There is evidence in the record from which the court might fairly find that the land in question was bought to reach a graveyard on appellant's land, ingress and egress to which had been denied by her; that $50 of the purchase price was paid, and the residue was to be paid when the deed was made, which was stated in the receipt signed by appellant and heretofore set forth; that appellant gave, and appellee took, possession of the land claimed, made valuable and permanent improvements thereon, and tendered, before the bringing of the suit, payment of the balance of the purchase money, and has kept that tender good; that appellant refused to make a deed for the land claimed by appellee, and did not return nor offer to return the money paid. The decision is not only supported by the evidence, but accords with the plain equity of the case.

Judgment affirmed.

ROBY, J. (concurring). Appellant was the owner of the N. W. 4 of section 28, N., range 2 W., in Monroe county, subject to certain exceptions, which reduced the amount of said holding to 120 acres. One of said exceptions was of a public cemetery, to reach which it was necessary to pass over some portion of appellant's said lands. Appellant objected thereto, and locked the cemetary gate. Appellee thereupon entered into negotiations which resulted in the payment by him to her of $50, which has neither been paid or tendered back, and the execution of an instrument, in terms, as follows: "August 31, 1903. Received of Ira E. Stansifer fifty dollars ($50) in payment for the land north and west of the graveyard, the same to be valued or sold at twelve dollars per acre, and the remainder to be paid on receipt of deed. Martha J. McFarland." The key to the cemetery was thereupon turned over by appellant to a person designated by appellee. Appellant set posts for a division fence, extending the same from the cemetery to the line of the land. Thereafter a survey and measurement of the tract to be conveyed was made. Appellant made and tendered a deed from the cemetery to the fence, which was not upon the line. This appellee refused to accept, tendered $110, the amount of the purchase money, in addition to the $50 paid at the agreed price for the land from the cemetery to the line, kept the tender good, and brought the suit.

The appellant testified that the proposition was to sell "to the fence," which was within about two rods of the line. Appellee claimed to have purchased to the line. The description contained in the instrument above set out was susceptible of ascertainment by a surveyor, and therefore sufficient. Thain v. Rudisill, 126 Ind. 272, 26 N. E. 46; Trentman v. Neff et al., 124 Ind. 503, 24 N. E. 895; Waterman, §§ 235, 237, 238. "The land north and west of the graveyard" referred to the land so situated and owned by the appellant.

Its amount was a matter of measurement and computation, the purchase price being determinable with reference to such amount, and the judgment of the trial court should therefore be affirmed. I do not, however, regard the evidence as sufficient to show a part performance to take the case out of the statute of frauds.

WILEY, C. J. I concur in an affirmance of the judgment, on the ground that the real estate which appellant agreed to sell appellee, as disclosed by the contract or receipt, may be definitely determined from the language of the contract. "That which may be made certain is certain" is a maxim of the law applicable here. The land which appellee agreed to sell was land owned by her, as is evident from the contract, and embraced all such land she owned "north and west of the graveyard." A surveyor could certainly ac curately determine its boundaries.

(36 Ind. App. 503)

LOGANSPORT & WABASH VALLEY GAS CO. v. NULL. (No. 5,476.)

(Appellate Court of Indiana, Division No. 1. Nov. 14, 1905.)

1. MINES AND MINERALS-CONSTRUCTION OF OIL AND GAS LEASE.

Where an oil and gas lease, which in its beginning purported to be an absolute grant of all the oil and gas in the land, further provided that the grant was made on the terms which thereafter followed, the word "terms" was broad enough to make the provisions which followed the consideration or conditions of the lease.

2. SAME REVOCATION OF LEASE.

Where an oil and gas lease provided that a specified sum should be paid annually as rental in case of a delay in developing the land, that a refusal to pay such rental when due should be construed as a surrender by grantee of his rights, and that a failure to pay the rental when due should make the lease null and void, and further provided that the grantee might at any time reconvey and thereby render the grant void, and the grantee made no entry on the land, a refusal by the grantor to accept a rental tendered after the date it became due was a sufficient declaration of his purpose to regard the grant as void.

Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by John H. Null against the Logansport & Wabash Valley Gas Company. Decree for plaintiff, and defendant appeals. Affirmed.

Brownlee & Brown and Blacklidge, Shirley & Wolf, for appellant. Strange & Charles, for appellee.

