstances, may be sufficient.

7. Larceny 50-Evidence showing defendant denied knowledge of stolen ring in his possession and that he was near place when and where ring was stolen is admissible in determining whether possession was criminal.

In prosecution for grand larceny, evidence showing that defendant denied any knowledge of stolen ring which he had in his possession, and that he was near place where ring was stolen and when it was stolen, is admissible in determining whether his possession was referable only to criminal origin.

8. Larceny ~64(7)—In grand larceny prosecution, where stolen articles were found in possession of defendant, evidence held to sustain conviction.

In prosecution for grand larceny, where large number of articles alleged to have been stolen were found in possession of defendant, evidence held sufficient to sustain conviction.

9. Criminal law 1144(13)-In ascertaining whether finding of court is sustained by evidence, Appellate Court considers only evidence most favorable to prevailing party.

In ascertaining whether finding of court is sustained by sufficient evidence, Appellate Court considers only evidence most favorable to prevailing party.

in Knox county, on December 8, 1922, did then and there unlawfully and feloniously, steal, take, and carry away from said county of Knox, and did then and there feloniously bring into the county of Vigo, state of Indiana, various articles belonging to one Thomas J. Arnold, and of an aggregate value of $285.

A motion to quash the second count of the affidavit was filed and the reasons alleged for quashing are that said count of said affidavit does not state facts which constitute a public offense, and does not state the charge therein contained with sufficient certainty; that said second count contains more than one distinct offense in this, said count charges the offense of larceny, and also contains the distinct offense of bringing into said county of Vigo goods unlawfully obtained by means of larceny.

The court overruled the motion to quash, and the appellant entered a plea of not guilty, and was tried by the court without a jury. The court found appellant guilty of grand larceny and fixed his punishment at imprisonment from one to fourteen years and a fine of $10 and costs, and disfranchisement for five years.

A motion for a new trial was made and overruled, and judgment rendered on the finding. An appeal was then taken from this judgment. Appellant alleges error in overruling appellant's motion to quash the second count of the affidavit.

[1] It is claimed by the state that, if property is alleged to be stolen in one county and taken into another county, as in the instant case, and a prosecution is had in the county to which the goods are taken, the presentment is sufficient if it properly alleges the theft in the county in which the goods are stolen. Hurt v. State, 26 Ind. 106; Jones v. State, 53 Ind. 235.

In Hurt v. State, supra, the court said: "The information charges a larceny by the defendant, committed in the county of Allen, and that he brought the stolen property into Wells county. It is urged that this is not a charge of a larceny committed in the latter county. Not at all approving of the form of this indictment, which should have directly

Appeal from Vigo Circuit Court; John P. charged a larceny in Wells, yet we cannot, unJeffries, Judge.

der the code, hold it bad. Each removal of the

Fred Tosser was convicted of grand lar- property by the thief into another jurisdiction, ceny, and he appeals. Affirmed.

Hamill, Hickey, Evans & Danner, of Terre Haute, for appellant.

U. S. Lesh, Atty. Gen., and Arnet B. Cronk and Carl Wilde, both of Indianapolis, for the

State.

WILLOUGHBY, J. This was a prosecution for grand larceny, based upon the second count of an affidavit filed in the Vigo circuit court, wherein it was charged that appellant,

was at common law held to be a fresh taking, and therefore a new larceny. The averment in this case of such removal was, it is true, an allegation of the evidence. But it was conclusive. It could not possibly be true without resulting in the defendant's guilt. It was, therefore, necessarily the equivalent of a direct charge of larceny."

Jones v. State, supra, also supports the contention of the state.

In Martin v. State, 176 Ind. 317, 95 N. E. 1001, the court says prosecutions authorized

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

(162 N.E.)

by section 1875, Burns' Ann. St. 1908, in a case where property has been stolen in one county and brought into another by the thief, are upheld upon the distinct ground that a taking of stolen property from one county into another constitutes a new or fresh theft, and it may be said that the prosecution for such offense is in the county in which it was committed, and falls within the requirement of section 13 of our Bill of Rights.

Section 13 of the Bill of Rights, section 65, Burns' 1926, provides that, in all criminal prosecutions, the accused shall have the right to a public trial by an impartial jury, in the county in which the offense shall have been committed. The court did not err in overruling the motion to quash.

[2, 3] The appellant claims that the court erred in overruling appellant's motion for a new trial, for the reason that the court erroneously compelled appellant over his objection, to answer the following question put to him by the state on cross-examination: "I will ask you if you were arrested on the 16th day of February, 1922, charged with violating the liquor law."

