1. An indictment for the larceny of chickens, if intended to be under section 158 of the act for the punishment of crimes (P. L. 1898, p. 837) should contain allegations sufficient to show that the offense is not that defined in section 162 of the same act.

2. Whether, since the enactment of section 162, Crimes Act (P. L. 1898, p. 839), chickens are the subject of larceny under section_158, Crimes Act (P. L. 1898, p. 837), quære. Upon a writ of error to review a judgment in a criminal case the court will only consider such matters as have been called to the attention of the state either by assignment of error or specification of causes; and a general exception to a charge is only available when error is assigned upon the objectionable portions. (Syllabus by the Court.)

Error to court of quarter sessions, Monmouth county.

Frank Shutts was convicted of larceny, and brings error. Reversed.

Argued before GUMMERE, C. J., and VAN SYCKEL, GARRISON, and GARRETSON,

JJ.

Wesley B. Stout, for plaintiff in error. John E. Foster, for defendant in error.

GARRETSON, J. This case is before the court upon writ of error, and it seems to be assumed by the plaintiff in error that it is so under section 136 of the criminal procedure act of 1898 (P. L. 1898, p. 915), which provides that "the entire record of the proceedings had upon the trial of any criminal cause may be returned by the plaintiff in error therein with the writ of error," etc.; but an examination of the printed book fails to disclose any return by the judge other than the ordinary and formal return to the writ of

error.

The proper practice upon a return made in accordance with section 136 is indicated by the Court of Errors and Appeals in the case of State v. Young (N. J. Err. & App.) 51 Atl. 940.

By section 137 of the same act it is provided that, "where a plaintiff in error shall elect to take up the entire record with his writ of error as herein provided, he shall specify the causes in the record relied upon for relief or reversal and shall not be confined to his bill of exceptions or required to assign error thereon and he shall serve a copy of the causes so relied upon for relief or re

versal" upon the representative of the state within a specified time. And the case of State v. Young, supra, holds: "The clear implication is that the review is to be confined to matters of which the state is apprised, either by assignment of error or specification of causes." In the present case no specification of causes of reversal has been served.

It is further provided by section 140 of the criminal procedure act that "it shall be lawful to take a general exception to the charge of the court to the jury without specifying any particular ground or grounds for such exception and without specifying what portions of said charge are excepted to and it shall be the duty of the judge to settle a bill of such exception and to sign and seal the same to the end that the same may be returned with the writ of error to the court having cognizance thereof." And section 141 provides: "It shall be lawful where such general exception has been taken to assign any error or errors of law upon any portion of the charge so excepted to." The case before us does not disclose any general exception to the charge upon which the judge settled a bill of exception or signed and sealed the same.

Under the criminal procedure act (Gen. St. p. 1154, § 170 [Laws 1894, p. 246]) the return to the writ is to be of the indictment, with all things touching the same, including the entire proceedings had upon the trial, and is so certified by the trial court; and the court, on hearing, was required by this statute to look at the entire record of the proceedings, including the testimony and the weight thereof, and was authorized to reverse the judgment and grant a new trial where it appeared from the entire record of the proceedings that the plaintiff in error sustained manifest wrong or injury. Roesel v. State, 62 N. J. Law, 240, 41 Atl. 408.

The criminal procedure act of 1898, in section 136, supra, omits the words "or upon the evidence adduced upon the trial," so that since that act the court upon review does not pass upon the weight of the evidence, and only upon its admission or rejection, or upon the direction of the judge as to its legality, and that only when brought before the reviewing court in the manner indicated above.

We are therefore confined in this case to a consideration of the record of the judgment, and to such bills of exception as were duly signed and sealed at the trial.

There were 13 assignments of error, as follows: (1) Because the judgment was given for the state, and against the said Frank Shutts, when by law of the land the judgment aforesaid should have been given to the said Frank Shutts. (2) Because the trial judge refused to quash the indictment. (3) Because the said court admitted the testimony against said defendant, which was illegal and contrary to law. (4) Because the said court refused to admit testimony on the part of the defendant, which in law he should have done. (5)

Because the testimony was such that it showed that the defendant was not guilty, and the verdict should have been accordingly. (6) Because the judge charged the jury contrary to law. (7) Because the judge charged the jury contrary to the proof in the case. (8) Because the court refused to charge the jury as requested. (9) Because the jury found the defendant guilty of grand larceny, to wit: "The defendant is guilty of grand larceny as he stands charged in the indictment." (10) Because the said indictment is not signed by the foreman of the grand jury. (11) Because the verdict or finding is against the clear weight of evidence. (12) Because the verdict or finding is contrary to the evidence and the law. (13) Because, for divers other reasons, the said judgment is erroneous and contrary to law.

