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There is evidence in the record from which , Its amount was a matter of measurement and the court might fairly find that the land in computation, the purchase price being deterquestion was bought to reach a graveyard minable with reference to such amount, and on appellant's land, ingress and egress to the judgment of the trial court should therewhich had been denied by her; that $50 of the fore be affirmed. I do not, however, regard purchase price was paid, and the residue the evidence as sufficient to show a part perwas to be paid when the deed was made, formance to take the case out of the statute which was stated in the receipt signed by of frauds. appellant and heretofore set forth; that ap

WILEY, C. J. I concur in an affirmance pellant gave, and appellee took, possession of the land claimed, made valuable and perma,

of the judgment, on the ground that the real nent improvements thereon, and tendered, be

estate which appellant agreed to sell appellee, fore the bringing of the suit, payment of the

as disclosed by the contract or receipt, may balance of the purchase money, and has kept

be definitely determined from the language that tender good; that appellant refused to

of the contract. “That which may be made make a deed for the land claimed by appel

certain is certain" is a maxim of the law lee, and did not return nor offer to return the

applicable here. The land which appellee money paid. The decision is not only sup

agreed to sell was land owned by her, as is

evident from the contract, and embraced all ported by the evidence, but accords with the plain equity of the case.

such land she owned "north and west of the

graveyard." A surveyor could certainly ac. Judgment affirmed.

curately determine its boundaries. ROBY, J, (concurring). Appellant was the owner of the Y. W. 14 of section 28,

(36 Ind. App. 503) N., range 2 W., in Monroe county, subject

| LOGANSPORT & WABASH VALLEY to certain exceptions, which reduced the

GAS CO. V. NULL. amount of said holding to 120 acres. One

(No. 5,476.) of said exceptions was of a public cemetery,

(Appellate Court of Indiana, Division No. 1.

Nov. 14, 1905.) to reach which it was necessary to pass over

1. MINES AND MINERALS-CONSTRUCTION OF some portion of appellant's said lands. Ap

OIL AND GAS LEASE. pellant objected thereto, and locked the ceme

Where an oil and gas lease, which in its tary gate. Appellee thereupon entered into beginning purported to be an absolute grant negotiations which resulted in the payment of all the oil and gas in tbe land, further pro

vided that the grant was made on the terms by him to her of $50, which has neither been

which thereafter followed, the word "terms" paid or tendered back, and the execution of was broad enough to make the provisions which an instrument, in terms, as follows: "August followed the consideration or conditions of the 31, 1903. Received of Ira E. Stansifer fifty

lease. dollars ($50) in payment for the land north

| 2. SAME-REVOCATION OF LEASE.

Where an oil and gas lease provided that and west of the graveyard, the same to be

a specified sum should be paid annually as valued or sold at twelve dollars per acre, rental in case of a delay in developing the land, and the remainder to be paid on receipt of

that a refusal to pay such rental when due deed. Martha J. McFarland." The key to

should be construed as a surrender by grantee

of his rights, and that a failure to pay the the cemetery was thereupon turned over by rental when due should make the lease null and appellant to a person designated by appellee. void, and further provided that the grantee Appellant set posts for a division fence, ex- |

might at any time reconvey and thereby render

the grant void, and the grantee made no entry tending the same from the cemetery to the

on the land, a refusal by the grantor to accept line of the land. Thereafter a survey and a rental tendered after the date it became due measurement of the tract to be conveyed was was a sufficient declaration of his purpose to made. Appellant made and tendered a deed

regard the grant as void. from the cemetery to the fence, which was not Appeal from Circuit Court, Grant Counupon the line. This appellee refused to ac- | ty; H. J. Paulus, Judge. cept, tendered $110, the amount of the pur Action by John H. Null against the chase money, in addition to the $50 paid at Logansport & Wabash Valley Gas Company. the agreed price for the land from the ceme Decree for plaintiff, and defendant appeals. tery to the line, kept the tender good, and Affirmed. brought the suit.

