in question, to the effect that appellee under appellant's plea of non est factum was required to introduce evidence sufficient at least to make a prima facie case of the execution of the written instrument set up in the fourth paragraph of answer before such instrument was entitled to be introduced in evidence, was correct, still the statement to the effect that after the plaintiff had introduced her evidence to show the nonexecution of the instrument the defendant then had the right to introduce further evidence in chief in support of its execution, was not a correct statement relative to the procedure upon the part of the defendant. But it does not appear, however, that appellant was by the inaccuracy in the charge in any manner prejudiced in any of her substantial rights. The correct rule recognized by the decisions of this court is that where the execution of a written instrument or paper is denied under oath, as in the case at bar, the party relying thereon, is not only required in the first instance to introduce evidence sufficient to make a prima facie case of its execution, and then be permitted to rest until his adversary has produced evidence going to prove that the instrument in question had not been executed, but he must in the first instance introduce in chief all of his evidence tending to prove the execution of the instrument in dispute, and the burden rests upon him throughout the trial to establish its execution by a fair preponderance of the evidence given upon that issue. Fudge v. Marquell (Ind. Sup.) 72 N. E. 565, and cases there cited. After the adverse party has fully closed his evidence upon the issue of non est factum, then the party having the burden upon that issue may introduce evidence in rebuttal only, unless the court, in its discretion, for reasons sufficient, permits him to introduce additional evidence, in chief.

Counsel for appellant argue that the fourth paragraph of answer is in all respects insufficient and that therefore the court erred in overruling the demurrer thereto. The insistence is that the written agreement alleged to have been executed by Fenetta Palmer, the payee of the note, cannot operate to change the principal amount of the note in suit to an advancement to appellee. It must be remembered, however, that the paragraph in question alleges facts which disclose that in 1890, by an understanding between appellee and Mrs. Palmer, his mother, at the time the money in controversy was received by him, it was not to be returned to her, but was to be accepted and retained by him as an advancement out of her estate, he to pay interest thereon only so long as she might desire him to do so. He, as it appears, accepted the money as an advancement, but subsequently on February 1, 1892, executed the note in suit as written evidence of the transaction. He paid interest thereon until July 1, 1892, when it

was mutually agreed in writing between him and his mother that the payment of interest should cease and that the note itself should be retained by her only as evidence of the fact that she had advanced to him out of her estate the sum of $1,000. The facts alleged clearly show that the money was turned over to appellee in the first instance, not as a loan, but as an advancement by her to him, and as such he received and accepted the money. Aside from the written instrument set out in the answer, it is manifest from the other facts alleged, which are conceded by the demurrer to be true, that under the circumstances the note in suit was executed without consideration, and therefore appellee has a complete defense to the action. Peabody v. Peabody, 59 Ind. 556; Harris v. Harris, 69 Ind. 181; Norman v. Norman, 11 Ind. 288; Fankboner v. Fankboner, 20 Ind. 62; Sherman v. Sherman, 3 Ind. 337; Bragg v. Stanford, 82 Ind. 234. If the $1,000 when turned over by Mrs. Palmer to appellee was by her intended as an advancement to him out of her estate, and was accepted by him as such, then under the circumstances the note thereafter executed by him to her for the money so advanced was without consideration, and could serve no purpose, except as evidence of the advancement of the principal amount. Bragg v. Stanford, supra. The fact that appellee agreed to pay interest on the money in question so long as his mother should require him to perform that obligation, and that he did pay interest thereon, as shown. does not, under the circumstances, sustain the contention of appellant that the relation of debtor and creditor, in respect to the principal sum, existed between appellee and his mother. Ruch v. Biery, 110 Ind. 444, 11 N. E. 312; In re Hicks, 14 N. Y. St. Rep. 320; Doty v. Willson, 47 N. Y. 580. It appearing from the facts alleged that the advancement of the money in controversy was completed at the time appellee received it in 1890, therefore his execution of the note in 1892, as shown, would not serve to change the advancement into a debt, in the absence of a new agreement between appellee and his mother, supported by some new consideration. Higham v. Vanosdol, 125 Ind. 74, 25 N. E. 140; Harris v. Harris, supra.

