Miller v. State. The proceedings before the justice of the peace upon the prosecution for criminal provocation, as set out in the special plea, were shown in evidence. There is some uncertainty in the entries made by the justice. It appears therefrom that there was a voluntary appearance of the defendant, and a plea of not guilty was entered, and witnesses were examined by a volunteer attorney for the State; and there is a confused statement of reasons for dismissing the prosecution and discharging the defendant, including the testimony given, and matters which the justice regarded as gross irregularities, among them being the supposed insufficiency of the affidavit on which the prosecution was based; and it appears that for reasons indicated, on the motion of the defendant, the justice dismissed the case and discharged the defendant. There is enough to indicate that the justice of the peace did not acquit the defendant or discharge him because he found him innocent, but that he was influenced to dismiss the charge because of supposed insufficiency of the proceedings, including the affidavit, not upon his own motion, but upon the motion of the defendant. We would be inclined to regard the defendant as having purposely brought about the ending of his jeopardy before the proceedings reached the stage of conviction or acquittal of the offense charged, by procuring the dismissal of the prosecution through his own motion because of supposed gross irregularities, including the alleged insufficiency of the affidavit. There seems to be sufficient reason for concluding that there was an implied waiver of jeopardy. To sustain the defense of former jeopardy, the offenses charged in the two prosecutions should be the same in law and in fact. In State v. Elder, 65 Ind. 282, 32 Am. Rep. 69, the following rules were said to be deducible from principle and authority: "1. When the facts constitute but one VOL. 33-33 Miller v. State. offense, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, belonging to the same person, a prosecution to final judgment for stealing a part of the articles will be a bar to a subsequent prosecution for stealing any other part of the articles stolen, by the same act. 2. When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater-as an assault is involved in an assault and battery, as an assault and battery is involved in an assault and battery with intent to commit a felony, and as a larceny is involved in a robbery-and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second. 3. But when the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act." The usual test is to inquire whether the evidence necessary to sustain the later prosecution would have justified a conviction in the former case. State v. Hattabough, 66 Ind. 223; Smith v. State, 85 Ind. 553. In Freeman v. State, 119 Ind. 501, the following is quoted with approval from a text writer: "The test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second can not be maintained; when there could not, it can be." See, also, Beyerline v. State, 147 Ind. 125; De Haven v. State, 2 Ind. App. 376; 17 Am. & Eng. Ency. Law (2d ed.), 596. In Davidson v. State, 99 Ind. 366, it was said: "The true test to determine whether a plea of former conviction, Miller v. State. or former acquittal, is a good bar, is to decide whether the crimes, as charged, are so far distinct that the evidence which would sustain one would not sustain the other. If they are so distinct, there has been no former jeopardy.' Comparing the statutory definition of the two offenses, criminal provocation and assault, and applying the rule recognized as the test for the determination of the question of former jeopardy, by considering whether the evidence necessary to sustain the charge of an assault would have justified a conviction under the charge of a criminal provocation, it is apparent that the offenses are essentially different in character; the former being an offense against the person, the latter an offense against the public peace. A conviction or acquittal of either of the offenses would not necessarily determine the question whether or not the defendant was also guilty of the other. See State v. Gapen, 17 Ind. App. 524. The appellant in his motion for a new trial assigned as one of the grounds the giving to the jury of a number of instructions indicated by their numbers.. In his brief one only of these instructions is presented as erroneous. The assignment in the motion being joint, it could be of no avail here unless it were shown to us that all the instructions were erroneous. The refusal to give two of the instructions requested by the appellant was assigned as another ground in the motion. It is suggested by counsel for the State that the subjectmatter of these instructions was sufficiently covered by instructions given. The instructions rejected contained some correct general statements concerning the presumption of innocence and the effect of reasonable doubt, but it was not error to refuse them unless it was the duty of the court to give the two instructions as a whole. They each contained statements relating to the subject of former jeopardy, and under the condition of the record, it being mani Vanatta v. Waterhouse. fest that there had been nothing which could properly be regarded as a former jeopardy, there could be no error in refusing to submit such matter to the consideration of the jury. Judgment affirmed. VANATTA ET AL. v. WATERHOUSE ET AL. [No. 4,715. Filed May 24, 1904. Rehearing denied October 12, 1904. ] PLEADING.-Absence of Prayer for Judgment.-Where a complaint in an action to establish plaintiff's right to use a highway states a cause of action in other respects, it is not bad against a demurrer because of the absence of a prayer for judgment. p. 519. DEEDS.-Agreement to Construct Highway.-Where the principal consideration for the execution of a deed was the opening and construction of a highway adjacent to the land conveyed, the failure of the grantee to construct the highway did not deprive the grantor of the right to use the same. pp. 519, 520. SAME.-Agreement to Construct Highway.-Where part of the consideration for the execution of deed was the construction of a "passable highway" for "public utility," the parties contemplated that the way should be suitable to the particular locality. p. 520. From Superior Court of Allen County; J. H. Aiken, Judge. Action by Amelia Waterhouse and another against John C. Vanatta and others. From a judgment for plaintiffs, defendants appeal. Affirmed. R. P. Davidson and Allen Boulds, for appellants. ROBINSON, J.-In 1889 appellees owned certain land in Allen county, described as follows: Commencing at a point on the west line of lot four in Well's Reserve, township thirty north, range twelve east, fifty-six feet south of the northwest corner of the lot; thence south to a point where the west line of lot four intersects the west line of Spy Run avenue; thence northeast along the avenue to a point fifty-six feet south of the north line of lot four; Vanatta v. Waterhouse. thence to the beginning being a wedge-shaped piece of land lying west of and adjoining Spy Run avenue. John A. Bossler owned the south half of lot five, lying west of and adjacent to appellees' land. In 1892, appellees desiring to secure sufficient land out of lot five west of the north portion of the wedge-shaped tract to make the same square, so it could be platted, and Bossler desiring to secure the south end of the wedge-shaped tract adjacent to Spy Run avenue, it was agreed between the parties that appellees would convey to Bossler the end of the wedge-shaped tract, and, in consideration thereof, Bossler agreed to convey to appellees a tract lying west of and adjacent to the remaining part of appellees' land. As a further consideration for such transfer, the parties agreed that Bossler would furnish sufficient dirt from his remaining land to fill appellees' lot; that Bossler "further agreed that he would open, establish, and maintain a highway south of, along, and adjacent to the south side of said plaintiffs' lot, after said transfer had been made, running from the west line of Spy Run avenue to and intersecting an alley twelve feet wide west of, along, and adjacent to the west line of plaintiff's lot or tract, and also agreed that he would open an alley twelve feet wide west of, along, and adjacent to the west line of plaintiffs' land, the highway to be of equal grade of that of Spy Run avenue, and to be filled up within five years from the date aforesaid by Bossler." In pursuance to this agreement the deeds were made, and were afterwards delivered as concurrent acts. Bossler's deed contained a provision about the furnishing of dirt from his land to fill appellees' lot, and agreed "to maintain a passable highway south of and adjoining grantee's land to intersect Spy Run avenue and to be of equal grade and to be so built up within five years from this date; also lay out and maintain an alley on the west line of grantor's land at least twelve feet in width, both street and alley for public utility, together with all privileges and appurtenances to |