best stated perhaps by using the clear and simple language of the Connecticut court in the case of State v. Setter, 57 Conn. 465, 18 Atl. 782, 14 Am. St. Rep. 121.

absurdity, has attracted grave judicial scrutiny, and eminent judges have declared they felt no disposition to extend a rule by which a man, when indicted for a misdemeanor, "The broad claim of the appellant is that, may be acquitted because it is doubtful if the crime to commit which the conspiracy whether the offense is not a felony, and who, is formed is actually committed, then the when indicted for a felony, may be acquitted conspiracy is merged in the committed crime because it is doubtful whether the offense is and ceases itself to be a crime at all. It is not a misdemeanor. This has led, if not to admitted, however, that if the contemplated a repudiation of the doctrine, at least to its crime be of that class of crimes called mis- restriction within narrow limits. Thus, it has demeanors, the conspiracy is not merged; been said that even when the felony is exand that in a case where there is a conspir-ecuted there may be cases where the conacy to commit a misdemeanor and the misde- spiracy may still be pursued as an independmeanor is actually committed, the offender ent offense. Thus, when in 1848, the demay be punished for the conspiracy and for fendants, who were the workmen of L., a the misdemeanor also. But it is insisted, that dyer, were charged with conspiring to use if the contemplated crime is of that class his vats and dye in preparing for market called felonies, then if the felony is actually goods not belonging to him, and without his committed the conspiracy is merged and no assent, it appeared on the trial that L. perlonger exists as a separate and distinct of-mitted the defendants to use his dye, etc., for fense. Put in its simplest form the argument is this: Conspiracy is a misdemeanor; theft is a felony; a misdemeanor is a less crime than a felony; and so in a case where there is a conspiracy to commit a theft, that crime being a felony, and the theft is actually committed, the less offense is merged in the greater."

Counsel for the defendant has produced some authorities to sustain his motion, but upon an examination of those cases we are impressed with two things: (1) That they are for the most part old cases; and (2) that practically all of them are based upon the authority of the case of Commonwealth v. Kingsbury, 5 Mass. 106, which has been not only severely criticised by various courts in other cases, but has been disregarded, if not overruled, by a later case in the same state, viz., Commonwealth v. Walker, 108 Mass. 309.

Some of the other cases seem to be incon'sistent with later decisions in the same state, and particularly in Kentucky, where the case of Commonwealth v. Blackburn, 1 Duv. (62 Ky.) 4, was distinctly overruled by the later case of Wait v. Commonwealth, 113 Ky. 821, 69 S. W. 697.

We think the decisive weight of recent cases, as well as of reason, is opposed to the contention of the defendant.

We have not had the time to quote from the various cases which are against the merger rule, and which seem to us to be very strong, and must be content with a citation of them. See cases cited by state. We will, however, quote briefly from a very few of the authorities cited.

their own use, and for such materials as he intrusted them with, but that they made a profit by using them for other materials without his knowledge. After conviction and removal to the Queen's Bench, a motion in arrest of judgment was urged on the ground that, as larceny in abstracting the prosecutor's material was proved, the conspiracy merged. But the Court of Queen's Bench were unanimous in entering judgment on the verdict. A misdemeanor which is part of a felony,' declared Lord Denman, C. J., in summing up the case, 'may be prosecuted as a misdemeanor though the felony has been completed; and the attempt, upon the argument, to make a distinction between misdemeanors by statutes and those by common law was not successful, as the incidents to a misdemeanor are not affected by the origin in law from whence it is derived. It was further urged by the defendants that unless the defense was sustained they might be twice punished for the same offense; but this is not so, the two offenses being different in the eye of the law. If, however, a prosecution for felony should occur after a conviction for conspiracy, it would be the duty of the court to apportion the sentence for the felony with reference to such former conviction.' On the same reasoning it was decided by the 15 judges that a conviction for the misdemeanor of carnally knowing a girl under 12 years old would stand, notwithstanding the felony of rape was proved on trial. So far as the authority of the English courts goes, therefore, the doctrine of merger, if not now abandoned, is confined to that small class of cases where the misde

Mr. Wharton in his recent treatise on Crim-meanor is the first step in the commission of inal Law (volume 2, § 1344) says:

"The technical rule of the old commonlaw pleaders, that a misdemeanor always sinks in the felony when the two meet, has in some instances been recognized in this country, though without good reason. In England, as has already been noticed, the

the felony. And in several of our courts a disposition has been exhibited to reject the doctrine in all cases, and this is reasonable in cases where the conspiracy which the prosecution elects to pursue is a mere ingredient in the felony whose differentia the prosecution elects to reject.

procure an indictment by perjury does not not merge in a felony committed in anothcharge a felony which merges the conspir- er." acy."

vict the prisoner, to prove every material jury room, but he remained silent until after element of the charge beyond a reasonable the return of a verdict adverse to his client.

doubt.