BLACK, J. The appellee brought his action to quiet his title to certain real estate, 100 acres of land; the complaint being in the short form ordinarily adopted in such cases. The appellant answered by general denial. The only matter presented here relates to the question whether the evidence was sufficient to sustain the finding of the court in favor of the appellee. The ap

pellee being the owner of the tract here involved, and his wife being the owner of a certain other tract of 50 acres, they united, January 5, 1899, in the execution to appellant's assignors of a contract, which was properly acknowledged and duly recorded, the terms of which, so far as they need be recited were as follows: "In consideration of the sum of one dollar and the covenants and agreements hereinafter contained," the appellee and wife, "first part, hereby grant and convey unto" the appellant's assignors, "second part, heirs or assigns, all the oil and gas in and under the following described premises, together with the exclusive right to enter thereon at all times for the purpose of drilling or operating for oil, gas or water, to erect, maintain and remove all buildings, structures, pipes, pipe lines and machinery necessary for the production, storage, and transportation of oil, gas or water; providing that the first part shall have the right to use said premises for farming purposes (except such part as is actually occupied by second part) namely," etc., describing the lands. "The above grant is made upon the following terms: Second part agrees to drill a well upon said premises within three months from this date, or thereafter pay the first part for further delay a yearly rental of seventy-five dollars until said well is drilled. Such rentals when due, shall be deposited in Marion Bank, at Marion, Grant county, state of Indiana. Should second part refuse to make such deposits or pay to first part on these premises, or at present residence of first part, the said rental, when due aforesaid, such refusal shall be construed by both parties hereto as the act of second part for the purpose of surrendering the rights hereby granted, and this instrument, in default of the rental payments, shall be null and void without further notice from second part." Provisions were made concerning the rights and obligations of the parties if oil in paying quantities or gas should be found. It was also provided that "second party may at any time reconvey this grant, and thereupon this instrument shall be null and void." The parties of the second part assigned all their rights, title, interest, and claim under this grant to the appellant, by a written instrument duly recorded.

It is admitted on behalf of the appellant that the evidence sufficiently showed the title of the appellee, and that the appellant was claiming an interest in the land under the oil and gas contract; but it is contended that the evidence does not sufficiently show that such claim of interest was without right and unfounded. No well was made, and there was no attempt to develop the land for oil or gas, and the party of the second part, or the appellant, never entered or the land or took possession of it. Nothing was paid at the execution of the contract. The appellee received from the appellant

the first payment of money under the contract on or about April 5, 1900, one year and three months after its date; the sum then paid being $75, the amount stipulated to be paid for further delay after the expiration of three months without the drilling of a well, as yearly rental until the drilling of a well. The next payment was made on or before April 5, 1901. This payment was made and accepted to pay up to July 1, 1901, the amount of the payment being $92.50; the rent thereafter to be paid annually from the first of July. No other money was ever paid to the appellee or to any one on his behalf or his wife's behalf, under this contract. No tender of payment to him or to his wife, under the contract, was made on or about July 1, 1902; and no such payments were deposited in the Marion Bank to the appellee's credit on or before that date. When receiving the payment on or about April 5, 1900, the appellee on behalf of himself and his wife made demand of the appellant for the development of the land. Like demand was made when the payment was made on or about April 5, 1901. The appellee, who was the only witness on the trial, was asked on cross-examination: "Were you tendered any money after that at all by the defendant, or their agent, after you received that payment on or about April 5, 1901? Were you tendered any more after that?" Answer. "Yes, I was tendered money on the 7th of July, 1902." He testified that he was tendered $75 by a certain agent of the appellant, who tendered it on the lease, as gas lease rental to cover both pieces of real estate; and that the appellee refused to receive it.

The oil and gas contract purported in its beginning to be an absolute grant of all such substances in the land, with the exclusive right to enter upon the land at all times for the purpose of operating therefor; no period of time being prescribed for the continuance of the rights so granted. It was then provided that this grant was made upon the terms which thereafter followed. The word "terms" in such connection was broad enough in meaning to include consideration or conditions. One of the terms was that the grantees agreed to drill a well within three months from January 5, 1899, or thereafter, to pay the grantors for further delay a certain amount in money annually, "a yearly rental, until said well

