The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-06-26


notifying him of the probability of a crime
having been committed. the postal card
may be admitted in evidence for the pur-
pose OF showing the information upon
which the marshal acted in what he did,
and as tending to show the time when the
card was placed In the postoffice. 2. Where
the State is attempting to convict q per-
son of a murder which has been committed
for the purpose OF burglary, it is proper
for the State to show that IL was generally
known that the deceased kept considerable
money about her. when the persons charged
with the crime had made II known they
intended to rob just such person as the
deceased. g. Where an Objection to
question is that lit is incompetent and
immaterial and too remote" il is too in
definite and remote to present any question.
4. Objection to the admission of evidence
not made in the court below will not be
considered on appeal. 5. When there is
evidence to show that several persons were
present and participated in the commits
sion or crime, any fact tending TO con-
meet one OF them with the crime is COM
petent evidence against the others 6. A
declaration of co-conspirator before the
commission of a crime is admissible against
the others. T. Where only two persons are
connected in a conspiracy and they are
charged with that offense. and one Is ac-
Quilted on proof OF such acquittal the
other must also be acquitted s. Where
two or more persons charged with a sub
stantive offenSe, not a conspiracy and ii
appears that the same was committed in
pursuance of a conspiracy, the acts and
declarations of one shown TO have been
engaged in the conspiracy to commit such
substantive crime are admissible in evil
dence on the trial of the other defendant,
Notwithstanding the person whose declara-
tions are sought to be proven had been
previously acquitted. 9. Where a written
instrument is offered in evidence and ex-
Guided IL must be brought into the record
In order to present any question on the
ruling excluding 1t: 10. While evidence
in proof of a conspiracy is circumstantial.
IL is not necessary for the purpose of show
ing the existence OF the conspiracy for the
State TO prove that the defendant and some
other person or persons came together and
actually agreed upon a common design
and purpose and agreed to pursue such
common purpose and design in the manner
agreed upon 1t is sufficient If such COM
mon design and purpose is shown satisfac-
torily by circumstances. While ii is neces-
sary in order to establish the existence
of a conspiracy to prove a combination
of two or more persons by concert of action
to accomplish a criminal unlawful pur-
pose, yet 1t is not necessary TO prove that
the conspirators came together and en-
tered into a formal agreement to effect
such purpose; such common design may
be regarded proved If the jury believe
from the evidence that the parties to such
conspiracy were actually pursuing in con-
cert the common design or purpose. wheth-
er acting separately or together. by COM
mon or different means, provided that all
were leading 10 the same unlawful result.
IL. Instructions must be read and con-
strued together as entirety and not in
dissected parts. u. 1t is not error to re-
or his counsel.
1s447. Morrel VS.. Morrell. Huntington c.
c. Reversed. Hadley, il. In an action
to establish alleged will, the right to
and procedure are governed by the statute
on wills-Sec. 2754-2755 Burns. 1S9D-and is
not proceeding under the decedent's act.
2. In seeking TO establish a will the tes-
timony of third party 10 admissions made
by one of the subscribing witnesses to the
will is incompetent as hearsay evidence
3. Where a person has seen a deceased
person write and acquainted with his
hand writing, he may testify as to his
| opinion concerning the genuineness Of the
signature of the deceased which is sought
to be proved. 4. Where the contest is TO
probate an alleged WILL the plaintiff asserts
that the instrument presented by him was
executed the last will of the decea sed
and asks that the same may be legally es-
| tablished as such, and where the defend
| ant denies under oath that the decedent
| executed IL, the simple issue of no est fac
| tum is presented, with the burden resting
| upon him who seeks affirmative relief 5.
| The right to resist the probate and to con-
| test a will is given by statute and can
| be exercised only in the mode prescribed.
| 19S45 School Town of Shirley City VS..
Maumee Township. Allen S c. Trans
| ferred TO Appellate Court.
| 1856 koehler VS. Tuebbecke. Lake s. c.
Same.
1873. Fromm VS.. Lawrence Marshall c.
c. Same.
| 1876 Ind, etc, Coal Company VS.. Buff
| fey Fountain c. C. Same
1897. Trittipo vs.. Trittipo. Hamilton c.
| &. same.
1895 Mich. TT. Company VS. Prosbasco.
| Whitley c. c. Same.
| 1913 Peckham Green. Cass c. C..
Same.
19454 c.. I. & L. Railway COMPANY We
| Martin. Greene c. c. Same
| 1850 Ridgeway VS.. Harmon. Laporte c.
| c. Same.
1851. Stewart VS. Stewart Marion c. c.
Same. sfl
1886. Calvin VS.. Springer Johnson c. c.
1870. Peele VS.. Oil. etc, Company. Grant
| C. c. Same.
1914 Stout VS.. Stout. Morgan C. c.
1917. Ind. etc. Company VS.. OBrien.
1913. Wallace VS.. Rhodes. Marion c. c.
1896 Webb VS. Rhodes Marion S. C.
1887 International, etc. Association, VS..
| Rodebaugh Blackford c. c. Same.
1898. Day VS. Nottingham. Tippecanoe
s. c. Same.
1896 Woods VS.. Indiana. etc. Associa-
| ton. Knox c. c. Same:
1950S. Johnson VS.. Johnson. Huntington
1881 c. & S. E. Railway Company VS..
Bowers. Madison c. c. Same.
1888. Oil. etc, TIP. vs.. Marting. Perry c.
ls549 Kuhner VS.. Kuhner Howard C. C.
1850. Workman VS. Munich. Sullivan c.
c. Same.
1851. Hufford VS.. Lewis. Clinton C. c.
Same
1850 DIETRICH VS.. Board of Commission
ers. Parke c. G.. Same
1854. Davis. etc, Company VS.. Poland
Clay c. C Permission to file briefs
granted.
Minutes
1881. Wayne County Savings Bank VS.
The Gas City Land Company ct al Grant
c. G Appellees' additional authorities on
petition Co.
1874. Nancy A Stout VS.. James X Stout
ct al. Morgan G. c: Appellants brief on
motion for certiorari-
1926. Louis A. w. Murphy VS.. John
Brown. executor, etc. ct al. Lake c. c.
Appellees brief on jurisdiction.
1854. ID. H. Davis Coal Company VS.
Samuel POLAND. Clay c. c. Petition OF
Frank L Monteith for permission TO file
copies OF brief in 1880
1856. William T. Melott et al VS.. Chas.
w. Messmore. Clinton c. c. Appeliee's
motion 10 dismiss and notice for July s.
1901. Appellees brief g. Appellee's aft
davit. etc.
1868 State of Indiana VS.. William L.
SOpher. Hamilton c. C. Petition of Sonher