It is true that the note in suit, standing alone, would authorize the presumption that it was evidence of an indebtedness of the payor to the payee, but this presumption is subject to be rebutted, and this certainly is the effect of the facts alleged in the answer. An advancement of money or other property from a parent to a child, as a general rule, is a question of intention upon the part of the parent. In order to constitute such an advancement the money or property must have been intended as such and not as a mere gift. Woolery v. Woolery, 29 Ind. 249, 95 Am. Dec. 629; Duling v. Johnson, 32 Ind. 155; Ruch v. Biery, supra. Conceding, arguendo that

the note in question represented an indebtedness of appellee to his mother, nevertheless appellant's contention that the written agreement set out in the fourth paragraph of answer cannot have the effect of changing such indebtedness into an advancement to appellee cannot be sustained. That Mrs. Palmer had the right during her life to change a debt which her son owed to her into an advancement to him out of her estate, and that such was the effect of the written instrument in controversy, is, in view of the authorities, certainly beyond dispute. See Kirby's Appeal, 109 Pa. 41; Darne's Ex'r v. Lloyd, 82 Va. 859, 5 S. E. 87, 3 Am. St. Rep. 123; Appeal of Fassett, 167 Pa. 448, 31 Atl. 686; Sprague v. Moore, 130 Mich. 92, 89 N. W. 712; Garner v. Taylor (Tenn. Ch. App.) 58 S. W. 758. In Kirby's Appeal, supra, Jacob Murray died on February 17, 1883, intestate, leaving surviving him several children, among whom was his daughter Ann, who intermarried with Matthias Kirby. On April 1, 1882, the father took from his daughter Ann, and Matthias Kirby, her husband, their note for $1,032.50. A short time before the death of the father, he signed the following entry, written, by a justice of the peace, in a small book: "April 1, 1882. My daughter Ann, and her husband, Matthias Kirby, Dr. to me in the sum of $1,032.50, which I advanced to them for which I hold their notes. Jacob Murray." The court in that case, in respect to the question of advancement said: "Advancement is a question of intention. The evidence in this case to prove this was so intended is clearly sufficient. The father so declared his intention in writing, and subscribed his name to the declaration. He had an undoubted right to change a debt due from the appellant to him to an advancement if it had not been so understood before. * * The written language used admits of one construction only. It establishes an intention to change an indebtedness to an advancement."

This decision is influential upon the question herein involved. It will be noted that by the instrument set up in the answer appellee's mother agreed that the interest on the note should cease, and then in express and positive language she declared "that the note itself is to be held by me as evidence only of an advancement to my son George of $1,000." This declaration, upon the theory that the note in the first instance represented a debt, is certainly sufficient to show that appellee's mother intended to change or convert the indebtedness of $1,000 into an advancement to her son, and that thereafter the note in controversy was to be held by her, not as an evidence of indebtedness, but only or merely as the evidence of the advancement. It follows that the fourth paragraph of answer is sufficient, and that the court did not err in overruling the demurrer thereto. The conclusion which we have reached renders it unnecessary that we consider in detail certain instructions given and refused by the court,

Where, in a prosecution for receiving stolen goods, there was evidence that C. knew and saw defendant every day, and was present when he (C.) testified that defendant bought the stolen steel bars from B., but defendant denied buying the bars from B. or knowing him, and there was no proof that C. received the bars from B., or that B. received them from the thief, but all the evidence pointed to C. as the thief, it was not error for the court to refuse to charge that, in order to constitute the offense of receiving stolen goods, the goods must retain their stolen character at the time the party charged receives them, and that if the person receives such goods from a person other than the thief he is not guilty of receiving stolen goods, unless the second or subsequent receiver received the goods under circumstances which connected him with the thief.

3. RECEIVING STOLEN GOODS-INSTRUCTIONS. In a prosecution for receiving steel bars stolen from a corporation, an instruction that the jury should find that the corporation's want of consent to the taking of the bars was not sufficiently shown until the state had proved the nonconsent of each and every person that was authorized by the corporation to buy and sell "goods," not limited to the particular steel bars in question, was properly refused as too broad. 4. CRIMINAL LAW - EVIDENCE - OTHER OFFENSES-GUILTY KNOWledge.

In a prosecution for receiving certain stolen steel bars, evidence that five or six stolen watches, etc., were found in defendant's possession at the time and prior to the receiving complained of, was admissible to show guilty knowledge. [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 829.] 5. SAME TRIAL VERDICT-AGE.

In a prosecution for receiving stolen goods, an instruction that, if the jury could not determine defendant's age from his appearance or other evidence, it would not harm the verdict if they left the age blank, was proper.

6. RECEIVING STOLEN GOODS-NONCONSENT— EVIDENCE.

In a prosecution for receiving certain steel bars stolen from a corporation, evidence held to sufficiently prove the corporation's nonconsent to the taking of the bars.

Appeal from Criminal Court, Marion County; Fremont Alford, Judge.

