metal apron which extended from the front edge of the bench to the floor; that from 4 to 8 feet north of this bench on the floor were reels; that bundles of wire were thrown onto these reels and passed from them through dies on the bench and around the spools; that the dies were to reduce the size of the wire; that there were two reels on the floor for each spool; that the operator in passing from one spool to another stepped over these strands of wire running from the reels to the dies and the spools; that it was proper and necessary for the operator to wear gloves to prevent burning his hands in handling the wire while these spools and reels were running; that it was appellee's duty to draw wire from these reels through these dies onto six of these spools; that in the south wall back of the east two or three spools was an opening about 4 feet square, the bottom of which was about 1 foot above the bench; that steam from the exhaust of an engine came through this opening and rain and moisture came in there; that this moisture interfered with drawing the wire; that the wire company's carpenter was told to put a window in; that he put a window in this opening which pivoted in the center on each side like a transom; that this window pivoted in at the top and out at the bottom; that the window failed to fill the opening at the top and rain and moisture came in through this crack; that appellee called this to the attention of a carpenter in the shop and he promised to fix it; that thereafter appellee observed that it was fixed and thought no more about it; that this was 30 or 40 days before this accident; that appellee on February 4, 1913, was operating these spools and while untangling wire which was going onto the east spool had his back to the window and feeling cold air strike him turned around and observing a stick about to fall from this crack, as he thought, into the revolving spools seized in his right hand an iron bar about 3 feet long and pushed the stick into place; that in so doing his glove and then his shirt sleeve caught in one of the spools and wound his arm around the spool and drew his body up over the bench; that both bones of his right forearm were broken and crushed just above the wrist. stick was about three feet above the top of these rapidly rotating spools and about one. foot south of them. If this stick fell either from the jar of the machinery or action of the wind, or from the opening of the window, either purposely or accidentally, the most obvious and probable place for it to go was into one or two of these rotating spools which were vertical and had four iron pins in the top. This was plainly a part of the working place and also a dangerous part. It is next insisted that the fact that the stick had been there 30 or 40 days, that appellee did not know how it got there or who put it there, other than that he had called the attention of a carpenter in the shop to the crack and this carpenter promised to fix it and appellee afterwards discovered that it was fixed and thought no more, about it until he saw the stick about to fall the day of the accident, was not sufficient to shift the burden of proof. [2, 3] There are a great many obscurities in the Acts of 1911, p. 145, and there is a great deal of loose and inapt language in this act; but there are at least two things in it about which reasonable minds could not well differ. One is that section 1 abolishes the doctrine of fellow servant, and the other is that section 3, among other things, shifts the burden of proof to the master to show that he did not know and could not have known by the exercise of ordinary care of the dangerous condition of the working place in time to have repaired or discontinued it. dence that the appellant wire company put The jury had a right to infer from the evithe stick there and did not fasten it, or that it had an opportunity by ordinary care to know that it was there in time to have fasIf appellants did not want the tened it. jurors to draw this inference they should have shown them something to repel it. Section 3, Acts 1911, p. 145. [4-6] Appellants next insist that there is not sufficient evidence from which the inference of fraud may be drawn. The evidence shows that when appellee was hurt he was if he had a family doctor; that he said asked by the superintendent of the factory "No;" that the superintendent then told some one in the office to call a doctor, naming [1] Appellants insist that this window and him; that this superintendent then took apthis stick have nothing to do with appellee's pellee in a cab to this doctor's office; that working place. The function of a window this doctor with the assistance of another when it is shut is to let in light and keep took care of the fracture; that this doctor out other things; when it is open, to let in continued to care for it from the 4th of Feblight and air. The moisture interfered with ruary, 1913, up to August 25, 1913; that the drawing of the wire and that is the rea- about three or four weeks after the accident son the window was put in. The moisture appellee told the doctor that the grocer was came through the crack above the sash and pressing him; that the doctor told appellee that is the reason the stick was put in. Here to go to the superintendent of the wire comwas a window four feet square pivoted on pany and maybe something could be done; the sides like a transom. If opened, it turn- that appellee went and was told by the sued in at the top and out at the bottom. A perintendent that the company had insurance stick four feet long was placed above, nailed and to go to the agent of the company; that neither to the sash nor to the frame. This appellee afterwards met the claim agent of their intelligence or lack of intelligence, and many other indicia which we cannot see. When the trial judge overruled the motion for a new trial, he said by the record that "the verdict was one which might reasonably have been reached." Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed. 463, 477, 20 C. C. A. 596, 609. The trial judge saw these witnesses and had the same opportunities that the jury had. He also saw the jurors and knew something of their intelligence or lack of intelligence, their fairness or lack of fairWhen all this has happened, there is each element of the case is sustained by any evidence. It must be presumed by us that the jury performed its duty and the trial judge performed his duty. This is the rule which governs us, and it is reasonable to suppose that it will remain the rule until evidence is brought up by moving pictures and phonographs. Christy v. Holmes, 57 Ind. 314; Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73, at 76; Deal v. State, 140 Ind. 354, at 356, 39 N. E. 930. Both as to the negligence and as to the fraud the verdict is sustained by sufficient evidence, and is not contrary to law. the appellant insurance company in the wire | jury saw the witnesses, heard them testify, company s office, together with the superin- observed their candor or lack of candor, tendent; that appellee was asked how long it would be before he would be able to go to work; that appellee said he did not know; that the claim agent said he could not settle with him because when he settled it must be in full, and that they would wait a few days and by that time the doctor would know; that appellee then went to the doctor and told him the insurance company wanted to settle with him and asked how long it would be before he could go back to work; that the doctor gave him to understand that he would be able to go to work in six weeks; that ap-ness. pellee then told the doctor his arm was hurt-nothing for us to do but to determine whether ing him and sore yet; that the doctor finally said, "I will fix it at eight weeks and you needn't say anything to the wire company or insurance company, just keep that under your hat; when he [meaning the claim agent] comes to town, I will tell him myself;" that appellee again met the agent of the insurance company and the superintendent of the wire company in the wire company's office; that the agent said to appellee, "Albert, when I came to town I saw the doctor and had a talk with him, and he said you would be able to go to work at drawing wire in eight weeks from the time you got hurt;" that the agent then asked appellee what his average weekly wage was; that the superintendent spoke up and said about $15 per week; that the agent then said, "Now you will be able to go to work in eight weeks from the time you were hurt, and we will give you $15 per week for eight weeks;" that they settled for $120 and appellee signed aerately chooses the dangerous way is guilty release which was witnessed by the superintendent and a girl in the office of the wire company; that appellee is an uneducated person of foreign birth; that the insurance company always called the doctor in question when the injured had no choice; that the insurance company paid this doctor in this instance in August, 1913; that the insurance company had a contract with the doctor and paid him for the work by contract; that appellee had in August, 1913, a false joint in his right forearm at the point of fracture and a surgeon operated and put in a plate Appellants insist that the court erred in to hold the fragments of the ulna together. instructions on fraud and cite to sustain this The doctor, the claim agent, and the su-proposition Kirkpatrick v. Reeves et al., 121 perintendent of the wire company all deny making any representation to appellee as to the time required for him to get well. There was evidence tending to show that a doctor could not have given an opinion so soon as to when a comminuted fracture of this character would get well. The jury had a right to believe that these representations were made to appellee, and that he relied on them and was induced to settle because of them. The only thing we have to consider is whether there is sufficient evidence from which inference may be drawn to sustain each element in the case. This Appellants complain of the court's refusal to give instructions numbered 11, 18, 19, and 22 requested by them. [7] Appellants' instruction No. 11 was an attempt to apply the rule of law that where there are two ways of doing a thing, one safe and the other dangerous, he who delib of negligence. But this instruction was so worded as to be misleading when applied to the evidence in this case. The jurors hearing this instruction might have inferred that the court was characterizing appellee's conduct, in attempting to put the stick back into place without stopping the spools, as negligence. The court did not err in refusing this instruction. [8] Instructions 18, 19, and 22 were given in substance in other instructions, and there was no error in refusing them. Ind. 280, 22 N. E. 139. This case and the authorities there cited sustain exactly and correctly the instructions which the court gave on this subject. Judgment affirmed with costs. (187 Ind. 468) (No. 23156.) * March 22, 1918.) 