ney testified: "I believe I asked Margaret | child was a descendant of an Italian, Greek, if there had been any man there, if there Jew, Syrian, or Spaniard or some of the was a possibility of it, if there had been any one with her, and it was in response to my question she said no other man had been with her. (Defendant moves to strike out the evidence of this witness as to the statements of Margaret Miller as not voluntary, and as inadmissible as a complaint, and on all the grounds urged in the objections heretofore in the record.) Court: The complaint has nothing to do with this. The motion is overruled. (Excepted to.) Court: This was in the presence of the defendant? A. Yes, sir." The motion should have been sustained. The statement, if made, was not such as to exact any response from the defendant, for he could not be expected to know whether any one else had been with Margaret. His silence then tended in no manner to implicate him, and the testimony was hearsay and self-serving, and Caucasian races of Northern Africa. On redirect examination the witness was asked to point out the peculiarities of the child and, over objection, was permitted to do so, and said its hair and eyes might be those of the Hindoo race. On recross-examination, however, he testified that these might be those of a Greek or most any dark straighthaired people, and that many times purely white babies are born with very dark eyes, and that nothing in this one would cause him to pronounce it a Hindoo baby. No evidence tending to prove the race to which defendant belonged was adduced. With reference to such testimony, the court was requested by defendant to instruct the jury that they "must not consider any alleged resemblance between the said baby and defendant for any purpose in this case, but you may consider the appearance and characteristics of said baby as tending to establish the race to [3] Had the evidence been admissible, which it belongs, and, if you find that the alhowever, it did not tend to prove the pur-leged sexual intercourse between prosecutrix ported statement to be true, and the court and defendant has been otherwise satisfacerred in refusing to give the third instruc- torily proved, you may consider the mere tion requested so stating. The ruling was prejudicial, in that it introduced a very material statement before the jury of which should have been excluded. there was no proof. [4] 3. Dr. Morse, after testifying in direct examination that the baby was of brown complexion with black lusterless hair, said, on cross-examination, that it belonged to the Aryan or Indo-European race. On redirect examination, he explained that the white race was divided into the Caucasian, brown, and sunburned races, and that the color depended upon the amount of pigment in the skin, and that "this child was pigmented," and had none of the characteristics of the negro baby. The defendant thereupon asked that a note be made of the baby being brought into court, and objected to its exhibition to the jury as incompetent for any purpose. "Court: The record may show a baby is now tendered the witness. Q. Doctor, I will ask you whether or not this is the baby you saw. (Defendant objects to the interrogatory to the witness, and to the exhibition of the baby to the jury on the ground that the same is incompetent and immaterial. Overruled. Excepted to.) A. Yes, sir." The doctor then pointed out the differences between the baby and a negro baby. On recross-examination the witness was asked: "The head and face of that baby is the head and face of a child that might belong to any of the European races, especially of those of Southern Europe, is it not a fact? A. Yes, sir." The witness then testified that there was nothing in the features of the baby not characteristic of the Caucasian race, and that he had seen babies born from light complexioned people who had approximately the amount of pigment that appeared in the baby he held, and fact of said baby as corroborative of said intercourse, but you must not consider said baby as evidence otherwise than set forth in this instruction." No instruction of like purport was given to the jury, and, as it clearly and correctly stated the law with respect to alleged resemblance, there was error in not giving it or an instruction of like 'import. State v. Danforth, 48 Iowa, 43, 30 Am. Rep. 387; State v. Harvey, 112 Iowa, 416, 84 N. W. 535, 52 L. R. A. 500, 84 Am. St. Rep. 350; State v. Hunt, 144 Iowa, 257, 122 N. W. 902; State v. Stark, 149 Iowa, 749, 129 N. W. 331; State v. Meier, 140 Iowa, 540, 118 N. W. 792. [5] Even had it been shown that the accused was of a race other than that of prosecutrix, profert of the child would not have been permissible to show resemblance. Whether it might have been viewed by the jury as tending to prove it to be of mixed blood is not before us for determination, for the requested instruction conceded as much. Certainly decisions often cited as so holding In Warlick v. do not go to that extent. White, 76 N. C. 175, the issue was as to whether one Sarah was the child of Joseph Carpenter, deceased, and entitled to inherit his property, and, to disprove that, it was held that the court should have compelled her to take the witness stand for the inspection of the jury in aid of the contention that she was of mixed blood. In Garvin v. State, 52 Miss. 207, the indictment for larceny described defendant as a colored man, and it was held this must be proven and was in fact proven by profert of him in evidence. There