The attorney of proponents was not actuated by any improper motives in procuring the publication of the article. Held that, the denial of a new trial on the ground that the jury were prejudiced by the article would not be disturbed, in the absence of anything indicating that the trial court erred in reaching its conclusion. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. § 49.*]

Appeal from Superior Court, Fairfield County; George W. Wheeler, Judge.

It is your duty, gentlemen, to carefully and conscientiously weigh and consider all the evidence in the case, and if, after having done so, you should be satisfied beyond a reasonable doubt that the defendant committed the crime charged, your verdict should be guilty. If, however, you should believe he did not commit the crime, or should entertain a reasonable doubt of his guilt, your Proceedings by Sylvester P. Bowen, Execverdict should be not guilty. But reasonutor, and others, for the probate of the will able doubt does not mean a speculative or of Frances Emily Cox, deceased. From an mere possible doubt. It means a real, sub-order and decree of the court of probate adstantial doubt, and such a doubt as will re-mitting the will to probate, Jennie James main in the minds of reasonable, fair-minded appeals. Affirmed. and conscientious men after a careful consideration of all the evidence in the case. Verdict, guilty.

Where the findings as made and corrected by the trial court fairly presented all the facts for the proper presentation of every question which the party complaining could urge on appeal, a motion to correct the finding was properly overruled.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 949, 950; Dec. Dig. § 400.*]

2. APPEAL AND ERROR (§ 969*) — REVIEW DISCRETION OF COURT.

Edward M. Lockwood, for appellant. Michael Kenealy and John F. Keating, for appellee.

RORABACK, J. This action is an appeal from an order admitting to probate the will of Frances Emily Cox, which was tried to the jury in the superior court in Fairfield county. The reasons of appeal alleged mental incapacity and that undue influence was exercised over the testatrix.

The trial to the jury was commenced on Thursday, February 3, 1910, and continued on Tuesday, February 8, Wednesday, February 9, and Thursday, February 10, 1910. On Monday, February 7, 1910, while this trial was pending, there appeared in the Stamford Advocate, a daily newspaper published at Stamford, Conn., an article given to the newspaper for publication by Homer S. Cummings, who was the attorney for the appellees, and who as such attorney was then engaged in the trial of this case. The newspaper article began with this heading: "Cum[Ed. Note.-For other cases, see Appeal and mings defends criticised jury." It had refError, Cent. Dig. § 3845-3848; Dec. Dig. 8erence to a McCann Case (76 Atl. 1003) in 969.*]

The trial court is invested with a large discretion over the conduct of the trial, and though the discretion is a judicial one, so that its exercise is subject to review, the trial court will not be interfered with, unless it clearly abused its discretion to the manifest injury to a party.

3. NEW TRIAL (§ 55*)-MISCONDUCT OF COUN

SEL-TIME TO OBJECT.

A party who has knowledge of the fact that the counsel of the adverse party has during the trial procured the publication of a newspaper article which may affect the jury, and that the jury has the article, must immediately object, and he cannot lie by and speculate on the result, and complain when the verdict is

adverse to him.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 106-111, 115; Dec. Dig. § 55.*] 4. NEW TRIAL ($ 49*)-MISCONDUCT OF JURY -EVIDENCE-FINDINGS.

which the jury rendered a verdict of $300 for the death of a boy killed by an automobile, and also to a case following, in which they rendered a verdict for $500 for injuries due to a collision with an automobile in which the injured person lost a couple of teeth. In the McCann Case, the judge, upon his own motion, immediately set the verdict aside. The jury rendering this verdict were thereafter severely criticised and ridiculed by the press of the state. Nine of the jurors in the present action were also jurors who During the trial of a will case the attor- tried the McCann Case. Mr. Cummings was ney of the proponents secured the publication of an article defending the conduct of the jury the attorney for the prevailing party in the in an action for negligent death, and in an ac- McCann Case, but was not interested in the tion for a personal injury. The attorney was action in which the jury rendered the verdict attorney in the action for negligent death, and of $500. This newspaper article also stated nine of the jurors in the will case had been on the jury in the action for negligent death. The that Mr. Cummings, among other things said: attorney of the contestant called the matter to "There is, therefore, nothing extraordinary the attention of the trial court, but did not re- in the verdict, and no reason for indulging quest any action. While the jury were deliberating he ascertained that a juror had pro- in adverse criticism against men who have cured copies of the article and had them in the conscientiously done their duty to the best

