Griffiths v. State. was ample and uncontradicted. It being evident that the terms used by the witnesses, other than Lards, in referring to the railroad, were used as familiar appellations, and as there is a striking similarity between all of such references and the name "Lake Shore & Michigan Southern Railway Company," which the evidence shows to have been an existing corporation or company, we are of opinion that it was competent for the jury to infer that it was the bailee from whose custody the goods were stolen. See Evansville, etc., R. Co. v. Snapp (1878), 61 Ind. 303; Evansville, etc., R. Co. v. Smith (1878), 65 Ind. 92; Wabash R. Co. v. Forshee (1881), 77 Ind. 158; Cincinnati, etc., R. Co. v. McDougall (1886), 108 Ind. 179. In dealing with the question as to the effect of the evidence, we have thus far laid no stress on the confession of appellant. If it were competent for the jury to make use of the self-disserving statement which the evidence shows that he made to the witness Lards relative to the company's custody of the goods, there could be no question as to the evidence warranting a conviction. We are mindful of the rule that the extrajudicial confession of a defendant is not alone sufficient to make out the corpus delicti, and that as applied to a prosecution for larceny it is required that there must be proof of the commission of the particular larceny charged. We deny, however, that such is the operation of the rule that the confession of the defendant can not in any case be used to accelerate the force of inferences concerning the fact of ownership, or that his confession can not be considered, along with proper corroborative evidence, in determining whether the fact of the commission of the crime charged has been made out. Concerning the doctrine as to the corpus delicti, Professor Greenleaf says: "It is obvious that on this point no precise rule can be laid down, except that the evidence 'ought to be strong and cogent,' and that innocence should Griffiths v. State. be presumed until the case is proved against the prisoner, in all its material circumstances, beyond any reasonable doubt." 3 Greenleaf, Evidence (16th ed.), §30. Mr. Bishop states the doctrine thus: "Extrajudicial confessions, alone and uncorroborated, are, by abundant authority and with little dissent, deemed inadequate to establish the corpus delicti. Yet slight corroboration may suffice. And perhaps the confessions alone will, if made before a magistrate. On the whole, the doctrine is that the entire case, keeping distinctly in mind the corpus delicti, must be proved beyond a reasonable doubt. And special care should, by the general accord of the courts, whatever we deem of the reason, be given to this part of the case. In reason, no part should be neglected, and to open any other door to a wrongful conviction is the same evil doing as to open this one. Such is the substance of the doctrine, but some judges spin it out a little more finely." 1 Bishop, Crim. Proc. (4th ed.), §§1058, 1059. In 12 Cyc. Law and Proc., 484, it is stated that "the corroborative evidence need not be such as would be required to convict the accused independently of the confession." See, also, 1 Elliott, Evidence, $292; McCulloch v. State (1874), 48 Ind. 109; Seifert v. State (1903), 160 Ind. 464, 98 Am. St. 340.We think that the rule concerning the corpus delicti is largely one of caution, and that where the corroborating circumstances so far supplement the confession as to make it clear that the crime charged was committed, a conviction should not be overthrown for the want of evidence. In considering the evidence concerning the ownership of the clothing, the fact is not to be forgotten that appellant had authority to cross-examine the witnesses called by the State, and that he had the right to the compulsory process of the court to procure the attendance of witnesses. Although an ultimate fact may rest only upon slight evidence offered by the party having the burden of proof, yet if the opposite party has it in his power readily to show the 163 560 165 173 Rich Grove Tp. v. Emmett. truth, but omits to do so, why may not the jury treat the point as not within the range of the dispute? In such a case we regard it as proper to consider the absence of any opposing evidence. Commonwealth v. Webster (1850), 5 Cush. 295, 52 Am. Dec. 711; Frazier v. State (1893), 135 Ind. 38. Of course, appellant was not to be subjected to any adverse inference from his failure to testify, but in other respects it was proper to regard him as an ordinary party. Coupling the confession of appellant with the other evidence relative to the fact of the ownership in the railroad company charged to have been the owner in the affidavit and