41. The year in which an offence was committed may, in a second
count, be Stated by referring to "the year aforesaid" in the first count.
State V. Lang, 63ā215.
42. The name of the accused need not be repeated in full whenever
referred to in an indictment. State v. Lang, 63 ā 215. State v.
43. In an indictment for manslaughter the name of the deceased was
stated in each count, when first mentioned, as Margaret E. Pike, and
afterwards she was referred to as "the said Margaret." Held, suffi-
cient, there being no other person mentioned to whom the words "the
said Margaret" could apply. State v. Pike, 6b ā 111.
44. If judgment is rendered against a respondent upon a plea of
misnomer in a municipal court he can not on appeal waive the plea in
the appellate court and go to trial upon a plea of not guilty. State v.
Corkrey, 64 ā 521. ā¢
45. If a defendant in a criminal case appears generally and pleads
not guilty to a complaint he thereby waives all objections to matters
of foi-m in the warrant. State v. Regan, 67 ā 380.
46. Two persons may be jointly indicted, one for maintaining a
liquor nuisance under R. S., c. 17, Ā§ 2, and the other for aiding in its
maintenance, under Ā§ 4 of the same chapter. State v. Ruhy, 68 ā 543.
See Post, 55.
47. Insteuctions. In a criminal case it furnishes no ground for
exceptions that the presiding judge gives greater prominence to the
government testimony than to that introduced in behalf of the prisoner.
State V. Beed, 62ā129.
48. Nor that the judge recites particular portions of the testimony
and suggests inferences which may be drawn from them, even though
the inferences are stated in emphatic terms, if the jury are instructed
that they are judges of the facts proved, and responsible for the infer-
ences drawn from them. lb.
49. Remarks of the presiding judge to the jury, in a criminal case,
that considerations growing out of the enormity of the offence, and
the duty of protecting society were pertinent to urge them to render
a verdict according to their judgment, no matter what the penalty
might be, if their minds should be inclined to the opinion that the
crime charged was proved beyond a reasonable doubt, are not errone-
ous, there being no intimation that such considerations should supply
the place of satisfactory proof, or that inclination of mind should
supersede conviction. State v. Watson, 63 ā 128.
50. A prisoner on trial for a capital offence can not complain
because the presiding judge called the attention of the jury to the
pardoning power of the governor, and alluded to the frequent omis-
sions to inflict the penalty of the law in times past. State v. Benner,
51. ExPKBSSioisr ov Opinion. When the defence of a prisoner is
an alibi, a remark that the question depended principally on that of
time is not an expression of the guilt or innocence of the prisoner,
and is unobjectionable. lb.
52. If the counsel for the government, in his argument to the jury,
transcends his legitimate province, the counsel for the respondent
should object at the time or it will be too late. State v. Watson, 63
53. NoL Pegs. The attorney general may enter a nolle prosequi
to the whole or any part of an indictment for murder, against the
objection of the respondent, either before a jury is impaneled or after
verdict. State v. Smith, 67ā328.
54. It may be entered at any time pending a plea in abatement,
demurrer, or motion in arrest of judgment. lb.
55. It is within the discretion of the presiding judge to permit the
attorney for the State to withdraw a joinder to a demurrer to an
56. Teial. a person accused, by complaint, of a misdemeanor,
tried and convicted before a magistrate, has not, on appeal, the legal
right to appear by attorney and demand a trial in his absence. State
V. Garland, 67 ā 423.
57. Veemct. The Statutes of this State require that the "jury,
finding a person guilty of murder, shall find whether he is guilty of
murdei- in the first or second degree." State v. Cleveland, 58 ā 564.
58. Upon an indictment which charges the defendant with the
crime of murder generally, without specifying the degi-ee of the crime,
a general verdict that the defendant is "guilty of the murder whereof
he stands indicted," is not a finding that he is guilty of murder of the
first degree, according to the provisions of the statutes in such cases
made and provided. lb.
59. When there are several counts, and the jury find the defendant
guilty on one count, and are silent as to the rest, the legal effect of
the verdict is an acquittal as to the other counts. State v. Watson,
60. And when the indictment contains two counts which are iden-
tical, if the jury convict upon one and are silent upon the other, the
one upon which the jury are silent is to be disregarded, or a nol pros
entered upon that count, and the case proceed to judgment upon the
See Verdict, 5.
