The Indianapolis and Vincennes R. R. Co. v. McCaffrey.

December 2d, 1875, immediately before the killing of said William McCaffrey?

"Ans. He did."

The defendant moved the court to render judgment in its favor on the answers to interrogatories, notwithstanding the general verdict for the plaintiff, but the court overruled the motion and rendered judgment for the plaintiff on the general verdict, and the defendant excepted.

No motion was made for a new trial, though the motion for judgment on the answers to interrogatories did not preclude such motion. Brannon v. May, 42 Ind. 92.

We think we cannot say, upon what appears in the record, that the court erred in overruling the motion for judgment on the answers to interrogatories. We do not think that all the facts necessary to justify the rendition of such judgment appear in said answers, there being no negation of the residue of other possible facts; nor that the repugnancy between the general verdict and those answers is such that it could not, by possibility, have been removed by evidence legitimately admissible under the issues in the cause. Campbell v. Dutch, 36 Ind. 504, and cases cited; Comer v. Himes, 49 Ind. 482.

The interrogatories and answers, as will be manifest to any one on reading them, do not bring out the facts of the case with the fulness and certainty required to enable this court to judge correctly of its merits. Such being the case, we must respect the judgment of the court below, which had heard all the evidence. It may have appeared that Mrs. McCaffrey was not with her son, and that some extraordinary exigence justified the sending him alone across the street. No question is presented by the record which authorizes this court to consider the evidence; and perhaps such a question could not have been got into the case. Two new trials had been granted. See 2 R. S. 1876, p. 182; Shirts v. Irons, 47 Ind. 445. . The judgment is affirmed, with costs.

Hutchinson v. The State.

HUTCHINSON v. THE STATE.

CRIMINAL LAW.-Larceny.-Goods Stolen in one County Carried Into Another.-Indictment.-At the September term, 1878, of a circuit court, the proper grand jury found an indictment, charging the defendant with having committed a larceny in an adjoining county, "on the 15th day of May, 1878," and with having brought the stolen goods into the county where the indictment was found, "on the 16th day of May, 1876."

Held, that the indictment is insufficient, on motion in arrest.

From the Floyd Circuit Court.

J. H. Stotsenburg and J. V. Kelso, for appellant.
T. W. Woollen, Attorney General, for the State.

BIDDLE, J.-The appellant was indicted at the September term, 1878, of the Floyd Circuit Court, for grand larceny, in the following words:

"The grand jurors for the county of Floyd, and State of Indiana, upon their oaths present, that, on the 15th day of May, A. D. 1878, at the county of Clarke, and State of Indiana, James Hutchinson, one dark red steer, of the value of twenty-five dollars, the personal property of one Thomas B. Jacobs, then and there being found, did then and there unlawfully and feloniously steal, take and carry away, and afterwards, to wit, on the 16th day of May, 1876, he, the said James Hutchinson, brought the said property, feloniously stolen, taken and carried away as aforesaid, into the county of Floyd, and State of Indiana, contrary to the statute in such case made and provided."

Upon this indictment the appellant was tried and convicted. He moved in arrest of judgment upon the following grounds:

1. That the grand jurors who found the indictment had no legal authority to inquire into the offence charged, by reason of its not being within the jurisdiction of the court; 2. That the facts stated do not constitute a public offence.

Hutchinson v. The State.

The motion was overruled, and exceptions reserved. Final judgment was then pronounced against the appellant. Appeal.

It is patent upon the face of the indictment, that the larceny is charged to have been committed in Clarke county, on the 15th day of May, A. D. 1878, and the crime continued by bringing the property into Floyd county, on the 16th day of May, 1876. This discrepancy in dates renders the commission of the crime incongruous, and, indeed, impossible; for the appellant could not steal the steer in Clarke county in May, 1878, and, after the larceny, bring him into Floyd county in May, 1876. Besides, the allegation of bringing the steer into Floyd county, which alone can give the Floyd Circuit Court jurisdiction over the offence, and the grand jury of Floyd county the legal authority to present the indictment, shows that the offence is barred by the statute of limitations. The precise time of the commission of the offence need not be stated in the indictment, but it must be shown to have been committed within the statute of limitations. 2 R. S. 1876, p. 384, sec. 56. Indeed, when the grounds of arrest appear on view, the court may arrest the judgment without motion. 2 R. S. 1876, p. 410, sec. 145; Reams v. The State, 23 Ind. 111; The State v. Noland, 29 Ind. 212; Mullen v. The State, 50 Ind. 169; Buckner v. The State, 56 Ind. 207; Shelton v. The State, 1 Stew. & Port. 208; The State v. MaGrath, 19 Mo. 678.

