Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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MAY TERM, 1880. 179



Mojnihan v. State.



CO:N'"V^ICTION of murder in the first degree. The opinion states
tln.^ case.

R. J^^^itzgee and *S*. T. McConnell, for appellant.
T. f^l Woollen, attorney-general, for State.

VoicxDEN, J. The appellant, Andrew Moynihan, and one James
H. ML<3^DfcIillen, were jointly indicted in the court below for the mur-
der, in the first degree, of John Raymond Jackson.

TWore were two counts in the indictment; the first charging tne
TOurdeir to have been committed in the perpetration of a robbery of
the <iooeased, and the second charging the killing to have been
effected by beating the deceased with a stone.

itoy nihan pleaded not guilty, and elected to be tried separately,
and upon trial by jury was found guilty, and adjudged to suffer
the death penalty. Motion for a new trial overruled, and judgment
ontlie indictment.

»V o proceed to consider the questions made by counsel for the

^^^^^anfc, but may remark, preliminarily, that it was shown, be-

youiX any reasonable doubt, that the appellant and McMillen, in the

Perpetration of a robbery of the deceased, beat and wounded him,

"hereby he died.

^^t t He counsel for the appellant insist that there was no pur-

P^ to WW shown, and that without such purpose, the crime of

^ ^ei« ygf^ j^Qt made out We cannot say that a purpose to kill

^ ^'^^t have been well inferred from the acts of the parties; but

a c aiTg-^ Qf ^YiQ court made it unnecessary that such purpose should

6 *^o^n shown, in order to a conviction of murder in the first

^^^ Ciourt charged, among other things, as follows:

is not necessary for the State to prove that the defendant

P T^B^ly killed said Jackson, in order to constitute murder in the

^STee> as charged in the first count in the indictment. It is

T f ^^^^ssary for the State to show, beyond a reasonable doubt,

, ^'■^^ defendant killed said Jackson while said defendant was in

^^^^ f)f robbing said Jackson, as charged in this count. To illus-

• t;o kill another unlawfully, in the perpetration of arson, is

^ ^ ixiurder in the first degree, by this section of the statute.

^^?p08e two men should feloniously set fire to the dwelling-house

«t ^^other, at the time supposing the same to be unoccupied, and



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180



INDIANA,



MoynUuui ▼. State.



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it should tom oat that a human beiug was sleeping therein^ and
that his life was destroyed by the fire ; the perpetrators of that arson
may not even have known of his destruction therein nntil long
after the fire occurred; they may not even have known of his exist-
ence; yet the perpetrators of that arson would be guilty of murder
in the first degree. So, in this case^ if the defendants Moynihan
and McMillen were engaged in a common purpose to rob the said
Jackson^ and his death resulted from blows struck by one or both
of the defendants while engaged jointly in perpetrating that crime,
both would be equally guilty of murder in the first degree, although
neither of the defendants purposed to kill said Jackson at the time
of the commission of the robbery as charged in the indictment, nor
had any intention whatever to take his life."

We are of opinion that the court did not err in charging that a
purpose to kill was not necessary in order to a conviction on the
first count in the indictment

The statute provides that: ^^If any person of sound mind shall
purposely and with premeditated malice, or in the perpetration [of],
or attempt to, perpetrate any rape, arson, robbery or burglary, or
by administering poison, or causing the same to be done, kill any
human being, such person shall be deemed guilty of murder in the
first degree, and upon conviction thereof shall suffer death." 2 R.
S. 1876, 423, § 2.

Wc think it clear from the statute that the legislature intended
to make the killing of a human being in the perpetration of, or at-
tempt to perpetrate, any rape, arson, robbery or burglary, murder
in the first degree, though there may have been no intent to com-
mit the homicide. The language does not very clearly admit of
any other construction.

Leaving out such parts of the statute as have no application to
the case, it may be read as follows: "If any person of sound mind
shall, * * * in the perpetration of, or attempt to perpetrate, any
rape, arson, robbery or burglary, * * * kill any human being,
such person shall be deemed guilty of murder in the first degree,*'
etc.

This construction is strengthened, and indeed the section of the
statute above quoted is substantially duplicated in respect to homi-
cides committed in the perpetration of the crime of arson, by the
28th section of the same act, which provides that *' Every person
who shall willfully and maliciously set fire to the dwelling-house,






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MAY TERM, 1880. 181



Mojnihan v. State.