761-BRIEFS-CONSID BAKER v. STEHLE et al. (Supreme Court of Indiana. APPEAL AND ERROR ERATION. Under Rule 22, cl. 5 (55 N. E. vi), of the Supreme Court providing that the several propositions or points presented in an appellant's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes brief shall be grouped under a separate heading | legally sold was in the possession of the clerk for each error relied on, a judgment must be affirmed, where the points and authorities were stated in an abstract form and in no way applied to the assignments of error. Appeal from Circuit Court, Miami County; Charles O. Cole, Judge. of the court for a day or two previous to the court's ruling sustaining motion to quash the indictment against defendant for the same offense is not conclusive evidence of the fact that it was filed prior to that time. 3. CRIMINAL LAW 283-AFFIDAVIT-PENDENCY OF INDICTMENT-Burden of Proof. Petition by Andy Stehle and others for the Where defendant, charged with the operaconstruction of a concrete highway, to which tion of a place where intoxicants were illegally Lewis Baker objected. From an order of the sold, answered in abatement that indictment was pending against him when the affidavit was board of commissioners establishing the high-filed, the burden rested on defendant to prove way, Baker appealed to the circuit court, and from a judgment dismissing his appeal and referring the proceedings back, he again appeals. Affirmed. Tillett & Laurence, of Peru, and Morris M. Townley, of Chicago, Ill., for appellant. V. E. Kagy, of Peru, for appellees. SPENCER, C. J. This proceeding was instituted before the board of commissioners of Miami county to secure the construction of a certain highway improvement in that county. From an order of the board of commissioners establishing the proposed work appellant prosecuted an appeal to the Miami circuit court, and now complains of the action of that court in dismissing his appeal and in referring the proceedings back to the board of commissioners. The assignment of errors contains five specifications, and under the heading of "Points and Authorities" appellant's brief sets out 15 separately numbered propositions of law, with authorities cited in support thereof, but no attempt is made to apply any of such propositions to particular assignments of error, and most of them are stated in abstract form. Rule 22, cl. 5 (55 N. E. vi), of the rules of this court expressly provides that the several propositions or points presented in an appellant's brief shall be grouped under a separate heading for each error relied on, and a violation of this provision has frequently been held to require an affirmance of the judgment below. Cleveland, etc., R. Co. v. Ritchey (1916) 111 N. E. 913; Chicago, etc., R. Co. v. Dinius (1913) 180 Ind. 596, 626, 103 N. E. 652. On the authority of those decisions the judgment in the present case is affirmed. (187 Ind. 267) HAYMOND v. STATE. (No. 23381.) (Supreme Court of Indiana. March 19, 1918.) 1. INDICTMENT AND INFORMATION 110(31) -INTOXICATING LIQUORS-STATUTE. Indictments and affidavits following the statute in charging that defendant in a county of the state on a particular date named kept, ran, and operated a place where intoxicating liquors were then and there unlawfully sold in violation of the laws of the state, are sufficient under Burns' Ann. St. 1914, § 8351, rendering sale of liquor without license, etc., a misdemeanor. 2. INDICTMENT AND INFORMATION 11(2)AFFIDAVIT-FILING PRIOR TO QUASHING OF INDICTMENT. The fact that an affidavit charging the operating of a place where intoxicants were il that a prosecution by indictment for the same offense was pending at the time of filing of the 4. CRIMINAL LAW 1158(2)-APPEAL AND affidavit to which the answer was addressed. ERROR REVIEW - - FILING OF AFFIDAVIT— Where the evidence does not clearly show whether the affidavit charging defendant with the operation of a place where intoxicants were illegally sold was filed before or after indictment against him for the same offense was quashed, the finding of the trial court that the affidavit was filed later cannot be disturbed. 5. CRIMINAL LAW 742(1)-CREDIBILITY OF WITNESSES-QUESTIONS FOR JURY. The jury was not bound to believe the teswith operating a place where intoxicants were timony on a point of fact of defendant charged illegally sold, if, from the other evidence and circumstances disclosed, such testimony was not worthy of belief. 6. LANDLORD AND TENANT 80(1) SUB If a tenant subrented a basement of the leased premises in violation of the provision of his lease that he would not sublet without the tween him and his subtenant, was as valid and lessor's consent, the contract of sublease, as bebinding as though the consent of the lessor had been obtained. 7. INTOXICATING LIQUORS 239(1)-PROSECUTION-INSTRUCTION. In a prosecution for operating a place where intoxicants were illegally sold, where defendant testified he sublet his basement to persons occupying and controlling it under the sublease when liquor was sold in the basement as shown when liquor was found in their possession and by the evidence, and on cross-examination the state called defendant's attention to the clause of his lease providing that he should not sublet without the written consent of the lessor, and questions were asked eliciting evidence showing that he did not obtain such consent to sublease the basement, defendant had a right to have explained to the jury the phase of law that, if defendant subrented the basement without his lessor's consent in violation of his lease, the contract of subrental, as between him and his subtenant, was valid and binding. 