It appears to us that the indictment upon its face shows, that the Floyd Circuit Court had no jurisdiction over the offence charged, and that the grand jury of Floyd county had no legal authority to present it, by reason of its not being within the jurisdiction of the court. The time at which it is averred that the appellant brought the stolen property into Floyd county, in reference to the time at which it is averred that the property was stolen in Clarke county, being impossible, it is as though no time was al

Stearns et ux. v. Irwin, Administrator.

leged as to the latter averment; and, this averment rejected, the indictment simply shows that the grand jury of Floyd county presented an indictment for a larceny committed in Clarke county.

The judgment is reversed, and the cause remanded, with instructions to sustain the motion in arrest of judgment. The clerk will make the proper order for the return of the prisoner.

STEARNS ET UX. v. IRWIN, ADMINISTRATOR.

PRINCIPAL AND SURETY.-Action by Surety Against Principal.-Before a surety can recover of his principal because of his suretyship, he must first have paid the debt of his principal or some part thereof.

SUPREME COURT.-New Trial.- Truth of Alleged Error.-The truth of matter alleged as ground for a new trial must appear by the record, to make the overruling of such motion available as error, in the Supreme Court.

From the Franklin Circuit Court.

F. Berry, W. Morrow and N. Trusler, for appellants.
F. S. Swift and B. F. Davis, for appellee.

NIBLACK, J.—This was an action by Thomas Irwin, administrator of the estate of Azariah T. Irwin, deceased, against Adam C. Stearns and Mariah J. Stearns, his wife, to foreclose a mortgage executed by them on a tract of land, to secure the payment of a promissory note given by the said Adam C. Stearns to the said Azariah T. Irwin, for one thousand seven hundred dollars.

The defendants answered in four paragraphs, each admitting the execution of the note and mortgage, but setting up matters in avoidance.

The first paragraph, that five hundred dollars of the consideration of the note and mortgage was, by agreement of parties, held by the said Azariah T. Irwin as collateral

Stearns et ux. v. Irwin, Administrator.

security, to secure him, said Irwin, on account of his being surety for that sum to one Thomas Osborn for the said Adam C. Stearns, and that the said Azariah T. Irwin had never paid said sum of five hundred dollars, or any por tion thereof.

The second paragraph was an answer of payment in full, except as to five hundred dollars of the note, which was alleged to be without consideration.

The third paragraph set up that a part of the consideration of the note was, that the said Azariah T. Irwin was to become surety for the said Adam C. Stearns for the sum of five hundred dollars, which he failed to do; wherefore it was alleged that the consideration of said note, as to five hundred dollars, had failed.

The fourth paragraph alleged full payment of the note, before the commencement of the suit.

The plaintiff replied in denial of each paragraph of the

answer.

A trial by a jury resulted in a verdict for the plaintiff for nine hundred and seventy-eight dollars and fifty cents, and, over a motion for a new trial, a judgment was rendered against the defendant Adam C. Stearns, on the note, for the amount of the verdict, and a decree of foreclosure entered against both the defendants, on the mortgage.

The appellants complain in this court, that the court below, on the trial, charged the jury, in substance, that the appellee was entitled to recover the five hundred dollars surety debt, referred to in the appellants' answer to the action, without having first paid said debt or in any other way discharged the appellant Adam C. Stearns therefrom. In other words, that a surety can recover of his principal the debt for which he is surety, without having first paid the debt, or otherwise having discharged the principal from it, and that is the only objection urged here to the proceedings below by the appellants in their brief.