Fred Buechert was convicted of receiving stolen goods, knowing them to be stolen, and he appeals. Affirmed.

Salem D. Clark, for appellant. C. W. Milier, Atty. Gen., Charles P. Benedict, Pros. Atty., C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.

HADLEY, J. Appellant was convicted upon an indictment charging him with receiving stolen goods knowing them to be stolen. He moved to quash the indictment on the ground that it failed to charge the name of the thief or that his name was to the grand jury unknown. The court overruled the motion, and this action is assigned as error. The question is decided adversely to appellant's contention in Semon v. State, 158 Ind. 55, 62 N. E. 625.

2. The overruling of his motion for a new trial is also complained of. Under this assignment appellant first challenges the action of the court in refusing to give to the jury proposition No. 1, requested by him, which is composed of a literal quotation from the opinion of this court in Foster v. State, 106 Ind. 272, 277, 6 N. E. 641, 644, and which is in these words: "I instruct you that, to render the offense of receiving stolen goods possible, the goods must retain their stolen character at the time the party charged received them. If, therefore, the goods have been transferred from the thief to a guilty receiver, the latter takes as a receiver, and not as a thief. In his hands the character of the goods is derived from his offense, and not from the offense of the person who stole them, so that one who receives such goods from him, however wickedly, is not guilty of receiving stolen goods under the law, unless such second or subsequent receiver receives the goods under circumstances which connect him with the thief." To avoid confusing a jury by directing their minds to subjects not involved in the case, it has become a fixed rule in this jurisdiction that instructions given the jury must be relevant to the issues and applicable to the evidence. Reed v. State, 141 Ind. 116, 122, 40 N. E. 525; Robinson v. State, 152 Ind. 304, 307, 53 N. E. 223; Hanes v. State, 155 Ind. 112, 117, 57 N. E. 704. The Attorney General argues that the instruction called in question was properly refused, because in violation of the rule here stated. A careful examination of the record discloses that there was some evidence tending to show that Tim McCarty, more than once, had stolen iron or steel from the Bates Forge Company. McCarty was a witness, and at the time of testifying was in jail under sentence for petit larceny. He knew and saw the appellant every day, and was in an alley when appellant drove in and bought from one Brooks certain steel bars that looked like those in controversy. McCarty explained his presence in the alley by saying he was always around the saloon. He did not know Brooks; did not know where he lived, and had never seen him before or since; assisted in loading the bars into appellant's wagon, and received a small sum of

money from Brooks therefor. Appellant de nied that he ever bought any bars from Brooks or that he knew such a man. There is absolutely no evidence showing, or tending to show, that McCarty received the bars from the alleged Brooks, or that the alleged Brooks had received them from the thief, but all the evidence adduced concerning the ownership of the property and the felonious taking pointed to McCarty as the thief. It thus becomes plain that the instruction requested was not applicable to any evidence in the case, and for this reason was properly refused by the court.

3. Further complaint is made of the court in refusing to give appellant's request No. 2. It reads as follows: "The nonconsent to the taking of the steel bars and steel butts in question in this case is a material element in this trial. The burden is upon the state to prove nonconsent to the taking, and, if you find from the evidence that the steel bars and steel butts in question in this case were the property of a corporation, and if you further find from the evidence that there were more persons in charge of the corporation who had power to buy and sell goods and material for and belonging to the corporation, other than the president of said corporation, then I instruct you that the state has not sufficiently proven the nonconsent to the taking of the steel bars and steel butts in question in this case until they have proven the nonconsent of each and every person in charge of such corporation having power to buy and sell goods and material for and belonging to said corporation." Whatever might be said of this proposition if brought within proper limits, concerning which, however, we intimate no opinion, it is very clear that it must be condemned in its present form. The request is probably broader than its author intended. Its giving would have advised the jury in substance that if they found that persons, other than the president, were authorized by the corporation to buy and sell its goods and material, then they should find that the want of consent to the taking of the bars and butts was not sufficiently shown until the state had proved the nonconsent of each and every person that was authorized by such corporation to buy and sell goods, not these particular goods, but any goods and material, belonging to said corporation. This language would embrace every sales officer and agent of the corporation, within or without the state, whether he had or had not authority to sell the particular goods in controversy.