information, and considering the entire lack of opposing evidence, we think that it may be said that the jury was not only warranted in finding the averment concerning ownership proved, but, indeed, that any other finding would have been wholly unjustifiable. Complaint is made as to the giving of certain instructions. While in some particulars there appears to be a basis for verbal criticism of said instructions, yet considering the charge as a whole we are of opinion that the jury was not misled. Furthermore, the result was plainly right upon the evidence, and in such a case, even if there were an erroneous instruction exhibited by the record, we should not be authorized to reverse. $1964 Burns 1901. Judgment affirmed. RICH GROVE TOWNSHIP ET AL. v. EMMETT ET AL. [No. 20,470. Filed November 29, 1904.] APPEAL AND ERROR.-Death of Party.—Substitution of Personal Representative or Heirs.-Where, in a proceeding to establish a ditch and assess the costs thereof against the lands benefited, a remonstrator dies after judgment but before appeal, an appeal making his personal representative, but not his heirs at law, a party appellee, must be dismissed, since by 272 Burns 1901, where a party dies the action shall not abate, Rich Grove Tp. v. Emmett. if the cause of action survive, but it may be continued against his representative or "successor in interest," and the proceeding in this cause being one in rem to charge the real estate, the successors in interest are the heirs at law to whom the real estate descended. From Pulaski Circuit Court; T. F. Palmer, Judge. John E. Emmett and others petitioned in the circuit court for the establishment of a drain, and Robert J. Geddis and others filed a remonstrance against the report of the drainage commissioners. From a decree of the circuit court modifying said report, Rich Grove Township and others appeal. Dismissed. H. A. Steis, for appellants. W. W. Borders and George Burson, for appellees. MONKS, J.-Appellees commenced this proceeding August 6, 1902, in the court below, for the construction of a ditch under what is known as the circuit court drainage law. After the drainage commissioners filed their report, and within the time allowed by law, Robert J. Geddis and others, against whose lands benefits were assessed, each filed separate remonstrances, alleging the fifth, seventh, and eighth causes of remonstrance provided in §5625 Burns 1901. A trial of said cause resulted in a finding modifying and equalizing the benefits assessed by the drainage commissioners, and against each of the remonstrants for the eighth statutory cause, and a judgment establishing the proposed work approving the assessment of benefits as made by the drainage commissioners as equalized and modified by the court. After the rendition of the judgment in said cause, and before the appeal was taken, Robert J. Geddis died, and one Charles E. Russell was appointed administrator of his estate. In the assignment of errors Charles E. Russell, as such administrator, has been made a party appellant, and has assigned errors. The heirs of said Geddis have not been made parties to this appeal. This being a vacation appeal, it is well setVOL. 163-36 Rich Grove Tp. v. Emmett. tled that all parties against whom judgment was rendered must be made co-appellants in this court, or the appeal will be dismissed, for the reason that in such case we have no jurisdiction to determine the case on its merits. Haymaker v. Schneck (1903), 160 Ind. 443, 446, 447, and cases cited; McKee v. Root (1899), 153 Ind. 314, and cases cited; Mellott v. Messmore (1902), 158 Ind. 297, 299; Brown v. Sullivan (1902), 158 Ind. 224, and cases cited. Section 648 Burns 1901, §636 R. S. 1881 and Horner 1901, provides: "In case of the death of any or all the parties to a judgment before an appeal is taken, an appeal may be taken by, and notice of an appeal served upon, the persons in whose favor and against whom the action might have been revived, if death had occurred before judgment." Section 272 Burns 1901, §271 R. S. 1881 and Horner 1901, provides: "No action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion or supplemental complaint at any time within one year, or on supplemental complaint afterward, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action." It is evident that if said Robert J. Geddis had died before the rendition of the judgment in the court below his heirs would have been the successors in interest of the deceased, and necessary parties to said proceeding under $272, supra. 1 Cyc. Law and Proc., 93-96; Benoit v. Schneider (1872), 39 Ind. 591; Vail v. Lindsay (1879), 67 Ind. 528. This proceeding was one in rem to charge the real estate of said Geddis with a part of the cost of the construction |