Nor for myself.

MOUZON.

...

Well! You are not dead to all good sentiment. . . . I assure you, Etchepare, the jury will consider favorably your confession and your repentance. . . . You will escape capital punishment. . . . You're still young. . . . You have many years in which to expiate your crime. . . . You may be pardoned, and perhaps again see your children who will have excused. I assure you, I assure you . . . in your own interest, own up. (MOUZON has approached the prisoner. He puts his hand on the prisoner's shoulder. He continues in the kindest tones.) Well! It's true? . . . If you can't speak, then make a sign of yes. . . . Eh? It's true? Inasmuch as I know that it is true . . . Eh? I can't understand what you say... It was you, wasn't it? . . . It was you! . . .

...

ETCHEPARE, continuing to weep.

It wasn't I, sir! I swear to you that it was not I! swear it. ...

MOUZON, harsh, resumes his seat.

Huh! you don't have to swear. tell me the truth.

MOUZON.

Rising, somewhat theatrical, pointing his finger at Etchepare. Now then! Etchepare, this is what condemns you. I know that you went out. When you were arrested you said to your wife: "Under no consideration admit that I went out last

night." Now it's necessary to tell you all. Someone saw you. A servant. She told the officers how, at ten o'clock in the evening, on parting with a young fellow with whom she had been dancing, she met you some hundred yards from your house. Well?

Oh! Ho! my fine fellow, it's a job to get you to say anything. . . . But it appears plainly in your face when you're lying, it appears plainly! I read it in your face as if it were written in letters as big as that. . . . The proof is that no witness has said that you went out, but nevertheless I would have sworn it with my head in the noose. . . . Well! now we are getting on. (To the recorder.) You've taken down his first confession. Good. . . . (To Etchepare.) Think it

over a moment . . . We're going to continue our little chat. . . . (He goes to the mantelpiece rubbing his hands, pours out a drink, swallows it, breathes a sigh of satisfaction and returns to his seat.)

FIRST POLICE OFFICER, to his neighbor. He's a bird, this magistrate. . . .

You bet.

.. I

Let's go on.

...

SECOND POLICE OFFICER.

MOUZON.

While you're about it you may as well confess everything, go ahead. . . . These good policemen are (The police officers, the recorder and You're going to confess? No. . . . Well, tell me, why did you assert that you didn't leave your house?

I only want you to

getting hungry. Mouzon laugh.)

...

MOUZON.

I had my doubts. (In a tone of reproach, and with obvious pity.) Tell me, Etchepare, do you take the jurors for fools? (Silence.) Now, this is all a product of your imagination, my poor fellow? I said not long ago that you were intelligent. I take it back. . . . Why it's like water running up hill, this tale of yours. A child of eight would have invented a better story. . . . It's ridiculous, I tell you . . . ridiculous. .. The jurors will grin when they hear it. . . All night long out doors, in a pouring rain, searching for a horse which you didn't find. . . And without meeting a living soul . . . neither shepherds nor customs officials. . . . Returning at five in the morning that would be daylight at this season and long after! No . . . no one saw you and you didn't see anyone. . . Everybody had become blind. . . . Eh? A miracle happened, and everybody was blind that night.. You don't contend that? No? Why not? It's just as probable as what you have asserted. Everybody wasn't blind? (The recorder suppresses a laugh. The police officers follow suit.) You see how much good your defense is; it makes the

...

...

...

ETCHEPARE.

...

You

How do I know what I ought to say? I to say a word. . . . Everything I say is

MOUZON.

That's because you spin yarns that are too fanciful. Because you think I am fool enough to give credence to such ridiculous inventions. I have a better opinion of your former system; at least you had two witnesses to support you, witnesses without great weight, it's true, but two witnesses all the same. You change about; you have a right to do Let's follow up the lost horse. ETCHEPARE.

So.

.

?

Well... (Long silence.)

Weakly and hesitatingly, looking at the recorder as if to read in his eyes whether he replies as he is expected to. Well! ... I am going to tell you, sir, you are right... that isn't true. I didn't go up on the mountain. . . . What I told you at first is the truth.. I didn't leave home..... Just now, I was all mixed up. At first, I denied everything, even the truth, I was so afraid of you; then when you said to me, I don't remember what . . . because I have lost my head. . . I don't remember. . . . I don't remember. . . . I am, however, very sure of my innocence. . . . Why a moment ago I almost wanted to acknowledge myself guilty in order to be left alone. What was I saying? . . . I don't remember. ... Oh, yes . . . when you told me . . . those things that I had forgotten, it seemed to me better to say that I went out. I was lying... (With sincerity.) But what I do swear to you is that I am not the guilty one. That I swear to you, I swear it! ...

