State v. New-165 Ind. 571.

prosecution pending or offenses heretofore committed under existing laws, and such prosecutions and offenses shall be continued and prosecuted to a final determination, as if this act had not passed." It is evident that so far as offenses committed before April 15, 1905, the day said act took effect, are concerned, they are to be prosecuted under the law in force when they were committed, the trial and procedure being in all respects controlled thereby, and in no respect governed by said act of 1905. Appellant cites Robinson v. State (1882), 84 Ind. 452, and McCalment v. State (1881), 77 Ind. 250, to sustain his contention that the trial of this cause was governed, so far as procedure is concerned, by the act of 1905 (Acts 1905, p. 584, §§1-344). The code of criminal procedure of 1881 (§1974 Burns 1901, §1901 R. S. 1881) provides in express terms that all prosecutions pending when said act took effect should be continued to final termination under the provisions of said act. It was under this provision that it was held in the cases of Robinson v. State, supra, and McCalment v. State, supra, that said offenses, although committed under former statutes, were governed, as to procedure, by the criminal code of procedure of 1881. There is no such provision in the act of 1905, supra, and offenses committed under former laws are governed as to procedure by such laws, by virtue of §699 of said act of 1905. Therefore no reversible error was committed in overruling said supplemental motion for a new trial. Willis v. State, supra; Sturm v. State, supra. Judgment affirmed.

STATE v. NEW.

[No. 20,654. Filed December 5, 1905.]

1. APPEAL AND ERROR.-Erroneous Ruling Precedent.-Transfer. -Where the Appellate Court thinks that a ruling precedent of the Supreme Court is erroneous, the cause will be transferred to such court with a recommendation to overrule such precedent. p. 572,

State v. New-165 Ind. 571.

2. INDICTMENT AND INFORMATION.-Charging in Language of Statute. An indictment charging a criminal offense in the language of the statute is sufficient. p. 573.

3. STATUTES. Separate Offenses. — Horse-Racing. — Criminal Law. Section 2280 Burns 1901, $2159 R. S. 1881, creates two offenses: (1) Knowingly suffering one's horse, mare or gelding to be run in a horse-race on a public highway, and (2) acting as rider in a horse-race on a public highway. p. 573. 4. INDICTMENT AND INFORMATION. - Criminal Law. - HorseRacing.-Venue.-An indictment charging that defendant at H. county "did then and there unlawfully act as a rider in a certain horse-race along the public highway then and there situate" sufficiently shows such highway to be in H. county, and being in the language of the statute ($2280 Burns 1901, §2159 R. S. 1881), is sufficiently specific. Myers v. State, 1 Ind. 251, overruled. p. 574.

From Hancock Circuit Court; Edward W. Felt, Judge. Prosecution by the State of Indiana against Thomas H. New. From a judgment quashing the affidavit, the State appeals. Transferred from Appellate Court (see State v. New, 36 Ind. App. 521) under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10. Reversed.

Charles W. Miller, Attorney-General, Charles L. Tindall, Prosecuting Attorney, and W. C. Geake, for the State. William A. Hough, for appellee.

HADLEY, J.-Section 2280 Burns 1901, §2159 R. S. 1881, reads thus: "Whoever knowingly suffers his horse, mare, or gelding to be run in a horse-race along any public highway in this State; and whoever acts as a rider in any such race, on being convicted, shall be fined not more than $50 nor less than $5."

Under the statute appellee was convicted by the mayor of Greenfield upon an affidavit charging that said Thomas H. New on the day of February, 1905, at Han1. cock county, Indiana, did then and there unlawfully

act as a rider in a certain horse-race along the public highway then and there situate. From the judgment of con

State v. New-165 Ind. 571.

viction appellee appealed to the circuit court, where he successfully moved to quash the affidavit. The State appealed to the Appellate Court, which latter court, having considered the appeal, certified the case to this court under subd. 2, §1337j Burns 1901, Acts 1901, p. 565, §10 (State v. New [1905], 36 Ind. App. 521) with a recommendation that we overrule the decision in Myers v. State (1848), 1 Ind. 251. In that case this court held that an indictment charging a similar offense in substantially the same words "was too loose and vague to be considered sufficient." It was 2. said by this court, in State v. Bougher (1833), 3 Blackf. 307, that "No rule is better settled than that which regards as sufficient in an indictment, the averment of an offense in the language of a statute." The substance of the rule here mentioned has since been reaffirmed by this court a great many times. See collection of cases in note to Gillett, Crim. Law (2d ed.), $132a. See, also, State v. Beach (1897), 147 Ind. 74, 36 L. R. A. 179; State v. Darlington (1899), 153 Ind. 1; Johns v. State (1902), 159 Ind. 413. In the latter case it is said: "If a criminal stat

ute provides a definition of an offense, and states specifically what acts constitute it, it will suffice to charge the offense in the language of the statute."