61. The presiding judge is not bound to require a jury to bring in
a special verdict upon each count in an indictment when the counts
are in proper form, and all relate to the same offence. State v, Lang,
62. On the trial of an indictment for rape the prisoner is not preju-
diced by a refusal of the presiding judge to instruct the jury that they
are at liberty to find a verdict of guilty of assault and battery. State
V. Black, 63ā210.
63. Sentence. After a convict has been duly committed to jail
on a warrant of commitment, in pursuance of a legal sentence, the
judge who passed the sentence upon him can not revoke it. Jirown
V. Rice, 57 ā 55.
64. In the trial of a railroad corporation on an indictment under K.
S. of 1857, c. 51, Ā§ 42, the same rules of evidence and the same prin-
ciples of law should be applied as in analogous civil actions for dam-
ages. State V. Grand Trunh Railway of Canada, 58 ā 176.
65. When the defendant, in a criminal case, does not testify as a
witness in his own behalf, it is not improper for the presiding judge,
in his charge to the jury, to call their attention to the fact, and to
instruct them, that it is a circumstance proper for their consideration.
State V. Lawrence, 57 ā 574. State v. Cleaves, 59 ā 298.
66. In the trial of an indictment charging the "misconduct in his
office" of a register of deeds, by knowingly issuing a false certificate
of a certain person's title to a particular lot of land, evidence com-
prising substantially the history of the certificate, and of the uses
made of it in obtaining a loan by the person to whom it was issued, is
admissible on the part of the prosecution under a count charging the
offence done with an intent to defraud. State v. Leach, 60 ā 58.
67. So is the writ on which the alleged attachment was made,
together with a certified copy of the judgment thereon, the execution,
levy, and of the record of the levy. Ih.
68. So is the record of the attachment, although the middle initial
letter of the attaching creditor therein is "W." instead of "M." as in
the writ. Ih.
69. Declarations and Admissions. When a statement is made
either to a man or within his hearing, that he was concerned in the
commission of a certain crime, to which he returns no reply, the nat-
ural inference is that the imputation is well founded or he would have
repelled it ā silence is tantamount to confession. State v. Cleaves, 59
ā298. State v. Reed, 62ā129.
70. The record of the committing magistrate, showing that the
respondent in a criminal process pleaded guilty to the complaint, is
admissible in evidence upon the final trial. Oral testimony in regard
to such plea is also admissible. State v. Bovie, 61 ā 171.
71. A complaint for adultery alleged only the marriage of the man,
and the indictment afterwards - found alleged the marriage of both
parties, but at the trial the only evidence of the marriage of either
party was of the woman, except the record of a plea of guilty to the
complaint, by the man. Held, that an instruction that the jury might
consider the fact of the plea of guilty to the complaint, to supplement
the proof of the marriage of the woman, was erroneous. Ih.
72. Upon a trial for larceny, the declarations of the prisoner, after
the goods came into his possession, that he found them are not admis-
sible in his favor. State v. Pettis, 63 ā 124.
73. A plea of nolo contendere is an admission of guilt. State v.
74. Reputation. On the trial of an indictment for keeping a
house of ill fame, evidence of the re|)utation of the house is not ad-
missible, but evidence of the reputation of the women frequenting the
house is admissible. State v. Boardtnan, 64 ā 523.
75. Intent. Upon the trial of an indictment for setting fire to a
dwelling-house, the fact that the respondent held a policy of insur-
ance upon the house at the time of the fire, may be material upon the
question of tnotive. State v. Watson, 63 ā ^128.
76. Also, when it appeared that the respondent had deposited a deed
of the house with a third person, and with the consent of the grantee,
had given directions, in the form of a letter, to such person to deliver
the deed to the grantee on a specified day unless otherwise directed,
and the indictment alleged the burning of the buildings of the grantee
named in the deed before the time fixed in the letter for its delivery,
and the govei-ment had introduced evidence to show a delivery before
that time, such letter is admissible as showing the intention of the
parties, although there is no evidence to show that it ever reached
the person to whom it was directed. Ih.
