Wheeler v. State.

behavior. Shortly after this he prevailed upon his wife to live with him again, and she returned to his house. Appellant's conduct was such that his wife could not endure it, and she once more fled from her home, and, in June, 1901, obtained a divorce. By the terms of the separation, the children and property were divided, and the appellant agreed to furnish his wife with provisions for her table until the crops were gathered. One of appellant's daughters had married Elias Burns, a man of unexceptionable character and habits, and, after the divorce, appellant's wife, with two children, made her home with Burns and their daughter. Appellant occupied a house a quarter of a mile from the residence of his wife. The appellant seemed to be discontented with the situation, and sought to have his divorced wife marry him. He accused his son-in-law, Burns, and his daughter, of separating him and his wife. A brother of Burns spent a short time at Burns' home, and appellant complained that others were eating what he intended for his children. September 6, 1901, appellant asked a neighbor to lend him a gun, and afterwards, in the absence of this neighbor, went to his house, and took his neighbor's revolver. The next day he went to Burns' home, and found his divorced wife there. He asked if she was alone, and was told that her daughters, Mrs. Burns, and Vanney, a younger sister, were in the house. He asked where Elias Burns, his son-in-law, was, and whether he was alone. He was told that he was in his tobacco patch, and that no one was with him. Appellant left the house, and proceeded toward the tobacco patch. He came back in a little while, and said to Burns' wife, "Elias told me to have you bring him a jug of water, and to go by my tobacco patch and get my tobacco knife, and take it to him." Burns' wife then left the house to take the water and knife to her husband. As soon as she went away, appellant directed his younger daughter, Vanney, to go into the garden to dig potatoes for her mother. The child went as she was told, and appellant was left alone with his wife.

Wheeler v. State.

He made a violent attack upon her, drew his revolver, and The screams of the woman were

threw her to the floor.

heard by the little girl, Vanney, who ran back to the house, shouting "there comes Elias." Burns was seen walking toward his house, fanning himself with his hat, and crying, “Oh, Oma. Oh, mercy. I don't believe I can live till I get to the house." Appellant desisted from his attack upon his wife, went out of the house, and walked toward Burns. He seized an axe lying near a wood pile, and rushed at Burns, who stood still and cried, "Oh, Buck, don't kill me. Please, Buck, don't kill me." Appellant struck him twice with the blunt end of the axe, knocking him down. In the presence of Burns' wife, he struck another blow with the edge of the axe, almost severing Burns' head from his body. The wife. testified that she could "hear the blood roaring in his throat." Burns' wife followed appellant screaming and crying. He said to her, "Hush, Oma, hush, don't take on so; it can't be helped now. If you don't hush, you will send me to the penitentiary." When Burns' body was examined by the coroner, three gun-shot wounds were found upon it, in addition to the wounds inflicted with the axe.

Appellant then walked over to a field where a brother-inlaw was at work, and told him that he had killed Elias, and thought he would kill himself, and save some one else the job. His brother-in-law tried to dissuade him from suicide. The appellant went into the woods and shot himself, the bullet entering beneath his chin, and coming out near his eyes. On the trial the only defense relied upon was insanity. The evidence in support of the plea was meager, and utterly unsatisfactory. It was proved that his mother and father were cousins, and that his mother was of an exceedingly jealous disposition, which he seemed to have inherited. The appellant had lived, worked, acted, and talked as a sane man for more than thirty years immediately preceding the homicide; and no suggestion of insanity was VOL. 158-45

State v. Cleveland, etc., R. Co.

made until his plea was entered in this case. The evidence fully sustained the verdict that the appellant, at the time he committed the homicide, was of sound mind, and that he was guilty of premeditated murder. The investigation of all the facts of the case, both on the part of the prosecution and the defense, was thorough, and minute; the interests of appellant were fully and skillfully represented by his counsel, and an able and conscientious judge presided upon the trial with absolute fairness and impartiality. The verdict of the jury stands firmly upon the law and the evidence, and we have been able to discover no reason why it should be set aside.

We find no error in the record, and the judgment is affirmed.

THE STATE V. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY.

[No. 19,503. Filed April 9, 1902.]

From Fountain Circuit Court; J. M. Rabb, Judge.

Action by State against the Cleveland, Cincinnati, Chicago and St. Louis Railway Company to recover penalties. Transferred from Appellate Court, under §1337u Burns 1901. Affirmed.

W. L. Taylor, Attorney-General, J. W. Brissey and L. Nebeker, for State.

J. T. Dye and L. J. Hackney, for appellee.

GILLETT, J.-The questions involved in this appeal are the same as in State v. Cleveland, etc., R. Co., 157 Ind. 288. On the authority of that case the judgment is affirmed.

INDEX.

ABATEMENT-Non-residence, see CORPORATIONS, 1; Carnahan v.
Campbell, 226.

Corporations.-Action Against Directors.-An action against a director
of a corporation for the liability under the statute for failure to
require the capital stock to be paid into the treasury within eight-
een months, and to make annual reports, does not abate on the
death of the defendant.
Brown v. Clow, 403.