Cases of Interest.

NEWSPAPER ARTICLE CHARGING KEEPING OF TURKISH BATHIHOUSE WHERE MEN SPY ON NUDE WOMEN AS LIBELOUS PER SE. It is held by the New Jersey Supreme Court in Kilpatrick v. Edge, (N. J.) 88 Atl. 839, that a newspaper article charging that the proprietor of a Turkish bath patronized by women made a common practice of permitting men to frequent it for the purpose of spying upon these women while they were bathing in a nude condition was libelous per se as charging a criminal offense, to wit, the keeping of a disorderly house, for, said the court, "such a house is not necessarily one which has certain special criminal features caused by a particular kind of unlawful use. A disorderly house, at common law, includes every house that is so kept as to tend to the corruption of public morals, and the ultimate disturbance of the general good order of the community."

RESULTING TRUSTS ABOLISHED BY STATUTE.-As is well known, it is a principle of the common law that where land is purchased in the name of one person, but the consideration is paid by another, a trust called a resulting trust is created in favor of the person paying the consideration. Such trusts, however, have been abolished by statute in Wisconsin, and in Friedrich v. Huth, (Wis.) 144 N. W. 202, the statute was held to apply where a wife had a separate estate composed of land, the legal title thereof being in her brother, and she consented that the land be conveyed to herself and husband as joint tenants, the ruling being that the husband did not hold in trust for the wife. The court said: "This statute has been expressly held to apply to a case where the wife furnished one-half of the purchase money of a farm and was present when the deed thereof was made direct to her husband, but made no objection to the conveyance being so made, although it appeared that she believed that her husband would hold the title in trust for her. Skinner v. James, 69 Wis. 605, 35 N. W. 37. The case cited seems exactly parallel in principle to the present."

VALIDITY OF STATUTE PROHIBITING THE EMPLOYMENT OF CHILDREN IN HAZARDOUS OCCUPATIONS.-An Illinois statute prohibiting the employment of children under the age of sixteen years in various hazardous occupations was declared by the United States Supreme Court in Sturges & Burn Mfg. Co. v. Beauchamp, 34 S. Ct. 61, not to contravene the Fourteenth Amendment of the United States Constitution, and that it was immaterial that the statute made an employer liable although he was led to believe that an employee under sixteen was in fact over sixteen, for as it was competent for the state, in securing the safety of the young, to prohibit such employment altogether, it could select means appropriate to make its prohibition effective, and could compel employers, at their peril, to ascertain whether those they employed were in fact under the age specified. The court said that the imposition of absolute requirements of that sort was a familiar exercise of the protective power of the government, and that where, as in the case in question, such legislation had reasonable relation to a purpose which a state was entitled to effect, it was not open to constitutional objection as a deprivation of liberty or property without due process of law.

MENTAL DERANGEMENT AS VISIBLE INJURY.-In Peterson v. Locomotive-Engineers, etc., Ins. Assoc., (Minn.) 144 N. W. 160, the facts were as follows: The plaintiff, a locomotive engineer, held an accident policy issued by the defendant. The by-laws pre

cluded recovery for "an invisible injury unless certified to by a medical expert designated by the association." The plaintiff's engine was derailed while running at a rapid rate. He sustained only slight external injuries, but there was evidence tending to show that for nearly two years, beginning a few days after the accident, he was mentally deranged, so as to unfit him for duty, and that this condition resulted from the accident. On these facts the court, construing the by-law, said: "The purpose of such a provision is to protect the insurer against sham claims, by barring the insured from recovering for alleged injuries of which there is no proof, except his own assertion. But it is well settled that visible injuries, within the meaning of such a provision, are not limited to external injuries, but also include any internal injuries, the existence of which may be ascertained through observation or examination. . . . If the plaintiff's mental derangement was such as to be observable and could be ascertained by proper examination, we think it was a visible injury within the meaning of the by-law. Of course it must be shown to have resulted from the accident before a recovery can be had. But the evidence tending to show that the derangement existed, that it was observable, and that it resulted from injuries received in the accident, was sufficient to make these questions proper matters for determination by the jury."

