error to exclude notes and mortgages given to various persons by the claimant, particularly in view of his testimony that the property in question had been paid for entirely with the income of the homestead. (Kiser v. Dozier, 184.)
10. HOMESTEAD - EXECUTION-TRANSFER ΤΟ ONE'S SELF, AS HEAD OF FAMILY, IN FRAUD OF CREDITORSERRONEOUS EXCLUSION OF EVIDENCE.-If a debtor conveys property to himself as the head of a family, and it is shortly afterward levied upon by a judgment creditor, who claims that the conveyance was made with intent to hinder, delay, and defraud creditors, the debtor and defendant asserting an exemption of the property on the ground that it had been paid for exclusively with the income of a homestead estate, it is the duty of the court, in view of evidence that the property was not so paid for, to submit the issue of fraud thus presented to the jury, and a failure to do so is error. It is also error to exclude evidence of the value of the property so conveyed by the debtor to himself. (Kiser v. Dozier, 184.) See Contempt, 4.
1. HOMICIDE-MURDER IN PERPETRATION OF FELONY. To sustain a conviction of murder in the first degree, under a statute providing inat any person who, while engaged in the perpetration of a felony, kills another, shall be deemed guilty of murder in the first degree, it is not essential that the killing be such as, in the absence of such statute, would amount to murder, as distinguished from manslaughter. (Henry v. State, 450.)
2. HOMICIDE--MURDER ATTEMPTED IN ONE STATE AND COMPLETED IN ANOTHER.-An attempt to commit a murder in another state, supposed by the guilty party to have been there successful but in reality completed in this state, though by an act not by him believed to be the consummation of his purpose, is punishable here. Otherwise stated, when a crime has been completed, the result of which is a death in this commonwealth, we can take jurisdiction of the offense. (Jackson v. Commonwealth, 338.)
3. HOMICIDE – MURDER-DECAPITATION-ATTEMPT KILL IN ANOTHER STATE-VARIANCE IN INSTRUCTIONS.— Under an indictment charging murder by cutting the throat or decapitation, the jury may, under proper instructions, consider a previous attempt to kill in another state, and by different means. There is no good reason why the motive which inspired the attempted crime in another sovereignty, and the circumstances of the attempt, should not be considered with a view of determining the character, criminal or not, of the ultimate fact which took place in this sovereignty. (Jackson v. Commonwealth, 338.)
4. HOMICIDE – INDICTMENT - WHEN SUFFICIENT.-It is permissible, in an indictment for murder, to charge, in the alternative, the different modes or means of committing the crime, though it would not be sufficient, in a joint indictment against two persons for murder, to charge, in the alternative, that one party or the other committed the crime. (Jackson v. Commonwealth, 336.) 5. HOMICIDE JOINT INDICTMENT-WHEN SUFFICIENT. A joint indictment against two persons, Scott Jackson and Alonzo Walling, charging that they, "on the day of, 1896, before the finding of this indictment, in the county aforesaid, did willfully, feloniously, and with malice aforethought, kill and murder Pearl Bryan by the one or the other, the said Scott Jackson or Alonzo Walling, with a knife or other sharp instrument, cutting the throat of the said Pearl Bryan, so that she did then and there
die, the other being then and there present, alding, and abetting
the same, the exact manner whereof is unknown to the grand jurors,
and which did the cutting, Scott Jackson or Alonzo Walling, or
which aided and abetted the same, is unknown to the jurors,"
charges directly and certainly that Jackson did kill and murder
Pearl Bryan, first by himself cutting her throat with a knife, or
secondly by aiding and abetting Walling in doing so. (Jackson v.
Commonwealth, 336.)
6. HOMICIDE-INDICTMENT-ALLEGATION OF MODE AND
MEANS OF DEATH.-Murder may be committed by cutting a
person's throat, or by aiding and abetting another to do the cut-
ting, and these two modes may be charged, in the alternative, in
a joint indictment against two persons for committing the crime.