ACTION-For debt due ancestor, see DESCENT AND DISTRIBUTION,
2; Jester v. Gustin, 287.

Abatement on account of death, see ABATEMENT; Brown v. Clow,
403.

1. Consolidation of Causes.-Actions between an insurance company
and an agent involving substantially the same causes of action
and the same defenses were properly consolidated, and the fact
that the action of the company was also against the sureties on
the agent's bond did not constitute an obstacle to the consolida-
tion where the defenses set up by the sureties were not differ-
ent in any respect from those of the principal.

Frankel v. Michigan Mut. Life Ins. Co., 304.

2. Cross-Complaint.-Principal and Surety.-Mortgages.—Quieting Title.
-The owner executed a mortgage and conveyed the mortgaged
real estate to A, who assumed the payment of the mortgage as
a part of the consideration. A conveyed the land to B, who
likewise assumed the payment of the mortgage. The mortgage
was foreclosed and personal judgment rendered against the mort-
gagor and A. The property sold for a sum only sufficient to pay
the costs. A paid the balance due on the judgment, and took to
himself an assignment of the judgment. Before the year for re-
demption expired B sold and conveyed the land to C, who redeemed
from the foreclosure sale. A procured the issuance of an execu-
tion on the judgment assigned to him, and O brought suit to
enjoin the sale of the land. A filed a cross-complaint alleging
the non-payment of the judgment, the assignment thereof to him,
and seeking to have his suretyship established. Held, that the
cross-complaint was germane to the action, and that the court
erred in sustaining a motion to strike it out.

Todd v. Oglebay, 595.

ALTERING PUBLIC RECORDS—
Satisfaction of Judgment.-Indictment.-An indictment for altering a
public record, to wit, a satisfaction of a judgment entered by an
attorney, is insufficient unless it is specifically set forth that the
entry was in fact made by an attorney duly authorized to make it.
State v. Henning, 196.
ANSWER-See PLEADING.

(707)

APPEAL AND ERROR-Transcript in an appeal in drainage case,
see DRAINS, 1; Toy v. Craig, 444.

Appeal from decision of county commissioners, see HIGHWAYS, 8;
Smyth v. State, ex rel., 332.

1. Drains.-Allotment for Repair.-An appeal to the Supreme Court
will not lie from a judgment of the circuit court ordering an
allotment for the repair of a drain, which allotment had been
made by the county surveyor, under §§5633-5635 Burns 1901.

Pittsburgh, etc., R. Co. v. Gillespie, 454.

2. Cause Originating Before Justice of the Peace.-Constitutional Ques-
tion.-To authorize an appeal under §§1337f, 1337h Burns 1901 in
a case originating before a justice of the peace involving the con-
struction of a statute, the record must affirmatively show that
some statute, or provision thereof, is reasonably subject to more
than one construction, or may be reasonably regarded as ambig-
nous or uncertain in meaning, and that the question presented in-
vokes an interpretation of the statute, and affects the rights of the
party presenting it.
Terre Haute, etc., R. Co. v. Erdel, 344.
3. Cause Originating Before Justice of the Peace.-Constitutional Ques-
tion.-An assignment of error on the overruling of a demurrer to
the evidence in an action against a railroad company by an
abutting landowner to recover the cost of constructing a fence
along defendant's right of way, on the ground that there was an
entire absence of evidence on the questions of the sufficiency of
the fence to turn cattle, and that the fence was not at the crossing
of a public highway, does not involve the construction of the
statute within the meaning of §§1337f, 1337h Burns 1901 granting
appeals in cases originating before justices of the peace where the
construction of a statute is involved.

Terre Haute, etc., R. Co. v. Erdel, 344.
4. Appellate Court.-Written Opinions.-Section 1337q Burns 1901
makes it the duty of the Appellate Court to file a written opinion
only where the judgment of the trial court is reversed.

Craig v. Bennett, 9.
5. Appellate Court.-Written Opinions.-Constitutional Law. -The Ap-
pellate Court is not controlled by article 7, §5 of the Constitution
which provides that "the Supreme Court shall upon the de-
cision of every case, give a statement in writing of each question
arising in the record of such case and the decision of the court
thereon."
Craig v. Bennett, 9.

6. Transfer of Cause to Supreme Court.-Under the provision of
§1337j Burns 1901 that if a petition for a rehearing is filed by
the losing party, and such petition is overruled, the clerk
shall not certify the "opinion and judgment" in said case
to the lower court until the expiration of thirty days from the
date of said ruling, and such losing party may, at any time within
thirty days after his petition for a rehearing has been overruled,
file in the Supreme Court an application for the transfer of the
cause to the Supreme Court on the ground that the opinion of
the Appellate Court contravenes a ruling precedent of the Supreme
Court, or that a new question of law is directly involved and was
decided wrong, an application to transfer will be denied where
the Appellate Court affirmed the judgment without a written
opinion.
Craig v. Bennett, 9.

7. Vacation Appeal.-Parties.—Dismissal.-In order to give the Supreme
Court jurisdiction of an appeal taken in vacation, all coparties
to the judgment, with appellants, should be made co-appellants,
or the appeal will be dismissed.
Brown v. Sullivan, 224.