When the defendant takes the stand as a witness, he is subject to cross-examination as any other witness, and he may be asked questions concerning any fact tending to impair his credibility as a witness by showing his interest, bias, ignorance, motives, or that he is depraved in character. All this may be shown on cross-examination, but the extent to which this may be carried is within the sound discretion of the court. Pierson v. State, 188 Ind. 239, 123 N. E. 118; Vancleave v. State, 150 Ind. 273, 49 N. E. 1060; Dotterer v. State, 172 Ind. 357, 88 N. E. 689, 30 L. R. A. (N. S.) 846.

[4] It does not appear from the record that the trial court abused its discretion in permitting the cross-examination of the defendant as a witness. The evidence adduced by such cross-examination was competent only as going to the credibility of the witness, and it does not appear that it was considered for any other purpose. less error is affirmatively shown, this court will presume that the action of the trial court was correct. Kirschbaum v. State, 196 Ind. 512, 149 N. E. 77; Coleman v. State, 196 Ind. 649, 149 N. E. 162; Jackson v. State ex rel., 194 Ind. 130, 142 N. E. 1.

Un

The appellant further contends that the finding of the court is not sustained by sufficient evidence, because, considering the evidence in the view most favorable to a conviction, the evidence shows only that the goods were stolen in Knox county and shortly thereafter were found in the exclusive possession of the defendant.

[5-7] The corpus delicti in larceny may be proven by circumstantial evidence, and, while

the unexplained possession of another's property may not of itself be sufficient to establish larceny, such fact, taken together with the other circumstances, may be sufficient. Evidence to show that a defendant denied any knowledge of a stolen ring which he had in his possession, that he was near the place where the ring was stolen, and when it was stolen, is admissible in determining whether his possession was referable only to a criminal origin. Mason v. State, 171 Ind. 78, 85 N. E. 776, 16 Ann. Cas. 1212.

[8,9] In the instant case a large number of articles alleged to have been stolen were recently after the larceny found in the possession of the defendant, and in his testimony he claimed that the articles belonged to him, that he bought them, but he could not remember where he bought them. The circumstance of the stolen property being in the possession of the defendant recently after the larceny, together with his explanation of it, and the claim of the ownership of it, and the testimony of the detective to whom the appellant related the circumstances regarding the property, when all taken together, constitute some evidence of the guilt of the defendant, and, in ascertaining whether the finding of the court is sustained by sufficient evidence, we consider only the evidence favorable to the prevailing party, which in this instance is the state. We think there is some evidence tending to support the finding of the court on every material fact alleged in the affidavit charging the offense. There was therefore sufficient evidence to sustain the finding of the court.

Judgment affirmed.

HALL v. STATE. (No. 25397.) Supreme Court of Indiana. June 19, 1928.

1. Criminal law ~673(4)-Admission of confession of codefendant held not error in case tried to court, where court limited its application to codefendant.

In prosecution for unlawfully transporting intoxicating liquor in violation of Acts 1925, c. 48, § 7 (Burns' Ann. St. 1926, § 2720), admission in evidence of confession signed by codefendant containing practically the substance of defendant's confession was not error, where the case was tried to the court, and court, in ruling on the admissibility of the evidence, stated, "This will go in for what it is worth as to defendant Hinton."

2. Criminal law ~673(4), 1169(7)—Admission of codefendant's conversation with deputy sheriff in case tried to court held not error, in view of court's limitation of evidence, and not prejudicial, where defendant's confession covered facts involved.

In prosecution for unlawfully transporting intoxicating liquor in violation of Acts 1925, c.

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

48, §7 (Burns' Ann. St. 1926, § 2720), admission of testimony as to conversation of deputy sheriff with codefendant, on trial to the court, held not error, in view of court's statement, "I will watch all of that," and previous limitation of evidence to codefendant, and, if error, was harmless, where defendant's confession covered essential facts referred to in conversation.

3. Criminal law 538 (3)-Confession held to sustain conviction for unlawfully transporting intoxicating liquor (Burns' Ann. St. 1926, §§ 2715, 2720).

In prosecution for unlawfully transporting intoxicating liquor in violation of Acts 1925, c. 48, § 7 (Burns' Ann. St. 1926, § 2720), evidence of defendant's transportation of alcohol as shown by defendant's confession, held sufficient to sustain conviction; alcohol being intoxicating liquor under section 2 of the act (Burns' Ann. St. 1926, § 2715), in view of sections 5, 10, and 19 of the act (Burns' Ann. St. 1926, §§ 2718, 2726, 2735).

