Sanders v. State. must be some power to grant relief, and some remedy by which i can be secured. The practice in cases similar to this is unsettled (we have found no case exactly like it), and we think that the rule indicated by Mr. Bishop is the correct one. "When a proceeding," says this author, "is entirely fraudulent, having no sound part whatever, there is no collateral or direct effect to be given it; it is as though it had not been; only a party to the fraud is not permitted to rely on this imperfection. But practically most frauds relate only to some particular in the proceeding, not vitiating, therefore, the whole." 1 Bish. Crim. Law, § 1011. The fraud in this case extends only to the plea and subsequent proceedings, and the appellant may therefore be rightfully put to trial upon the original indictment. It is the general rule, that in order to sustain a verdict in a criminal case, there must be a plea. In Johnson v. People, 22 Ill. 314, it is said: "But it is believed that the practice is uniform, both in England and this country, in requiring the formation of an Without it there is issue to sustain a verdict. nothing to be tried Hoskins v. People, 84 id. 87; s. c., 25 Am. Rep. 433. This is the doctrine of our own cases. Tindall v. State, 71 Ind. 314; Graeter v. State, 54 id. 159; Fletcher v. State, id. 462. The rule goes so far as to declare that an arraignment is essential, and that until there has been an arraignment, the case is not ripe for trial. Fletcher v. State, supra; Weaver v. State, 83 Ind. 289; Regina v. Fox, 10 Cox C. C. 502. No jeopardy attaches until the case is ripe for trial and the trial actually entered upon; and here the case was not ripe for trial, because the plea extorted from the appellant was null, and he was therefore not in legal jeopardy. The proceeding adopted by the appellant is, in its general features, and in its consequences, closely analogous to a motion for a new trial, and as a defendant, who takes a new trial granted at his own request, cannot claim that the finding set aside constitutes a prior jeopardy, he cannot do so in a proceeding like this. Veatch v. State, 60 Ind. 291. We do not deem it necessary to discuss the question of the appellant's insanity at the time the plea of guilty was entered. There are cases holding that such a cause will support a motion for a writ coram nobis, or some proceeding of like character. Adler v. State, supra; State v. Patten, 10 La. Ann. 299; 1 Whart. Crim. L., 52, Sanders v. State. note r; 1 Bish. Crim. L., § 396, auth. n.; McClain v. Davis, 77 Ind. 419. All we deem it necessary to say upon this point is, that if the court below has determined this question before receiving the plea, an appellate court should be slow to interfere, if it indeed should interfere at all, and should only do so upon clear and convincing evidence. The question of the appellant's capacity is however a circumstance of importance to be taken into consideration, in connection with his conduct when a plea was entered, as this was, under circumstances threatening great and immediate peril. Ewell Lead. Cas. 771. The case comes to us upon uncontradicted evidence that the plea of guilty was not the voluntary act of the accused, but was induced by fear of violence. There is no necessity therefore for another trial, upon this issue of fact. The fact of the existence of unlawful and violent compulsion, which deprived the appellant of freedom of will and liberty of action, is settled, and settled without contrariety of evidence or conflict of testimony, and upon that issue nothing remains for trial. With the undisputed facts before us, the only course open to us is to pronounce judgment of law upon the facts thus established. If the State had made an issue of fact, or offered opposing evidence, then another trial would have been necessary. It is no doubt true that the State may make an issue of fact by controverting the allegations in the motion of the accused, or by offering opposing evidence, and in the event that an issue of fact is joined or presented it is to be tried as other issues of fact are tried. Where however, as here, the State offers no evidence, and makes no denial, and the evidence of the accused is uncontroverted, there is no necessity for a trial. We have decided the case upon the motion and evidence adduced in its support, and not upon the demurrer to the complaint. Judgment reversed, with instructions to vacate the judgment upon the indictment against the appellant; to permit him to withdraw the plea of guilty, and plead to the indictment; to put him upon trial in due form of law upon the indictment preferred against him, and for further proceedings in accordance with this opinion. The clerk will issue the proper order for the return of the appellant. Petition for a rehearing overruled. VOL. XLIV -6 So ordered. Dunlap v. Wagner. DUNLAP V. Wagner. (85 Ind. 529.) Tort-proximate cause. The defendant, an unlicensed liquor seller, on Sunday, in violation of the statute, furnished D. intoxicating liquor to drink, upon which D. became intoxicated and unconscious. The defendant put D. in this condition into his vehicle, drawn by a gentle horse which he had borrowed of the plaintiff; and by reason of his intoxication and inability to manage the horse, it ran away and was killed. Held, that an action would lie for its value. A CTION to recover the value of a horse. The opinion states the case. The defendant had judgment. G. W. Cooper, and Burns, for appellant. N. R. Keyes, for appellee. ELLIOTT, J. The appellant was the owner of a gentle horse which he lent to Charles Dunlap, who hitched it with another, of like docile disposition, to a sleigh, and on Sunday, January 9, 1878, drove to the appellee's place of business; the latter, although not licensed as a retail liquor seller, kept intoxicating liquors for sale, and at the time named did sell and gave to Dunlap liquor in less quantities than a quart, and suffered him to drink it on his, appellee's, premises; the