♦ * ^ * shall be deemed guilty of arson, and upon conviction
be fiaooL^ ♦ ♦ * ^^^ ]^^ imprisoned in the State prison not less
than OKiM.^ nor more than ten years; and should the life of any per-
son bo 3.ost thereby, such offender shall be deemed guilty of murder
in the fi^rst degree, and suffer death or imprisonment in the State
prison ciaring life,"

In t,l:i e case of Bechtelheimer v. StatCy 54 Ind. 128, it was held by
this ooutrt that a purpose to kill was necessary to constitute mur-
der, 'wl^ere the killing was effected by the administration of poison;
but tlio decision was put more upon the nature of the case than the
W^^^^S® ^^ ^^^ statute. In that case it was said :

"This construction is adopted not so much from the language
emj>loy ed, considered by itself, as from the results that would flow
fronx 1^ different construction. If no purpose to kill is necessary to
constitiate murder where the killing is brought about by adminis-
tcriag poison, then the most innocent act of one's life may turn
out to be a murder, and that too in the first degree, subjecting
|iini to the gallows or imprisonment for life. If a purpose to kill
IS not necessary, then the man is a murderer who innocently ad-
'""^ is tors what he supposes to be a proper dose of medicine, but
''^"^^ tarns out to be a poison which kills the party taking it."

y the innocent administration of poison no penal law is yiolated,

^."^^^^^al turpitude is shown. To hang a man for such a mistake,

i^o^jcerate him for life, is a barbarity not inflicted by the law of

* q^^^ ^ilized and enlightened people.

.. ^^^ case, however, is entirely different where a homicide is com-

^^ in the perpetration of, or the attempt to perpetrate, a rape,

^» Tobbery or burglary. The perpetration of, or the attempt to

'^^^^^t:3^te, either of these offenses involves great moral depravity

^^ utter disregard of the rights of person and property; and

^gislature, for the protection of society and for wise ends,

^ thought it necessary to make the taking of life in the perpe-

^^^ of, or the attempt to perpetrate, either- of those offenses,

- T^^r in the first degree, without reference to any intent to com-

^ i._^^^ homicide. The party who perpetrates, or attempts to per-

V^^^te, either of those offenses, intends a great wrong in tlia

^^^ission of the offense, and if death ensue he most take the

^^^^^nences which result

K. question is made as to the competency of aome ot ihe joion



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182



INDIANA,



Liebschutz v. Moore.



on the ground that they had formed or expressed opinions as to the
guilt or innocence of the accused.

We need not take up space by setting out the statements of the
jurors on this subject. They were all clearly competent under the
laWy as held in the case of Ouetig t. State, 66 Ind. 94.

[Omitting minor questions.]

There is no error in the record.

The judgment below is afSrmed with costs.

Judgmeni affirmed.



'^ M-



LlBBSCHUTZ V. MOOBB.

(70 Ind. 14a.)

Landlord and tenant — mbletting — merger.

A lessee sublet the leased premises ; the sub-lessee afterward and during the
term took a deed of the premises iu fee simple from the owner, and an as-
signment of the lease, and afterward sued the lessee for rent. Held, not
maintainable.

ACTION for rent. The opinion states the case. The defendant
had judgment below.

HowK, J. In this action the appellant sned the appellees in a
complaint of a single paragraph. Afterward, with the leave of
court, the appellant filed additional second and third paragraphs
of the complaint, which two additional paragraphs are the only
paragraphs of complaint to be found in the record. To each of the
second and tliird i)anii:niphsof the complaint the appellees' demur-
rer for the want of sufiiciont facts was sustained by the court, and
to these decisions the appellant excepted.

Judgment was rendered upon these demurrers against the appel-
lant, and in favor of the appellees for their costs, and from this
judgment this appeal is now here prosecuted. In this court the
only errors assigned by the appellant are the decisions of the Cir-
cuit Court in sustaining the appellees' demurrers to the second
and tliird paragraphs of his complaint

Of these two paragraphs of complaint it is said by the appellant's
learned counsel, in their brief of this cause in this court, that



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MAY TERM, 1880. 183

Liebschutz v. Moore.



"the second paragraph differs from the third only in not averring
a mistake in the sub-lease or assignment."

