Imágenes de páginas

Ritter v. The State.

■89 Ind. 204. This objection to the indictment, if it be one, is not made by appellant, and, therefore, is not considered. See, on the subject of such objection, Jones v. State, 59 Iud. 229.

Under the alleged error of the court below in overruling appellant's motion for a new trial, it is claimed by his counsel that the verdict of the jury was not sustained by sufficient evidence. We are of opinion, however, that the evidence in the record makes a stronger and more certain case of embezzlement against appellant, as the offence is denned in our statute, than the case stated in the indictment herein. There is no room for doubt, under the evidence, that appellant was an employee of John McCarter in a particular capacity and for a specific purpose; that as such employee, and by reason of his employment, appellant was entrusted by McCarter with the sum of money named in the indictment, in furtherance of the purpose for which he was employed; and that he never applied the money to such purpose, nor accounted for it in any way, but he disappeared from Elkhart county and was not seen or heard of by McCarter, who was interested in finding him, for about three months.

Appellant was a witness on the trial, but his account of the transaction was inconsistent and improbable, and was oontradicted by the testimony of other witnesses. Manifestly the jury did not believe appellant's testimony, and they were the exclusive judges of the credibility of the witnesses, and of the weight and value of the evidence.

We can not disturb the verdict on the evidence. On every material point necessary to the conviction of appellant there is evidence in the record which fairly tends to sustain the verdict. In such a case it is settled by our decisions that, even in a criminal cause, the verdict will not be disturbed here, nor the judgment be reversed, merely on the weight or sufficiency of the evidence. Clayton v. State, 100 Ind. 201; Hudson v. State, 107 Ind. 372; Garrett v. State, 109 Ind. -527.

Moore, Trustee, v. Campbell.

We have carefully considered all the matters complained of here in the exhaustive brief of appellant's counsel, and our conclusion is that there is no error in the record of thiscause which authorizes or requires the reversal of the judgment.

The judgment is affirmed, with costs.
Filed June 23, 1887.

Ill *»

118 79 ^_

No. 12,900.

Moore, Trustee, V. Campbell.

Contract.Condition.Construction.Promise to Pay Money Upon Completion of Railroad to Certain Points.—The instrument sued on provided that the money sought to be recovered should become due and payable when a railroad should be built by a named company, and cars should be run from Kirklin, in Clinton county, to Carmel, in Hamilton county. It was further provided, that if said company should not construct said railroad from the former to the latter place and run a train of cars "to within one-fourth of a mile of Carmel .within one year from this date, in Hamilton county, Indiana, and also to Indianapolis, in Marion county, Indiana, then this note shall be void."

Held, that there can be no recovery on the promise, unless the railroad was completed to both Carmel and Indianapolis within one year from the date of the instrument.

From the Marion Superior Court.

8. M. Bruce, for appellant.

W. Wallace and L. Wallace, for appellee.

Elliott, J.—The question presented by the record in this case arises on a written promise executed by the appellee containing, among others, these provisions: "The said sum of two hundred dollars shall become due and payable when the Louisville, New Albany and Chicago Railway Company shall have built a railroad and run a train of cars from Kirklin, in Clinton county, Indiana, to Carmel, in Hamilton Moore, Trustee, v. Campbell.

county, Indiana. And if said company shall not construct said railroad from Kirklin, in Clinton county, Indiana, to Carmel, in Hamilton county, Indiana, and run a train of cars to within one-fourth of a mile of the town of Carmel within one year from this date, in Hamilton county, Indiana, and also to Indianapolis, in Marion county, Indiana, then this note shall be void."

We think that the superior court was clearly right in holding that there could be no recovery on the promise unless the railroad was completed to Carmel and to Indianapolis within one year. The words "and also to Indianapolis" are to be taken in connection with what precedes them, and thus taken, there can be no doubt that the condition was that two things should be done within one year, namely, huild the railroad to Carmel, and to Indianapolis. The words "and also" add to what the preceding words stipulated, and required that the two things specified should be done. It was not enough to do one of them; both must be done.

The words "and also to Indianapolis" can not be treated as mere surplusage, as counsel contends, for they are free from obscurity, are not inconsistent with any other part of the instrument, but, on the contrary, add an important element to the contract.

It is an elementary rule that all the words of a contract are to be given effect, unless the context very decisively shows that they are to be disregarded, and the courts will not declare words to be meaningless except in very clear cases.

Judgment affirmed.

Filed June 22, 1887.

Ferrier v. Deutchman.
No. 11,113.

Ferrier V. Dedtchman.

Sheriff's Sale.Void Judgment.—Where a judgment is void all proceedings thereunder, including a sale, are also void.

Same.Sale Made Under Several Judgments, Some Valid and Some Void.—A sale made under several judgments, some of which are void and the others valid and regular, is nevertheless void.

Judgment.Costs.Criminal Law.Jurisdiction.Dismissal of Appeal.—A judgment for costs rendered against the defendant in a criminal prosecution, upon dismissal by a court having no criminal jurisdiction, is void.

From the Clark Circuit Court.

M. C. Hester, for appellant.

D. C. Anthony and J. K. Marsh, for appellee.

Zollars, C. J.—Appellant brought this action to recover from appellee the real estate in controversy. He claims to be the owner, and entitled to the possession of the real estate, by virtue of a sheriff's deed based upon a sheriff's sale. Whether he has such right and title is dependent in the first place upon the validity or invalidity of the judgments under which the sale was made. If the judgments were void, all subsequent proceedings, including the sale under them, were also void. Marsh v. Sherman, 12 Ind. 358; Rorer Judicial Sales, sections 608, 879, 880, 910, 913, 927, 934.

The sheriff's sale was made under judgments for costs in four different cases. Three of them were criminal cases. If the judgment in one of the criminal cases was void all were void, as they were all alike. An examination of one of those cases, therefore, will be sufficient.

Appellant proposed to prove the existence and validity of those judgments by introducing in evidence the files and order-book entries of the common pleas court of Clark county. The files in one of the cases, so offered, as the record here presents them, are as follows:

Ferrier v. Deutchman.

"State Op Indiana v.

"martin Deutchman.

"August 5th, 1870, this cause came before me on a change of venue from James Wilson, a justice of the peace of Charleston township, and a transcript of the proceedings before said justice, and the papers in said cause were filed before me, and the trial of said cause set for the sixth inst., at 9 o'clock A. M.

"August 6th, 1870. Come now the parties and the defendant pleads not guilty to said complaint, and on hearing the evidence, I find the defendant guilty as charged in said complaint, and assess his fine at ten dollars. It is, therefore, considered that the defendant make his fine to the State of Indiana in the sum of ten dollars, and pay the costs of this prosecution, and stand committed until said fine and costs are paid or replevied. Joel M. Smith, J. P.

"August 8th, 1870, the defendant took an appeal to the criminal circuit court and filed his recognizance with John C. Wagner surety, which is approved, and appeal granted. Transcript and papers filed in court August 8th, 1870.

"August 20th, 1870, the defendant also took an appeal to the Clark Common Pleas Court. "State Of Indiana, Clark County.

"I certify that the above and foregoing is a full, true and complete transcript of the proceedings and judgment in the foregoing entitled cause, as found on my docket now legally in my possession.

"Witness my hand and seal this 6th day of September, 1870. Joel M. Smith, J. P. [seal]

"Costs $7.65."

The entry in the cause upon the order-book of the common pleas court of Clark county is as follows:

"State Of Indiana v.

■" Martin Deutchman.

"Comes now Robert J. Shaw, Esq., who prosecutes the

;Complaint for retailing liquor without license.

« AnteriorContinuar »