Brownlee & Brown and Blacklidge, Shirley The appellant testified that the proposition & Wolf, for appellant. Strange & Charles, was to sell "to the fence,” which was within for appellee. about two rods of the line. Appellee claimed to have purchased to the line. The descrip BLACK, J. The appellee brought his action contained in the instrument above set tion to quiet his title to certain real estate, out was susceptible of ascertainment by a 100 acres of land; the complaint being in surveyor, and therefore sufficient. Thain v. the short form ordinarily adopted in such Rudisill, 126 Ind. 272, 26 V. E. 46; Trentman cases. The appellant answered by general 9. Neff et al., 124 Ind. 503, 24 N. E. 895; denial. The only matter presented here reWaterman, 88 233, 237, 238. “The land north lates to the question whether the evidence and west of the graveyard" referred to the was sufficient to sustain the finding of the land so situated and owned by the appellant. court in favor of the appellee. The appellee being the owner of the tract here, the first payment of money under the coninvolved, and his wife being the owner of tract on or about April 5, 1900, one year and a certain other tract of 50 acres, they united, three months after its date; the sum then January 5, 1899, in the execution to appel paid being $75, the amount stipulated to lant's assignors of a contract, which was be paid for further delay after the expiraproperly acknowledged and duly recorded, tion of three months without the drilling the terms of which, so far as they need be of a well, as yearly rental until the drilling recited were as follows: "In consideration | of a well. The next payment was made on of the sum of one dollar and the covenants or before April 5, 1901. This payment was and agreements hereinafter contained,” the made and accepted to pay up to July 1, 1901, appellee and wife, "first part, hereby grant the amount of the payment being $92.50; and convey unto" the appellant's assignors, the rent thereafter to be paid annually from "second part, heirs or assigns, all the oil the first of July. No other money was ever and gas in and under the following de- paid to the appellee or to any one on his bescribed premises, together with the exclusive half or his wife's behalf, under this contract. right to enter thereon at all times for the No tender of payment to him or to his purpose of drilling or operating for oil, gas wife, under the contract, was made on or or water, to erect, maintain and remove all about July 1, 1902; and no such payments buildings, structures, pipes, pipe lines and were deposited in the Marion Bank to the machinery necessary for the production, stor appellee's credit on or before that date. age, and transportation of oil, gas or water; When receiving the payment on or about providing that the first part shall have the April 5, 1900, the appellee on behalf of himright to use said premises for farming pur self and his wife made demand of the apposes (except such part as is actually OC pellant for the development of the land. cupied by second part) namely,” etc., de Like demand was made when the payment scribing the lands. “The above grant is was made on or about April 5, 1901. The made upon the following terms: Second appellee, who was the only witness on the part agrees to drill a well upon said premises trial, was asked on cross-examination: "Were within three months from this date, or you tendered any money after that at all thereafter pay the first part for further de by the defendant, or their agent, after you lay a yearly rental of seventy-five dollars received that payment on or about April 5, until said well is drilled. Such rentals when 1901 ? Were you tendered any more after due, shall be deposited in Marion Bank, that?" Answer. "Yes, I was tendered money at Marion, Grant county, state of Indiana. on the 7th of July, 1902." He testified that Should second part refuse to make such he was tendered $75 by a certain agent of the deposits or pay to first part on these prem appellant, who tendered it on the lease, as ises, or at present residence of first part, gas lease rental to cover both pieces of real the said rental, when due aforesaid, such estate; and that the appellee refused to refusal shall be construed by both parties | receive it. hereto as the act of second part for the The oil and gas contract purported in its purpose of surrendering the rights hereby beginning to be an absolute grant of all granted, and this instrument, in default of such substances in the land, with the exthe rental payments, shall be null and void clusive right to enter upon the land at all without further notice from second part.” times for the purpose of operating therefor; Provisions were made concerning the rights no period of time being prescribed for the and obligations of the parties if oil in pay continuance of the rights so granted. It ing quantities or gas should be found. It was then provided that this grant was made was also provided that "second party may upon the terms which thereafter followed. at any time reconvey this grant, and there The word "terms" in such connection was upon this instrument shall be null and void." | broad enough in meaning to include considerThe parties of the second part assigned allation or conditions. One of the terms was their rights, title, interest, and claim under that the grantees agreed to drill a well withthis grant to the appellant, by a written in three months from January 5, 1899, or instrument duly recorded.