4. In the next place, instruction No. 9, given by the court of its own motion, is challenged. It in substance informed the jury that the court had permitted the state to introduce evidence tending to show that certain watches were found in the appellant's safe in 1894, and also evidence touching the felonious taking and stealing of said watches by some one prior to the time

they were alleged to have been found in appellant's safe. This evidence was admitted, not to prove the defendant stole the watches, or that he feloniously received them from the thief, but solely for the purpose thereafter indicated. If the jury should be satisfied that the steel bars described in the indictment were feloniously stolen as charged, and were the property of the Bates Forge Company, and that the defendant did buy and receive said bars, then it became necessary for them to determine whether the defendant knew, when he received them, that they were stolen as charged in the indictment, and in determining this question it was proper for them to consider the evidence concerning the alleged stolen watches in arriving at a decision whether or not the defendant had guilty knowledge when he received the steel bars, if he did receive them, and the evidence should be considered for no other purpose. The instruction was applicable to certain evidence to the effect that police officers while engaged in executing a search warrant of the defendant's premises, about six months before his arrest, on this indictment found in his safe in his place of business five or six watches, gold and silver, and divers articles of jewelry. Three witnesses, each identifying a different watch as his property, testified that the same had been previously stolen from him by some person unknown.

Judges are not well agreed, but this court, and what seems to be the decided weight of authority, has approved the doctrine that in trials for receiving stolen goods evidence tending to prove that other stolen goods were found in the possession of the defendant at the time, or prior to the receiving complained of, is competent on the question of guilty knowledge, to be considered with all the other evidence in the case. The doctrine seems to rest upon the ground that, when it is satisfactorily shown that the accused had in his possession other stolen goods, the fact would reasonably support some inference, slight probably, but strengthened or weakened according as the proof, time, number of instances, and other circumstances will justify, that the accused, when he received the goods in controversy, had knowledge of their larcenous character. Goodman v. State, 141 Ind. 35, 39 N. E. 939; Devoto v. Commonwealth, 60 Ky. (3 Metc.) 417; People v. Rando, 3 Parker, Cr. R. (N. Y.) 335; State v. Crawford, 39 S. C. 343, 17 S. E. 799; Shriedley v. State, 23 Ohio St. 130; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Commonwealth v. Grief (Ky.) 27 S. W. 814; King v. Dunn, 1 Moody, C. C. 146; 1 Wharton, C. L. § 983; Higgins v. State, 157 Ind. 57, 60 N. E. 685, and authorities therein, collated on this and kindred questions. Guilty knowledge may be proved by direct evidence, or by any surrounding facts from which it may be inferred. Gillett, Cr. Law, § 558. Appellant also assails instruction No. 12, 76 N.E.-8

given by the court for advising the jury that, if they could not determine the age of the defendant from his appearance or other evidence, it would not harm the verdict if they left the age blank. The charge is in line with the rulings from this court. Boone v. State, 160 Ind. 678, 67 N. E. 518; Colip v. State, 153 Ind. 584, 55 N. E. 739, 74 Am. St. Rep. 322.

Exception was reserved to the admission of testimony relating to appellant's possession of other goods alleged to have been stolen. The objection rested upon the same grounds as the objection to instruction No. 9: and having seen that the instruction was proper it follows that the evidence to which it related was properly received.

It is also insisted that the judgment is not sustained by sufficient evidence, and is contrary to law. The claim that nonconsent is insufficiently proved because it is not shown as to all persons having authority to sell the goods in question we think cannot be sustained. Mr. Bates testified that the Bates Forge Company was an incorporation, that he was its president, superintendent, and general manager, and Mr. Rubin secretary and treasurer. He identified the 20 steel bars in controversy as property belonging to the Bates Forge Company, were worth $1.60 each, and that they were taken by some party unknown, without his knowledge or consent. The cross-examination then proceeds: "Q. Who buys iron when you are not there? A. There is no one there that has anything to do with the management, except myself. Q. Is there anybody there that has anything to do with the buying and selling of iron? A. Mr. Rubin and myself jointly. He does the writing, and consequently he often writes the orders." This special inquiry, to which our attention is invited, is directed to those having authority to buy and sell iron only. There is not to be found in the record anywhere a syllable of testimony tending to prove that any other person than Mr. Bates had general authority to buy and sell goods for the corporation, or had authority to sell steel bars such as those here involved.

We find no error. Judgment affirmed.

(165 Ind. 530)

ADAMS v. BOARD OF COM'RS OF WHITLEY COUNTY. (No. 20,588.) (Supreme Court of Indiana. Nov. 28, 1905.) APPEAL-AFFIRMANCE-SECOND APPEAL.

Where on appeal a judgment sustaining a demurrer to a complaint was affirmed because no exception appeared to have been taken to the ruling, a second appeal would not lie, though the record, by a nunc pro tunc entry, showed an exception.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 48-54.]