of their ability and with far greater knowl- claim to be baseless, as the alleged claims edge of the case than is possessed by those of law form no part of the draft finding as who have criticised them." presented to the court below. The finding, On Thursday, February 10, 1910, in cham- as made and corrected by the trial court, fulbers, Mr. Lockwood, the attorney for the ap-ly and fairly presented all the facts for the pellant, handed the judge presiding at the proper presentation of every question which trial a copy of this interview as it appeared the appellant could urge upon her appeal, copied in the Norwalk Hour. After the mat- and the motion to correct does not merit ter had been fully discussed by the court further consideration. and counsel, the court inquired of Mr. Lockwood if he wanted anything done in respect thereto. Mr. Lockwood replied that so far as he was concerned he did not request that any action be taken in court. At this time, it was not brought to the court's attention, nor appear to it, that the newspaper article in question had actually been seen by any of the jury.

The main question in the case is as to the court's denial of the motion to set aside the verdict of the jury on the ground of the alleged improper conduct of Mr. Cummings, the attorney for the appellee. An examination of the newspaper item in question shows that, under the facts found, it might have affected the impartiality of the proceedings in this case by causing the jury to entertain a friendly feeling toward Mr. Cummings, who had so zealously defended them against criticisms contained in the newspapers. It does not follow from this that a new trial ought to be granted. The question before us is not primarily as to the effect of the conduct of Mr. Cummings, but it is whether the action of the trial court in refusing to grant a new trial so far exceeded the discretion committed to it in a matter of this kind as to warrant us in finding error. "Over the arguments of counsel, as well as over

the trial court is and must be invested with a large discretion; and although this is a judicial discretion and therefore its exercise is subject to review and control to some extent, yet that exercise will not be interfered with save in cases where it has been clearly exceeded or abused to the manifest injury of some party." State v. Laudano, 74 Conn. 638, 646, 51 Atl. 860.

After this discussion between the court and counsel, the trial was resumed. The court, in its charge to the jury, did not refer to the article, and the case was committed to the jury without any further action by either court or counsel as to the matter. While the jury were deliberating upon their verdict, the attorney for the appellant ascertained that one of the jurors had procured ten copies of the Stamford Advocate containing this interview with Mr. Cummings, and had taken the same to the jury room. Immediately following the rendition and ac- the conduct of the trial in other respects, ceptance of the verdict for the appellee the attorney for the appellant for the first time called the court's attention to these facts, and requested that the jurors, before being discharged, should be examined, for the purpose of obtaining evidence to support a motion which he proposed making to set aside this verdict on account of these facts. Such motion was subsequently reduced to writing, fully heard, and denied because the impropriety claimed was known to the applicant before verdict, and that she deliberately refused to request the court to take any specific action, either to dismiss said jury or admonish them. It was also found that Mr. Cummings, in the publication of the interview, was not actuated by any improper or ulterior motive, and it was not his purpose to attempt to influence in any way the jury. Other than is stated herein there was no evidence tending to prove that the jury were unduly prejudiced in behalf of the attorney for said appellees because of said article, or that the verdict was in any wise influenced by its publication.

There are four exceptions to the finding and to the refusal of the trial court to incorporate in it certain matters which the appellant contends are material to properly present her claims of law to this court. One of these exceptions relates to a conclusion which this court draws from the facts already stated in the finding. Another refers to certain claims of law which the appellant contends were made in her request for a finding and which the trial court ignored.

It appears that when the counsel for the appellant first called the attention of the court to this publication he knew its contents and its probable effect if it should reach the jury. No demand was then made for any action upon the part of the court, although he was asked if he wanted anything done in this connection. Several hours later, when he ascertained that it had been seen by the jury, he was in full possession of all the facts, and sat silent, withholding from the court the information he possessed and took his chances of obtaining a favorable verdict. The verdict was returned against him, and he then made the objection which should have been made when he first knew that the newspapers had been taken to the jury room. It was his duty to object at that time, if he was going to object at all. The general rule in such cases is that a party should not be permitted to lie by, after having knowledge of an irregularity of this kind and speculate upon the result, and complain only when the verdict is unsatisfactory to him. State v. Tuller, 34 Conn. 280, 295. Cases may occur where this general rule should not be applied; cases where the abuse

warrant a new trial, even though court and counsel have both neglected to discharge their duty. State v. Laudano, 74 Conn. 645, 51 Atl. 860.

service had begun through defendants' alleged negligence, so that it was not essential to plaintiff's statement of a cause of action that he shall have alleged want of knowledge of the danger.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 844-848; Dec. Dig. § 260.*]

5. MASTER AND SERVANT (§§ 101, 102*)—DEATH

OF SERVANT-DUTY OF MASTER.

