which, at the time of its owner's death was within the territorial limits of the state. But the other members of the court were of the contrary opinion, and the decision was that a transfer of personal property by a resident decedent was subject to the tax, whether situated within or without the state. And the cases are quite unanimous in holding to the doctrine that an inheritance tax is not a tax on the property, but a tax on the transfer, or right of succession. State v. Bazille, 97 Minn. 11, 106 N. W. 93, 6 L.R.A. (N.S.) 1732, 7 Ann. Cas. 1056. In Appeal of Hopkins, supra, the supreme court of Connecticut, in speaking of the statute of that state, said [p. 652] "The act is framed in view of the principle that personal property is bequeathed by will and is descendible by inheritance, according to the law of the domicile, and that the disposition, distribution of, and succession to personal property, wherever situated, is to be governed by the laws of that state where the owner had his domicile at the time of his death." The New Jersey court, in Estate of Hartman, supra, holds that the situs of personal property of a testator, for the purposes of the inheritance tax, is his domicile at the time of his death, no matter if its actual situs is in another state. The court observes [p. 667] that the result of its decision would be, in the case before it, "the requirement of the payment of two taxes, of like character, by the same legatees, for the right of succession to the gift of the testatrix," but says that "this unfortunate situation cannot control the determination of the questions presented." So in Blackstone v. Miller, 188 U. S. 189, 23 Sup. Ct. 277, 47 L. ed. 439, Mr. Justice Holmes, after saying [p. 204] that no one doubts "that succession to a tangible chattel may be taxed wherever the property is found," though it may also be taxed by the law of the domicile, observes [p. 205] that "it may be regretted, also, that one and the same state should be seen taxing on the one hand according to the fact of power, and on the other, at the same time, according to the fiction that, in successions after death, mobilia sequuntur personam and domicile governs the whole. But these inconsistencies infringe no rule of constitutional law." We readily agree that it may be regretted that this state should be seen taxing "according to the fact of power" the transfer of personal property situated within its borders and owned by a nonresident, and at the same time taxing a transfer by a resident of property that has its actual situs in another state, under the fiction of “mobilia sequuntur personam," especially when the same transfers may be taxed under the laws of the state where the decedent had his domicile in the one case, and of the state where the property was situated when he died, in the other. But, as said by Justice Holmes, these inconsistencies infringe no rule of constitutional law. It is for the legislature, and not the courts, to remove these "inconsistencies." We note that the inheritance tax law of Massachusetts provides that property of a resident of the commonwealth which is not therein at the time of his death, is not taxable under the provisions of the act, if it is legally subject in another state or country to a tax of like character and amount. We are obliged to hold, under the language of our statute, and the decisions referred to, that the transfer by Heron of the bonds and mortgages in Kentucky, was taxable here. The case of Matter of Hull, 111 App. Div. 322, 97 N. Y. Supp. 701, affirmed by the court of appeals in the opinion of the appellate division, 186 N. Y. 586, 79 N. E. 1107, is almost identical in its facts. In so far as Matter of Thomas, 39 Misc. 136, 78 N. Y. Supp. 981, supports the respondent here, it must be considered as overruled by the Hull case. The order of the probate court of Ramsey county is reversed, with directions to enter an order in accord with this opinion. STATE v. ALEXIS E. GEORGIAN.1 February 6, 1914. Nos. 18,579—(309). New trial separation of juror in criminal prosecution. A temporary separation of a juror from the others, after the case has 1 Reported in 145 N. W. 385. been submitted to them, is no ground for a new trial, where the facts and circumstances exclude all reasonable inference, presumption, or suspicion that the juror has been tampered with, and it clearly and affirmatively appears that no prejudice has resulted. Defendant moved the municipal court of Minneapolis to set aside the judgment convicting him of criminal libel and to grant him a new trial for the reasons stated in the opinion. The motion was denied, Bardwell, J. From the order denying his motion, defendant appealed. Affirmed. Grotte & Bowen, for appellant. Daniel Fish, City Attorney, and W. G. Compton, Assistant City Attorney, for respondent. HALLAM, J. Defendant was convicted of criminal libel. Only one question is raised on this appeal. After the jury had retired, one of the 12 requested the officer in charge to permit him to go to a toilet room. He was permitted to do so, and to leave the jury room for that purpose. The affidavits on the part of the state are to the effect that the door of the toilet room was about 30 feet from the