The McCormick Harvesting Machine Company r. Scovell et al.

lant, and at the same time he and his wife, Adella M., to secure the payment of those notes, executed a mortgage to appellant upon real estate.

Appellant brought this action to recover judgment upon the notes and to foreclose the mortgage.

A joint answer was filed by appellees, and also a separate answer by the wife, Adella M. As those answers rest upon substantially the same facts, a brief extract of the separate answer by Adella M. will suffice. In that answer it is averred, in substance, that Adella M. was the wife of her co-defendant, Marion R. Scovell, at the time the mortgage was executed; that at the time of, and prior to, the execution of the mortgage, she and her husband owned and held the real estate covered by the mortgage as tenants by entireties; that on the day the mortgage was executed, and immediately prior to such execution, at the request of appellant, and without any consideration whatever, they executed a deed conveying the real estate to Walton Furnas, as trustee, who at once reconveyed the same to the husband; that immediately after such reconveyance the mortgage in suit was executed to secure an antecedent debt which the husband owed to appellant; that there was no consideration whatever for the deeds and mortgage except the securing of the husband's antecedent debt; that soon after the mortgage was executed the husband and wife conveyed the real estate to another trustee, who reconveyed it to them jointly as tenants by entireties, and that they are still such tenants; that Adella M. executed the mortgage as a security for the husband's antecedent debt to appellant, and for no other or different consideration, and that appellant, through its agents, had actual knowledge of all the facts as above stated.

The court below overruled demurrers to the answers. Those rulings are assigned as error.

It is settled in this State that, under the statute of 1881 (R. S. 1881, section 5119), a mortgage by a married woman upon her separate real estate to secure a debt of her hus

The McCormick Harvesting Machine Company v. Scovell et al.

band, or any other person, may be defeated by her in a suit by the mortgagee, unless her conduct has been such as to work an equitable estoppel against her.

It is settled, also, that she may thus defeat such a mortgage when it is upon real estate which she owns with her husband as tenants by entireties. It is further settled, that when such a mortgage is upon real estate which she owns with her husband as tenants by entireties, it is thus voidable, not only as to her, but as to the husband also. Dodge v. Kinzy, 101 Ind. 102; Crooks v. Kennett, ante, p. 347; Bridges v. Blake, 106 Ind. 332. See, also, Rogers v. Union Central Life Ins. Co., ante, p. 343.

The averments in the answers are not as certain and specific as the rules of good pleading require, but we think that it sufficiently appears that the deeds and mortgage were parts of one transaction, and that the purpose, and only purpose, of all the parties concerned, including appellant, acting through its agents, was to avoid the statute, supra, which prohibits a married woman from mortgaging her real estate as security for the debt of another.

Had the mortgage in suit been made direct to appellant, without the deeds mentioned in the answers, there could have been no question of its invalidity as to both of the appellees. It is a familiar rule of the law, that what can not be done directly may not be done indirectly. See Jouchert v. Johnson, 108 Ind. 436.

In our judgment the answers were sufficient, and the demurrer thereto was properly overruled. Judgment affirmed, with costs.

Filed Sept. 27, 1887.

Stewart et al. . The State.

111 554

114 453

116 173

111 554

No. 13,718.

STEWART ET AL. v. THE STATE.

CRIMINAL LAW.-Aiding in Escape of Prisoner.-Indictment.—Duplicity.—
For an indictment for aiding in the escape of a prisoner, which is held
to charge the felony defined in section 2029, R. S. 1881, and not the mis-
demeanor defined in section 2031, and also held not to be bad for du-
plicity as charging both offences, see opinion.
SAME.-Instructions.-Refusal to Give.-Presumption.-Where the evidence
is not in the record, or where the record does not affirmatively show that
it contains all the instructions given by the court of its own motion, the
Supreme Court will presume, in aid of the refusal of the trial court to
give an instruction asked, either that such instruction was not applicable
to the evidence, or that the law embraced therein had been given by the
court of its own motion.

SAME.-Giving Erroneous Instruction.— When Not Available Error.—The giv-
ing of an erroneous instruction is not available for the reversal of the
judgment, where it appears that the substantial rights of the defendant
were not prejudiced thereby.

SAME.-Arraignment.-Irregularity.-A mere irregularity or informality in the arraignment of the defendant, which does not prejudice his substantial rights, is not available error.

