Darke County.

court and for appeal. These, together with Lan. R. L. 9387 (R. S. 5848), give ample remedy, and provide "a day in court" for all who may consider themselves aggrieved.

With these views as to the time of the vesting of the legacies, and the provision of the act in question as to appraisement, it is not necessary to consider the other questions raised in the case.

The decree of the common pleas court will therefore be affirmed.
Sullivan and Wilson, JJ., concur.

ERROR-TIME-TRIAL.

[Mahoning (7th) Circuit Court, October Term, 1904.]

Laubie, Cook and Burrows, JJ.

MAGGIE MCCALLEN V. LAKE SHORE & M. S. RY.

WITHDRAWING EVIDENCE FROM JURY-WHEN PETITION IN ERROR MUST BE FILED. Where the court withdraws the evidence from the jury and dismisses the petition of plaintiff for the reason that there is no evidence to support the claim of plaintiff and upon the same day a motion for a new trial is made which is overruled at a subsequent term of the court; a petition in error which is filed more than four months from the rendition of the judgment dismissing the petition of plaintiff but within four months from the overruling of the motion for a new trial is too late and the proceeding in error should be dismissed.

ERROR.

J. H. Kennedy and W. S. Anderson & Son, for plaintiff in error.
Arrel, McVey & Taylor, for defendant in error.

COOK, J.

The question for consideration in this case is the motion of the defendant in error to dismiss the proceeding in error for the reason that the petition in error was not filed in time.

The action below was for damages for negligently causing the death of plaintiff's husband in the state of Pennsylvania and is brought under favor of the statute of that state.

At the conclusion of plaintiff's evidence, upon motion of defendant, the court withdrew the evidence from the jury, for the reason that there was no evidence to support the claim of plaintiff, and rendered a judgment dismissing the petition of plaintiff at her costs, awarding execution therefor. Upon the same day the judgment was rendered, a motion for a new trial was duly filed; the hearing of the same was continued until the next term of the court and at the next term of the court the motion for a new trial was overruled but no further order or judgment was rendered.

McCallen v. Railway.

The petition in error was filed within four months from the overruling of the motion for a new trial, but more than four months after the rendition and entering of the judgment dismissing the petition of plaintiff and for costs against her.

Laning R. L. 10315 (R. S. 6723) provides:

"No proceedings to reverse, vacate or modify a judgment or final order shall be commenced, unless within four months after the rendition of the judgment or the making of the final order complained of: *

In the case of Dowty v. Pepple, 58 Ohio St. 395 [50 N. E. Rep. 923], which was decided when the period of limitation was six months, it was held:

"The six months within which error proceedings may be commenced under Lan. R. L. 10315 (R. S. 6723), begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for new trial. Nor is the case different although the reason for delay in passing upon the motion for a new trial was, that the trial judge was a nonresident of the county and absent therefrom until after the expiration of the six months."

The case of Dowty v. Pepple, supra, was tried by the judge without the intervention of a jury; a motion for a new trial was heard and submitted to the court within a few days after the rendition of the judgment, but by reason of the continuous absence of the judge from the court the motion was not passed upon until after the expiration of six months from the rendition of the judgment.

The opinion is by the court and the case of Young v. Shallenberger, 53 Ohio St. 291 [41 N. E. Rep. 518], in which it was held, page 302, that "The statute has declared, in explicit terms, that 'no proceeding to reverse a judgment shall be commenced unless within six months after the rendition of the judgment;' and the court is powerless to enlarge its terms, if it desired to do so," was approved.

In the case under consideration there was no verdict of a jury, but the finding was by the court, that there was no evidence to support plaintiff's petition. Therefore the petition of plaintiff was dismissed at her costs. Had there been a direction of the court to the jury to return a verdict for defendant, then, under Lan. R. L. 8842 (R. S. 5326), where the motion for a new trial was filed within three days, as was done in this case, no judgment could be rendered or entered until the motion was passed upon which would make a different case.

It therefore follows that the petition in error must be dismissed at costs of plaintiff in error.

Laubie and Burrows, JJ., concur.

1. IN HOMICIDE TRIAL, PROOF THAT DEFENDANT PURPOSELY INFLICTED THE WOUND WHICH CAUSED THE DEATH WILL NOT JUSTIFY CONVICTION OF MURDER IN SECOND DEGREE. THERE MUST BE AN INTENT TO KILL.

In a trial for murder, it must be affirmatively proved that the accused “purposely" killed the deceased; it is not sufficient to show that he purposely inflicted the wound which caused the death, or purposely struck the deceased, from which stroke the deceased died. Hence, it is error to charge the jury to the effect that if the proof shows that defendant "purposely" committed an act, the natural and probable consequence of which was to, and did cause the death of the deceased, evidence on behalf of defendant tending to show that he did not in fact intend to kill the deceased, is immaterial.

2. NO CONCLUSIVE PRESUMPTION THAT ONE INTENDED TO KILL, BECAUSE HE PURPOSELY STRUCK A BLOW CAUSING DEATH.

The presumption that one intended the natural and probable consequences of his own act, cannot be extended in its application to justify a charge to the jury, under an indictment for murder in the second degree, that defendant is presumed to have intended to kill the deceased because he purposely inflicted the act which caused the death.