*

is drilled." Such yearly payments "when due" were to be deposited in a certain bank; but if the grantee should refuse to make such deposits or to pay the grantors at places designated, the rental "when due," such refusal was to be construed by both parties as the act of the grantee for the purpose of surrendering the rights granted; and in default of the rental payments the contract was to be null and void, without further notice from the grantee. The payment of rentals yearly was put as an alternative

equivalent to the drilling of a well; but it was in effect provided that the grantee might surrender the grant at his own choice, by his failure to pay the rental when due, and that in case of failure to pay when due, the grant, thereupon without other notice from the grantee than such failure, should be null and void; and it was further provided that the grantee "at any time" might reconvey and thereby might render the grant void. It seems to have been intended to relieve the grantee from any enforcible obligation to develop the territory or to pay for failure to do so; after making one or more payments, it was not obliged to make other payments, though it should fail to drill a well. If up to the time when the third payment by the terms of the instrument was due there were any mutual rights and obligations under the contract, the failure shown by the evidence to make that payment when due was a circumstance which by those terms was to render the grant void. There had been no entry under the grant. The grantor had never parted with possession, and it was not necessary for him to make an impossible re-entry. He was under no obligation to accept the tendered rental after the date when it became due, if at any time, and his refusal to accept it was a sufficient declaration of his purpose to regard the grant as void. Judgment affirmed.

An accused, having entered a plea of not guilty to an indictment, was not entitled as a matter of right and without the permission of the court to retract his plea and plead anew.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 687.]

2. SAME-APPEAL-DISCRETION.

An order denying accused permission to withdraw a plea of not guilty and plead anew would not be reviewed, in the absence of abuse of the discretion of the trial court.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3043.]

3. JURY-CHALLENGE FOR CAUSE-VENIRE

SERVICE.

That a constable to whom a venire was sent for service in a criminal case had not given a bond to serve civil process, required by Rev. Laws, c. 25, § 88, is not a ground for challenge for cause.

4. CRIMINAL LAW-TRIAL-OPENING STATE

MENT.

Where, in a prosecution for homicide, the district attorney stated to the court that he intended to prove that the defendant was without money prior to the murder, but that afterwards he had money, it was not error for the court to permit him to state in his opening that prior to the murder there was in deceased's house a $10 bill, and two $1 bills and other money in her pocketbook downstairs, and that shortly before the murder defendant had been trying to raise money to go to St. Louis, and had pawned certain articles of personal property, etc., and that after the murder he dis

played money, a part of which was a $10 bill, and made statements concerning the loss by him of other money.

5. SAME-RECEPTION OF EVIDENCE-ORDER OF

PROOF.

Where, in a prosecution for homicide, the commonwealth claimed that the murder was committed for the purpose of robbery, defendant's statements as to his lack of money, his losses, his financial transactions, both before and after the murder, and his possession of money, were admissible, in the discretion of the court, before proof had been offered tending to show that defendant got money from the house at the time of the homicide.

6. SEARCHES AND SEIZURES-EXECUTION OF WARRANT.

Where certain officers armed with a search warrant went to the door of the house where defendant resided, and stated to his mother that they had the warrant to search for an article named in the warrant, and offered to let her examine the warrant, which she declined and invited the officers to make the search they desired, during which broken pieces of a knife were found in defendant's coat pocket, such search having been made under the invitation, and not under the warrant, the finding and taking of such articles did not constitute an abuse of legal process.

7. CRIMINAL LAW-EVIDENCE- MANNER OF PROCUREMENT.

Where certain officers during a search of the house where defendant lived, on the invitation of his mother, and not under a search warrant, found the broken pieces of a knife in defendant's coat pocket, the fact that the finding and taking of such articles constituted an individual trespass on the part of the officers as against defendant did not render such articles inadmissible against him.

[Ed. Note. For cases in point, see vol. 14, Cent, Dig. Criminal Law, § 877.]

8. SAME-EVIDENCE-HANDWRITING-STANDARDS OF COMPARISON.

Where it was the duty of accused as salesman to make a memorandum of each sale signed with his name or initials, and to transmit the same to a shipping clerk, slips so made out, on which defendant's surname appeared, which were handed by him to such shipping clerk, were sufficiently shown to contain his handwriting to make them admissible as standards of comparison of handwriting, though there was no direct evidence that any one had seen him write the slips.

9. SAME QUESTION FOR JURY.

Where, in a criminal case, the court, on an issue of the authenticity of proposed standards of comparison of handwriting, held, that such standards were sufficiently proved to be used, such finding was not conclusive of the authenticity of such standards, and it was not error for the court in its charge to submit such question to the jury. 10. CRIMINAL LAW AMINATION — USE OF PHOTOGRAPHS-DISCRETION.

EXPERTS CROSS-EX

In a criminal case, it was within the discretion of the court to refuse to permit defendant to interrogate an expert witness as to certain mistakes he had made in testifying to other cases, and to permit the witness to use certain photographs as "chalks." 11. SAME-EVIDENCE-HANDWRITING.

In a prosecution for homicide, a postal card taken from defendant at the time of his arrest, containing certain words alleged to have been written by defendant, was admissible to show similarity to writing found near the body of deceased and alleged to have been written after the murder.