thereafter, to pay the grantors for further It is admitted on behalf of the appellant delay a certain amount in money annually, that the evidence sufficiently showed the "a yearly rental, * * . until said well title of the appellee, and that the appellant | is drilled." Such yearly payments "when was claiming an interest in the land under due" were to be deposited in a certain bank ; the oil and gas contract; but it is con but if the grantee should refuse to make tended that the evidence does not sufficient. such deposits or to pay the grantors at ly show that such claim of interest was places designated, the rental "when due," without right and unfounded. No well was such refusal was to be construed by both made, and there was no attempt to develop parties as the act of the grantee for the purthe land for oil or gas, and the party of the pose of surrendering the rights granted; and second part, or the appellant, never entered in default of the rental payments the contract or the land or took possession of it. Nothing was to be null and void, without further was paid at the execution of the contract. | notice from the grantee. The payment of The appellee received from the appellant ! rentals yearly was put as an alternative equivalent to the drilling of a well; but it | played money, a part of which was a $10 bill, was in effect provided that the grantee and made statements concerning the loss by might surrender the grant at his own choice,

him of other money.

5. SAME-RECEPTION OF EVIDENCE-ORDER OF by his failure to pay the rental when due,

PROOF. and that in case of failure to pay when due, Where, in a prosecution for homicide, the the grant, thereupon without other notice commonwealth claimed that the murder was from the grantee than such failure, should

committed for the purpose of robbery, defend

ant's statements, as to his lack of money, his be null and void; and it was further provided

losses, his financial transactions, both before that the grantee "at any time" might recon and after the murder, and his possession of vey and thereby might render the grant void.

money, were admissible, in the discretion of the It seems to have been intended to relieve the

the court, before proof had been offered tending to

show that defendant got money from the house grantee from any enforcible obligation to de- at the time of the homicide. velop the territory or to pay for failure to do 6. SEARCHES AND SEIZURES-EXECUTION OF so; after making one or more payments, it was not obliged to make other payments,

Where certain officers armed with a search

warrant went to the door of the house where though it should fail to drill a well. If up to

defendant resided, and stated to his mother the time when the third payment by the that they had the warrant to search for an terms of the instrument was due there were

article named in the warrant, and offered to let any mutual rights and obligations under the

her examine the warrant, which she declined

and invited the officers to make the search they contract, the failure shown by the evidence to desired, during which broken pieces of a knife make that payment when due was a circum- | were found in defendant's coat pocket, such stance which by those terms was to render

search having been made under the invitation,

and not under the warrant, the finding and the grant void. There had been no entry

taking of such articles did not constitute an under the grant. The grantor had never abuse of legal process. parted with possession, and it was not neces 7. CRIMINAL LAW – EVIDENCE – MANNER OF sary for him to make an impossible re-entry.

PROCUREMENT.

Where certain officers during a search of He was under no obligation to accept the

the house where defendant lived, on the invitatendered rental after the date when it be tion of his mother, and not under a search came due, if at any time, and his refusal warrant, found the broken pieces of a knife to accept it was a sufficient declaration of his | in defendant's coat pocket, the fact that the

finding and taking of such articles constituted purpose to regard the grant as void.

an individual trespass on the part of the officers Judgment affirmed.

as against defendant did not render such articles inadmissible against him.

[Ed. Note.--For cases in point, see vol. 14, (189 Mass. 457)

Cent, Dig. Criminal Law, $ 877.]
COMMONWEALTH V. TUCKER..

8. SAME- EVIDENCE-HANDWRITING-STAND

ARDS OF COMPARISON. (Supreme Judicial Court of Massachusetts.

Where it was the duty of accused as salesMiddlesex. Nov. 28, 1905.)

man to make a memorandum of each sale signed 1. CRIMINAL LAW – INDICTMENT — PLEA - with his name or initials, and to transmit the WITHDRAWAL.

same to a shipping clerk, slips so made out, on An accused, having entered a plea of not which defendant's surname appeared, which guilty to an indictment, was not entitled as a were handed by him to such shipping clerk, matter of right and without the permission of

were sufficiently shown to contain his handwritthe court to retract his plea and plead anew.

ing to make them admissible as standards of [Ed. Note.-For cases in point, see vol. 14,

comparison of handwriting, though there was Cent. Dig. Criminal Law, $ 687.]

no direct evidence that any one had seen him

write the slips. 2. SAME-APPEAL-DISCRETION.