The fact that the work of plaintiff's intestate of driving a tunnel was necessarily dangerous did not excuse defendants from using reasonable care to make the place reasonably safe.

The trial court, after listening to the testimony and arguments of counsel, with an opportunity to fully appreciate the probable effect of this newspaper article upon the jury and to discern the proper course to pursue, has denied the motion to set aside the verdict. There is nothing in the record to indicate that the court erred in reaching this conclusion. Burr et al. v. Harty et al., 75 Conn. 127, 130, 52 Atl. 724; Loomis v. Perkins, 70 Conn. 444, 447, 39 Atl. 797. There is no error. In this opinion the oth- 6. TRIAL (§ 260*)-REQUEST TO CHARGE-INer Judges concurred.

WORDEN v. GORE-MEEHAN CO. (Supreme Court of Errors of Connecticut. Dec.

16, 1910.)

1. PLEADING (§ 406*)-GENERAL DENIAL-EF

FECT.

Where, in an action for injuries, defendants' answer admitted that they were constructing the tunnel in which plaintiff's intestate received the injuries from which he died, and denied all the other allegations of the complaint, such answer in effect pleaded the general issue, and defendants by going to trial thereunder waived all formal defects in the complaint. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1358; Dec. Dig. § 406.*]

2. MASTER AND SERVANT (§§ 258, 260*)-INJURIES TO SERVANT-KNOWLEDGE OF DANGER-PLEADING.

Where a servant sues his master for injuries caused by an alleged neglect of duty in failing to provide reasonably safe machines or instrumentalities, he must allege knowledge or its equivalent on the master's part of the dangerous condition of the machine or instrumentality, and want of knowledge or means of knowledge on his part, under the rule that a servant in engaging for services is held to assume all the known or obvious dangers ordinarily incident to the employment.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 816-836, 844-848; Dec. Dig. §§ 258, 260.*]

3. MASTER AND SERVANT (§ 203*)-INJURIES TO SERVANT-ASSUMED RISK-EXTRAORDINARY

DANGER.

Extraordinary dangers not ordinarily incident to the employment are not assumed by a servant, though he may assume them by his conduct when he has knowledge thereof, such assumption arising not from the relation of the parties, but from the fact that the servant knowing of the abnormal risk willingly encounters it.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. 8 203.*]

4. MASTER AND SERVANT (§ 260*)—INJURIES TO SERVANT - DANGEROUS PLACE - TUNNELS EXTRAORDINARY RISK-ASSUMPTION.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 172, 180-184, 192; Dec. Dig. §§ 101, 102.*]

STRUCTIONS GIVEN.

Requests to charge, correct as to the law, but without application to the facts, except so far as they were embodied in the charge of the court, were properly refused.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 7. TRIAL (8 296*)-INSTRUCTIONS.

Defendants in an action for injuries to a servant were not prejudiced by an instruction that it was defendants' duty to keep the tunnel where intestate was killed in as safe a condition as they could consistently with the carrying on of the business in a reasonable and practicable manner, where the court had just previously stated the rule correctly that defendants were only required to use reasonable care to keep the tunnel safe.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]

8. MASTER AND SERVANT (§ 288*)-INJURIES TO SERVANT-NATURE OF RISK-QUESTION FOR JURY.

Where intestate, a laborer, was caught by a cave-in and suffocated in a tunnel, whether the risk of such injury was an ordinary or an extraordinary hazard on the issue of assumption of risk was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*]

9. EVIDENCE (§§ 314, 471*)—HEARSAY TESTIMONY-FORM OF QUESTION.

whether intestate knew the conditions in a parA witness having testified that he knew ticular heading of a tunnel opposite which he was working on the morning of the accident was then asked, "Did he know?" Held, that the question was improper, as calling for an answer which might be founded on hearsay or opinion.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1168-1173, 2149-2185; Dec. Dig. §§ 314, 471.*]

10. EVIDENCE (§§ 547, 555*)-EXPERTS-OPINION-EXAMINATION.

Intestate, a laborer, having been suffocated by a cave-in in the opposite heading of a expert testified that the headings were safe for tunnel to that in which he was working, an work prior to the cave-in, if no blasting was done in the heading where the cave-in occurred. He was then asked whether in his opinion it was proper to keep the men at work in those headings provided they did not blast in the heading where the cave-in occurred. Held, that the question was properly disallowed, since, if the propriety of keeping men at work in the heading where intestate was killed depended on the safety of conditions in the opposite heading, defendant had the benefit of the witness'

Plaintiff's intestate, a laborer working in a heading of a tunnel, was imprisoned and suffocated by a cave-in in an opposite heading alleged to have resulted from the negligence of defendant company in failing to properly protect the roof. Held, that the risk of such injury was an extraordinary one arising after