The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-04-26
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme Court-April 20.
Hon. William A. Woods, Chief Justice.

Supreme Court-April 20.
Hon. William A. Woods, Chief Justice.
DECEDENTS ESTATEs-SALE OF LAND-WIDoW s
RIGHTS
7,496. David Compton ct al. VS.. Jane Pruitt.
johnson c. G.
Bieknell, C-Aetion By appellee to recover her
one-Jhird interest in lands of which her husband
had died seized. The lands had been sold by the
administrators to pay the decedents debts, and
the petition to sell stated that the deoedent left
a widow That was equivalent to stating that
only twO-thirds of his land liable to sale, and
was notice 10 everybody IN interest to mat elect
The petition and notice did not inform the widow
OF an intended attack upon her rights, and she
was guilty of no laches in falling to appear in
the proceeding. She had right to presume that
the land liable to be made assets was the only
subject OF the petition, and against such petl-
ton she had no defense But the administrators
made a sale, and the court confirmed it, and the
commissioners appointed made deeds to
the purchasers, "to have and to hold
as fully and completely as the said
John j. Pruitt had and held in his lifetime and
at the time of his DEATH" Such an attempted
sale Of the Widows land is mere nullity, and
she remains tenant in common with the pur-
chaser, whose possession, prlna faele, Is not au-
verse TO her title. 81 Ind, 1853; SO Id, 81; II
i'd, 412 70 i'd, 476. (2) AS the Widows interest
was not directed to be sold, her recovery Is not
limited to five years after the sale by the fourth
clause of the statute of limitations. Code 1852,
S21l) 49, Nor will the mere receipt OF the pro-
ceeds OF the sale as part of her dlstFioutlVe
share of the decedent's estate, estop her from
recovering her interest. a. Nor can she be com
PEELED in equity to take her interest IN other
land of the decedent still remaining i'll the hands
or his heirs. Judgment affirmed.
Observation-Disclosures PUBLICATION.
1919 James G. Balm VS.. Columbus Myrick
owen c. c.
HOwk, Ut is not necessary that a
euage Of the statate ' in a written
or printed publication in order to constitute a
Libel. II IL holds q person up to scorn or ridi
cule or tmpairs his enjoyment of general So
ciety, or imputes or implies his commission of
crime not directly charged, il is lihelous pub
LEGATION. Where the published charge is libelous
without inuendO, if the complaint contains
an unnecessary nuendo it will be regarded as
surplusage, and will not vitiate The complaint
(6S Ind, 1881 Judgment affirmed,
sHERIFF's OBSERVATION-DISCLOSURES
1850 George o. Cox Va. William L. Bird
Woods, G. faction by the appellee to set
aside a sheriffs sale and conveyance OF land
made under a decree for the enforcement of a
ditch assessment, alleging that the land was sold
without appraisement. A sale made without
appralsement when the Judgment does not so
direct 10 voidable l27 Ind, 450; II i'd, 49,
70 i'd, 1881 IL Is not ayerred IN terms
that the Judgment did not direct a
sale without appralsement but it is shown that
the judgment was for the enforcement of a
ditch assessment and as order to sell with
out appratsement in such case is not author
lied by law. it must be presumed the Judgment
did not contain such an order. (2D In such an
action the plaintiffs in the judgment upon which
the sale was made are not necessary defendants
For the purpose or testing the Fd1lOlty OF tBe
sale the holder of the invalid deed is the only
necessary defendant. Judgment affirmed.
MALICIOUS Observation-Disclosures
AToRIEs.
1854. Matthew Clegg VS.. Elizabeth Water
bury. Clark c. c.
Elliott, J.-Maliee and want of probable cause
are the principal elements of malicious prose-
cutIOn, and where these are averred, though the
language used is inaccurate and the meaning
somewhat obscure, the complaint will
be good after verdict. Gould, Pl, sec. 1913 The
court may submit interrOgatores of its own
instead OF those asked by tine parties, but If
those submitted by the court do not fully cover
the pertinent and material points embraced in
those asked by the parties it will be error to re-
fuse the latter. Ia this case those submitted by
the court required the jury to answer only as to
general conclusions from the evidence, while
those asked by appellant required them to
answer as 70 specific questions of fact, Judg-
ment reversed,
-INsANITY-BURDEN OF PROOF
1924. Anthony McDougal VS.. the State.
collars, J.-Appeilant was tried for the muir
der of his wife, convicted and sentenced to
death. In one Of its instructions the court
charged the 1.-THE law presumes sanity in all
cases and the burden of Oyerthrowng
the presumption is upon the person
who alleges insanity; but it
is not necessary that such presump-
ton should be overthrown by a preponderance
OF evidence. And In this case, ii the evidence
given by defendant has been sufficient to raise
reasonable doubt of his sanity, then the general
question Is presented 10 bne jury WneCner or not
the crime was committed by him while RESPONSE
BILE for his acts; and then upon the whole evil
dence in the case, az introduced by both the de-
PENDANT and the State, il reasonable doubt
exists TO the defendants sanity he is entitled
to the benefit of the doubt" The proposition
that the burden was upon defendant of creating
by affirmative evidence as to his sanity, is
erroneous The burden was upon the State to
establish, beyond reasonable doubt every ma
teral averment in the indictment. One of these
was malice. The malicious intent is as essential
to the crime as the killing, and the State must
prove the one clearly as the
other, though the former may some
times be implied from the surrounding
circumstances There can be no criminal intent
when the mental condition of the accused is
snch that he is incapable OF forming one and the
burden is upon the State to prove that when the
Ohense committed the mental condition of
the defendant was such that he was capable of
forming an intent. The burden is upon the
State, but the defendant may overthrow the
evidence of the State, or so weaken it by coun-
ter proof that upon the whole evidence the issue
may not be established in favor of the State be-
yond a reasonable doubt. 19 Ind, ITO; 81 i'd,
400; SO Id, los; II Mich, 8; Is n. y, 58)
Judgment reversed.