8. INTOXICATING LIQUORS 239(2)-PROSECUTION-INSTRUCTION-REFERENCE TO OTH ER CRIME. It was error for an instruction to refer to gaming in connection with or as an element of the crime charged by the affidavit against defendant, which alleged that he operated a place where intoxicants were illegally sold. 9. INTOXICATING LIQUORS 167-PROSECUTION-INSTRUCTION. In a prosecution for operating a place where intoxicants were illegally sold, an instruction that if defendant sublet his basement room to others for the purpose of gambling and unlawful sale of intoxicants, and such business of gambling and illegal sale of intoxicants was conducted therein by the sublessees with the knowledge and consent of defendant, and if the sublessees were in any manner encouraged, aided, or abetted in the conduct of such illegal busi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 6 ness by defendant, then defendant's conduct in subletting the basement for gambling and the illegal sale of intoxicants, etc., made him guilty, was erroneous as giving the jury the right to understand that the acts and conduct referred to amounted to aiding and abetting the illegal sale of intoxicants so as to make defendant guilty. 10. INTOXICATING LIQUORS 239(8)-ProseCUTION-INSTRUCTION. In a prosecution for operating a place where intoxicants were sold in violation of law, an instruction devoted to a statement of the law governing prosecutions for sales of intoxicants without license was misleading and prejudicial to defendant. Chauncey L. Medsker and Ira J. Young, both of Muncie, for appellant. Ele Stansbury, of Indianapolis, Elmer E. Hastings, of Washington, Ind., Dale F. Stansbury, of Indianapolis, and H. G. Murphy, of Muncie, for the State. dressed, and that the defendant had been arrested under such indictment and, at the time the affidavit was filed, was under bond to appear in court and defend against the An issue was charge of said indictment. formed on this answer by a general denial which was tried by the court and a finding rendered against appellant. The judgment was that he plead over. Appellant asserts that the finding of the court on this issue is not sustained by the evidence. The evidence shows that an indictment against defendant was pending in the Delaware circuit court on Appeal from Circuit Court, Delaware Coun- the 13th day of April, 1917, on which day a ty; James S. Engle, Special Judge. motion to quash, addressed to such indictOdbert J. Haymond was convicted of keep-ment, was sustained. The affidavit on which ing and operating a place where intoxicating this prosecution was based was prepared on liquors were sold in violation of law, and or about April 10, 1917, and was on the 11th with being in possession of such liquors for or 12th in the hands of the clerk. The warsuch purpose in violation of statute, and he rant was written out and delivered to the appeals. Judgment reversed, and trial court sheriff on April 13th, but it is not shown directed to sustain defendant's motion for whether it was signed and sealed by the clerk and delivered to the sheriff before or new trial. after the court's action on the motion to quash the indictment. The fact that the affidavit was in the possession of the clerk for a day or two previous to the ruling of the court on April 13th is not conclusive evidence of the fact that it was filed prior to that time. The clerk may have been instructed not to regard the affidavit as filed, and not to take any official action on it until after the indictment was quashed, and it may be assumed, in the absence of evidence to the contrary, that the clerk signed and sealed the warrant and delivered it to the sheriff after the court announced its ruling on that motion. The evidence shows that the file mark was not placed on the affidavit until after such ruling and there is no direct evidence that the clerk regarded it, as filed or took any official action on it prior to such ruling. Section 1989, Burns 1914, provides that all public offenses except treason and murder may be prosecuted in the circuit and criminal courts by affidavit filed in term time, except when the grand jury is in session or a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit. Under his answer in abatement the burden rested on appellant to prove that a prosecution by indictment for the same offense was pending at the time of the filing of the affidavit to which the answer was addressed. The evidence does not clearly show whether the affidavit was filed before or after the indictUnder such a state of ment was quashed. the evidence, the finding of the trial court cannot be disturbed. LAIRY, J. Appellant was tried and convicted in the Delaware circuit court on an affidavit charging him with keeping and operating a place where intoxicating liquors were sold in violation of the laws of the state, and with being in possession of such liquors for such purpose in violation of the provisions of section 8351, Burns 1914. A motion to quash the affidavit was filed and overruled, which ruling is assigned as error. [1] The affidavit follows the statute in charging that appellant at and in the county of Delaware and state of Indiana did on a date named keep, run, and operate a place where intoxicating liquors were then and there unlawfully sold in violation of the laws of the state of Indiana. The principal objection urged against the sufficiency of the affidavit is that it does not specifically describe any location within the county where such place was run and operated. Indictments and affidavits in this form