State v. Phillips.

ing attorney may except to any opinion of the court during the prosecuting of any cause, and reserve the point of law. for the decision of the Supreme Court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved. In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the Supreme Court upon an appeal at any time within one year."

The case at bar was not an agreed case. There was an agreement as to the facts. The agreed facts constituting the evidence have not been brought into the record, nor has any part of the evidence been brought into the record, by any bill of exceptions. But even if the evidence, or so much as would be necessary to present the question reserved, had been brought up by a bill of exceptions, no question is presented by the assignment of error. The assignment is in effect that the court erred in finding appellee not guilty as charged. The opinion which this court is authorized to pronounce on appeals by the State must be upon matter of law and not of fact. The purpose in allowing appeals by the State where a defendant has been acquitted upon trial is not to correct any error in the particular case, but to furnish a rule for the guidance of trial courts in future cases. The State could not be granted a new trial, nor does the above statute authorize this court to review the facts and pronounce an opinion upon them. Should we in such a case look into the evidence and determine whether there was or was not evidence to sustain a conviction such determination would be binding upon no one nor would it furnish any rule for the guidance of trial courts. The error assigned presents for review only a question of fact, and not of law. State v. Campbell, 67 Ind. 302; State v. Van Valkenburg, 60 Ind. 302; State v. Hall, 58 Ind. 512; State v. Rousch, 60 Ind. 304.

See

Appeal dismissed.

State v. Thompson.

THE STATE v. THOMPSON.

[No. 3,254. Filed November 27, 1900.]

CRIMINAL LAW.-Failure to Pay Dog Tax.-Indictment.-An indictment, under the act of 1897 (Acts 1897, p. 178), for keeping or harboring a dog without holding a township assessor's or township trustee's receipt showing the required tax has been paid for same as provided in said act, which follows the language of §9 thereof is sufficient.

From the Sullivan Circuit Court. Reversed.

W. L. Taylor, Attorney-General, A. E. Dickey, C. D. Hunt, Merrill Moores and C. C. Hadley, for State. J. S. Bays, for appellee.

HENLEY, C. J.-By $2864i Burns Supp. 1897, it is made a misdemeanor for any person who does not hold a township assessor's or township trustee's receipt, showing the required tax has been paid for the same, as is provided in the act of which this section is a part, to keep, harbor, board or feed, or permit any dog to stay about his, her, or their premises; the penalty being a fine in any sum not exceeding $10. Under this section of the statute, an indictment was returned against appellee by the grand jury of Sullivan county. The lower court, upon a motion to quash, held the indictment insufficient and appellee was discharged. The State appeals from this ruling of the court.

Section 2864i is one of the sections of an act regulating the taxing of dogs, passed by the legislature in 1897. Acts of 1897, p. 178. Section 2864b of said act is as follows: "The township assessor shall give to each person a receipt. for such money paid him, which shall be designated for dog tax, which receipt shall show the person's name who owns, harbors or keeps the dog, the amount paid, and the number, description and kind of dogs paid for, and whether male or female, and the number of each, which receipt shall relieve the person or persons owning, keeping or harboring such

State v. Thompson.

dogs for the current year, extending one year from its date or until the next regular township assessment. Such township assessor shall keep a record of the person or persons owning dogs and a record of the dogs paid for. And he shall keep a stub record or copy of the receipts given by him for money paid him as dog tax; such stub record shall show the amount paid him, the number of dogs, both male and female, paid for, and the person's name, owning the dogs so paid for. And he shall within five days after the completion of the assessment of his township, each year turn over to the township trustee of his township all the records kept by him relating to the collecting and payment of dog tax, and a copy of all receipts given by him to persons having paid him money as dog tax, and all money received by him as dog tax." In this section it will be noted that it is made the duty of the assessor to give to the owner or keeper of a dog a receipt and this receipt is not only to evidence the amount of money paid, but it must contain the owner's name, must show whether the dog paid for was a male or female, must show what kind of a dog it was, and must contain a description of the dog. It is made the duty of the assessor, amongst other things, to turn over to the township trustee a copy of all receipts given by him to persons having paid him money as dog tax.

By $2864d Burns Supp. 1897, it is provided that "Any person who shall keep or harbor any dog, and shall not have paid the township assessor the tax as above specified and received his receipt" as therein specified, shall be subject to a fine of not less than $5 or more than $20. The owner of a dog is made doubly secure against a prosecution for a failure to pay the tax and hold the receipt, if in fact such tax had been paid by him, because the records of both the assessor and the trustee would furnish him a complete defense. And this receipt which the statute provides for is an identification of the owner by name and of the dog by kind and description. A person who owns, keeps or harbors

State v. Thompson.

a dog, and has paid the tax and received the receipt as the law provides, is the holder of the receipt. The fact that he may have lost or misplaced his receipt could make no difference, nor could it subject him to a prosecution under any section of this act.

By $2864e Burns Supp. 1897, it is provided that if any person shall acquire, keep or harbor a dog after the assessor shall have completed his assessment, he shall pay to the township trustee of his township the amount of tax provided in said act, and shall receive the receipt of the township trustee for the same. Thus by section 2864d Burns Supp. 1897 it is made a misdemeanor to fail to pay the township assessor and receive his receipt, and by $28641, it is made a misdemeanor for any person to fail to hold either the receipt of the township assessor or the receipt of the township trustee showing that the tax has been paid. The indictment is in the language of the statute. It will not be contended that the terms of the statute under which this indictment is brought are broader than the intent of the legislature. Skinner v. State, 120 Ind. 127; Howell v. State, 4 Ind. App. 148.

There is no room for the construction of this section of the statute other than to give to the words employed their plain and ordinary meaning. If a person has paid to the assessor, or to the township trustee, the tax provided for in the act, and received a receipt therefor, he is the holder of the receipt. The statute imposes no hardship upon any one. We think the indictment properly charges an offense under $2864i Burns Supp. 1897.

The appeal of the State is sustained.

Gaskins v. Runkle.

GASKINS v. RUNKLE.

[No. 3,264. Filed November 27, 1900.]

DAMAGES.- Nervous Prostration.- Fright.-An action can not be maintained for damages on account of nervous prostration resulting from fright caused by defendant entering upon the premises of plaintiff's husband and quarreling with him, within hearing of plaintiff, after being ordered away, knowing plaintiff was in delicate health and easily excited.

From the Sullivan Circuit Court. Affirmed.

J. T. Hays, for appellant.

J. S. Bays, for appellee.

WILEY, J.-Appellant was plaintiff below. Her complaint was in a single paragraph, to which a demurrer for want of facts was sustained. She refused to plead further and suffered judgment to be rendered against her for costs. The complaint avers that appellant was a married woman living with her husband on a farm; that on July 14, 1898, she gave birth to a child; that prior to and on July 26, 1898, appellee knew that she had recently been confined and knew her physical condition; that on July 26th, she had so far recovered as to be able to be up; that she was convalescent but unable to stand any excitement or mental strain or nervous shock; that on said July 26th, the appellce went to appellant's and upon the lands of appellant's husband, and quarreled with her said husband; that he refused to leave said premises when so notified to do, "but unlawfully remained and refused to depart from plaintiff's home and from the lands of plaintiff's husband * * when so notified to depart therefrom, and there in a rude and insolent manner, wilfully and purposely remained and quarreled with plaintiff's husband, knowing that plaintiff was home and within hearing of said quarrel, and well knew that said quarrel, as well as his refusal to leave plaintiff's home would greatly excite the plaintiff and cause a nervous

*