The fifth and eleventh assignments of error are upon the findings of the evidence, and cannot be considered. The eighth is not founded on any request to charge with respect to any matter whatever. The tenth exception is not well taken; the indictment need not be signed by the foreman of the grand jury. State v. Magrath, 44 N. J. Law, 227. The sixth, seventh, and twelfth have no exceptions or specifications to sustain them, and are not in themselves specifications of causes for reversal. The third and fourth are to the admission and rejection of testimony, and an examination of all the exceptions to such admission and rejection fails to disclose any error in the rulings of the trial court. The first, second, ninth, and thirteenth exceptions are such as will raise any questions appearing on the face of the indictment and the record of the judgment.

The plaintiff in error was indicted for that he "seven bags of chickens of the value of twenty dollars of the goods and chattels of J. A. S. then and there being found unlawfully did steal, take and carry away." The indictment also contained a count for receiving stolen goods. The verdict of the jury was "that they find the defendant guilty of grand larceny as he stands charged in the indictment." The judgment was "that the defendant be confined in the state's prison at hard labor for the term of two years."

Section 158 of the crimes act (P. L. 1898, p. 837) provides: "Any person who shall steal of the money or personal goods and chattels of another shall be guilty of a misdemeanor if the price or value of the article, property or thing be under twenty dollars; and if the price or value of the article, property or thing be of or above twenty dollars shall be guilty of a high misdemeanor."

The penalty for a high misdemeanor, as prescribed by section 217 of the crimes act (P. L. 1898, p. 854), is a fine not exceeding $2,000 and imprisonment not exceeding seven years. The penalty for a misdemeanor, by section 218 (P. L. 1898, p. 854), is a fine not exceeding $1,000 and imprisonment not exceeding three years,

The case was tried upon the theory that the Indictment was found under this section of the statute. Evidence was produced as to the value of the chickens taken. The judge charged the jury as follows: "This defendant is indicted upon an indictment charging him with grand larceny, petit larceny, and a count charging him with receiving those goods, knowing them to have been stolen. Under this indictment, and under certain circumstances which we may or may not find, he could be convicted of either one of those offenses, or entirely acquitted. In the first place, you should convict him if you believe him to be guilty of grand larceny. Grand larceny consists of a theft of goods worth as much or more than $20 in value. You could convict him of petit larceny, which consists of a theft of goods in value less than $20, or you could convict him of receiving those goods with a guilty knowledge that they had been stolen, and in that case it makes no difference whether the goods were worth $20 or less. The first thing for you to determine, if you determine that he is guilty beyond a reasonable doubt, is what he is guilty of. Were these chickens worth twenty dollars? If they were, and he should be convicted, you should say he was guilty as charged in the indictment. If in your verdict you say this: 'He stole those chickens, but they were not worth $20,' then you should say he was guilty of petit larceny. You understand, if you find that the value of the goods was $20, then you should say he was guilty as charged in the indictment; and if less than $20, then you should say that he is guilty of petit larceny. Now, suppose you find that he did not steal, but received the goods knowing them to have been stolen, then you will simply say that you find him guilty of receiving the goods, but he would not be guilty of stealing."

The plaintiff in error claims that chickens are not included within the terms "money or personal goods and chattels" used in section 158, supra, because of the provisions of section 162 of the crimes act (P. L. 1898, p. 839), which is as follows: "Any person who shall carry away or unlawfully appropriate with intent to steal any turkey, goose, duck, chicken or other domestic fowl by whatever name known or designated, the property of another, shall be guilty of a misdemeanor." The indictment attempts to follow the ordinary common law form for larceny, which is the offense defined in section 158. Whether, since the enactment of section 162, chickens are no longer the subject of larceny under section 158, need not now be decided. It may be suggested, however, that possibly section 162 applies only to domestic fowls when alive, and that when killed and a subject of merchandise they may be included under the denomination of personal goods and chattels in section 158. If chickens are the subject of larceny under section 158, the indictment charging that defense should contain words of sufficient description to exclude the appli

cation of section 162. Under that view this indictment would be defective in that particular. The words of criminal import in section 162 are "carry away or unlawfully appropriate with intent to steal"; the words used in the indictment are "steal, take and carry away." We consider, however, that the indictment is defective in the description of the property taken, whether regarded under the 158th or the 162d section.