is a manifest difference between proving that person was not the daughter of a white man begotten of a white woman, or that a person is colored, and proving that a child was begot ing it to be of mixed blood. This furnishes | cious pretext that it cannot then be said no proof that it may not have been begotten what evidence will be received. by some other colored person. Possibly by [9] Nor should he base an argument for the process of elimination—that is, by show-conviction on the court's order, overruling ing nonaccess of all others of like color-such defendant's motion that a verdict of not. evidence might be rendered admissible. How- guilty be directed because of insufficiency of ever, there was nothing in this record to the evidence. Such a ruling merely relegates raise the question, and, in view of this and the issues to the jury for determination, and the wording of the instruction requested, we it is still for them to say whether the eviought not to pass thereon until raised and dence is such as to justify conviction. On fully argued. Failure to instruct on this sub- objection being made, the court remarked ject was especially prejudicial, as both in the that the matter "should be left upon the recopening statement and closing argument ords." "Mr. Guthrie: Well, is not that a counsel for the state alluded to the alleged fact in the case? Court: I shall ask you not resemblance of the baby to the accused. to discuss that fact; that is record concern[6] 4. Mrs. Miller was asked on cross-ex-ing the court, and not the jury. Mr. Guthamination, "How many times altogether was rie: I want to say both of them argued to Nathoo there?" and answered, "I did not the jury that there was no legal or suffikeep track, because I trusted the man, and cient evidence for this jury to base a verdid not think it was necessary." The de- dict on, and I certainly have a right to refendant moved to strike from this answer all ply to it. Mr. Pugh: We certainly did, but after the word "because" as not responsive. we did not refer to the motions or to the The motion was overruled. This was error. opinions of the court. Court: I will direct The party asking a question is entitled to a the jury at this time not to pay any attenresponsive answer, and, if the answer or tion to any matters so far as the rulings of any portion of it is not responsive, may have the court are concerned, except the rulings it or such portion as is not responsive strick- on evidence." This was a ruling on the evien on motion. Christensen v. Thompson, 123 dence, though doubtless not such an one as Iowa, 717, 99 N. W. 591. The inquiry was the court referred to in its remark, and it is for the fact, and not for her reasons for not doubtful whether what was said by his honor being able to state it. disabused the minds of the jury of the plausible, but improper, argument being advanced. [7] 5. In the eleventh instruction the court advised the jury concerning the included offenses, but in the twelfth instruction, after defining assault, proceeded to define assault with intent to commit rape by saying that "one who makes an assault upon a female with intent to have sexual intercourse with such female is guilty of an assault with intent to commit rape." This was erroneous in omitting the element of intent to have such intercourse by force and against the will of the person assaulted. As the included offense of assault with intent to commit the offense charged in the indictment was not defined, the jury may have inferred that this was intended as a definition thereof and have been mislead thereby. 6. Numerous objections were interposed to the conduct of the attorney for the state in the opening statement and closing argument to the jury, and we have to say that the allusion to the alleged resemblance of prosecutrix's baby to defendant in the opening statement, the contention that, inasmuch as the court had overruled the motion to direct a verdict, there was sufficient evidence on which to base a verdict of guilty by the jury, and the statement that prosecutrix had testified that no one else had had intercourse with her, transcended the domain of fair argument. [8] An attorney ought not to be permitted to get a matter before the jury in an opening statement which he must know he will not be allowed to prove under the spe [10] Possibly the instructions may have had this effect. A suggestion to the jury that the only effect of the court's ruling on the motion to direct a verdict was to hold the issue as to defendant's guilt was solely for the jury would have obviated any possible prejudice, and might well have been made. Nor ought an attorney in his closing argument to the jury to have asserted a matter of such importance as that prosecutrix had testified that she had not indulged in intercourse with another when the statement was utterly without foundation, and, upon objection being interposed, it is not enough to relegate the issue as to whether she so testified to the jury. The misstatement should have been corrected, and the attorney admonished not to repeat it. Because of the errors pointed out, the judgment is reversed and the cause remanded. CERRO GORDO COUNTY ▼. BOONE (Supreme Court of Iowa. Nov. 15, 1911.) The Legislature may make a county liable for the care of the poor, and determine under what circumstances one county shall be liable to another, but as no such liability existed at common law the right to relief can be carried no further than the express enactments; and where the officers who shall furnish re lief are designated another county is not lia ble, unless relief is supplied by them, or at their instance. [Ed. Note. For other cases, see Paupers, Dec. Dig. § 39.