77. Former Conviction. Variance. An indictment for larceny
alleged that the defendant had been previously convicted of the same
offence before "the municipal court begun and held at Portland." It
appeared by the record that the convictions were had before "the
municipal court for the city of Portland." Held, no variance. State
V. Regan, 63ā127.
_ 78. Under R. S., 1871, c. 82, Ā§ 94, the record of a previous convic-
tion which may be introduced to affect the credibility of a witness is
296 INDICTMENT ā ^ESTANT.
a conviction for any criminal offence, though it may not be an
infamous crime. State v. Watson, 63 ā 128.
79. A sentence is no part of a conviction. State v. Sines, 68 ā 202.
80. Docket entries, where the record has not been extended, show-
ing that, in a former trial of the defendant for a violation of the same
provision of the statute, a verdict of guilty has been rendered, excep-
tions filed and subsequently overruled and certified by the law court
to the clerk of the county, and no other proceedings pending for the
reversal of the verdict, are sufficient proof of a prior conviction,
though no sentence has been passed. lb.
81. Res Gest^. The outcries of a person deceased made during
the perpetration of the assault which results in death, or upon the
approach of the assailant, are competent evidence upon the trial of a
party charged with the murder of such person, and may be considered
by the jury with other circumstances and testimony upon the ques-
tion of the identity of the accused. State v. Wagner, 61 ā 178.
82. The outcries of another person who was murdered by the same
party a few minutes previously during the perpetration of one and
the same burglary, but on another part of the premises, are admissible
under like circumstances for the same purposes upon such trial. lb.
83. Such exclamations are competent as part of the res gestae.
84. Moreover their admission may be distinctly justified for the
same reasons which are held to justify the admission of dying declar
85. The contents of the prisoner's pockets found when he is arrested
may be put in evidence when there is testimony tending to show that
they or a portion of them came from the recent possession of the
deceased or from the locality of the crime. lb.
86. Articles which a witness identifies as the property of the pris-
oner, and in his possession shortly before the crime was committed,
when found shortly after its perpetration, at the house where the
crime was committed, may be offered in evidence. lb.
1. Liability foe Tobts. Minors are answerable for their own
torts, although in the commission thereof they act by express author-
ity of their parents. Kilpatrick v. Hall, 67 ā 548.
2. An infant is liable in assumpsit for money stolen, and for the
proceeds of property stolen and converted into money. Shaw v. Cof-
3. Avoidance of Conteacts. A contract between a minor and
his master, by which the former paid his bounty money to the latter,
in consideration of his consent to the minor's enlistment, may, after
the minor's decease, be rescinded by the administrator of his estate,
and the money recovered back. Dinsmore v. Webber, 59 ā 108.
4. When an infant has legally avoided his contract for labor, the
rights of the parties are precisely the same as though it had never
been made. Derocher v. Continental Mills, 58 ā 217.
5. A minor who agrees to work for a person for a specified time,
and give no less than two weeks' notice before leaving, but does leave
before the expiration of the time, and without giving the notice, is not
liable to have the damage occasioned thereby deducted from the amount
he would otherwise be entitled to recover for his labor. lb.
6. An infant may repudiate his contract, and recover from his em-
ployer what his services were reasonably worth, under all the circum-
stances of the case. Vehue v. Pinkham, 60 ā 142.
7. Thus, in assumpsit for the recovery of such services, where it
appeared that the plaintiff, contrary to orders, harnessed the defend-
ant's colt to the defendant's wagon, whereupon the bit broke, the colt
became unmanageable, and the wagon was injured, the jury may con-
sider those circumstances in estimating the value of the plaintiff's
8. A child went to live with the plaintiff, under a verbal agree-
ment with its mother, the father not being alive, that it should stay
until of age for its board, clothing and schooling, and, after the lapse
of some time left, with the consent of the mother. Held, that the plain-
tiff could treat the contract as a nullity, and recover of the mother
for the board of the child, less the value of its services. Chapman v.
9. Suits. A minor may maintain an action by his mother and next
friend, with her consent, on a contract for his services made on his
own account, after the death of his father. Boynton v. Clay., 58 ā
10. In a writ requiring the defendant to answer to S. W., next friend
to H. J., a minor, S. W. is the plaintiff while the minor is not. Soule
V. Winslow, 64 ā 518.
11. Equity. Infants must be made parties to bills in equity, affect
ing their title to real estate. While the infant can only answer by
guardian, the suit must be directly against the infant. ~Wakefield v.