(Jackson v. Commonwealth, 336.)
7. HOMICIDE-MURDER.— CIRCUMSTANTIAL EVIDENCE
considered and held sufficient to sustain a conviction for murder.
(Jackson v. Commonwealth. 338.)
8. HOMICIDE – EVIDENCE - USE AND EFFECTS OF CO-
CAINE.-If it appears, on a trial for the murder of a woman, that
cocaine was found in the stomach of the deceased, and that the
accused had, previous to the death, inquired as to the effects of
the drug on the system, the statement of a witness as to its use in
producing abortions, and its effects upon the system, is admissible
in evidence. (Jackson v. Commonwealth, 336.)
9. HOMICIDE-EVIDENCE-ACTS OF CODEFENDANT.—If
one of two defendants jointly indicted for the crime of murder is
separately tried, the various acts of the other party during the
week preceding the commission of the crime, with which the ac-
cused on trial is shown to have been closely connected, are admis-
sible in evidence. (Jackson v. Commonwealth, 336.)
10. HOMICIDE EVIDENCE OF FOETUS - MOTIVE. - In a
prosecution for the murder of a woman, evidence that the deceased
was carrying a five months' foetus, which was probably alive up
to the time of the woman's death, is competent as furnishing a mo-
tive for the killing, although no mention is made, in the indict-
ment, of the murder of an unborn child. (Jackson v. Common-
wealth, 336.)
11. HOMICIDE-MYSTERIOUS MURDER-RANGE OF EVI-
DENCE.-If the true solution of a mysterious murder case rests
largely upon circumstances affecting, or supposed to affect, the main
transaction, the evidence should be allowed to take a wide range.
There must, of course, be some connection between the fact to be
proved and the circumstances in support of it; yet any fact which
it is necessary to introduce to explain another, or which afforded
an opportunity for any transaction which is in issue, or shows fa-
cilities or motives for the commission of the crime, may be proved.
Even evidence tending to prove a distinct crime is admissible, if it
shows facilities or motives for the commission of the one in ques-
tion. (Jackson v. Commonwealth, 336.)
12. HOMICIDE-EVIDENCE-CONVERSATIONS IN JAIL.-If
two persons are jointly charged with murder, voluntary conver-
sations between them, while confined in jail, are admissible in evi-
dence upon the separate trial of them. (Jackson v. Commonwealth,
336.)
13. HOMICIDE - EVIDENCE- CONVERSATION BETWEEN
PARTIES CHARGED WITH CRIME.-If two persons, charged
with murder, converse and make statements about the crime, in
the presence of a third, the entire conversation is admissible in evi-
dence, upon the subsequent separate trial of one of the parties,
particularly where part of such conversation would be unintelligi.
ble without the whole of it. (Jackson v. Commonwealth, 336.)
14. HOMICIDE - EVIDENCE-TESTIMONY OF ONE WHOSE
DEPOSITION HAS BEEN TAKEN.-A witness, in a murder trial,
whose deposition has been taken by the defense, and read in evi-
dence, may be afterward introduced in person by the state. (Jack-
son v. Commonwealth, 336.)
15. HOMICIDE-INSTRUCTIONS.-Upon a trial for the murder
of a girl, where the evidence tends to show that an attempt was
made to kill her, by the administration of cocaine, while in a city
of another state, and that this was done by the defendant, or at
his instance, but that she was not thereby killed, it is proper to in-
struct the jury to find the defendant guilty of murder, if they be-
lieve from all the evidence, beyond a reasonable doubt, that the
defendant willfully, feloniously, and with malice aforethought,
himself attempted or aided, or abetted, or procured another to at-
tempt, to kill the girl, but she was not thereby killed, and that
the defendant in this county and state, before a certain date, though
believing that the girl was then dead, for whatever purpose, cut
her throat with a knife, or other sharp instrument, so that she
did then and there, and because thereof, die. (Jackson v. Common-
wealth, 336.)