In the second part of his complaint the appellant alleged in sub-
stance, that on the 3d day of March, 1873, John H. Babb, then the
owner of the real estate demised, and the appellees, then partners
in business under the firm name of Moore & Harris, entered into a
written contract, in substance as follows:

''This agreement, made this 3d day of March, A. D. 1873, by
and between John H. Rabb of the first part, and R. G. Moore and
Frank Harris, partners doing business under the firm name of
Moore & Harris, witnesseth: That the party of the first part leases
and rents to the party of the second part his two-story brick store-
house, located on part of lot number one hundred and six (106), on
Main street, in the city of Vincennes, Knox county, Indiana, for
the term of five years from the date hereof. In consideration
whereof the party of the second part agree to pay to the party of
the first part quarterly, for the first eighteen months of the term of
said lease, at the rate of $830 a year; and for tlie remaining part
of the term of said lease they agree to pay said Rjibb quarterly, at
the rate of 1000 a year." That the appellees immediately entered
into the possession of said premises under said lease; that after-
ward, on the 8th day of October, 1875, the appellant and the appel-
lees entered into a written contract, in substance as follows: '* That
whereas the said Moore & Harris are lessees of John H. Rabb, and
hold a lease on part of lot one hundred and six (106), on Main
^^^eet, Vincennes, Indiana, formerly occupied by them, Moore &
usX^Sy as a drug store, said lease continuing until March 3d, 1878,
jl^y now sublet to the said I. H. Liebschutz the above-mentioned
^jaises for the remainder of their term of lease, and the said I. H.
p^l>sohiitz agrees to pay them therefor monthly, on the 8th day of
edclx month, at the rate of thirty -seven dollars and fifty cents per
mo n "til, and at the expiration of said lease of Moore & Harris, to
wit, ilarch 3d, 1878, to deliver up to John H. Rabb, his grantees,
executors, heirs or assigns, the possession of said premises in as
goo^ condition as they now are, natural use and wear excepted;
aad. the said Moore & Harris guarantee to the said I. H. Liebschutz
tue nnobstructed use and possession of said premises until the
e^l^iration of their said lease.*' That afterward, on the 15th day of
vJ^ptember, 1877, the said Rabb and his wife conveyed to the appel-
^^^^ said real estate, subject to the term aforesaid, and also assigned



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181



INDIANA,



Liebochuti ▼. Moore.



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to the appellant the said lease and the rent to become due thereon;
and that the appellees, well knowing all the facts aforesaid, and
although the appellant had paid the several monthly installments
falling due before that time, had not paid the installment of rent
falling due in December, 1877, either to the appellant or to said
Eabb, but the same was due and nnpaid.

The third paragraph of the appellant's complaint differs from
the second paragraph thereof only in this, that in said third para-
graph, the appellant alleged that on the 8th day of October, 1875, be
and the appellees entered into a contract, whereby they agreed to
sell and assign to him the residue of said term and pay to said Babb
the rent agreed to be paid by them, by and in said lease ; and in
consideration thereof, the appellant agreed to pay the appellees the
sum of $37.50 per month, to be paid monthly on the 8th day of
each month, to the dd day of March, 1878 ; that they, the appellant
and the appellees, then attempted to reduce their said contract to
writing, and entered into the written contract set out in our state-
ment of the substance of the second paragraph of the complaint ;
and that the said writing correctly stated their contract, except that
the stipulation, that the appellees should pay said rent to said Rabb,
was by accident, mistake and inadvertence of these parties, and of the
draughtsman who drew the same, omitted from said written contract.

It will be seen, we think, from the allegations of both the para-
graphs of the appellant's complaint, that upon the conveyance of
the demised premises, in fee simple, to the appellant, who was at
the time the owner also of the unexpired term of the leasehold es-
tate therein, the latter and less estate was, eo instanti, merged in
the former and greater estate in said premises. By the sub-lease
of the demised premises for the remainder of their term, the ap-
pellees virtually assigned their written lease to the appellant; and
when thereafter the appellees' lessor, Rabb, the owner in fee of said
premises, conveyed the same in fee simple to the appellant, who
was already the owner of the leasehold estate, his unexpired term
merged in his estate in fee and became extinct. The appellant
could not fill the characters of both landlord and tenant, in one
and the same estate. The maxim is, *^ Nemo potest esse et dominus
et tefiens/* "Thus if A. leases to B., and before the rent becomes
due, conveys the reversion to C, and C. conveys it to B., the rent
is hereby extinguished." 1 Hilliard on Beal Prop. 244, § 30 ; York
V. Jones, 2 N. H. 454.



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MAY TERM, 1880. 185

LiebschaU v. Moore.

