OPINION. therefore, that at the time of the execution of the will, the testator was not actually drunk. The appellant however insists, that at that time he was laboring under alcoholic dementia. From the evidence it appears that in the month of July, 1897, on one occasion when drunk the testator went to John J. Perry to have a frame sawed for a barn, and when spoken to about the matter four weeks afterwards, did not remember anything about it. On another occasion when drunk on Sunday morning he wanted to buy hogs of Joseph H. Lingo; when told it was Sunday he said nothing and went away. On another occasion when drunk, while driving home from Oak Orchard, he cut the reins from out of the hands of his wife with a knife because she would not give them to him when asked. Dr. Jones testifies that the testator insisted on paying him ten dollars in the afternoon of July 23d, 1897, when his bill was only eight dollars. The testimony in these cases, and some other instances proved, show that on each occasion the testator was actually drunk. The incidents detailed when carefully considered, are naturally and reasonably accounted for by that fact. They bear the marks of an intoxicated rather than of an insane man. That the testator at times drank to excess is clearly proven, and when drunk he talked and acted as drunken men will. That the use of intoxicants had so unsettled his mind as to deprive him of testamentary capacity at the time of the execution of the will is not proved by the testimony. From the evidence as a whole the following conclusions are safely reached: 1. During all the time in controversy the testator attended to his business; managing his real estate, buying and selling property, dealing with his tenants, making and giving notes and transacting business, without detriment to his estate so far as the testimony shows. OPINION. 2. He recognized and admitted his unfortunate appetite for intoxicants, deplored it, and voluntarily took the most efficient means known to modern science to check it. His statements and admissions to this effect, somewhat relied on by the appellant as showing dementia, are rather the badges of sanity; of one who understands and judges rightly, but lacks the power to control a masterful appetite. Clearly he understood and appreciated his condition. 3. The evidence of Dr. Jones, the testator's family physician, and a witness for the appellant, throws much light on this subject. When asked by appellant's counsel, "Did Phillips ever have what is familiarly known as the rams?" he answered, "Not severe," and to the question, "What was his condition when he had them?" he answered, "Oh, he was not delirious, or anything of that kind, but he was very, very nervous." From observation and examination the actual effect of intoxicants upon the mind of the testator is here stated by his regular physician, and is inconsistent with the theory of dementia. This is significant testimony, although it is accompanied and qualified by the after statement that the witness did not think the testator capable of making a will; with the added qualification that that was a hard question to answer, and that he was not an expert. As to the existence of alcoholic dementia at the time of the execution of the will, Mr. Cullen testifies that without doubt the testator was of sound and disposing mind and memory, "in every respect competent to make a will." He speaks not only as a lawyer, but as a trusted business acquaintance and friend of the deceased. Mr. Cullen is conceded to be entirely capable of correct judgment on this point. He speaks of testamentary capacity at the precise time of the execution of the will. It was his duty to ascertain the fact of competency at that time. His attention was especially called to this subject. For a number of years he had known the testator's habits and had refused to write the will on July 16th, one week before, because Phillips was then under the influence of intoxicants. This testi OPINION. mony is very strong. It is corroborated by George W. Jones, the surviving attesting witness to the will. 4. The purpose of Phillips to dispose of his property as set forth in the will, seems to have been clearly formed and consistently adhered to. He expressed the same intention both on the 16th and 23d day of July. The will accords with all his declarations on the subject. In this appears a stable and constant mind. The appellant strenuously insists that Phillips was incapable of making a will, because the provisions of the will itself are unnatural, and contrary to the ties of blood and affection; in that the wife only takes thereunder one-half the real estate for life, while the residue of the estate goes to a stranger in blood instead of to the collateral heirs of the testator, there being no issue. We are not prepared to say that a will which makes the same provision for a wife, which the law prescribes in the case of intestacy indicates insanity on the part of the testator. It must be considered that the law in its wisdom prescribes that as her portion of the decedent's real estate in case of intestacy. Not much light is thrown upon the domestic relations of the decedent by the evidence, or of his relation with his next of kin. Mrs. Phillips testified that she and her husband lived amicably together except when he was drinking. According to her testimony he was drinking much of their married life. She does not state on what terms they lived when he was drinking; this is left to conjecture. It is manifest from expressions used by Phillips that he had reasons for such a disposition of his estate, although he did not state them. We do not know what they were, but may not conclude from the provisions of the will alone that they sprang from an insane mind. OPINION. After the most careful consideration of the case, we are clearly of the opinion that the allowance of the will should be affirmed, and so order. STATE vs. JOHN LYNN. What State Must Prove-Criminal Law-Indictment--Obtaining Statute; Construction of-Intent to Defraud- urer; One Office-Powers of over I. In an application to change the venue in a criminal cause a rule to show cause is not necessary, because the State, being represented, takes notice of the motion. And it is the same with respect to an application to quash the indictment. 2. The suggestion to change the venue is entered on the record after the decision of the Court and not before. 3. The rule of law governing the change of venue upon the ground of prejudice is that the Court must be satisfied of such prejudice by facts and circumstances; mere opinion is not enough. What evidence is required to sustain the charge of prejudice ? 4. Judges and jurors are disqualified to try a case in which they have a pecuniary interest, and a change of venue should in such case be granted; but an interest as inhabitants and taxpayers of the county is not such a direct, tangible and substan SYLLABUS. tial kind as to disqualify them, even though the defendant might be liable to the imposition of a fine which would be payable to the county. 5. Exceptions cannot be noted to the rulings of the Court refusing to change the venue, to quash the indictment, or to quash the array of the panel of the jury. 6, Neither can an exception be noted to the refusal of the Court to instruct the jury to return a verdict of not guilty, at the conclusion of the evidence for the State. The proper course is to ask the Court, when they come to charge, to so instruct the jury. 7. If the State waives its right to challenge, it can only thereafter exercise its challenges as to those who are called after such waiver. 8. In order to secure a conviction for obtaining money by false pretense, the State must prove (1) That the defendant knowingly made a false pretense. (2) That he made such pretense with intent to cheat and defraud the person from whom he obtained the money. (3) That by such pretense he actually did cheat and defraud such person, and did obtain from him thereby in coin or paper money, or both, lawful money the property of such person. 9. A false pretense is such a fraudulent representation of a fact, past or existing, by a person who knew it to be untrue, as is adapted to induce the person to whom it is made to part with something of value. Such false pretense may consist in any act, word, symbol or token calculated to deceive another, and knowingly and designedly employed by any person with intent to defraud another of money or other personal property. 10. A false pretense which has ultimately accomplished its purpose of fraudulently obtaining money or other property will follow and taint with fraud every step in the transaction from its inception to its conclusion, however circuitous its route or however many agencies it may use. 11. Under the act passed April 28, 1891 (Code 89, etc.), the words "Receiver of Taxes and County Treasurer" do not describe two distinct offices, but con. stitute the proper legal title of the person occupying one office, who is properly described in the indictment as the "Receiver of Taxes and County Treasurer." Such officer is not only the Receiver of Taxes, with authority to receive and deposit moneys arising from taxes in bank, but he is also the disbursing officer of such funds, which can only be drawn and obtained under the law by warrants drawn upon him as such Receiver of Taxes and County Treasurer, made, signed and countersigned as required by law. As such disbursing officer, he has such control and possession of the county funds, and such property therein, as to sustain an indictment which lays the property in question in him as Receiver of Taxes and County Treasurer. 12. When the county funds have been deposited in bank as prescribed by law, and when a specific sum is separated and appropriated by said bank or its agent, for |