The State v. Marlett.

the judgment void. We do not think so. An indictment for murder in the first degree embraces in it a charge of murder in the second degree, and of manslaughter. The criminal code provides that "any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal." 2 G. & H., § 66, p. 405.

One aiding and abetting in the commission of manslaughter may, in our opinion, be convicted under an indictment for aiding and abetting in the commission of murder in the first or second degree. See the case of Hagan v. The State of Ohio, supra.

The judgment is affirmed, with costs.

W. F. Walker, D. Moss and J. Green, for appellant.
D. E. Williamson, Attorney General, for the State.

THE STATE v. MARLETT.

TRESPASS.-LICENSE.-In an information for trespass to lands, it was alleged that the act of trespass was done "without the consent of A," the owner of the land, "or his agent."

Held, that the information sufficiently alleged that the act was done “without a license from competent authority," under the statute.

APPEAL from the Brown Common Pleas.

RAY, J.-This was an information charging the defendant with trespass, in having entered upon certain described land "belonging to, and the property of, Newton Bryant; and that said defendant did then and there, without the consent or permission of him, the said Newton Bryant, or his agent, unlawfully cut down a quantity of saplings, commonly

Dawkins v. Sappington.

called hoop-poles, to the value of two dollars, and to the damage of said, &c."

A motion to quash was sustained, and to this ruling the State excepted. No brief has been furnished by the appellee. The information, in our opinion, is sufficient. The averment that the act was done without the consent or permission of the owner or his agent, is very clearly within the meaning of the language of the statute, viz., “without a license so to do from competent authority."

The judgment is reversed, with costs, and with direc-
tions to the court below to overrule the motion to quash.
D. E. Williamson, Attorney General, for the State.
Quick and Coppy, for appellee.

DAWKINS v. SAPPINGTON.

REWARD.-VOLUNTARY SERVICE.-Complaint in two paragraphs. The first alleged that the defendant, having had a horse stolen from him, published a hand-bill offering a reward of $50 for the return of the horse, and that thereupon the plaintiff recovered and restored the horse. The second paragraph alleged the larceny of the horse, and that the plaintiff recovered him from the thief and returned him to the defendant, who, in consideration thereof, promised to pay, &c. A demurrer was sustained to the second paragraph, and to the first the defendant answered, that at the time the plaintiff recovered and restored the horse he did not know of the offer of the reward.

Held, that the second paragraph of the complaint was bad for want of an averment that the service was rendered at the request of the defendant. Held, also, that the answer was bad, as a knowledge of the offer of the reward before the service was rendered was not essential.

APPEAL from the Allen Common Pleas.

FRAZER, J.—The appellant was the plaintiff below. The complaint was in two paragraphs. 1. That a horse of the

Dawkins v. Sappington.

defendant had been stolen, whereupon he published a hand-bill, offering a reward of $50 for the recovery of the stolen property, and that thereupon the plaintiff rescued the horse from the thief and restored him to the defendant, who refused to pay the reward. 2. That the horse of the defendant was stolen, whereupon the plaintiff recovered and returned him to the defendant, who, in consideration thereof, promised to pay $50 to the plaintiff, which he has failed and refused to do.

To the second paragraph a demurrer was sustained. To the first an answer was filed, the second paragraph of which alleged that the plaintiff, when he rescued the horse and returned him to the defendant, had no knowledge of the offering of the reward. The third paragraph averred that the hand-bill offering the reward was not published until after the rescue of the horse and his delivery to the defendant. The plaintiff unsuccessfully demurred to each of these paragraphs, and refusing to reply the defendant had judgment.

1. Was the second paragraph of the complaint sufficient? The consideration alleged to support the promise was a voluntary service rendered for the defendant without request, and it is not shown to have been of any value. A request should have been alleged. This was necessary at common law, even in a common count for work and labor, (Chitty's Pl. 338,) though it was not always necessary to prove an express request, as it would sometimes be implied from the circumstances exhibited by the evidence.

2. It is entirely unnecessary, as to the third paragraph of the answer, to say more than that though it was highly improbable in fact, it was sufficient in law.

3. The second paragraph of the answer shows a performance of the service without the knowledge that the reward had been offered. The offer therefore did not induce the plaintiff to act. The liability to pay a reward offered seems to rest, in some cases, upon an anomalous doctrine, constituting an exception to the general rule. In Williams v. Car

Dawkins v. Sappington.

wardine, 4 Barn. & Adolph. 621, there was a special finding, with a general verdiot for the plaintiff, that the information for which the reward was offered was not induced to be given. by the offer, yet it was held by all the judges of the King's Bench then present, DENMAN, C. J., and LITTLEDALE, PARKE and PATTESON, JJ., that the plaintiff was entitled to judg ment. It was put upon the ground that the offer was a general promise to any person who would give the information sought; that the plaintiff, having given the information, was within the terms of the offer, and that the court could not go into the plaintiff's motives. This decision has not, we believe, been seriously questioned, and its reasoning is conclusive against the sufficiency of the defense under examination. There are some considerations of morality and public policy which strongly tend to support the judgment in the case cited. If the offer was made in good faith, why should the defendant inquire whether the plaintiff knew that it had been made? Would the benefit to him be diminished by the discovery that the plaintiff, instead of acting from mercenary motives, had been impelled solely by a desire to prevent the larceny from being profitable to the person who had committed it? Is it not well that any one who has an opportunity to prevent the success of a crime, may know that by doing so he not only performs a virtuous service, but also entitles himself to whatever reward has been offered therefor to the public?

The judgment is reversed, with costs, and the cause remanded, with directions to the court below to sustain the demurrer to the second paragraph of the answer.

W. H. Coombs, for appellant.

Bales v. Scott.

BALES V. SCOTT.

REPLEVIN.-VERDICT.-The objection that a complaint in replevin does not allege the value of the property is cured by a verdict assessing damages to the plaintiff for the detention thereof.

SAME. FORM OF JUDGMENT.—In an action of replevin, if the finding is for the plaintiff, the judgment should be in the alternative, that the plaintiff recover the possession of the property, or the value thereof, in case a delivery cannot be had, together with the damages assessed for the detention thereof.

SAME. FORM OF EXECUTION.-Execution should issue in the language of the statute, requiring the sheriff to deliver the property and collect the damages for the detention of the same, or, if a delivery of the property cannot be had, to collect the value thereof and damages.

APPEAL from the Hendricks Common Pleas.

RAY, J.-Action by the appellee to recover the possession of a promissory note for $1,000, executed by Jesse Hendricks to John W. Smalley, and properly assigned to the appellee, and charging the unlawful detention of the note by the appellant after demand, to the damage of the appellee in the sum of, &c. There was a second paragraph charging a conversion of the proceeds of the note. Answers and a reply were filed. The cause was submitted to a jury for trial, who returned a verdict that the property claimed by the plaintiff had been unlawfully detained by the defendant, and assessed the damages.

It is insisted that the complaint is defective in not averring the value of the note. This is cured by the finding of the jury of the amount of damages sustained by the detention. The proof of value was authorized by the allegation of the amount of damages sustained. No damage could have resulted, if the note had been of no value. Westfall v. Stark, 24 Ind. 377. It is objected that a copy of the note was not set out in the complaint. The action was not brought upon the note, but for its recovery.