12. SAME-PHOTOGRAPHS.

In a prosecution for homicide, on the offer of a photograph of deceased's corsets in evi

dence, the question whether the corsets were in the same condition at the time the photograph was taken as at the time of the murder was in the first instance for the determination of the trial court.

13. SAME-DISCRETION.

It was within the discretion of the court to admit the photograph to show the condition of the corsets at the time the photograph was taken, though the corsets themselves were in court.

14. SAME-HYPOTHETICAL QUESTIONS.

In framing a hypothetical question in a criminal case, the existence of such facts and conditions may be assumed as the jury may have a right to find on the evidence as it then is or as there may be a fair reason to suppose it may thereafter appear to be. 15. SAME-PHOTOGRAPHS.

In a prosecution for homicide, a photograph of the pieces of the broken knife blade put together was admissible as an illustration, though the original pieces of the blade were all in evidence.

16. SAME EXPERTS-EXPERIMENTS-DETAILS.

Where, on an issue in a prosecution for homicide as to whether the azygous vein of the victim was severed by the stab in the back, a medical expert testified that in his opinion it was not, and that he had made certain experiments to verify such an opinion, it was not error for the court to refuse to permit him to give the details of his experiment to fortify his opinion.

17. WITNESSES

- CONTRADICTION-INCONSIS

TENT STATEMENTS-RE-EXAMINATION.

In a prosecution for homicide, a witness for defendant testified that he saw defendant pass witness' house between 12:15 and 12:30 p. m. on the day of the murder, and on crossexamination he was questioned at length as to whether he had not made previous inconsistent statements, to which he answered that he had testified before the grand jury, and could not tell how many times since he had talked over the fact of defendant's passing his house; that he intended to tell the truth in each instance, but did not remember whether he was asked whether he had seen the defendant at any time, except once, when he had stated he saw him between 1 and 1:45 and again at 3 o'clock; and that he did not know whether he had stated in the office of the commonwealth attorney that he could not tell who the man was that passed his house or identify him. Held, that such cross-examination was not an attempt to impeach his credit, so as to entitle defendant, on re-examination, to show that the witness, about 10 days after the murder, made the same statement that he had testified to in chief, to another, either to corroborate the witness or to show that his present testimony was not a matter of recent contrivance. 18. CRIMINAL LAW SUBJECTS.

EXPERT TESTIMONY

punishable with death. In a prosecution for such offense, the court charged that the words "deliberately premeditated malice aforethought" meant simply "thought upon, resolved upon beforehand, not a thing done suddenly, not a thing that comes into the mind of a sudden, and is done before there is time to think about it, but a thing thought upon or planned some time before, or thought upon long enough before the act is done so that it can reasonably be said to have become a purpose of the mind," that "no particular length of time is necessary" and illustrated the same by stating that if a robber with a dirk or pistol turns a corner and meets a bank messenger with a roll of bills, and determines in one moment to get it, and the next shoots or stabs the messenger dead, takes the package, and flees, his malice was deliberately premeditated, though it occupied only a few seconds to accomplish. Held, that both the definition and illustration were proper. 21. SAME TRIAL-JURY-MISCONDUCT.

Where a jury, in a prosecution for murder which lasted for three weeks, took daily notes of the testimony as it was offered, in plain view of the court and counsel, such conduct did not require the vacation of a conviction, as a matter of law.

22. CRIMINAL LAW-NEW TRIAL-DISCRETION

-ABUSE.

Exceptions from Superior Court, Middlesex County; Edgar J. Sherman and Henry N. Sheldon, Judges.

One Tucker was convicted of murder in the first degree, and he brings exceptions. Overruled..

Herbert Parker, George A. Sanderson and Frederic B. Greenhalge, for the Commonwealth. James H. Valey, Thomas F. Vahey, and Charles H. Innes (Philip Mansfield, of counsel), for defendant.

HAMMOND, J. We have not found it necessary to consider whether the indictment should have been quashed for the reasons set forth in the special plea and the motion to quash, because we are of opinion that that question is not before us for decision. The defendant having entered a plea of not guilty was not entitled, as a matter of right, to retract his plea and plead anew. He could do this only by the permission of the court (1 Chitty, Crim. Law, 436; Commonwealth v. Blake, 12 Allen, 188; Commonwealth v. Lannan, 13 Allen, 563), and whether that permission should be granted rested with the sound discretion of that court. Acting under that discretion, the court declined to allow the defendant to retract his general plea, overruled the motion, and therefore, because not filed in time, the plea. No error in law is shown in this decision. It was final, and cannot be revised by this court.