From the Shelby Circuit Court.

L. F. Wilson, for appellant.

L. T. Michener, Attorney General, A. F. Wray and J. H. Gillett, for the State.

Howk, J.-In this case the indictment charged "that, on the 13th day of November, A. D. 1886, at and in the county of Shelby, and State of Indiana, one Mollie Vancleave, a prisoner, who had been and then was tried and convicted in said county of a felony, to wit, of having, on the 22d day of September, 1886, at and in said county and State, unlawfully and feloniously blackmailed one Charles E. Karmire, and who then and there had been sentenced by said court to serve one year in the Indiana reformatory institution for women and girls, was duly and legally confined by James Magill, the sheriff of Shelby county, Indiana, in the jail of said county and State, and was then and there in the

Stewart et al. v. The State.

custody of said sheriff of Shelby county, Indiana, and the officer who was then and there charged with the custody of said Mollie Vancleave, said Mollie Vancleave being then and there in the custody of said officer under said conviction and sentence for said crime and felony aforesaid; and that David Stewart and Schuyler Stewart, not then and there being the officer or officers charged with the custody and safekeeping of said Mollie Vancleave, did, on the 13th day of November, 1886, then and there unlawfully, purposely and feloniously aid and assist the escape of said Mollie Vancleave from the custody of said sheriff and from said jail, by then and there unlawfully, purposely, knowingly and feloniously procuring and hiring a horse and buggy, and a man to furnish and drive said horse and buggy, and going with and directing said man, viz., Lincoln J. Van Buskirk, to a certain place in the city of Shelbyville, a short distance from said jail, and by giving signals to said Mollie Vancleave in said jail from the outside thereof, and waiting near said jail building, and then and there meeting said Mollie Vancleave at said jail and at an alley adjoining said jail, and conducting, accompanying, taking and directing her to where said Van Buskirk was, by their order and direction, awaiting for them, and assisting her to said buggy for the purpose of being conveyed therein, by their order and direction, out of and away from said county, with intent then and thereby to aid, assist and accomplish the escape of said Mollie Vancleave from the custody of said sheriff, and from said jail, and did then and there and thereby aid, assist and accomplish the escape of said Mollie Vancleave from the custody of said sheriff and from said jail, they, the said David Stewart and Schuyler Stewart, knowing that said Mollie Vancleave was then and there under conviction and sentence for said crime and felony aforesaid, and in the custody of said sheriff by reason thereof."

Upon appellants' arraignment and plea of not guilty the issues joined were tried by a jury, and a verdict was re

Stewart et al. v. The State.

turned finding each of them guilty as charged, and that each be imprisoned in the State's prison for two years. Over their written motion to set aside the verdict herein, judgment was rendered against them thereon and in accordance therewith.

In this court, complaint is first made, on behalf of appellants, of the overruling by the trial court of their motion to quash the indictment herein. It is insisted by appellants' counsel that the indictment is bad for duplicity, in that it charges the appellants in a single count with the commission of two different and distinct offences defined in two different sections of the statute. It is settled by our decisions that duplicity, when it clearly exists, affords sufficient ground for sustaining a motion to quash an indictment or information. Knopf v. State, 84 Ind. 316; State v. Weil, 89 Ind. 286; Fahnestock v. State, 102 Ind. 156. But we do not think that the indictment, in the case under consideration, is at all open to the charge of duplicity. We have heretofore given the substance of the indictment herein, and it is manifest therefrom that it was intended to charge the appellants therein and thereby with the single specific offence against public justice which is defined, and its punishment prescribed, in section 2029, R. S. 1881. That section reads as follows: "Whoever, not being a person having the lawful custody of any prisoner charged with or convicted of a felony, shall aid or accomplish the escape of such prisoner, shall be imprisoned in the State prison not more than twenty-one years nor less than two years."

From the language used in the indictment in this case, it is clear, we think, that appellants are therein charged with the felony defined in section 2029, above quoted, almost in the exact terms of the statute; and this, under our decisions, makes the indictment sufficient to withstand the motion to quash it. Ritter v. State, ante, p. 324, and cases cited; Trout v. State, ante, p. 499. It is claimed, however, by appellants' counsel, that the language used in the indictment herein.