The indictment found is not sufficient to charge the offense set out in section 162, because it is clearly a charge under section 158. It should contain allegations sufficiently clear to apprise the defendant that he is charged with the offense under section 162, and not under section 158. The words in section 162 are "carry away or unlawfully appropriate with intent to steal," and these are not equivalent to "steal" in section 158. It should also be alleged in the indictment that the chickens carried away or appropriated with intent to steal are domestic fowl, so as to distinguish them from other fowl called chickens, which are not domestic fowl. There should be no allegation of value, because the offense does not depend upon the value.

The indictment found is not sufficient, as an indictment for larceny under section 158, because, the carrying away or appropriating with intent to steal of chickens having been made an offense by section 162, if it should be claimed that chickens of certain sorts, or in certain conditions, are still subjects of larceny under section 158, the sort or condition should be specified, so that the defendant may be informed under which section he is accused.

We consider, moreover, that the description "seven bags of chickens of the value of twenty dollars" is defective, whether regarded under the 158th or 162d section. Chickens are usually regarded by number or weight. The expression used in indictment conveys no idea of the number or quantity of chickens taken. The property taken cannot be described by what it is enclosed within, because that gives no idea of the extent of the goods taken. Wharton Cr. Pl. & Pr. (8th Ed.) § 206. If the indictment is for larceny, the value of each article should be stated. Wharton, supra; State v. Stimson, 24 N. J. Law, 9; Stephens v. State, 53 N. J. Law, 249, 21 Atl. 1038. The judgment of the sessions should be reversed.

(69 N. J. L. 82)

SHELMERDINE v. LIPPINCOTT. (Supreme Court of New Jersey. Feb. 24, 1903.)

PLEADINGS-CONFESSION OF JUDGMENTWARRANT OF ATTORNEY.

1. Under section 123 of the practice act (2 Gen. St. p. 2554), a writing annexed to a pleading, without being referred to in the body of the pleading as so annexed, cannot be resorted to for the purpose either of enlarging or limiting the averments of the pleading.

2. Under the "Act directing the mode of entering judgments on bonds with warrants of attorney to confess judgments" (1 Gen. St. p. 172), a warrant of attorney for confessing judg ment that is included in the body of a promissory note is not void. The act is limited by its title so as merely to prohibit the use of such a warrant of attorney in the entry of a judgment in the courts of this state.

(Syllabus by the Court.)

Action by William H. Shelmerdine against Charles K. Lippincott. Demurrer to replica. tion overruled.

Argued November term, 1902, before GUM, MERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Edward Dudley, for plaintiff. Henry I. Budd, Jr., for defendant.

PITNEY, J. The declaration sets forth that on a certain date before the commencement of this suit, in the court of common pleas No. 4 for the county of Philadelphia, in the state of Pennsylvania, by the consideration and judgment of that court, the plaintiff recovered against the defendant a judgment for $51,556.28, with costs, which judgment still remains in that court in full force and effect, in no wise satisfied, reversed, or annulled, and that the plaintiff has not yet obtained execution thereof; whereby an action hath accrued, etc. Appended to the declaration is a bill of particulars purporting to set forth a copy of the exemplified record of the judgment upon which the declaration is founded.

By section 123 of the practice act (2 Gen. St. p. 2554), it is enacted that, if any writing whereof a copy is annexed to the declaration be referred to in the body of the pleading as so annexed, the copy shall cure any defect by reason of the insufficient setting forth of the same in the body of the pleading. Whether a judgment is such a writing as comes within the purview of this section is a question not now raised, for the declaration before us does not refer to the judgment record as annexed, and in the absence of such a reference it is well settled that a bill of particulars is no part of the pleading, and resort cannot be had to it for the purpose either of enlarging or limiting the averments of the pleading. Harrison v. Vreeland, 38 N. J. Law, 366; Brown v. Warden, 44 N. J. Law, 177; Metzger v. Credit System Co., 59 N. J. Law, 340, 36 Atl. G61; Snyder v. Merchants' Ins. Co., 59 N. J. Law, 69, 34 Atl. 945; Voorhees v. Barr, 59 N. J. Law, 123, 35 Atl. 651; Melick v. Foster, 64 N. J. Law, 394, 45 Atl. 911.