9. SAME-QUESTION FOR JURY. An order denying accused permission to

Where, in a criminal case, the court, on an withdraw a plea of not guilty and plead anew

issue of the authenticity of proposed standards would not be reviewed, in the absence of abuse

of comparison of handwriting, held, that such of the discretion of the trial court.

standards were sufficiently proved to be used, [Ed. Note. For cases in point, see vol. 15, such finding was not conclusive of the auCent. Dig. Criminal Law, $ 3043.]

thenticity of such standards, and it was not 3. JURY-CHALLENGE FOR CAUSE_VENIRE error for the court in its charge to submit such SERVICE.

question to the jury. That a constable to whom a venire was 10. CRIMINAL LAW – EXPERTS - CROSS-Exsent for service in a criminal case had not AMINATION - USE OF PHOTOGRAPHS-DISgiven a bond to serve civil process, required by CRETION, Rev. Laws, C. 25, § 88, is not a ground for In a criminal case, it was within the dischallenge for cause.

cretion of the court to refuse to permit de4. CRIMINAL LAW-TRIAL-OPENING STATE fendant to interrogate an expert witness as to MENT.

certain mistakes he had made in testifying to Where, in a prosecution for homicide, the

other cases, and to permit the witness to use district attorney stated to the court that he certain photographs as “chalks." ' intended to prove that the defendant was with 11. SAME-EVIDENCE-HANDWRITING. out money prior to the murder, but that after. In a prosecution for homicide, a postal wards he had money, it was not error for the card taken from defendant at the time of his court to permit him to state in his opening arrest, containing certain words alleged to have that prior to the murder there was in deceased's been written by defendant, was admissible to house a $10 bill, and two $1 bills and other show similarity to writing found near the body money in her pocketbook downstairs, and that of deceased and alleged to have been written shortly before the murder defendant had been after the murder. trying to raise money to go to St. Louis, and 12. SAME-PHOTOGRAPHS. had pawned certain articles of personal prop

In a prosecution for homicide, on the offer erty, etc., and that after the murder he dis- of a photograph of deceased's corsets in evidence, the question whether the corsets were in 1 punishable with ' death. In a prosecution for the same condition at the time the photograph such offense, the court charged that the words was taken as at the time of the murder was in "deliberately premeditated malice aforethought" the first instance for the determination of the meant simply "thought upon, resolved upon trial court.

beforehand, not a thing done suddenly, not a 13. SAME-DISCRETION.

thing that comes into the mind of a sudden, It was within the discretion of the court 1 and is done before there is time to think about to admit the photograpb to show the condition

| it, but a thing thought upon or planned some of the corsets at the time the photograph was time before, or thought upon long enough before taken, though the corsets themselves were in

the act is done so that it can reasonably be said court.

to have become a purpose of the mind," that "no 14. SAME-HYPOTHETICAL QUESTIONS. :

particular length of time is necessary" and In framing a hypothetical question in a

illustrated the same by stating that if a robber criminal case, the existence of such facts and

with a dirk or pistol turns a corner and meets conditions may be assumed as the jury may

a bank messenger with a roll of bills, and dehave a right to find on the evidence as it then

termines in one moment to get it, and the is or as there may be a fair reason to suppose it

next shoots or stabs the messenger dead, takes may thereafter appear to be.

the package, and flees, his malice was deliberate. 15. SAME-PHOTOGRAPHS.

ly premeditated, though it occupied only a

few seconds to accomplish. Held, that both the In a prosecution for homicide, a photograph

definition and illustration were proper. of the pieces of the broken knife blade put together was admissible as an illustration, though

21. SAME-TRIAL-JURY-MISCONDUCT. the original pieces of the blade were all in

Where & jury, in a prosecution for murder evidence.

which lasted for three weeks, took daily notes

of the testimony as it was offered. in plain view 16. SAME-EXPERTS-EXPERIMENTS-DETAILS.