Marr, 65ā341. Tucker v. Bean, 65ā352.
12. A bill in equity should never be taken pro confesso against an
infant defendant. Tucker v. Bean, 65 ā 352.
13. It is the general rule that an infant is to have six months after
coming of age, to show against a decree requiring him to convey real
estate. Perry v. Perry, 65 ā 399. McClellan v. McClellan, 65 ā
14. When an infant is entitled to a conveyance of property to which
a third person has the legal title in trust for him, the conveyance
should be to the infant and not to his guardian. Fooler v. Buck},<o?>
15. An EMAHciPATioN of a child by a parent, by contract, need
not be in writing. Lowell v. Newport, 66 ā 78.
16. Negligence. A child of nine years, who in the day-time,
jumps from a sidewalk, lawfully constructed by a railroad company,
on the side of its railway bridge, upon the properly constructed draw
while the same is being lawfully closed, is so wanting in ordinary care
and prudence, as not to be entitled to maintain an action for the
injury resulting therefrom. Brown v. European & N.A.B.B. Co.,
298 INSANE HOSPITAI/, COMMITMBN'I' TO.
17. In an action by a child, non sui juris, for an injury caused by
being run oyer upon a public street, it is immaterial tbat its parents
neglectingly permitted it to be upon the street, provided the child at
the time exercised for its safety that amount of care which the law
would require of persons of years of discretion. O'Brien v.
See Leslie v. Lbwiston', 62 ā 468.
INSANE HOSPITAL, COMMITMENT TO.
1. A NOTICE of the expense of the support of an insane pauper in
the hospital, given by the town committing such pauper to the town
of his settlement, is premature if given after the expense has been
incurred and before it has been paid. West Gardiner v. Hartland.
2. Two JUSTICES of the peace are not authorized to send to the hos-
pital, an insane person who is at the time legally confined in jail upon
criminal process. Gray v. Houlton, 63 ā 566.
3. Where a person sent to the insane hospital by order of two jus-
tices of the peace, was, at the time confined in jail upon criminal pro-
cess, it was held that the action of the justices was so far irregular
that the town was not obliged to pay to the person who conveyed him
to the hospital the expense of such service. Ih.
4. A COMPLAINT as follows : "To the selectmen of B. The under-
signed complains and says that he came into this town with his wife
to visit her sister, and that she is insane, and ought to be sent to the
insane hospital. J. B. S.," is a sufficient compliance with R. S., 1871,
c. 143, Ā§ 12. Bowdoinham v. Bhippshurg, 63 ā 497.
5. The written complaint required by R. S., 1871, c. 148, Ā§ 12, to
be made to the municipal officers of a town, to examine into the con-
dition of a person alleged to be insane, is sufficient if served upon
one of the selectmen. Gray v. Houlton, 65 ā 521.
1. There is no pebstjmption of law as to the continuance of a tem-
porary hallucination of mind, and a party claiming to avoid a contract
by reason thereof, must show its existence at the time of making the
contract, and that it was of a character affecting his capacity to make
a contract. Staples v. Wellington, 58 ā 458.
2. Every man is presumed to be sane, and to possess a sufficient
degree of reason to be responsible for his crimes, until the contrary it
proved. State v. Lawrence, 57 ā 574.
3. To establish a defense on the ground of insanity, the burden is
on the defendant to prove, by a preponderance of evidence, that at
the time of committing the act, he was laboring under such a defect of
reason, from disease of the mind, as not to know the nature and
INSANITY ā INSTJE'ANCB. 299
quality of the act he was doing; or, if he did, that he did not know
he was doing what was wrong ; partial insanity, if not to the extent
above indicated, will not excuse a criminal act. lb.
4. The sanity of a testatrix was contested on the ground that she
was a believer in spiritualism, believing that the spirit of her deceased
husband dictated the will, that she believed that the husband of her
only daughter was exposed to the control of evil spirits ; that he had
supernatural power over his wife, and through the aid of an evil spirit
alienated his wife's affections from her mother. The jury were in-
structed that if the testatrix was laboring under a delusion amount-
ing to insanity, or monomania, and any of these insane delusions in-
fluenced her in making the will, she was not of the sound mind
required by law.
