The Adams Express Co. v. Black et al. The court refused to give this instruction as asked, but modified the same so that it read as follows: 'Payment of the exact amount due on one of two bills is a circumstance you may consider in determining whethe there was a direction to apply on the bill, the exact amount of which is paid." The court gave the jury this instruction, as modified, and to the refusal of the court to give the instruction as asked the appellant excepted, and excepted also to the giving of the instruction as modified. It seems clear to us, that the court did not err in refusing to give the instructions as asked for by the appellant. The payment of the exact sum due on one of two bills of different amounts can not be regarded of itself as a direction to apply on the bill, the exact amount of which is paid. But we do not think that the instruction, as modified by the ourt and given to the jury, contained a fair and correct statement of the law applicable to the case made by the evidence. It was not claimed in this case, that, at the time of the payment of said sum of fifteen dollars, the appellant, or its agent, Thomson, or the agent's step-son, Theirkoff, who made such payment, gave any direction for the application or appropriation of such payment. The question for the jury, therefore, was, not whether there was a direction given to apply the payment on the particular bill, for there was no direction given. But the question for the jury was, what was the appellant's intention in making such payment at the time it was made, as shown by the facts and circumstances attending such payment, as to its application or appropriation to the payment of the particular bill, the amount of which it would exactly pay? Where, as in this case, the payment made would exactly pay the sum due on one of two bills, and such payment would largely overpay the sum due on the other of said two bills; these are circumstances which, in the absence of Kennedy v. The State. express direction, the jury might well consider in determining whether or not it was the intent and purpose of the debtor, in making such payment, to apply or appropriate the same on the one of said two bills, which it would exactly pay. If such were the debtor's intent and purpose in making such payment, as shown by the facts and circumstances thereof, it is clear, we think, that, even in the absence of express direction, the creditor would be bound thereby and could make no other or different application of such payment. In our opinion, therefore, the court erred in giving the jury the said modified instruction. The conclusion we have reached in regard to the instructions complained of renders it wholly unnecessary for us to consider or decide the other questions presented by the appellant's counsel. Those questions are questions of fact rather than of law, and they may not arise again on another trial. For the reasons given we think that the court erred in overruling the appellant's motion for a new trial. The judgment is reversed, at the appellees' costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings in accordance with this opinion. KENNEDY V. THE STATE. CRIMINAL LAW.-Indictment.-Name.-Surplusage.-An inconsistent or repugnant clause or averment, concluding an indictment, such as a misnomer of the defendant, should be treated as mere surplusage, when the other averments of the indictment clearly and sufficiently charge the defendant with the commission of a crime. SAME.-Murder.-Verdict Fixing Illegal Punishment.— Supreme Court.Judgment.-Where, on the trial of a defendant indicted for murder, the Kennedy v. The State. jury return a verdict of guilty as charged in the indictment, fixing the punishment at imprisonment in the state-prison, and assessing a fine, the latter should be disregarded by the court in rendering judgment. And if, in such case, judgment be rendered in accordance with the verdict, the Supreme Court may affirm the judgment of imprisonment and reverse the same as to the fine, by directing the court below to strike the same out. From the Marion Criminal Circuit Court. C. H. Test, J. Coburn and E. E. Bassett, for appellant. C. A. Buskirk, Attorney General, J. E. Heller, Prosecuting Attorney, and A. F. Ayres, for the State. PERKINS, J.-An indictment as follows was returned against John Kennedy: "The grand jurors for the county of Marion, and State of Indiana, upon their oath present, that John Kennedy, on the 16th day of October, A. D. 1876, at and in the county of Marion, and State aforesaid, did then and there unlawfully, wilfully, feloniously, purposely and with premeditated malice, in and upon one Clarence Hensley make an assault; and that the said John Kennedy, a certain pistol then and there charged with gunpowder and one leaden bullet, then and there wilfully, unlawfully, feloniously, purposely and with premeditated malice, did discharge and shoot off, to, against and upon the body of the said Clarence Hensley; and that the said John Kennedy, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by the force of the gunpowder aforesaid, by the said John Kennedy discharged and shot off as aforesaid, then and there unlawfully, feloniously, wilfully, purposely and with premeditated malice, did strike, penetrate and wound the said Clarence Hensley in and upon the breast of the said Clarence Hensley, giving to the said Clarence Hensley, then and there, with the leaden bullet aforesaid, from the pistol charged and shot off as aforesaid, by the said John Kennedy, in and upon the breast of the said Clarence Hensley, one mortal wound, of the depth of six inches and of the breadth of one quarter Kennedy v. The State. of an inch, of which said mortal wound the said Clarence Hensley then and there died. "And so the jurors aforesaid, upon their oath aforesaid, do say that the said Frank Kennedy, the said Clarence Hensley, in the manner and by the means aforesaid, unlawfully, feloniously, wilfully, purposely and with premeditated malice, did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana." A motion to quash the indictment was overruled. Upon arraignment, the defendant pleaded not guilty. The trial by a jury of the issues thus made resulted in the conviction of the defendant of murder in the second degree. A motion for a new trial was overruled. The jury found "the defendant guilty of murder in the second degree, as charged in the indictment, and that he be fined in the sum of one dollar, and be imprisoned in the state-prison for the period of his natural life." Errors are assigned. Counsel for appellant, in their brief, make and argue three points: 1. That the indictment is bad; 2. That the verdict is not justified by the evidence ; 3. That the sentence and judgment of the court against the defendant are void. The objection to the indictment is, that the last clause of it is repugnant to the previous portion, in stating that "the said Frank Kennedy" was guilty of the murder shown in the indictment to have been perpetrated by John Kennedy. The indictment is unnecessarily prolix. It was complete in its charges of the murder, without the addition of the last clause, commencing with the words, "And so the jurors aforesaid," etc. That clause was mere Kennedy v. The State. surplusage. See Bicknell Crim. Pr., pp. 256, 257. It is manifest to any reader of the indictment that the word "Frank," in the last clause, is a mere clerical error. The repugnancy complained of is in the portion of the indictment which is surplusage. This fact brings the case clearly within the following provisions of the statute: "No indictment or information may be quashed or set aside for any of the following defects: * * "Sixth. For any surplusage or repugnant allegation, when there is sufficient matter alleged to indicate the crime and person charged; nor, "Seventh. For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." 2 R. S. 1876, p. 386, sec. 61. Counsel claim that the evidence did not justify a verdiet for murder in the second degree, but only for manslaughter; that the killing was done upon a sudden heat engendered by a quarrel. We have read the evidence. It fully sustains the verdict. Kennedy had a quarrel with Christina Hensley, but not with the deceased, of a character that would reduce the killing to manslaughter. Murphy v. The State, 31 Ind. 511, is in point. We proceed to the third and last ground relied upon for a reversal of the judgment. That part of the verdict and of the judgment which found and adjudged that the defendant should pay a fine of one dollar is illegal. 2 R. S. 1876, p. 426. The court in rendering its judgment should have disregarded that portion of the verdict and rendered judgment upon the balance. Veatch v. The State, 60 Ind. 291. But it did not; and the question now is, can this court affirm the judgment, except as to this one dollar, and reverse as to that? It ought to have power to do so. It would promote public justice and work no possible harm to the defendant (the appellant), if it should do so. It |