2. The only objection to Hubbard, who was summoned as a juryman, was that the constable to whom the venire was sent for service had not given a bond to serve civil process. This was not ground for a challenge for cause. The statutes provide that "the venires shall be delivered to the sheriff

* *

of the county to be transmitted by him to a constable in each of the cities and towns to which they are respectively issued, who shall forthwith serve them in cities on the board authorized to draw jurors and in towns ou the selectman and town clerk.". Rev. Laws, c. 176. § 11. After the jurors are drawn, "the constable shall, four days at least before the time when the jurors are required to attend, summon each person who is drawn, and shall make a return of the venire with his doings thereon to the clerk of the court, before the sitting of the court by which it was issued." Section 24. It is plain that this is not a service of a writ or an execution in an action between two persons, but is simply a part of the process for the organization of the court. It is special and specific, and we are of opinion that the term "civil process," as used in Rev. Laws, c. 25, § 88, does not include this specific work. The challenge for cause was rightly disallowed.

3. In the course of his opening address to the jury, the district attorney stated that "the family of the deceased searched the house after the murder, and only 36 cents were found in one pocketbook downstairs in the bureau; that when Amy Roberts, a servant in the family of the deceased, went away in the morning, there was at least a $10 bill and two $1 bills and other money in the deceased's pocketbook downstairs." He then proceeded as follows: "The rest of it [money] had disappeared. It also appears that shortly before this time the defendant was trying to raise money to go to St. Louis; that he sold a revolver, * several suits of clothes; that he pawned a watch." Here he was interrupted by the defendant's counsel, who contended that any such evidence would be incompetent, and therefore it was improper for the district attorney to speak to the jury about it, even in the opening. Thereupon a colloquy ensued between the court, district attorney, and defendant's counsel, in which the defendant's counsel conceded that it was "competent for them [the government] to show that money was missing from the house, and to argue, if it is possible, that the defendant had that money"; but his contention was that it was not proper to attempt to show that "the defendant was hard up, or that he was attempting to go to St. Louis, or anything which indicated his poverty"; that such evidence does not establish any motive as matter of law. In response to an inquiry from the court, he further said that if the intention of the district attorney was to show that the defendant was without money prior to the murder, but that afterwards he had money, he would not object. The district attorney then said that he intended to go as far as that. The counsel for the defendant still insisted that the district attorney ought to say "what he intends to prove," and that in the absence of any such further statement the opening remarks referred to were improper. At the 76 N.E.-9

| end of the colloquy the court allowed the district attorney to finish what he had to say on the subject, "with the understanding that the court has not ruled on it yet, and it will be ruled on when the whole statement is made," and said that the court understood that the defendant had reasonably interrupted to save his rights. The subject was not again referred to by the defendant's counsel, and no further request for a ruling thereon was made. The district attorney then continued as follows: "It will appear also, gentlemen of the jury, that within a few days after the murder he appeared at a certain place, and displayed money, a part of which was a $10 bill; that he then explained the loss of other money by saying that it had been taken from him by a woman whom he had met at a theater, and afterwards went to a hotel with." During the trial the commonwealth offered evidence in support of this statement of the district attorney, and the court directed the jury to disregard entirely so much of the evidence as related to the defendant's statement that money had been taken from him by a woman.

Following out the purpose thus outlined in the opening the commonwealth introduced evidence tending to show that upon various occasions within 10 days prior to the murder the defendant sold or pawned various articles of personal property, mostly wearing apparel of small value, receiving in all $17.50 in cash; that on April 8th, being a few days after the murder, he redeemed for $5.75 two of the articles pawned prior to the murder as aforesaid. To the admission of all this evidence the defendant excepted. One Davis, a witness called by the commonwealth, after having testified without objection that on the 6th day of the same April the defendant was in a restaurant where the witness was working, and said that he had needed some money, and had pawned some things a short time before, further testified, subject to the exception of the defendant, that the defendant upon the same occasion said that "he had been out on a good time, and lost some money; that he had pawned some * * to raise money;"

that in paying for his dinner, he handed the witness a $10 bill "brown on one side," and that at the same time the witness saw in defendant's possession a $5 and a $2 and some other bills. There was no contention that the articles pawned and sold were not the defendant's property. It also appeared, upon the cross-examination of one of the witnesses called by the commonwealth, that on the 6th day of the same April the defendant pawned his own diamond ring, receiving therefor $15.

It is argued by the defendant that before the law the rich and the poor stand alike, and that the poverty of the defendant is not admissible to show a motive in him to commit the crime with which he is charged. All this may be conceded to be true. As stated by Bigelow, C. J., in Commonwealth v.