MARRIED WOMAN ABLE TO WORK, AS VAGRANT.-Brown v. State, (Ga.) 79 S. E. 1133, holds that a married woman, whose husband is not shown to be able to support her, cannot be convicted of vagrancy upon proof alone that she is able to work and does not work; and this is true, though she and her husband may be living in a state of separation. In the opinion of the court Judge Pottle remarks that "it is unfortunately true that some husbands do not comply with the legal and highly moral obligation imposed upon them to support their wives. It is punishment enough for a woman to espouse a man unwilling to support her. If he can and won't, the law will compel him, and will excuse the woman for not doing that which the husband is bound to perform for her. Certainly she is not to be classed as a vagrant merely because she relies upon compliance by her husband with the obligation imposed upon him by law. Married women are often compelled to supplement the income which the ostensible head of the family can earn; but they do this from stern necessity, and not because the law compels them to do it. Sometimes married women support worthless or helpless husbands; but to hold that they were legally bound to do so would put an unwarrantable burden upon the holy estate of matrimony and make undesirable for the woman a relation into which the law encourages her to enter. In the present state of the law the burden of supporting the family falls upon the husband, in return for which the law crowns him with the proud, but sometimes meaningless, title of 'head of the family.' If he would wear the crown, he must bear the burden. Some day all this may be changed; but we are dealing with present-day law, and sufficient unto the day is the evil thereof."

LIABILITY OF CARRIER FOR LOSS OF BAGGAGE NOT ACCOмPANIED BY OWNER.-According to a late decision by the Alabama Supreme Court reported in Alabama Great Southern R. Co. v. Knox, 63 So. 538, if a person purchases a ticket for transportation over a railroad and has baggage checked to the place of destination indicated on the ticket the carrier is liable for loss or destruction of the baggage although the owner does not go on the same train or at all. In laying down the rule the court departs from what has been thought to be the law on the sub

ject, as will be seen from an extract taken from its opinion as follows: "While the text-writers have clung to the ancient rule that in order to fix liability upon a carrier for the loss or destruction of baggage, as a carrier of baggage, as distinguished from a carrier of freight, the owner must stand in the relation of a passenger and must accompany his baggage, and if he does not do so the carrier would under certain circumstances be liable only as a carrier of freight, we think that there is no need for said distinction as the liability is practically the same. The old rule got its origin when travel was such that the owner usually accompanied his baggage, could keep an eye on it, and point it out along the journey, and perhaps at a time when the check system and separate baggage cars were not in vogue, such as stage coach and steamboat travel, but there is no reason for such a rule in modern times, when the owner can serve no good purpose or aid the carrier in the slightest by riding on the same train with his baggage. Indeed, modern travel has done away with the only sound reason for the old rule, and, with the reason removed, the rule should become obsolete."

RIGHT OF POLICEMAN OFF DUTY TO RECOVER DAMAGES FOR INJURIES SUSTAINED WHILE RIDING WITH ANOTHER AT AN UNLAWFUL SPEED.-In Hubbard v. Batholomew, (Ia.) 144 N. W. 13, the novel point was raised whether a policeman who, while off duty and riding in an automobile as the guest of the chauffeur, was injured in a collision, was guilty of contributory negligence, it appearing that the automobile was at the time exceeding the lawful speed limit, and that notwithstanding the fact that he was off duty he had authority to prevent the violation of the speed law, but remained silent. It was held that he was chargeable with contributory negligence preventing him from recovering damages for the injury. The court said: "As he was in a position of authority and might have determined the speed of the car, he is not in a situation, because of being a guest, to evade responsibility for the rate at which it was being driven. His position is akin to that of a person other than the driver taking no heed of the danger ahead. The principle is well stated in an instruction approved in Holden v. Railway, 177 Mo. 456, 76 S. W. 973, saying: 'That, although the plaintiff. may not have been the driver of the wagon mentioned in the testimony, nevertheless plaintiff, situated as he was, had no right to rely implicitly upon the care and prudence of the driver on the seat beside him for his own safety, but it was his duty, if said driver was approaching said Thirteenth street, on which cars were passing at a careless rate of speed, to attempt to have him check his speed to a safe rate; and if the jury find that under the circumstances said wagon was approaching defendant's tracks at a careless rate of speed, and that plaintiff, situated as he was, made no effort to have said speed diminished, and that such action of the plaintiff contributed directly to said collision and his injuries, then he cannot recover, and your verdict must be for defendenat.'