^ni <3-»eenL Cruise on Eeal Prop. 236, § 26, it is said: "Where
* ternt :f or years becomes vested in the person who is seized of the
freeholti^ by which there is a union of the two interests in one per-
son at t;t:ft.^6ame time (and there is no intervening estate between
(he tei*ix^ and tj^g freehold), the term merges in the freehold, and
becomo« extinct"

Aga.i rx in § 48, on page 66, of the same volume of the same ex-
cellent tx-eatise, it is said: ** All inferior estates and interests in land
aredex-i-v^^ out of the fee simple ; therefore, whenever a particular
estate, ox:- limited interest in land, vests in the person who has the
fee B»^^*^x^1c of the same land, such particular estate or limited inter-
est b^<5omes immediately drowned or merged in it, upon the prin-
ciple t,tx^^ omne majus continet in se minus!*

Api>ly^5ng the law thus stated to the case made by the allegations

of eit^t^^^* paragraph of the appellant's complaint, it seems to us that

whea "Ko, the appellant, as the owner of the leasehold estate and the

tenant i|3 ix)ssession of the demised premises, became the owner in

feesin^j^Qg^ by proper conveyance, of the highest estate known to

OUT i^>^ jn gaid premises, his unexpired term for years therein became

atouce and forever, and for all purposes, drowned or merged in his

greater ©state in said premises. Wo fail to see how the alleged

""S^^ke, set up and relied upon in the tliird paragraph of the

con^plaint, can possibly affect the question now under consid-

eration. Conceding the alleged mistake as it is pleaded, it is

J* claimed that the appellant, as the owner of the unexpired term

^ years, did not become the owner also of the fee simple estate in

® ^einised premises ; and these are the controlling facts in this

^^ the force and effect of which are in no manner changed or im-

P»'i"ec3^ we think, by the alleged mistake. The term for years was

*^^d or merged in the fee simple estate and became extinct ;

^22^ V\ie appellant having become both landlord and tenant in one

^^ the same estate, the tenancy ceased, and the rent reserved also

*^jJiJBed and was determined.

For the reasons given, we are of opinion that the court commit-
ted no error in sustaining the appellees' demurrers to the second
and third paragraphs of the appellant's complaint, or either of them.
The judgment is affirmed, at the appellant's costs.

Judgment affirmed.
NiBLACK, J., was absent

Vol. XXXVI— 24



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186



INDIANA,



Ferguson ▼. Smethen.



FeBOUSOK V. SMBTHEB&



(70 Ind. 619.)









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fes — mitigation — meemir€.



Beidenee — erim. eon, —



In an action of criminal conversation, evidence is competent, in mitigation of
damages, tliat tlie wife soaght and importaned the defendant or tlirew her-
self in his way.

In sach action, the jary cannot consider the ** injury to the happiness, reputa-
tion, and honor of the plaintififs family."

ACTION of crim. con. The opinion states the facts. The
plaintiff had judgment below.

8. H. Buskirk, J. W. Nicholy W. B, Watts, J. T. Dye, and J. R.

Wilson, for appellant.

/. N. Sims and S. Vanlon, for appellee.

BiDDLE, J. The appellee brought this action against the appel-
lant, for the alleged criminal conversation of the appellant with
the appellee's wife.

Answer of denial ; trial by jury ; verdict and judgment, in favor
of appellee, for twenty-five hundred dollars.

By a motion for a new trial, several questions are presented by
the record, but none are discussed except certain alleged errors in
giving instructions to the jury.

The court instructed the jury as follows :

'*The defendant cannot insist, in mitigation of damages, that
the wife consented to the adultery. She had no right or legal ca-
pacity to yield such consent."

Tliis instruction is erroneous. The circumstances attending the
adultery — as to whether the wife was sought and importuned by
her paramour, or whether she sought or threw herself in the way
of her paramour, and as to whether she was overcome by persuasion,
or gave herself away willingly — may be given in evidence, as affect*
ing the question of damages. In this case the evidence tends to
prove that the wife went into a cornfield to meet her paramour,
and therein, upon the ground, in a fence corner, had sexual con-
nection with him. Upon such a state of facts, the instruction is



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'}



NOVEMBER TEEM, 1880. 187

Ferguson ▼. Smethera.

clearly ii:^ correct. It has been tersely said, that, in an action for
criminal conversation, *^ the measure of damages is the value of
the wi£o of whom the husband has been deprived." 2 Sedgwick
on Datxxiiges, 517, note.