*] 2. PAUPERS (§ 39*)-RECOVERY FOR RELIEF EXTENDED NECESSITY FOR CONTRACT. Where reimbursement for aid to a transient pauper is not directed by statute, a county which extends such aid can recover from another county, on whom the obligation rested to relieve, only on a promise, express or implied, to repay. [Ed. Note.-For other cases, see Paupers, Dec. Dig. § 39.*] 3. PAUPERS (§ 39*)-RECOVERY FOR RELIEF EXTENDED AGAINST COUNTY-CIRCUMSTANCES RAISING IMPLIED OBLIGATION. Where an implied contract is sufficient on which to charge a county for relief extended to a pauper, such a contract must be established by satisfactory proof, and a mere failure to extend aid in a proper case is no circumstance from which an obligation, to pay another county, which voluntarily extended necessary aid, may be implied. see Paupers, [Ed. Note. For other cases, Dec. Dig. § 39.*] 4. PAUPERS (§ 39*)-RECOVERY FOR RELIEF EXTENDED AGAINST COUNTY-CIRCUMSTANCES RAISING IMPLIED OBLIGATION. The fact that county officers gave a person who was helpless and a fit subject for relief a ticket to another town, from which he was later sent to a town in a county whose officers relieved him, cannot be construed as a request to the latter county to furnish relief, which will support an implied contract to pay for such services as were rendered. [Ed. Note. For other cases, see Paupers, Dec. Dig. § 39.*] of looking after the poor in that vicinity, conversed with him concerning the care of his feet, and was told by Wood that the county physician had said he would get him into a hospital. To this the officer responded, "Did he say that?" His feet were painful throughout the day (Sunday), and at about 11 o'clock a. m. Monday the county physician, in response to a message, opened one or two blisters and dressed his feet again, and upon ascertaining he had formerly lived in Wisconsin inquired if he wished to return there, and said he would talk with the supervisor about it. At about 5 o'clock in the afternoon, the chief of police informed him, "We are going to send you away on the 5:30 train," took him to the depot, and gave him a ticket to Nevada, the county seat of Story county. Keigley paid the chief of police the 48 cents expended for the ticket, and thereafter was reimbursed by the county on claim presented. Upon reaching Nevada, Wood obtained food, and slept that night in a livery stable. In the morning the city marshal, after building a fire, took him to the city hall, where he was examined by a local physician and his feet dressed. In the evening, money was raised by the marshal, from which he bought him a ticket to Mason City, and furnished him money to pay his way to Wisconsin. He was put aboard the train, and arrived at Mason City the next morning in a condition such as to preclude Appeal from District Court, Story County; proceeding farther. At the instance of the C. G. Lee, Judge. Action to recover expenses for care and medical treatment of a nonresident pauper resulted in the dismissal of the petition. Plaintiff appeals. Affirmed. Fitchpatrick & McCall, J. C. Robinson, and Robt. M. Witwer, for appellant. Harpel & Cederquist and E. H. Addison, for appellee. humane officers of that county, he was taken to a hospital, and accorded the consideration and given the care and treatment usually bestowed in civilized communities on the unfortunate. The story reads like the parable of the man who was wounded and left by the wayThe priest and the Levite side half dead. passed by on the other side; but the good Samaritan "had compassion on him, bound up his wounds, pouring in oil and wine, and brought him to an inn, and took care of him." * LADD, J. In January, 1908, William B. Wood, after examining the timber on an island in the Des Moines river, near Fraser, with a view of contracting to cut it, broke through the ice and wet his feet. Being unIt was found necessary to amputate both able to find a lodging place, after walking feet, and the expenses incurred by Cerro several miles, he crawled into a straw stack, Gordo county for his treatment, surgical opand remained during the night. In the erations, and subsequent care amounted to morning both feet were frozen. After walk- $713.95. For this amount, judgment is ing two or three miles, he caught a ride into sought against Boone county, on the theory Boone. He then had but $1.50, and after that it was obligated, upon discovering the procuring a lunch inquired for a physician. condition of this nonresident pauper, and Being advised by the chief of police that having begun caring for him, to furnish him the county physician was out of town, he such care and treatment as was essential to remained at the police station until the next restore him to health, and that, instead of morning, and at about 11 o'clock a. m. was discharging such obligation, its officers, at examined by the county physician, who a cost of a few cents, compelled him to move seems to have properly dressed his feet, and on, and as a consequence plaintiff was at said he "would have to get him into a hos- the expense stated. Upon showing the facts pital." Upon his return to the station, J. W. as recited, verdict was directed for defendKeigley, a member of the board of super- ant, and subsequently judgment entered visors to whom had been assigned the duty thereon. [1] The showing as made was not at