The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1884-05-27
THE COURT RECORD.
Supreme Ccurt-May 26.
Hon. Byron K. Elliot, Chief Justice.
PEACE oFFICERs-MAKING ARRESTS.


11402. Oliver Witse VS.. Drury Holt, jr Rush
Niblack J-Aetion by appellee for false imprison.
ment. Answer that the appellant was peace officer
that the appellee was intoxicated and had entered the
Office of one Bogart and beaten him but two minutes
before he arrested; that seeing appellee emerge
from Bogarts Office, wild with excitement, and intox
icated, appellant arrested him and put him in the
lookup until charges could be preferred against him.
A peace officer preserves the peace by preventing
crime well causing 1t to be punished after Its
commission, and in of breach of the peace it is
his duty, not only to put end to the breach but
when necessary to make an arrest as a means of re-
straining the offender When for good cause such
arrest has been made the officer may adopt such
measures as are necessary for the safe
keeping of the prisoner, without OBTAINING
him unreasonable time. (43 Ind, 60; ~ id, 56)
Upon the facts averred the assault upon Bogart
in legal contemplation in the presence of the appel
liant. Judgment reversed.
PLEADING-EX HIBTTs-BUILDING ASSOCIATIONS.
1925. Josiah Newman Lgonier Building As
soeiation. Noble G. c.
Hammond, J.-Action by appellee to foreclose a
mortgage executed to it by appellant Copies Of the
constitution and bylaws of the association filed
with the complaint but they not necessary. (S4
Ind, BIO So i'd. 472D Where exhibits
necessarily filed with pleading. they not consd-
cred in determining its suffcieney. Il Works Pr,
sec 42OD While the answer contains st1rplusage it
also contains averments to the effect that the appellee
was indebted to appellant in the sum ct $500 with
interest stock of the association, which due
and unpaid. The certificate of stock being in the
hands of appellee, the appellant was excused
from filing copy with his answer. If the
certificate did not contain unconditional
promise to pay appellant a specified sum
certain time if the terms of the certificate
controlled modified by its constitution and bylaws,
appellee should have replied by denial or stating the
facts specially. The striking out of the pleading
not be sustained the theory that the facts therein
stated might have been proved under any other para
graph of the answer. Judgment reversed,
INCEsT-EvIDENCE OF PREVIOUS ACT.
1I442-The State vs. Charles Markins Vigo O. c.,
Elliott c. jim prosecution for incest, the State
introduced evidence of ineestuous intercourse on GER
tain day and then offered to prove that prior that
time acts of indecent familiarity took place between
the parties and that they had been guilty of sexual
intercourse for the purpose of showing lascvous
duct between the defendants prior to said time. In
such it is competent to show the previous init
macy between the parties their behavior, and their
acts of impropriety 1t being proper to show such
such lascivious acts lead. The general
rule is that one crime can not be
proved in order to establish another independent
crime but this rule does not apply to where the
chief element of the oense consists in illicit inter
course between the sexes. q Mich, $685. 20 Ala,
65; 2 Greenl. Ev., section At; 101 Mass, Ill; "a
Am. r., 124; 80 N. c., 646 81 id, 53S.l The
court erred in excluding the evidence. Appeal
tanned.
sHERIFFs sALEs-REDEMPTIoN LAW OF 1879
CONSTRUED.
1892. Charles Taylor John Morgan. Hunt
ington G. G.
Howk, J-Under section 5 of the redemption law
of 1879 where the fee simple in real estate has been
sold at the first sale and is redeemed by judgment
creditor who afterwards sues out execution on his
judgment and has the property reSold the sheriff
is not authorized required to offer the rents and
profits at such second sale any less estate inter
est than the fee simple 1t is the fee simple that is
redeemed from the first sale and the statute expressly
provides that the redeemed property shall be sold
at the second SALE Judgment affirmed
VIOLATION OF TRIAL AGREEstEST-cosTs
1910. BENZ H. Binford VS.. Thomas H. Miner
Hancock, @. c.
collars J.-In action by appellant to recover
possession Of real estate the parties before trial
through their attorneys entered into written agree
ment that the appellee would not introduce any evil
dence that he held tenant of appellant At the
trial the court held this agreement to DO binding
the appellee because made without his knowledge
and permitted him to introduce such evidence APP
pelant thereupon obtained leave to dismiss his
and asked that the costs be taxed against appellant
and his attorneys, and from the courts refusal to
tax the costs, appeals Held: The question is not
rightly presented to this court. Appellant should
have gone on to judgment, and if the judgment
against him. should have appealed. This court can
not say, in the condition the record is in. that APP
pellant compelled to dismiss his cause because
of the admission of such evidence Nothwith-
standing this evidence there might have
been such state of facts disclosed that appellant
could have gained his case. Judgment affirmed.
The following cases were also decided, abstracts Of
which will appear hereafter:
11fS3. Vinton vs.. Baldwin, Montgomery G. G.
Elliott j. Reyersed