VARIANCE CAUSED BY USE OF "STRANGLING" IN INDICTMENT AND "SMOTHER" IN INSTRUCTION.-A good illustration of the protection afforded a defendant on a trial for a crime is seen in the case of Lanier v. State, (Ga.) 80 S. E. 5. An indictment charged the defendants, husband and wife, with the murder of their infant by "choking, strangling, and by beating and striking." An instruction to the jury stated that if the defendants acted in concert with each other it would make no difference which "actually struck the blow, or choked, or smothered

the child; each would be responsible, regardless of who may have struck the fatal blow." It was held by a majority of the court that there was a fatal variance between the indictment and the instruction, entitling the husband, who was convicted of the crime, to a new trial. The court said: "To smother is to stifle, to suffocate by stopping the exterior air passages to the lungs; to strangle is to suffocate by a pressure or constriction of the throat. The jury may have believed that under the evidence the child was smothered and not strangled. This instruction permitted them to find the defendant guilty of murder accomplished in a manner not charged in the indictment." The presiding justice and Judge Lumpkin, refusing to take so technical a view, dissented, saying: "We do not think that a new trial should be granted on account of the instruction contained in the fourth division of the opinion. The lexicons define both words to mean 'to stifle; to suffocate.' Death accomplished by strangling results from inability to inspire and expire air into and from the lungs, and death from smothering results from the same physiological cause. The charge in the indictment that death was produced by choking and by strangling indicates that strangling was not limited to suffocation produced by a constriction of the throat. While there may exist some technical difference in the terms, yet in common speech one is generally understood as the equivalent of the other. We do not think that the difference is so radical as to imply essentially different means of producing death."

The

VALIDITY OF STATUTE EMPOWERING JUDGE TO CALL OUT NATIONAL GUARD TO SUPPRESS RIOT.-There is a New York statute empowering a justice of the Supreme Court and certain other judges in case of any breach of peace, tumult, riot or resistance to process of the state to call for aid upon the commanding officer of the national guard stationed in the vicinity. Acting under this statute Mr. Justice Brown, sitting in Buffalo, called on the commanding officer of the national guard in the county to suppress a riot in that city. The call was obeyed, but the county refused to pay the troops engaged in quelling the riot and suit was brought to compel it to do so. The case is reported in People v. Bard, (N. Y.) 103 N. E. 140, it being held therein that the county was liable for payment. argument of the defendant was that the statute violated a constitutional provision, that justices of the Supreme Court should not hold any other office or public trust, but the court replying to this argument said: "The performance of administrative. duties as to matters incidental to the exercise of judicial powers or which have some reasonable connection with a judicial purpose has repeatedly been sanctioned. . . . The ascertainment by Mr. Justice Brown of the fact that breaches of peace, tumults, riots, and other violations of the law were almost continually occurring in the city of Buffalo on the 8th day of April, 1913, was the exercise of a judicial power. A statute similar to ours was considered by the Supreme Judicial Court of Massachusetts in Ela v. Smith, 5 Gray 121, 66 Am. Dec. 356. It provided that the mayor of a city or a court of record sitting within the county might, in case a tumult, mob, or riot should be threatened and that fact be made to appear, issue a precept to call out a division or smaller body of the volunteer militia to aid the civil authority in suppressing such violence and supporting the laws. This provision of the statute,' said the court, 'clearly confers a judicial power. Whenever the law vests in an officer or magistrate a right of judgment, and gives him a discretion to determine the facts on which such judgment is to be based, he necessarily exercises, within the limits of his jurisdiction, a judicial authority.' As an objection

to the view that Judge Brown acted judicially in determining that a riot existed in Buffalo, it is suggested that there is no provision for reviewing such determination by appeal; but it may be observed that a right of review by appeal is not an essential element of due process of law-although a contrary assumption is often intimated in the discussion of legal questions."