all complimentary to the officers of Boone county, but, as no evidence was introduced in its behalf, there may be circumstances some what extenuating their conduct in casting a helpless man, sorely in need of medical aid, adrift, in order to evade the expenditure of a few dollars. The statutes provide adequate relief for paupers applying for succor having settlement in a county of this state, and if this is afforded by a county other than of the pauper's settlement, recovery may be had of the latter. Section 2228, Code. But the county only becomes liable upon compliance with the statutes; that is, the liability of any county is purely statutory. Cooledge v. Mahaska County, 24 Iowa, 211; Cerro Gordo County v. Wright County, 50 Iowa, 439; Otis v. Strafford, 10 N. H. 352; Mansfield v. Sac County, 60 Iowa, 11, 14 N. W. 73; Gawley v. Jones Co., 60 Iowa, 159, 14 N. W. 236. come a citizen of, nor having a settlement in the state, applying for relief, may be sent to the state whence he came, at the expense of the county, under an order of the district court or judge; otherwise, he is to be temporarily relieved in the county where he applies." The manner of relief is prescribed in section 2230: "The township trustees of each township, subject to general rules that may be adopted by the board of supervisors, shall provide for the relief of such poor persons in their respective townships as should not, in their judgment, be sent to the county poor house. But where a city is embraced, in whole or in part, within the limits of any township, the board of supervisors may appoint an overseer of the poor, who shall have within said city or part thereof, all the powers and duties conferred by this chapter on the township trustees. The relief may be either in the form of food, rent or clothing, fuel and lights, medical attendThe care of the poor was not a municipal ance or in money, and shall not exceed two function at the common law. Matters of dollars per week for each person for whom charity were thought more appropriate for relief is thus furnished, exclusive of medical the church. It was ordained by the ancient attendance." All moneys expended are to be kings that "the poor should be sustained by paid out of the county treasury (section parsons, rectors of the church, and by pa- 2232, Code), and "when relief is granted by rishioners, so that none of them die for want a county to a poor person having a settleof sustenance." Later, and supposedly about ment in another county" recovery may be the time of Henry VIII, the law seems to had of the latter for the reasonable expenshave made paupers a charge on certain mues so incurred. Section 2228, Code. But renicipalities. Blackstone, in 1765, said: "The imbursement for aid extended to a transient law not only regards life and member and pauper is not directed, and, if plaintiff is enprotects every man in the enjoyment of titled thereto, this must be owing to an imthem, but also furnishes him with every-plied promise on the part of Boone county thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessaries of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor." 1 Bl. Com. 131 (10th Eng. Ed.). Undoubtedly, the Legislature is endowed with power to create liability on the part of the county for the care of the poor, and to determine under what circumstances one county shall be liable to another. Town of Fox v. Town of Kendall, 97 Ill. 72. But, in the absence of such provisions, the obligation to pay any expenses incurred, no matter how meritorious the claim, is not to be implied, for the corporation is under neither a moral nor legal obligation to care for the poor. "Whatever may be the duty of individuals, from religious or charitable considerations, it is certain the public is bound by no moral obligations to support the poor of the community. That duty being legal and of positive institution is to be carried no farther than the express provisions of the poor laws." Overseers of Poor v. Overseers of Poor, 3 Serg. & R. (Pa.) 117. to repay Cerro Gordo county. Cases may be found where an individual who has furnished the necessities of life to a pauper, after a municipality has omitted to discharge such duty, has been permitted to recover the value thereof, but in most of these this was contemplated by the statute authorizing the relief. [3] Our statutes direct by what officers relief shall be furnished, and there is no ground for charging the county, unless it is supplied by these, or at their instance. Beetham v. Lincoln, 16 Me. 137; Hamilton County v. Meyers, 23 Neb. 718, 37 N. W. 623; Copple v. Davie County, 138 N. C. 127, 50 S. E. 574; Cantrell v. Clark County, 47 Ark. 239, 1 S. W. 200; Kittredge v. Newbury, 14 Mass. 448; Gourley v. Allen, 5 Cow. (N. Y.) 644. See note to Board of Commissioners of Sheridan County v. Denebrink, 9 L. R. A. (N. S.) 1234; Patrick v. Baldwin, 109 Wis. 342, 85 N. W. 274, 53 L. R. A. 613; Overseers of Poor v. Overseers of Poor, 3 Serg. & R. (Pa.) 117. As well said in Patrick v. Baldwin, supra: "While an implied contract is sufficient, as indicated, it must be established, if one endeavors to recover up[2] The only statutory provision authoriz- on it, the same as any other implied contract. ing the relief of the transient poor is found The statute creates a liability to relieve desin section 2225 of the Code: "A person com- titute persons, but not a liability to individ ice. It empowers appropriate agents of mu- I may not delegate that duty to others (Sloan nicipalities to make their