Among other pleas filed by the defendant is one setting up "that he was not served with process in the suit, if any there were, in which the said judgment, if any there be, was obtained; that he did not appear to said suit in person or by attorney; and that he was not resident nor present within the jurisdiction of the court in which the said judgment was rendered

at any time pending the said suit, or when judgment was rendered therein." To this plea the plaintiff replies: "That the said judgment was duly entered without suit, by confession, according to the laws of the state of Pennsylvania, under and by virtue of a power of attorney, upon a certain promissory note made by the defendant to the plaintiff, and to be performed in that state, in manner and form as follows." And the replication then sets forth in full the promissory note in question, included in the body of which is an authorization for any attorney of any court of record of Pennsylvania or elsewhere to appear for the defendant and enter judgment against him for the sum specified in the note, with costs of suit, with or without declaration, and with release of errors. To this replication defendant has interposed a general demurrer, and in support thereof relies upon the well-established rule that, notwithstanding the Federal Constitution, a judgment rendered in a state court has no force or effect beyond the territory of the state, if it appear that the defendant was not served with process in the action wherein the judgment was rendered, did not appear therein, and was not within the jurisdiction of the court. But the replication avers that the judgment now in question was duly entered without suit, by confession, in accordance with the laws of the state of Pennsylvania, and under and by virtue of the power of attorney that is set forth in the replication. As this instrument authorized any attorney to appear for the defendant and enter judgment against him, the replication as a whole sufficiently avers that the judgment was duly entered by an attorney under the authority thus conferred.

The defendant relies upon the case of Grover & Baker Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670. But in that case it appeared that the bond and warrant authorized any attorney to enter the judgment, and it appeared that the judgment was entered against him in Pennsylvania by the prothonotary, without service of process or appearance in person or by attorney, under a local law permitting that to be done. The question under consideration, therefore, was not whether the power of attorney authorized any attorney to make the appearance, but whether it authorized the judgment to be entered without such appearance. That is a very different case from the present, for the averments of the replication now under criticism include a statement that the attorney appeared. If any inference to the contrary can be drawn from what appears upon the transcript of judgment as contained in the bill of particulars, the point can only be taken upon the trial, for the reason already given. A rejoinder in proper form, denying that an attorney appeared for the defendant, or containing other averments appropriate to the

facts of the case, would enable the defendant to present the defense relied upon, if there be doubt of his right to do so under the plea of nul tiel record that has already been filed.

The defendant further insists that, because the warrant of attorney for confessing judgment was included in the body of the promissory note, the warrant of attorney was void under section 1 of our "Act directing the mode of entering judgments on bonds with warrants of attorney to confess judgments." 1 Gen. St. p. 172. But in the case of Hendrickson v. Fries, 45 N. J. Law, 555, the Court of Errors and Appeals held that, since under our Constitution the title of a statute is not only an indication of the legislative intent, but is also a limitation upon the enacting part of the law, it follows that this act has no effect with respect to any object that is not expressed in the title, and must therefore be construed to be a mere regulation of the practice in our own courts. It was therefore held that the act in question did not prohibit the making in this state of a valid power of attorney for use in other states, although it may be embodied in a bill or other instrument for the payment of money, but only prohibited the use of such a power of attorney in the entry of a judgment in the courts of this state.

The position of the present defendant is certainly not strengthened by the fact that the power of attorney here in question does not appear to have been made in New Jersey. It will be presumed to be valid until the contrary appears.

The plaintiff is entitled to judgment on the demurrer.

(69 N. J. L 57)

McLEAN v. ERIE R. CO. (Supreme Court of New Jersey. Feb. 24, 1903.)

ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY -INSTRUCTIONS.

1. Where the evidence, when the plaintiff rests, leaves the contributory negligence of the plaintiff in doubt, the case is for the jury.

2. In referring to photographs, the judge said to the jury: "I have admitted these photographs in evidence. They are put before you. You ought to look at them with a good deal of caution. I suppose all of you know that a photograph of natural scenery is more or less misleading as to distance, on account of what the artist would call perspective or want of perspective. Do not be misled by the photographs in an estimate of distance. In that respect, it is fair to say that they are unavoidably misleading. It is the nature of photography." This was not an erroneous statement, but one within the legitimate right of comment by a trial judge.

3. It is for the jury to say whether the testimony of a witness, having an equal opportunity to hear and whose hearing is equally good, and who testifies that he did not hear the blowing of a whistle or ringing of a bell, notwithstanding he listened, shall or shall not be

1. See Negligence, vol. 37, Cent. Dig. §§ 286, 296.

given equal credit with the testimony of a witness, similarly situated, who testifies that he did hear.