16. HOMICIDE-INSTRUCTIONS.—Upon a trial for the murder
of a girl, where it appears from the evidence that she was in a
city of another state for the purpose of having an abortion per-
formed, that her headless body was found in this state, that co-
caine was found in her stomach, and that the defendant had made
inquiries as to the effects of this drug on the system, it is proper
to instruct the jury to find the accused guilty of murder, if they
believe that he feloniously administered, or procured another to
administer, drugs to the girl, for the purpose of producing an abor-
tion, when she was so far gone with child as to make it necessarily
dangerous to her life, or when the drugs were in themselves, or
in the manner of their administration, dangerous to her life; and,
though believing her to have been killed in this way, he cut her
head off, in a designated county of this state, when she was in fact
alive. (Jackson v. Commonwealth, 338.)
17. HOMICIDE-INSTRUCTIONS.-Upon a trial for the murder
of a girl, where it appears from the evidence that she was in a
city of another state for the purpose of having an abortion per-
formed, that her headless body was found in this state, that co-
caine was found in her stomach, and that the defendant had made
inquiries as to the effects of this drug on the system, it is proper
to instruct the jury to find the defendant guilty of manslaughter
only if he cut the throat of the girl, in a designated county of this
state, under the belief that she was already dead, and did so, not
intending to kill her, but merely for the purpose of concealing her
identity, unless he had theretofore himself attempted to kill her.
or procured another to so attempt, or had administered drugs, or
procured another to do so, for the purpose of procuring an abortion,
in which event they should find him guilty of murder if the at-
tempt was to kill her, or if the drugs were administered when
dangerous to her life, but guilty only of manslaughter if the drugs
were administered when not dangerous. (Jackson v. Common-
wealth, 338.)
18. HOMICIDE TRIAL-RELIEVING SHERIFF OF HIS DU-
TIES.-The refusal of the court, upon the separate trial of one of
two defendants for murder, to relieve the sheriff of his duties in
relation to the trial, and appoint another officer, upon the defend-
ant's affidavit that the sheriff had taken an unusual interest in
procuring a conviction, that he had denounced the defendants as
the guilty parties, and that he had endeavored, by threats of pun-
ishment, to force them to confess the crime, is not ground for a
reversal, where it does not appear that he had any personal feel-
ing or bias against the defendants, or that there was a failure to
execute any process placed in his hands by the defendant, or to
perform any other duty, and especially where the record does not
show that he, or any of his deputies, summoned any juror in the
case. (Jackson v. Commonwealth, 336.)
19. HOMICIDE-PUBLIC TRIAL-TICKET SYSTEM OF AD-
MISSION TO COURTROOM.-Prior to the commencement of a trial
for murder, the defendant filed an affidavit that the sheriff mad
announced his intention of permitting no one to enter the court-
room during the trial except members of the bar, court officers,
and those holding tickets issued by himself, and moved the court
to direct the sheriff to allow all well-behaved persons to attend the
trial so long as they could be accommodated, but the court refused
to act on the motion, and such refusal was held not to be error,
where it appeared that the ticket system was carried on, and the
tickets of admission issued to those who first applied for them,
for the sole purpose of preventing an overcrowded courtroom; that
this was done under the eye of the trial judge; and that no friend
of the defendants, or any other person, who desired to do so, was
prevented from attending the trial. (Jackson v. Commonwealth,
336.)
1. A RESULTING TRUST IN FAVOR OF A WIFE IS PRE-
SUMED from the purchase of property by her husband with her
moneys and the taking of the title in his name. (Smith v. Willard,
313.)
2. MARRIED WOMAN-ESTOPPEL OF TO CLAIM PROP-
ERTY AGAINST HUSBAND'S CREDITORS.—If a married woman
furnishes money to her husband for the purpose of purchasing prop-
erty for her, instructing him to take a conveyance in her name, and
he, on the contrary, takes it to himself, which she permits to stand
for seven years and without making any inquiry respecting it, she
is estopped, as against his creditors, from claiming that the prop-
erty is held by him in trust for her. (Smith v. Willard, 313.)