have been held sufficient under this statute. Donovan v. State (1907) 170 Ind. 123, 83 N. E. 744; Rigrish v. State (1912) 178 Ind. 470, 99 N. E. 786. [2-4] Appellant filed an answer in abatement to the affidavit on the ground that at the time said affidavit was filed there was pending in the same court an indictment returned by the grand jury of Delaware county against said defendant wherein and whereby he was charged with the same and identical offense with which he was charged in the affidavit to which the answer was ad The ruling of the court on appellant's motion for a new trial is assigned as error, and several questions are presented under this assignment. [5] The evidence shows that appellant had For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes been conducting a billiard room on the ground did not to his knowledge obtain the written floor at No. 205 East Main street in Muncie, consent of the lessor to sublease the baseInd. The room on the ground floor was di- ment. As applicable to this evidence, appelvided by partitions into three apartments. | lant requested the court to instruct the jury The front was used for the billiard parlor, in substance that, if it found that appellant the middle one for a storage room, and from had possession on the first floor and the basethe rear room abutting on the alley a stair- ment thereunder under a written lease which way led to a basement. This stairway fur-contained a clause providing that such propnished the only means of ingress to the base- erty could not be subleased or sublet withment and was reached by entering the rear out the written consent of the owner, notroom either from the alley or from the front. withstanding such provision the defendant On the 30th day of March, 1916, appellant would not be prevented from actually subleased the ground floor and the basement renting such property or any part thereof. thereunder for the term of 18 months begin- This instruction was refused, and no instrucning on April 1, 1916, as shown by the writ- tion was given bearing on the same question. ten lease introduced in evidence which pro- The provision of the lease to which the invided that the premises should not be sub-struction referred was intended for the proleased without the written consent of the tection of the lessor. If the lessor desired lessor. The rent provided for in the lease to enforce it, he might have done so; but, was paid by appellant, but he testified that if he did not, no one else had cause for he subleased the basement to other persons complaint. who were occupying it and controlling it under such sublease at the time intoxicating liquor was found in their possession and at the various times such liquor was sold in the basement as shown by the evidence. No evidence was introduced to show that any [6, 7] If appellant subrented the basement in violation of such provision in his written lease, the contract, as between him and his subtenant, would be as valid and binding as though the consent of the lessor had been obtained. So long as the principal lessor intoxicating liquor was found in any of the did not assert his rights under the provision rooms on the ground floor, or that any such in question, the subtenant would have a liquor was ever sold in any of such rooms. right to hold possession of the basement There was no evidence to show that appel- and to exercise dominion and control over lant exercised any control of dominion over it as against appellant and all others. A the rooms in the basement, or that he was in sublease of the basement would not be void a position to exercise dominion or control, and of no force and effect because made in except the fact that such basement was cov-violation of the provision mentioned. ered by his lease. There is no evidence to show that the persons who were conducting business in the basement were employés, In View of the evidence, appellant had a right force and effect of a contract subletting the agents, or servants of appellant, or that they were in partnership with him as to such business, or that any other relation existed which would make appellant responsible for their acts or for the manner in which their place was conducted assuming they were occupying it as his tenants under a sublease. One of the important questions which the jury was required to decide was whether the persons who were occupying the basement were conducting the place on their own account and responsibility in a room which they had rented in good faith from appellant. The jury was not bound to believe the testimony of appellant on this subject, if from the other evidence and the circumstances disclosed at the trial such testimony was not regarded as worthy of belief. As bearing on this question, the state on cross-examination of appellant called his attention to the clause of the lease providing that he should not sublease the premises without the written [8, 9] The seventh instruction given by consent of the lessor, and questions were ask- the court is open to serious objections. By ed which elicited evidence showing that he this instruction the jury was told that, if did not obtain the written consent of the les- the defendant sublet the basement room to sor to sublease the basement. It was also others for the purpose of gambling and the shown by the testimony of Mr. Gray, who unlawful sales of intoxicating liquors and looked after leasing the building and col- such business of gambling and illegal sales lected the rent for the owner, that appellant of intoxicating liquors was conducted there |