It

VALIDITY OF STATUTE AUTHORIZING MUNICIPALITIES ΤΟ ACQUIRE PROPERTY OUTSIDE PUBLIC PARKWAY AND RESELL SAME WITH RESTRICTIONS.-In Pennsylvania Mut. Life Ins. Co. v. Philadelphia, (Pa.) 88 Atl. 904, the court had under consideration the validity of a statute authorizing municipalities to acquire private property within two hundred feet of the boundary lines of property appropriated for parkways and "to resell such neighboring property, with such restrictions in the deeds of resale in regard to the use thereof as would fully insure the protection of such . . . parkways . . . their environs, the preservation of the view, appearance, light, air, health and usefulness thereof." The statute was attacked by a bill in equity for an injunction to restrain the city of Philadelphia from appropriating certain land to protect a parkway from the construction of an unsightly building in the vicinity, it being the intention of the city to resell the same to the Bell Telephone Co. subject to certain building restrictions. attack was successful, the statute being held invalid. The court in its opinion said: "Prior to this legislation the state had not authorized the taking of private property by the exercise of the power of eminent domain for such purpose. It is a step far in advance of the policy of the state as heretofore declared in her organic law, and is a liberal construction of a power which we have uniformly held must be strictly construed. ... A municipality has the unquestioned right to appropriate property for its highways, and it determines in the first instance the necessity for taking the property for the purpose. may lay out its streets in the manner it deems proper. may fix the width of and divide the highways as it thinks should be done. It is not compelled to use the ground appropriated for the highway solely for sidewalks and cartways, but may devote part of it to aesthetic purposes, and ornament and beautify it. This is a legitimate use of the land in connection with the primary purpose for which property may be appropriated for a public thoroughfare. It, however, contemplates occupancy or possession by the city of the land taken for the highway, and not that it shall be owned and in possession of a private party. This construction of the powers of the municipality to condemn property will permit the city in the present case to carry into effect the purpose the learned trial judge says it has 'to build a noble highway from the city hall to Fairmount Park, which shall by its character beautify the city and increase its attractiveness and renown,' without invading the constitutionally protected right of private property. Holding, as we do, that the use to be made of property located outside a public highway is not a public use, for which private property may be taken by the city against the consent of the owner, the effect of the act of 1907, authorizing the appropriation of property for such purpose, is to permit by the exercise of eminent domain the taking of the property of one citizen without his consent and vesting the title thereto in another. No court in this country has yet sanctioned such action by the state or its representative exercising the power of eminent domain.”

It

News of the Profession.

(Secretaries of State Bar Associations are invited to send to the Editor of LAW NOTES full reports of the annual meetings of the associations for publication in this column. A similar invitation is extended to the readers of LAW NOTES generally, with respect to appointments, resignations, deaths, and other items of general professional interest.-Ed.)

FEDERAL JUDGE RETIRES.-George C. Holt, senior Federal Judge in the Southern District of New York, resigned on January 6, having reached the age limit of seventy years.

JUDGE LINDSEY WEDS.-Judge Ben B. Lindsey, founder of the Juvenile Court of Denver, was married to Miss Henrietta Brevoort of Detroit, in Chicago on December 20.

DEATH OF MASSACHUSETTS JUDGE.-William H. Preble, for the last fifteen years associate Justice of the Charlestown (Mass.) Municipal Court, died at Charlestown on December

22.

APPOINTED ASSISTANT DISTRICT ATTORNEY.-District Attorney William J. Corcoran of Middlesex county, Mass., has appointed Alderman William T. McCarthy of Somerville as second assistant district attorney.

RESIGNS AS ASSISTANT ATTORNEY-GENERAL.-T. A. Lawler, for the past twelve years Assistant Attorney-General of Michigan, has tendered his resignation and will engage in private practice at Lansing.

CITY ATTORNEY RESIGNS.-G. Lee Perkinson, city attorney of Taylor, Tex., resigned from that office on January 1, and former city attorney W. A. Barlow was appointed to fill the unexpired term.

WELL-KNOWN CALIFORNIAN DEAD.-Judge James M. Thompson, aged seventy-six, for many years Court Commissioner of Sonoma county, and a well-known attorney of Northern California, died at Santa Rosa on December 21.

RESIGNATION OF LOUISIANA JUDGE.-Judge James G. Palmer, of the twelfth judicial district of Louisiana, which includes De Soto, Sabine and Vernon parishes, has resigned from the bench and will return to the practice of the law.

PANAMA JUDGE RESIGNS.-M. C. Rerdell, judge of the District Court of Cristobal, who held the first American court in the Canal Zone in November, 1904, resigned from the bench and returned to his home in Tampa, Fla., on December 11, 1913.

THE STATE BAR ASSOCIATIONS of South Carolina, Kansas, and New York, held their annual meetings on January 16, on January 27 and 28, and on January 30 and 31, respectively. Further particulars of these meetings will be given in the next issue of LAW NOTES.

ASSISTANT DISTRICT ATTORNEYS NAMED.-District Attorney Frederick E. Weeks of Westchester county, N. Y., has selected William J. Fallon of Mamaroneck as first assistant district attorney, and Walter A. Ferris, police judge of Port Chester, as second assistant district attorney.

DEATH TAKES NOTED JURIST.-Judge James Franklin Taylor of the Washington County (Pa.) Court died at Washington, Pa., on December 19, following a stroke of paralysis. Judge Taylor was fifty-nine years of age and had served on the bench since 1895.