4. Criminal law 304 (20)-Court takes judicial notice that alcohol is intoxicating liquor (Burns' Ann. St. 1926, §§ 2715, 2718, 2726, 2735).

Court takes judicial notice that alcohol is intoxicating liquor within meaning of prohibition law, Acts 1925, c. 48, § 2 (Burns' Ann. St. 1926, § 2715), in view of legislative intent, as shown by sections 5, 10, and 19 of the act (Burns' Ann. St. 1926, §§ 2718, 2726, 2735). 5. Intoxicating liquors 134-Statute prohibiting transportation of intoxicating liquors covers transportation of alcohol (Burns' Ann. St. 1926, §§ 2715, 2718, 2726, 2735).

Acts 1925, c. 48, § 2 (Burns' Ann. St. 1926, 2715), prohibiting transportation of intoxicating liquors, includes transportation of alcohol which is an intoxicating liquor, in view of sections 5, 10, and 19 of the act (Burns' Ann. St. 1926, §§ 2718, 2726, 2735), enumerating classes of persons who may sell alcohol without violation of act.

6. Intoxicating liquors 222-Claim that defendant, accused of transporting alcohol, comes within exempt class, need not be pleaded (Burns' Ann. St. 1926, §§ 2715, 2718, 2720, 2726, 2735).

In prosecution under Acts 1925, c. 48, §§ 2, 7 (Burns' Ann. St. 1926, §§ 2715, 2720), for unlawfully transporting intoxicating liquor, claim that defendant comes within class of persons authorized to transport or possess alcohol for lawful purposes, under sections 5, 10 and 19 of the act (Burns' Ann. St. 1926, §§ 2718, 2726, 2735), is matter of defense not necessary to be pleaded in indictment or affidavit.

7. Intoxicating liquors 167-Conviction for transporting liquor was sustained by finding alcohol in car, where defendant, riding therein, failed to establish status as innocent invited passenger (Burns' Ann. St. 1926, 8 2720).

In prosecution for unlawfully transporting intoxicating liquor in violation of Acts 1925, c. 48, §7 (Burns' Ann. St. 1926, § 2720), fact that alcohol was in car in which defendant rode sus

tained conviction under the act, where defendant failed to bring himself within the rule applicable to an innocent, invited passenger.

8. Intoxicating liquors 167-Persons knowingly assisting in transportation of intoxicating liquor in automobile are guilty of transportation to same extent as owner of liquor and car (Burns' Ann. St. 1926, § 2720).

Persons knowingly helping to transport intoxicating liquors in an automobile are equally guilty with owner of the car or of the liquor in prosecution for unlawful transportation under Acts 1925, c. 48, § 7 (Burns' Ann. St. 1926, § 2720).

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

Douglas Hall was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.

John L. Reagan and Delbert O. Wilmeth, both of Indianapolis, for appellant. Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen, for the State.

MARTIN, J. Appellant was indicted, tried by the court, and convicted of unlawfully transporting intoxicating liquor, in violation of section 7, c. 48, Acts 1925, section 2720, Burns' 1926.

The error assigned and relied upon here is the overruling of appellant's motion for a new trial, for the alleged reasons that certain evidence admitted was incompetent, and that the finding of the court is not sustained by sufficient evidence and is contrary to law.

The evidence for the state (no evidence was introduced by appellant) showed that appellant, William Hinton, and Marshall Rowe, at 3 a. m. August 23, 1926, drove through Augusta at a high rate of speed on their way from Chicago to Indianapolis in a Buick roadster automobile, under the rear deck of which they were transporting 92 gallons of alcohol, contained in five-gallon cans. Three deputy sheriffs of Marion county, in a Hudson touring car, turned on their red searchlight, and gave chase at a speed of 63 miles per hour. The occupants of the roadster, who had an army Springfield rifle and two revolvers, opened fire, which was returned by the deputy sheriffs; many shots being exchanged. The roadster was overtaken at Northwestern avenue and Twenty-Ninth street, in the city of Indianapolis, where the roadster turned, first east and then north, finally stopping at Crown Hill Cemetery. Rowe and appellant, who alighted from the roadster some time after it turned and before it stopped, escaped. Appellant was arrested August 25, 1926, but Rowe was not appre

hended.

A deputy sheriff, without objection by appellant, related a conversation he had with appellant after his arrest, which was in part as follows:

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

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