liquor so supplied Dunlap produced intoxication so great as to cause unconsciousness; while in this state, and incapable of controlling the horses, Dunlap was placed in the sleigh, and the horses started homeward by the appellee; because of the inability of Dunlap to manage the horses, an accident occurred which frightened them and they ran away, and appellant's horse received such injuries as caused its death. The appellee violated the law in selling liquor to Charles Dunlap, for the law prohibits the sale of liquor on Sunday, and also forbids its sale in less quantities than a quart by unlicensed dealers. He was therefore a wrong-doer, and wrong-doers are responsible for injuries proximately resulting from their wrongful acts. A man who in violation of law makes another helplessly drunk, and then places him in a situation where his drunken condition is likely to Dunlap v. Wagner. bring harm to himself or injury to others, may well be deemed guilty of an actionable wrong independently of any statute. But we have a statute which provides that every person shall have a right of action for an injury resulting to person or property against one who shall, by selling intoxicating liquors to another, have caused the intoxication of the person by or through whom the injury is done. R. S. 1881, § 5323. It is plain that a right of action exists against one who makes another drunk, for the recovery for such injuries as are done by the intoxicated person, "on account," as the statutory phrase runs, "of the use of such intoxicating liquors." The right of action exists only in cases where the injury is the natural and proximate result of the wrong done in making drunk the person by whom it is caused, and the material inquiry is, whether the injury of which this appellant complains was the proximate and natural result of the appellee's wrongful act. It is to be observed that the fact that Charles Dunlap was placed in charge of the horses is conceded by the demurrer, and the case is therefore that of one placing a man whom he has made helplessly drunk in a situation where injury might result to the property in his possession because of his incapacity to manage and care for it. We assume that horses require the management of an intelligent person in reasonable control of his mental faculties and physical powers, and this we do for the reason that all persons are presumed to know the natural and ordinary propensities and dispositions of such animals. Whart. Neg., § 100; Shear. & Redf. Neg., § 188; Billman v. Indianapolis, etc., R. Co., 76 Ind. 166; s. c., 40 Am. Rep. 230. If then horses need the control of one in possession of his faculties, the man who deprives another of the possession of them, and puts him in control of such animals, does an act which is likely to result in injury. It is true that the injury resulting from the wrong complained of must be such as might have been reasonably foreseen and provided against, but it is by no means necessary that the precise injury which actually resulted should have been foreseen; for it is sufficient if it was of such a general nature as was likely to result from the act of the wrong-doer. It is never essential that it should be made to appear that the precise injuries which did occur could have been foreseen; it is enough, as Mr. Thompson says, if they are "such as are usual, and as therefore might have been expected." Dunlap v. Wagner. 2 Thomp. Neg. 1083, n.; Billman v. Indianapolis, etc., R. Co., supra; Binford v. Johnston, 82 Ind. 426; s. c., 42 Am. Rep. 509. A late writer says: "If his" (the wrong-doer's) "act has a tendency to injure some person of the general public, or many persons, and finally does, in the manner which was beforehand probable, cause such injury, it is proximate." 1 Sutherland Dam. 28. There are cases bearing upon the precise question before us and we turn to them. In one of our own cases, Schlosser v. State, ex rel., 55 Ind. 82, a complaint, charging that the husband was made drunk and thereby caused to beat his wife and neglect to provide for her, was held good, and in support of this ruling the cases of Fountain v. Draper, 49 Ind. 441; Barnaby v. Wood, 50 id. 405, and English v. Beard, 51 id. 489, were cited by the court. In the last of these cases it was held that the seller was liable to one who was assaulted and beaten by the intoxicated person. It needs no argument to show that the injury which this appellant suffered was much more direct and proximate than that sustained by the person upon whom the drunken man committed the assault and battery; for that horses left free from control are more likely to run away and do mischief than a drunken man to commit a crime, is very evident. In Mead v. Stratton, 87 N. Y. 493; s. c., 41 Am. Rep. 386, the defendant was the keeper of a hotel; the deceased bought liquor, drank it, and became so much intoxicated that he was helped into his buggy; he fell from it on his way and was killed, and it was held that his widow might have her action. The action was held maintainable in a case where a son was made intoxicated and in this condition so drove his father's horse as to greatly injure it. Bertholf v. O'Reilly, 8 Hun, 16. This case was affirmed in Bertholf v. O'Reilly, 74 N. Y. 509; s. c., 30 Am. Rep. 323. A like principle was involved and decided in Aldrich v. Sager, 9 Hun, 537, where a son-in-law, wrongfully made drunk, so recklessly drove a team as to cause the wagon to which they were attached to be upset, and his mother-in-law, who was with him in the wagon, to be injured. The case of Volans v. Owen, 9 Hun, 558, is in principle the same as those cited. The Supreme Court of Ohio goes very far upon this question as is proved by the cases of Duroy v. Blinn, 11 Ohio St. 331, and Mulford v. Clewell, 21 id. 191. Damages may be recovered for property squandered or destroyed by the intoxicated man, according to the rule declared in Iowa and Michigan. Woolheather v. Risley, 38 Iowa, 468; Hemmens v. |