of the court and counsel, such conduct did not Where, on an issue in a prosecution for

require the vacation of a conviction, as a matter homicide as to whether the azygous vein of the

of law, victim was severed by the stab in the back, a medical expert testified that in his opinion

22. CRIMINAL LAW-NEW TRIAL-DISCRETION it was not, and that he had made certain ex

--ABUSE,

-... Denial of a motion for a new trial because periments to verify such an opinion, it was not error for the court to refuse to permit him

a juror openly took notes of the testimony as to give the details of his experiment to fortify

ced was not an abuse of discre his opinion.

tion, in the absence of a showing that accused 17. WITNESSES - CONTRADICTION-INCONSIS

was prejudiced thereby. ;. TENT STATEMENTS-RE-EXAMINATION.

Exceptions from Superior Court, MidIn a prosecution for homicide, a witness

dlesex County ; Edgar J. Sherman and Henry for defendant testified that he saw defendant pass witness' house between 12:15 and 12:30

N. Sheldon, Judges. p. m. on the day of the murder, and on cross One Tucker was convicted of murder in the examination he was questioned at length as first degree, and he brings exceptions. Over to whether he had not made previous incon

ruled.. sistent statements, to which he answered that be had testified before the grand jury, and Herbert Parker, George A. Sanderson and could not tell how many times since he had

Frederic B. Greenbalge, for the Commontalked over the fact of defendant's passing his house; that he intended to tell the truth in

wealth. James H. Valey, Thomas F. Vahey, each instance, but did not remember whether and Charles H. Innes (Philip Mansfield, of. he was asked whether he had seen the defendant counsel), for defendant. at any time, except once, when he had stated be saw him between 1 and 1:45 and again at 3 HAMMOND, J. We have not found it nec o'clock; and that he did not know whether he

essary to consider whether the indictment had stated in the office of the commonwealth attorney that he could not tell who the man

should have been quashed for the reasons set was that passed his house or identify him. forth in the special plea and the motion Held, that such cross-examination was not an

to quash, because we are of opinion that that attempt to impeach his credit, so as to entitle defendant, on re-examination, to show that the

question is not before us for decision. The witness, about 10 days after the murder, made defendant having entered a plea of not guilty the same statement that he had testified to was not entitled, as a matter of right, to rein chief, to another, either to corroborate the

tract his plea and plead anew. He could do witness or to show that his present testimony was not a matter of recent contrivance.

this only by the permission of the court 18. CRIMINAL LAW EXPERT TESTIMONY

(1 Chitty, Crim. Law, 436; Commonwealth SUBJECTS.

V. Blake, 12 Allen, 188; Commonwealth v. Where, in a prosecution for homicide, two Lannan, 13 Allen, 563), and whether that perpins, one of which was shown in a photograph and the photographs were all introduced in

mission should be granted rested with the evidence, which of the two pins was shown in

sound discretion of that court. Acting under the photograph was for the jury, and was not that discretion, the court declined to allow a proper subject of expert testimony.

the defendant to retract his general plea, 19. SAME-INSTRUCTIONS-LANGUAGE OF RE

overruled the motion, and therefore, because QUEST. . It was not 'error for the court to refuse to

not filed in time, the pleå. No error in law charge in the language of requests submitted is shown in this decision. It was final, and by accused, where such requests were given in cannot be revised by this court. substance, 20. HOMICIDE - FIRST DEGREE MURDER

2. The only objection to Hubbard, who was “PREMEDITATED MALICE AFORETHOUGHT."

summoned as a juryman, was that the conRev. Laws, c. 207, § 1, declares that murder stable to whom the venire was sent for committed with deliberately premeditated malice service had not given a bond to serve civil aforethought, or in the commission or attempt to commit any crime punishable with imprison

process. This was not ground for a chalment for life, or committed with extreme atroci- lenge for cause. The statutes provide ty or cruelty, is murder in the first degree, and "the venires shall be delivered to the sherift