Appeal from Circuit Court, Whitley County; Joseph W. Adair, Judge.

Action by Andrew A. Adams against the board of commissioners of Whitley county. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Dismissed.

Marshall, McNagny & Clugston, for appellant. Gates & Whiteleather, for appellee.

error.

MONKS, J. This case was before this court and affirmed January 11, 1905. Adams v. Board, etc., 72 N. E. 1029. The record now shows by an entry nune pro tunc that the ruling of the court sustaining the demurrer was excepted to by appellant, and this ruling is again assigned for Counsel for appellee insist, however, that, said judgment having been affirmed by this court on the former appeal, a second appeal cannot be taken. We concur in this contention. The decision of this court on the former appeal, affirming said judgment, necessarily determined finally and conclusively all questions presented and determined in the court below, including the final judgment therein, whether presented by the record or not, and a second appeal from such affirmed judgment of the court below cannot be taken on a record presenting either the same or different questions. 2 Enc. of Pleading & Prac. 355; 2 Cyc. 525; 24 Am. & Eng. Ency. of Law (2d Ed.) 811; Elliott's App. Proc. § 579, 585; Devoss v. Jay, 14 Ind. 400; Zimmerman v. Turner, 24 Wis. 483; McDonald v. State, 80 Wis. 410, 50 N. W. 185; State v. Lavelle, 38 S. C. 216, 16 S. E. 717, 17 S. E. 30; Pollock v. Cohen, 32 Ohio St. 514, 519; Smith v. Shaffer, 50 Md. 132, 136; Young v. Frost, 1 Md. 377; Miller v. Bernecker, 46 Mo. 194; Harburg v. Arnold, 87 Mo. App. 326; McCabe v. Emerson, 18 Pa. 111; Johnson v. Murphy, 107 Tenn. 558, 64 S. W. 895; Platte, etc., Co. v. Hubbard (Colo. Sup.) 69 Pac. 514; Davis v. Alexander, 1 G. Green, 86; Trulock v. Friendship Lodge, 75 Iowa, 381, 39 N. W. 654; Banton v. Campbell's Heirs, 48 Ky. (9 B. Mon.) 587. In Zimmerman v. Turner, 24 Wis. 483, it was held that after a judgment had been affirmed by the Supreme Court against a party he could not, by having a new bill of exceptions settled, so as to present a question not presented before, sue out a new writ of error. In Devoss v. Jay, 14 Ind. 400, the question now presented was before this court for decision, and the second appeal was dismissed. The court said: "The judgment of the court below, from which the former appeal was taken, was by this court affirmed. Now another appeal is here from the same judgment, but the record has been perfected since that decision, so as to present points that could not be then considered. This court then passed upon all points that could be raised upon the record, as the parties chose to submit it. Then was the time to perfect the record, before the judgment of this court was pronounced. If parties elect to take the opinion of the court upon an imperfect record, we cannot

see where litigation would end, if, by supplying some omitted part of the record, they could again bring another and another appeal from the same judgment." This appeal is in effect an attack upon the judgment of this court on the former appeal affirming the judgment of the court below, which cannot be avoided or set aside in this manner.

Appeal dismissed.

(165 Ind. 532)

SPRINGER v. BRICKER. (No. 20,590.) (Supreme Court of Indiana. Nov. 28, 1905.) 1. REMOVAL OF CAUSES-AMOUNT IN CONTROVERSY-DETERMINATION.

On a petition for removal of a cause to the federal court, the trial court, in determining whether the amount in controversy is sufficient, is required to look to the complaint, as well as to the averments of the petition.

[Ed. Note. For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 132.] 2. SAME CONSTRUCTION OF COMPLAINT.

Where each paragraph of a complaint in an action for personal injuries alleged that plaintiff was damaged in the sum of $5,000, but each demanded judgment in a sum less than $2,000, and there was nothing in the record, aside from the petition to remove the cause to the federal court, to show that the demand for damages under the complaint, either at the time of filing or subsequent thereto, was in excess of $2,000, the petition to remove was properly denied.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Removal of Causes, § 132.] 3. APPEAL BRIEFS-REQUISITES.

An assignment that the court erred in overruling defendant's demurrer to certain paragraphs of the complaint is waived, where defendant neglects to set out in his brief either of the paragraphs in question or give a substantial statement of the facts alleged therein, as required by Supreme Court rule 22, cl. 5 (55 Ñ. E. vi).

4. SAME-PRESENTATION OF ERRor.