See Marriage and Divorce.
INDEPENDENT CONTRACTOR.
See Master and Servant, 4.
See Adultery; False Pretenses, 1, 4; Forgery, 2, 3, 8; Homicide, 4-6.
See Assault; Railroad Companies, 10, 12, 31.
1. INJUNCTION-WIFE'S RIGHT TO, IN SUIT FOR DIVORCE.
A wife who has been driven away from an honorable home by her
husband's cruelty, who is living on her own place acquired after
such separation, and who is suing her husband for a divorce on the
ground of cruel treatment and of habitual intoxication, is entitled
to an injunction restraining him not only from interfering with her
property, but also from going into her dwelling-house and eating
and sleeping therein against her protest; and the prayer for such
equitable relief may be joined with the wife's application for divorce. (Lyon v. Lyon, 189.)
2. INJUNCTION-VOID LEVY AND SALE UNDER EXECUTION.-If a levy of execution upon different parcels of property was vold because it was excessive, and the sale thereunder was void because all of the property was sold in bulk, when it was easily capable of subdivision, the owner is entitled to an injunction to restrain the purchaser and the officer making the sale from turning him out of possession, especially where the purchaser was the attorney for the plaintiff, and bought the property for one fiftysixth of its aggregate value. (Forbes v. Hall, 152.)
3. INJUNCTIONS - WHEN REFUSED.-The granting or reusal of an injunction rests in each particular case in the sound discretion of the court; and it ought not to be granted when it would be productive of great hardship, or oppression, or great public or private mischief. (Fisk v. Hartford, 147.)
4. INJUNCTIONS-LACHES AS BAR.-If a party is guilty of laches in applying for an injunction, he may thereby forfeit his claim to that remedy; and if, by his laches, he has made it impossible or very difficult for the court to enjoin his adversary without inflicting great injury thereby, an injunction must be refused, and the party left to his remedy at law. (Fisk v. Hartford, 147.)
5. INJUNCTIONS-LACHES AS BAR.-A riparian owner of a mill, who has permitted a city for many years to take its water supply in increasing quantities from the stream by means of very expensive reservoirs and distributing mains, cannot enjoin such diversion of the water; and his delay in applying for relief is not excused nor justified by the fact that until recently the city had found it convenient to return the water taken, in the form of sewage, to the stream above the mill-owner's dam. (Fisk v. Hartford, 147.)
1. INSANE PERSONS-CONTRACTS OF-VALIDITY.-A contract by an insane person, whether executory or executed, is utterly void, even where there has been no judicial determination of the fact of insanity. (American Trust etc. Co. v. Boone, 167.)
2. CHECKS DRAWN BY INSANE PERSONS ARE VOIDNOTICE.-A check drawn by an insane person is void, and the bank which pays it must bear the loss, although it had no notice of the fact of insanity. (American Trust etc. Co. v. Boone, 167.)
3. INSANE PERSONS-CONTRACTS OF EVIDENCE OF INSANITY. An adjudication of insanity is merely cumulative of other evidence on the subject, and in any case where it is shown, either by a judgment of a court, or other competent evidence, that the person making the contract was insane at the time of its execution, such contract is void, although the other party thereto had no reason to suspect the existence of such insanity. (American Trust etc. Co. v. Boone, 167.)
4. EVIDENCE-JUDGMENT OF SISTER STATE-INSANITY. The judgment of a court of a sister state adjudicating the question of insanity is admissible in the courts of this state as prima facie evidence upon that question. (American Trust etc. Co. v. Boone, 167.)
5. INSANE PERSONS-ADJUDICATION AS EVIDENCE OF INSANITY.—An adjudication by a court, whether of this state or of a sister state, having jurisdiction to determine the question, is at least prima facie evidence everywhere of the fact of insanity. (American Trust etc. Co. v. Boone, 167.)
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