liability effective by necessary contracts to that end, and imposes upon such agents the duty to exercise such power. If they refuse to do so, they are doubtless amenable in some way for such misconduct, but the law gives no private person the right to perform the duty of such officers. Otis v. Strafford, 10 N. H. 352. Performance of that duty by the person designated by law is absolutely essential to create a binding obligation upon the municipality to compensate one for relieving a poor person, legally entitled to relief at its expense. There is no more reason v. Webster County, 61 Iowa, 738, 17 N. W. 168); and, as seen, because of their omission thereof, succor may not be given by another, not at their instance, at the public expense. That the officers of Boone county may have been neglectful of the dire needs of Wood, who had never before asked alms, did not charge it with the expense incurred by an individual or another county in giving him the care and treatment his condition required. Nor can the circumstance that its officers gave him a ticket to Nevada be construed as a request to Cerro Gordo county to furnish relief. By casting the unfortunate adrift, they avoided a manifest duty, and, though this may have resulted in putting the burden on another county, it cannot be said to have been assumed at the request of the officers of Boone county. The cause differs from those relied on by appellant. In Overseers of Poor of Pittstown v. Overseers of Platts for holding that a person may aid a pauper, upon the supervisors of the town in which such pauper has a legal settlement neglecting their duty, and hold such town liable therefor, than for holding that one may repair the highways of a town, because its supervisors neglect their duty in that respect, and recover of such town therefor. The duty of the municipality in both cases is regulat-burgh, 15 Johns. (N. Y.) 436, the defendants ed by statute, and in neither case can it be bound to a private person for services rendered, except by contract made as contemplated by law." procured an order of court, transferring a transient pauper to Pittstown, and, as a consequence, he was maintained by the overseers thereof. Subsequently the order was quashed, and the court held that recovery could be had against the overseers procuring the order, on the principle "that a burden has unjustly been thrown upon Pittstown by the procurement of the overseers of the poor of legal settlement in this state, it was their duty to have exonerated Pittstown of the burden they had cast upon them." The cases holding to the contrary seem to overlook the circumstance that the relief is purely statutory; that the duty to extend relief is expressed in general terms, leaving the occasion, method, and extent of relief to the judgment and discretion of the local | Plattsburgh; that, the pauper having no officers; and therefore, to create a binding pecuniary obligation, there must be a contract to that effect, or services must have been rendered at the request of officers authorized to enter into the agreement. See Seagraves v. Alton, 13 Ill. 366; Ogden v. Weber County, 26 Utah, 129, 72 Pac. 433: Shreve v. Budd, 7 N. J. Law, 431; Trustees of Cincinnati Township v. Ogden, 5 Ham. (Ohio) 23. In Sheldon v. Fairfax, 21 Vt. 102, several towns joined in maintaining a poor farm within the limits of Sheldon; each agreeing to pay its share of the expense. In 1837, the town of Fairfax sent a foreign pauper and family in need of relief there, and they, or a part of them, were cared for at the [4] Doubtless some provision for emergen- poor farm until the termination of the arcies exacting quick action should be made, rangement in April, 1846. The town of Fairbut that is a matter for the Legislature and fax failed to remove them, and refused to not the courts. It is not pretended that any- pay the expense of their care, but the court thing was done for Wood at the instance of held it liable, saying: "The duty of the the officers of Boone county, so that a prom- town of Fairfax to take the pauper away ise to pay is not to be implied. Undoubtedly when the temporary purpose for which he Boone county should have given him proper was sent was accomplished is necessarily immedical treatment. Brock v. Jones County, plied from the contract between the two 145 Iowa, 397, 124 N. W. 209; Overseers of towns; and the town of Sheldon having sufPoor v. Overseers of Poor, 114 Pa. 394, 6 fered injury by the breach of that duty is Atl. 475. He there became helpless and a entitled to compensation. I apprehend there fit subject for relief. The duty to extend it is no doubt but that upon acknowledged was then immediately cast upon the defend- legal principles the plaintiff's claim is well ant. But from its failure or refusal to re- sustained. It rests on the common doctrine spond, as both the law and the dictates of that, when one party sustains an injury by humanity required, an obligation to pay an- the culpable misconduct or negligence of another individual or county is not to be in- other, the party injured may recover comferred. Public charity is bestowed in this pensation from it by an action on the case." state as a duty, rather than as a corporate There is nothing in the record to bring the obligation, and therefore the extent of relief, case within the principle recognized in eias well as its character, is left to the discre- ther of these decisions. The officers of detion and judgment of the officers charged fendant did no more than neglect and omit |