door of the jury room; that the bailiff accompanied the juror about half-way and then requested the deputy clerk of the court to unlock the door, which he did, and that the juror passed in without conversation with any one. No one else was in the toilet room at the time. In a few minutes the juror came out and returned to the jury room. While he was in the toilet room the officer stood in the hall-way watching the door and also the door of the jury room, both of which were in his sight all of the time. Defendant in an affidavit states that while the juror was passing through the hall, the juror and the deputy clerk engaged in conversation in a low tone of voice. This is denied by the juror, the deputy clerk and the officer in charge. Defendant moved to set aside the verdict on the ground of this alleged misconduct. The court denied the motion. It must be assumed that the trial court found that the juror had no such conversation, and that the facts and circumstances "exclud ed all reasonable inference, presumption or suspicion that he had been tampered with." The determination of this question was within the peculiar province of the trial court, and, upon the showing made, we ought not to disturb it. State v. Conway, 23 Minn. 291. There was not here any such misconduct as should vitiate the verdict of the jury. We do not wish to minimize the importance of securing the rights of litigants against the possibility of jury tampering. The courts are very properly jealous of any outside influence upon the jury during the course of a criminal trial, and scrutinize with great care any separation of jurors while they are engaged in deliberating upon their verdict. The statute imposes the duty of keeping jurors together after the case has been submitted to them. G. S. 1913, § 9208. The separation of jurors is presumptively prejudicial, unless it clearly and affirmatively appears that no prejudice has resulted. But the law cannot regard trifling and technical irregularities. It would not do to hold that separation of one juror from the others for the purpose and under the circumstances here disclosed, is sufficient to upset a verdict. The same question has arisen twice before in this court, and in each case a new trial was denied. State v. Conway, 23 Minn. 291; State v. Matakovich, 59 Minn. 514, 61 N. W. 677. Order affirmed. JOHN STREET v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.1 1. One entering a railway train for the purpose of assisting an outgoing 1 Reported in 145 N. W. 746. Note. The question of the carrier's duty to one assisting passenger on train is discussed in notes in 21 L.R.A. 354; 3 L.R.A. (N.S.) 432; 22 L.R.A. (N.S.) 910; 28 L.R.A. (N.S.) 773; and 46 L.R.A. (N.S.) 357. passenger, but himself not intending to take passage, is neither a passenger nor trespasser; and the extent of the company's duty, when without notice of his presence, is, in the absence of statute, to exercise ordinary care not to injure him while there or when attempting to alight, which does not include any duty to hold the train to enable him to alight safely. Statutory stop of passenger train. 2. Such a person, however, is within the protection of G. S. 1913, § 4399, requiring passenger trains to stop "a sufficient time, not less than one minute, to safely discharge and receive passengers." Statute inapplicable. 3. Nor is he within the inhibition of G. S. 1913, § 9010, making it unlawful "for any person other than a passenger or employee to get on or off, or attempt to get on or off any engine or car" while in motion. Questions for the jury. 4. Whether defendant violated the duty prescribed by section 4399, and whether plaintiff was guilty of contributory negligence in attempting to alight from the train while it was in motion, held, under the evidence, questions for the jury. Action in the district court for Goodhue county to recover $3,000 for personal injuries. The amended complaint, among other matters, alleged that defendant and its servants negligently failed to warn plaintiff that it would not be safe for him to enter the car to assist his sister or to warn him that it was not safe for him to attempt to alight from the car after it was started, but on the contrary represented that it was safe and proper for him to do so and that he would have sufficient time to do so and alight from the car before it would start to leave the station, in accordance with law and the usual custom of defendant company in the operation of its passenger trains. The answer admitted that plaintiff's sister became a As to the carrier's duty to see that passenger has alighted before starting train at station, see note in 25 L.R.A. (N.S.) 217. And upon the presumption of negligence from sudden starting of car while passenger is alighting, see notes in 13 L.R.A. (N.S.) 611 and 29 L.R.A. (N.S.) 814. And for the time allowed passenger to alight, see note in 4 L.R.A. (N.S.) 140. The authorities on the question of the negligence of a passenger in getting on or off moving train are reviewed in notes in 21 L.R.A. 354 and 22 L.R.A. (N.S.) 741. And on the question of the construction and effect of a statute making it an offense to get on a moving car or train, see note in 23 L.R.A. (N.S.) 513. |