thirteenth instruction in Indiana

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1898There was no error in giving the thirteenth instruction in which the jury was told that, “if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of the owner as constituting a dedication.” Faust v. City of Huntington, 91 Ind. 493 .

1974Sullivan v. State (1957), 236 Ind. 446 , 139 N.E.2d 893 is inapplicable, because here there was no charge of manslaughter. (3) The thirteenth instruction dealt with accomplice testimony, and the defendant objected to it because it did not advise the jury that testimony of an accomplice should be weighed with great care.

1974Sullivan v. State (1957), 236 Ind. 446 , 139 N.E.2d 893 is inapplicable, because here there was no charge of manslaughter. (3) The thirteenth instruction dealt with accomplice testimony, and the defendant objected to it because it did not advise the jury that testimony of an accomplice should be weighed with great care.

1908Putt v. Putt (1897), 149 Ind. 30 .

1908The court, in instructions two, three, five and sis, and perhaps others, correctly advised the jury as to what constituted testamentary capacity, as defined in Teegarden v. Lewis (1896), 145 Ind. 98 , and Wait v. Westfall (1904), 161 Ind. 648, 662 , and in interrogatory thirteen directed as follows: “If Albert Davenport, at the time he had his will prepared, was of sound mind, but afterward, and before the will was signed, he was stricken with disease, then I charge you, if he had mind enough at the time the will was signed and witnessed to know the business in which he was engaged, and that h

1908The court, in instructions two, three, five and sis, and perhaps others, correctly advised the jury as to what constituted testamentary capacity, as defined in Teegarden v. Lewis (1896), 145 Ind. 98 , and Wait v. Westfall (1904), 161 Ind. 648, 662 , and in interrogatory thirteen directed as follows: “If Albert Davenport, at the time he had his will prepared, was of sound mind, but afterward, and before the will was signed, he was stricken with disease, then I charge you, if he had mind enough at the time the will was signed and witnessed to know the business in which he was engaged, and that h

1905State v. Hogreiver, supra. Judgment affirmed.

1903Paul, 8 Minn. 491 ; Mayor, etc., v. United States, 10 Pet. 662 , 9 L.

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1903In Cromer v. State, 21 Ind. App., 502, 505 , the court say: “There was no error in giving the thirteenth instruction in which the jury was told that, ‘if a landowner, by open and visible acts, unequivocally indicates to the public and its citizens an intention to throw open a street or alley to the public, and the citizens and the public have acted upon the faith that there was a dedication, the law will treat the acts of .the owner as constituting a dedication,’ Faust v. City of Huntington, 91 Ind. 493 .” From many holdings that acceptance will be implied from general and long-continued user

1888The thirteenth instruction given by the court, to which appellant objected, and still objects, was as follows: “ Insanity of a permanent nature, when once shown to exist, is presumed to continue until the contrary appears; but where delirium tremens is set up as a defence, the delirium must exist at the time the act was committed, as there is no presumption of its existence from antecedent fits from which the party has recovered, for this is a mere transient derangement of the mind, and there is no presumption of its recurrence or continuance.” With the exception of the last two sentences, the

1884Overbay v. Lighty, supra; Street v. Chapman, supra. In view of the evidence as to the unmerchantable lumber appropriated and used by the appellants, it is insisted on their behalf that the thirteenth instruction, which directed the jury to regard all the lumber used by the appellants as merchantable lumber, and charged the jury to hold the appellants to pay for all the lumber appropriated by them at the con tract price, was misleading.

1884Overbay v. Lighty, supra; Street v. Chapman, supra. In view of the evidence as to the unmerchantable lumber appropriated and used by the appellants, it is insisted on their behalf that the thirteenth instruction, which directed the jury to regard all the lumber used by the appellants as merchantable lumber, and charged the jury to hold the appellants to pay for all the lumber appropriated by them at the con tract price, was misleading.

1874In The Indianapolis, etc., Railway Co. v. Beaver; 41 Ind. 493 , the court say : “Whether a railroad company undertakes to convey its passengers on a freight or passenger train, in a caboose- or well cushioned chair, its duty is to so run and manage the train that passengers shall not by its own carelessness be killed or injured.” The instruction complained of was in accordance with the law as enunciated in the above opinion.

1874In Kintner v. The State, 45 Ind. 175 , it was held, that “ in instructing a jury it is error for the court to assume the truth of matters which have not been proved, or of matters concerning which the testimony has been conflicting, and indicate the leaning of the court against one of the parties.” We think the thirteenth instruction was erroneous, because it singled out and gave undue prominence to particular facts and circumstances, and because it assumed that the accused was guilty of a crime.