(Syllabus by the Court.)

Error to circuit court, Essex county.

Action by Lauchlin McLean against the Erie Railroad Company. Judgment for plaintiff and defendant brings error. Affirmed.

Argued November term, 1902, before the CHIEF JUSTICE and VAN SYCKEL, FORT, and PITNEY, JJ.

C. & R. W. Parker, for plaintiff in error. Samuel Kalisch, for defendant in error.

FORT, J. This was an action for damages alleged to have resulted from an injury caused by the train of the defendant company running into a wagon of the plaintiff, in which the plaintiff was, at the crossing of the said company at or near Soho, in Essex county.

There was a motion to nonsuit, and also a motion to direct a verdict for the defendant, both of which motions were refused by the learned trial judge. A careful examination of the testimony leads to the conclusion that there was no error in either of these refusals. There was proof in the case in corroboration of the testimony of the plaintiff by two witnesses-one, Eugene Verhagen, called by the plaintiff, and the other, Edward Arlington, called by the defendant-that the plaintiff had stopped his wagon within 25 feet of the crossing. Mr. Verhagen testifies that he was on foot passing in the same direction along the highway as the plaintiff; that, as he drew near the track, the plaintiff's wagon was standing within about 25 feet of the track, and that he passed by him as he stood there, and crossed the track for several hundred feet before he heard the sound of what undoubtedly was the accident. Mr. Arlington testifies that he was passing along the highway on a bicycle; that he was going down toward the railroad crossing; that the wagon was just ahead of him, in what he describes as "semidarkness." He says he heard the rumble of the train, and was intent on finding out whether this wagon would cross before the train got to the -crossing or not, and then says: "Just as I thought it was past the crossing, the train flashed on the crossing and the crash came." On cross-examination, he was asked whether the wagon stopped, and said he could not say, and, being asked why he could not say, gave as his reason, "On account of the darkness." But his statement, which was quite detailed and accurate, is entirely consistent with the theory of the plaintiff that the wagon had stopped before he came up, or was actually standing at the time he first saw it. If the statement of Mr. Verhagen is to be accepted, it is quite apparent that at the time he crossed the track, when the plaintiff's wagon was at a standstill, the train of the defendant company was not within sight.

Both Verhagen and Arlington testify, as distinctly and specifically as human testimony can be given to a negative fact, upon the question of whether the statutory signals were given. Both of these witnesses affirm that they did not hear the bell ring or the whistle blow, and it seems impossible to believe that Arlington would not have heard them, in view of the fact that he states that he was familiar with the train, knew it was coming, was looking for and expecting it, and heard the rumble, but did not hear any bell or whistle, and of the further fact that he was undoubtedly listening for the warning to the plaintiff, who was about to pass over the track in a position which, he thought, was one of danger, and against which, he states, he was endeavoring to get near enough him to warn him. The question of negligence in the company and contributory negligence in the plaintiff were clearly jury questions, under the evidence in the case, and were rightly left to the jury by the trial judge.

Another assignment of error was as to the court's statement in the matter of photographs which had been introduced in evidence by the defendant. On that subject, the court said: "I am asked to mention the subject of the photographs to you. I have admitted these photographs in evidence, and they are put before you. You ought to look at them win a good deal of caution. I suppose all of you know that a photograph of natural scenery is more or less misleading as to distance, on account of what the artist would call perspective or want of perspective. You can hardly judge accurately of distance from a mere inspection of the photographs. So far as concerns the trees and shrubbery that were there at the time, you must remember that the photographs were taken on the 14th of January, 1901, about three weeks, or a little more than three weeks, after this accident." Then follows a statement by the judge as to the allegations in the proof of the change in trees, underbrush, etc.; and then he concludes as follows: "That is a question for you to judge, under the testimony in this case; but do not be misled by the photographs in an estimate of distance. In that respect it is fair to say that they are unavoidably misleading. It is the nature of photography." This statement of the court is not only legitimate comment on the evidence, but is a statement of that which is common observation and knowledge. There is much that is misleading in photographs in the matter of distance, in what the learned trial judge well calls "perspective" or "want of perspective." It depends almost entirely upon the viewpoint from which a photograph is taken, as to the effect that is given to the surroundings at the point shown thereon. We see no reason for reversal in these statements.

Another alleged error was on account of the refusal of the trial judge to charge the