Awir^o that will go to a cornfield to meet her paramour, and have
adiilteiroxxs intercourse with him, on the ground, in a fence corner,
ismiieVi less valuable to her husband than one who stays at home
and domoans herself becomingly. See the following authorities :
Eanis^^n. v. PricCy 22 Ind. 1G5; Oolenian v. Whiie, ^3 id. 429;
Clousew- V. Clapper, 59 id. 548; Bracyy. Kibbe,31 Barb. 273; VoUx
y. BkcXrmar, 64 N. Y. 440.
Tha oonrt also instructed the jury as follows :
"15. If the plaintiff has established his right to recover, the
jury, irx determining the question of damages, may consider the
injury to his domestic peace and happiness, the alienation of the
affections and the society of his wife, if such alienation is proved,
the wrong inflicted upon his honor, and the injury to the happiness,
reputation and honor of his family."

^^ tliink the latter part of this instruction, expressed in the fol-
lowing Words: "and the injury to the happiness, reputation and
honor of his family," is erroneous. A family is that body of per-
sons, collectively, who live in one household, under one head, in-
cluding parents, children and servants, and may include persons
who are merely lodgers or boarders. The evidence in this case
shows xis that the family of the appellee consisted of the parents
^^^ Seven children, the oldest seventeen and the youngest four
years. Injury to these children does not constitute an element of
damages in favor of the appellee. Ho can recover only for injur-
^^, l^iinself, for the loss of his wife. See the authorities, supra,
TiJ^ Instruction should not have been given.

vfe.^ judgment is reversed, at the costs of the appellee, and the
^«(& 18 remanded, for further proceedings.

Reversed and remanded.



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188



INDIANA,



PeniiBjlyania Gompanj ▼. HendL



Pennsylvania Company v. HbnsUi.

(70Ind.6«OJ
Kegligence-^ Street cra8Hn{^^Jkigman'^&ndene6^eU90rdinanee,

In an action against a railway companj for an injury bj colliflion at a street
crossing in a citj, it being proved that the whistle was not sounded nor the
bell rung, evidence is competent to show an ordinance prohibiting such 8ig«
nals.

An ordinance requiring a railway company to keep a watchman at a street
crossing, the omission so to do is not negligent unless it is the proximate
cause of an injury.

ACTION for personal injury by negligence. The opinion states
the case. The plaintiff had judgment below.

A. ZollarSy F, T. Zollars and J. Brackenridge, for appellant






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W. H. Coombs, J, Morris and R. 0, Bell, for appellee.

NiBLACK, C. J. The complaint in this case was in two para-
graphs.

The first averred that the defendant, the PennsylTania Company,
the appellant here, was, on the 30th day of October, 1876, engaged
in operating a railroad running throngh and across the public
streets of the city of Fort Wayne ; that a number of tracks and side*
tracks, pertaining to said railroad, had been negligently constructed
across Hanna street, a public street of said city, crossing and inter-
secting each other near said street, so that it was difficult for per-
sons passing upon such street to determine upon which track an
approaching train might cross it; that on that day, while the
plaintiff, Anna Hensil, an infant eight years old, who is the appel-
lee here, was passing along and upon the east side of said street^
without negligence on her part, the defendant was negligently run-
ning its cars and engine back and forth over and across such street,
and negligently ran a train of cars upon and over her, and thereby
so injured one of her limbs that it had to be amputated; that ac
the time, the whistle on the engine was not sounded, nor the bell
rung, nor was there any watchman on the crossing, to keep her off
the tracks, or to warn her of the approaching train; that there was



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NOVEMBER TERM, 1880. 189

Pennsylvania Company ▼. HensiL

an ordinance of the city of Fort Wayne requiring a watchman to
be kept at that crossing, for the pnrpose of warning persons of ap-
proaching trains. A copy of the ordinance referred to was unnec-
essarily filed with the complaint

The second was much like the first, except that it averred that the
defendant was operating the Pittsburgh, Fort Wayne and Chicago
Railroad, and that the planks on the sidewalk on the east side of
Hanna street, where the plaintiff had to cross, and between the
rails of the railroad tracks, had been carelessly laid and were out of
repair; and for that reason, and in consequence of the whistle not
being sounded, nor the bell rung, and there being no watchman at
the crossing, the plaintiff did not see the approaching train until
she fell down, and it struck her as above stated.

The defendant demurred separately to each paragraph of the
complaint, but both paragraphs were held to be sufiScient. An
aDswer in general denial was then filed.

A jury returned a general verdict for the plaintiff, for 17,500,



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 23 of 123)