Also, insanity in a legal point of view, is where a person believes
something to exist, which not only does not exist, but of which he
has no evidence sufficient to satisfy a healthy *iind, and he acts upon
it and holds it as a reality, "where it is so palpable that he believes it
without reason, any reason sufficient to satisfy a healthy mind, and
acts upon it when it cannot possibly be true."
In another part of his charge, the judge said : "Before anything
(in law), is a delusion, the non-existence of it must first be estab-
The judge did not rule that the belief in spiritual communications
was of itself an insane delusion, or that it was not, but left it to the
jury to consider, under the rule before given, how far that belief
showed delusion; saying that if these beliefs with other influences
created in the mind of the testatrix, insane delusions, and she acted
on them in the making of any item of the will, it would justify them
in determining that she was not of sound mind. Held, that the con-
testant had no cause of complaint. Robinson v. Adams, 62 ā 369.
5. The rule allowing the introduction of the declarations of a testa-
tor to show the condition of his mind is very general and admits much
that would be excluded if offered to prove facts. lb.
6. Where the sanity of a testator is in issue witnesses, not experts, '
may state negatively in the course of their testimony that they did
not observe any mental peculiarity in the testator at a time other than
that when the will was executed. lb. See also Barnes v. Barnes,
Remedial provisions of c.
49, R. S
Pboofs of Loss.
y. MUTUAL COMPAOTES.
(a) Notes given for open policies and foe secubitt of
DEALERS WITH THE COMPANT.
(b) PEEMIUM and DEPOSIT NOTES.
VI. INSUEANCE AGENTS AND BROKERS.
VII. PLEADING, PRACTICE AND EVIDENCE.
1. A MEMORANDA upon the margin of a policy is a part of the
contract of insurance. McLaughlin v. Atlantic Mutual Ins. Co.,
2. Where, in an action under R. S., c. 51, Ā§ 31, to recover damages
for property injured by fire, communicated by a locomotive engine,
the plaintiff has an absolute title to the whole property destroyed, he
may recover for the whole injury although he held the title as
security for a debt, and had agreed, that, upon payment of the debt,
he would re-convey. Bean v. At. & St. L. R. Co., 58 ā 82.
3. And wjiere the plaintiff had a policy of insurance upon a build-
ing thus destroyed, and upon payment of the amount of the debt for
which he held the property as security by the insurers, he assigned to
them the statute claim with a stipulation on their part, that any excess
recovered by the insurers, beyond the amount paid to him by them,
should belong to him, ā the insurers may recover in the name of the
plaintiff, for the whole injury. lb.
4. Insubable Interest. It is not essential to the existence of an
insurable interest that the assured should have a legal title to the
property upon which the insurance is effected. Cumberland Bone
Co. V. Andes Ins. Co., 64ā466.
5. A purchaser of goods who has advanced the price thereof to the
seller, when the seller has agreed to store them free of expense,
deliver them as wanted, and procure insurance on them to protect the
advances of the purchaser, and does so, procuring a policy in the
name of the purchaser, and informing the agent of the facts, has an
insurable interest in the goods, although they had not been separated
from other stock of the seller when burned. lb.
II. LIFE INSURANCE.
6. A sum of money received for insurance on the life of the intes-
tate, is to be collected by the administrator and distributed in accord-
ance with R. S., 1857, c. 75, Ā§ 10. Lee v. Chase, 58ā432.
See Post, 19.
7. Devise. One who dies insolvent can make no testamentary dis-
position of the fund accruing from an insurance policy upon his life
if he leave neither widow nor child ; in such event, the insurance
money becomes assets for the payment of debts. Hathaway v. Sher-
man, 61 ā 466.
8. A person having insurance upon his life, dying insolvent, leaving
a widow and children, may bequeath the insurance money among
them as he pleases ; but he can not bestow it by will upon any other
9. The power to dispose of such fund by will, conferred by R. S.,
0. 75, Ā§ 10, is limited, in case of insolvency, to a disposition among
the widow and children of the deceased. Ih.
10. An intention on the part of the testator, by his will to dispose
of the fund arising from an insurance policy upon his life, will not be