The statute now in force ($2280, supra) is in substance a reënactment of the statute of 1843 (R. S. 1843, p. 982, §103), under which Myers v. State, supra, was de3. cided, and, it will be observed, clearly defines two

offenses: (1) Knowingly suffering one's "horse, mare, or gelding to be run in a horse-race on any public highway;" and (2) acting "as a rider in a horse-race on a public highway." State v. Ness (1848), 1 Ind. 64; Robb v. State (1875), 52 Ind. 216.

The affidavit under consideration follows the language of the statute defining the particular offense, to wit, "did

Lake Erie, etc., R. Co. v. McFall-165 Ind. 574.

then and there unlawfully act as a rider in a certain 4. horse-race along the public highway then and there situate." The description of the highway as being then and there in Hancock county is sufficient. Keith v. State (1883), 90 Ind. 89; State v. Burgett (1849), 1 Ind. 479.

None of the exceptions noticed in Johns v. State, supra, apply here, and we perceive no reason why the case is not fully within the general rule.

The opinion in Myers v. State, supra, is expressed in three lines, and may have been inadvertently pronounced, or there may have been other averments in the indictment, not mentioned, that removed the case from the operation of the general rule under review. However it may be, the opinion therein expressed can not be accepted as authority in a case like the one before us, and, so far as it may be regarded as declaring the law contrary to that herein expressed, the same is overruled in accordance with the recommendation of the Appellate Court.

For reasons already stated the judgment in this case is reversed, and cause remanded, with instructions to overrule the motion to quash the affidavit, and for further proceedings not inconsistent with this opinion.

LAKE ERIE & WESTERN RAILROAD COMPANY

v. MCFALL.

[No. 20,437. Filed December 7, 1905.] 1. PLEADING. - Complaint. Railroads. - Negligence. Setting Fires.-A complaint alleging that defendant railroad company negligently failed to use "safe and sufficient spark-arresters or other appliances to prevent the emission of sparks" and negligently run its train with a high and unnecessary head of steam, thereby causing the engine to throw out unusually large sparks and coals of fire, setting plaintiff's barn on fire and destroying

Lake Erie, etc., R. Co. v. McFall-165 Ind. 574.

it, sufficiently shows negligence in the operation of the locomotive and negligence in permitting fire to escape and destroy plaintiff's barn, "safe" and "sufficient" being relative terms, and "prevent" being equivalent to hinder, check or retard. p. 579. 2. PLEADING.-Complaint.-Theory.-The complaint in a cause will be considered on the theory given it on the trial below. `p. 579.

3. SAME.-Negligence.—General Averment.—Where a complaint sets out the facts from which defendant's duty arises, a general averment relative to what was negligently done or omitted is sufficient. p. 579.

4. SAME.-Negligence.-Omission of Facts on which Predicated. -Motion to Make Specific.-A complaint which fails to set out the facts on which negligence is predicated is bad, and is not within the rule that a merely indefinite charge must be reached by motion to make more specific. p. 580.

5. SAME. Complaint.-Railroads.-Setting Fires.-The setting of a fire outside of the railroad's right of way by a locomotive being a positive wrong, the complaint must show a negligent management of such locomotive. p. 580.

6. SAME.-Allegations.—Form.—Allegations in a pleading must be direct and positive and not by assumption of the facts. p. 581. 7. SAME. Complaint.-Railroads.-Setting Fires across Right of Way.-A complaint against a railroad company for setting fires outside of its right of way, which fails to allege that the emission of sparks and coals was negligently done or suffered, is bad, every possible presumption being in favor of the company. p. 581.

8. SAME. Complaint.-Railroads.-Setting Fires across Right of Way.-A complaint against a railroad company for setting fires outside of its right of way, which alleges negligence only in the rate of speed, is bad. p. 582.

9. APPEAL AND ERROR.--Overruling Demurrer to Bad Paragraph. -Judgment on All.-The overruling of a demurrer to a bad paragraph of complaint is reversible unless it affirmatively appears that the judgment rests wholly upon the good ones. p. 582. 10. SAME.-Judgment Resting on Good and Bad Paragraphs of Complaint.-Interrogatories.-Where a cause is tried on good and bad paragraphs of a complaint, the presumption is that the judgment is affected by the bad paragraphs, and answers to the interrogatories will not repel this presumption unless they clearly show that the judgment rests exclusively on the good p. 583.

ones.

From Hamilton Circuit Court; William S. Christian, Special Judge.