de that

of the county to be transmitted by him to a , end of the colloquy the court allowed the constable in each of the cities and towns to district attorney to finish what he had to say which they are respectively issued, who shall on the subject, "with the understanding that forthwith serve them in cities on the board the court has not ruled on it yet, and it will authorized to draw jurors and in towns on be ruled on when the whole statement is the selectman and town clerk.". Rev. Laws, made," and said that the court understood c. 176. § 11. After the jurors are drawn, “the that the defendant had reasonably interrupts constable shall, four days at least before the ed to save his rights. The subject was not time when the jurors are required to attend, again referred to by the defendant's counsel, summon each person who is drawn, . * and no further request for a ruling thereon and shall make a return of the venire with was made. The district attorney then conbis doings thereon to the clerk of the court, tinued as follows: “It will appear also, before the sitting of the court by which it was gentlemen of the jury, that within a few issued." Section 24. It is plain that this is days after the murder he appeared at a cernot a service of a writ or an execution in an tain place, and displayed money, a part of action between two persons, but is simply a which was a $10 bill; that he then explained part of the process for the organization of the the loss of other money by saying that it had court. It is special and specific, and we are been taken from him by a woman whom he of opinion that the term "civil process," as had met at a theater, and afterwards went used in Rev. Laws, c. 25, $ 88, does not include to a hotel with." During the trial the comthis specific work. The challenge for cause monwealth offered evidence in support of this was rightly disallowed.

statement of the district attorney, and the 3. In the course of his opening address to court directed the jury to disregard entirely the jury, the district attorney stated that so much of the evidence as related to the de“the family of the deceased searched the fendant's statement that money had been house after the murder, and only 36 cents taken from him by a woman. were found in one pocketbook downstairs in Following out the purpose thus outlined in the bureau; that when Amy Roberts, a sery the opening the commonwealth introduced ant in the family of the deceased, went evidence tending to show that upon various away in the morning, there was at least a occasions within 10 days prior to the mur$10 bill and two $1 bills and other money in der the defendant sold or pawned various arthe deceased's pocketbook downstairs." He ticles of personal property, mostly wearing apthen proceeded as follows: "The rest of it parel of small value, receiving in all $17.50 [money) had disappeared. It also appears in cash; that on April 8th, being a few days that shortly before this time the defendant after the murder, he redeemed for $5.75 two was trying to raise money to go to St. Louis; of the articles pawned prior to the murder that he sold a revolvér, *

several as aforesaid. To the admission of all this suits of clothes; that he pawned a watch." evidence the defendant excepted. One Davis, Here he was interrupted by the defendant's a witness called by the commonwealth, after counsel, who contended that any such evidence having testified without objection that on the would be incompetent, and therefore it was 6th day of the same April the defendant was improper for the district attorney to speak to in a restaurant where the witness was workthe jury about it, even in the opening. ing, and said that he had needed some money, Thereupon a colloquy ensued between the and had pawned some things a short time be court, district attorney, and defendant's coun fore, further testified, subject to the exception sel, in which the defendant's counsel con of the defendant, that the defendant upon the ceded that it was "competent for them (the same occasion said that "he had been out on a government) to show that money was miss good time, and lost some money; that he had ing from the house, and to argue, if it is pawned some * * * to raise money ;'' possible, that the defendant had that money"; that in paying for his dinner, he handed the but his contention was that it was not prop witness a $10 bill “brown on one side,” and er to attempt to show that “the defendant that at the same time the witness saw in was hard up, or that he was attempting to go defendant's possession a $5 and a $2 and to St. Louis, or anything which indicated his some other bills. There was no contention poverty"; that such evidence does not estab that the articles pawned and sold were not lish any motive as matter of law. In re the defendant's property. It also appeared, sponse to an inquiry from the court, he fur upon the cross-examination of one of the ther said that if the intention of the dis. witnesses called by the commonwealth, that trict attorney was to show that the defend on the 6th day of the same April the defendant was without money prior to the murder, ant pawned his own diamond ring, receiving but that afterwards he had money, he would therefor $15. not object. The district attorney then said It is argued by the defendant that before that he intended to go as far as that. The the law the rich and the poor stand alike, counsel for the defendant still insisted that and that the poverty of the defendant is not the district attorney ought to say "what he admissible to show a motive in him to comintends to prove," and that in the absence of mit the crime with which he is charged. any such further statement the opening re- | All this may be conceded to be true. As statmarks referred to were improper. At the ed by Bigelow, C. J., in Commonwealth v.

76 N.E--9

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