3. CHARGE EXCLUDING DEFENDANT FROM REDUCING GRADE OF CRIME FROM MURDER TO MANSLAUGHTER IS ERROR.

In such prosecution where it is claimed that defendant acted in self-defense, but does not admit any intent to kill, a charge that "no other ground of justification or excuse than self-defense is claimed by the defendant, and no other will be considered by you," tends to exclude the right of the defendant to reduce the grade of the offense charged from murder in the second degree to manslaughter, and is prejudicial error.

ERROR to Lucas common pleas court.

J. R. W. Cooper and Frank Mulholland, for plaintiff in error. W. G. Ullery, prosecuting attorney, and J. S. Martin, assistant prosecuting attorney, for defendant in error.

HULL, J.

The plaintiff in error was indicted for the crime of murder in the second degree, and was convicted of that offense by the jury. A motion for a new trial being overruled, he was sentenced to imprisonment in the penitentiary for life. A petition in error was filed in this court to reverse that judgment.

John Munday, in the fall of 1889, was married to Lillie Munday, the person he was charged with killing. They were married at the city of Detroit. The killing is alleged to have occurred on January 13, 1893, in the city of Toledo.

Munday v. State.

It is claimed that the court erred in its charge to the jury; that the verdict was against the weight of the evidence; and that, therefore the court erred in overruling the motion for a new trial.

As I have said, Munday was married to Lillie Munday in Detroit in 1889. After their marriage, they moved to Toledo and lived on Wisconsin street, he having two or three children by a former wife and one by Lillie Munday. A day or so after January 15, 1893, now over eleven years ago, it was noticed by the neighbors and the relatives of Mrs. Munday that she had disappeared from their home on Wisconsin street. Her mother and some of the neighbors came to the house and inquired where she was, and Munday told them she had gone awaythey had been separated for a short time, prior to this-he told them she had gone away, and he did not know where she was. Soon after that he, with his children left the house and moved to Detroit, and went to other places and finally to St. Louis.

In June, 1895, nearly two years and a half after Mrs. Munday had disappeared, her body was found under the house where they had lived on Wisconsin street, in Toledo. It had decomposed so that only a portion of the skin on the face and neck remained; it was identified fully by those who knew her and was examined by physicians. The only mark of violence that could be discovered by the physicians at that time, if this was a mark of violence, was a small hole on one side of her neck through the skin which still remained, about the size of an ordinary lead pencil, or a man's little finger, or a thirty-eight caliber bullet, as one physician testified; but no one could tell how the hole had been made or whether the skin had simply decomposed; the flesh inside was all gone. The body had been put under the house through the floor, the boards being lifted in a closet.

A warrant was issued for Munday and soon after that he was arrested in St. Louis and brought back to Toledo, in the same month, June, 1895. In the following August, he escaped from the jail of Lucas county and fled, and, lived at various places, and married another woman; and, finally in the year 1903, he was found in the city of St. Louis, working on the exposition buildings, was arrested and brought back to Toledo. He had been indicted for murder in the second degree. The case was tried in the court of common pleas at the April term 1903-ten years after Mrs. Munday disappeared. At the trial of the case the evidence offered by the state showed the finding of the body under the house, the marks upon it-it had the mark upon it which I have referred to-and there was some testimony as to the statements of Munday, that is, his statement that she had gone away

Lucas County.

and that he did not know where she was, and the evidence of an officer, by the name of Durian, that Munday had said to him that he had had a quarrel with his wife and a struggle and that in the struggle he had struck her with the handle of a carving knife; and that she had died; that he had tried to resuscitate her, but could not; that he had come near to the police station two or three times with the intention of giving himself up, but his courage failed and he ran away. That statement, it was claimed, was made at the time he was first arrested ten years before. This is a brief statement of the state's case; some elements I have probably left out.

The only witness who claims to have been present at the time of Mrs. Munday's death was the defendant himself. He went on the witness stand and his claim was that whatever he did was done for the purpose of defending himself. He claimed that they had various quarrels; that she was a woman of violent temper; and he was corroborated in this to some extent. On this occasion Munday claimed she was about to leave and take with her their little girl, who was then a small child; that he undertook to prevent her taking the girl; that he began taking a coat off the child; that thereupon she attacked him first with the broom; that he took it away from her and threw it out of the room; and at the same time put out the two small children who were in the room with them-they were in the dining room-and closed the door; that thereupon she picked up a carving knife which was on the dining room table and threatened to kill him, "to fix him," "to run the knife through him," and used other language of that kind. Munday claimed that he ran around the dining room table, she pursuing him; that she finally gained on him, with the carving knife in her hand, which he says was a long knife, a knife with a long blade and a long pointed handle. When she came near him he claims that he whirled, and, for the purpose of protecting himself, struck her on the breast with his hand or fist and knocked her down. He says she was still raving, as he put it, in a raging, angry, threatening manner, with the knife still in her hand. In order to get the knife away from her, to make her let go of the knife, he said he took hold of her hand; that the knife which she held in her right hand was transferred to the other hand; she was still threatening to kill him; that in the struggle with her he got the knife away from her by rubbing his knuckles against her fingers, the fingers of the hand which held the knife. He said also that in the struggle he took hold of her throat and choked her some.

He says that he finally succeeded in getting the knife away from her. Soon after that, he says, she became unconscious. Why she be

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