FLIGHT OF ACCUSED.—Continued.
defendant from the State immediately after the homicide, considering
therein his motive and reason therefor as disclosed by the testimony.
State vs. Adams et al., 178.
Action against a corporation of Pennsylvania. Armstrong vs.
Columbia Wagon Co., 274.
FOREIGN CONTRACT.-See INSURANCE CONTRACT, 6; FOREIGN
FORMER JEOPARDY.-See JEOPARDY.
FORTHWITH SUMMONS.
The affidavit upon which a forthwith summons was issued was made
by the agent of the plaintiff. Held to be insufficient. Dickerson vs.
Legore, 462.
Where a member of a fraternal benefit association, upon applying
for membership designates as his beneficiary a person in no wise re-
lated to him, as he might properly do under the act of incorporation
and by-laws then in force, a change of the by-laws or act of incorpora-
tion requiring that each member shall designate a beneficiary, who
shall bear a specified relation to him, is prospective only, and has no
effect on a contract theretofore made, notwithstanding such members
upon joining the association had agreed to conform in all respects to
the laws, rules and usages of the order then in force or which might
thereafter be adopted by the same." Emmons vs. Supreme Con-
clave, I. O. H., 115.
1. In determining whether the obligor was prevailed upon by
deception and deceit to execute and deliver the note, fraud is not to be
presumed but must be proved by the party alleging it. And it must
be shown that the fraudulent influence alleged was such that the ob-
ligor was too weak to resist, such as deprived him of his free will, and
such as substituted the will of another for his own. The degree of in-
fluence necessary to control the will of the obligor would depend upon
his mental and physical condition at the time. Rogers vs. Rogers, 267.
2. When the administratrix of a deceased person, interested in an
award in favor of the plaintiff, assents to an amicable action, and
gives testimony favorable to the claim of the plaintiff said testimony
being necessary to warrant the award,-and makes no defense what-
ever to the action, she places herself in a position in which her interest
is in conflict with her duty as such administratrix. This the law will
neither encourage nor permit. And in such case upon the facts prov-
ed, fraud and collusion will be inferred. White vs. Penuel, 272.
See BANK AND DEPOSITOR.
FRAUDULENT ALTERATION OF CHECKS.-See BANK AND De-
FRAUDULENT CONVERSION.-See LARCeny, 6, 7, 8.
FRAUDULENT INFLUENCE.-See FRAUD.
1. While there is no duty resting upon the railway company to
stop and allow a funeral procession to pass, yet if they had been in
the habit of doing it, and thereby induced on the part of drivers who
were familiar with the custom the belief that they would stop, it en-
tered into the question of the driver's negligence.
It is not neces-
sary to be alleged in the declaration of the plaintiff. White vs. The
Wil. City Ry., 105.
2. There is no law requiring a trolley car to stop at the inter-
section of streets and wait until a funeral procession has passed, nor
any law giving to a funeral procession the right of way over cars or
other vehicles or persons properly using the highway. If by courtesy
such privilege has been given it imposes no duty upon the person ex-
tending the courtesy, nor does it relieve such person from using reason-
able care. Id.
3. If it was the uniform and continuous usage or practice of the
company, to stop its cars at crossings and wait until a funeral pro-
cession passed by, and such usage was known to, and relied upon, by
the plaintiff, such usage may be considered by the jury in estimating
the degree of diligence required of the plaintiff. A failure, however,
to observe such usage would not amount to negligence on the part
of the company, nor would it relieve the driver of the carriage of the
duty of exercising due care. Id.
4. The practice of the defendant company to stop its cars and
permit a funeral procession to pass without interruption was not a
custom or usage which had the force and effect of a law, binding upon
the company.
It was a course of conduct, if it existed, in the nature
of an accommodation, indulgence or courtesy, prompted doubtless
by considerations of respect, and if known among drivers in funeral
processions to exist, it was competent to prove it, though it was not
pleaded. If the plaintiff knew of the existence of such custom or
usage, it was admissible in order that the jury might determine from
all the facts and circumstances surrounding the case whether the
plaintiff was at the time of the accident in the exercise of due care
and caution. The Wil. City Ry. vs. White, 363.
1. In a trial for gambling a witness for the State may be asked
a question, the object of which is to show that the defendant had en-
deavored to spirit away the witness before the defendant's trial should
come off. The testimony is admissible as tending to show guilt.
State vs. Hamilton, 433.
2. The floor of a dwelling occupied by a person is not a "device"
within the meaning of Section 2 of Chapter 454, Volume 11, Laws of
Delaware. Id.
The State allowed to enter a nolle prosequi, and motion to in-
struct the jury to render a verdict of not guilty, refused. Id.
A corporation having been summoned as garnishee, and having
given a certificate showing the number of shares of stock held by the
defendant, applied for leave, when an order of sale was asked for to
supplement its answer. Held; that under the circumstances the
garnishee should have an opportunity to produce testimony on the
point in question. Morgan Co. vs. Nailor, 470.
GENERAL REPUTATION.-See REPUTATION.
1. If the stolen goods were found upon the premises of which the
accused was the tenant, and it is proved that he was on said premises
the morning next after the alleged offense was committed, the jury
may infer that the goods were upon the premises with the knowledge
of the accused, and that they were in fact in his possession,unless the
evidence warrants the jury in inferring the contrary. State vs.
Wright et al., 251.
2. If the defendant was not an actual finder of the property, yet if
at the time he received it from the finder he knew of the circum-
stances then existing were such as to reasonably inform him, who the
owner was, and notwithstanding such knowledge, or means of know-
ledge, he appropriated the property to his own use without the con-
sent of the owner, he would be guilty of larceny. State vs. Dredden,
446.
3. In order to determine whether the defendant knew to whom
the property belonged and feloniously intended to appropriate it to
his own use at the time he received it, the jury may consider all that
was said and done by the prisoner, or by others in his presence or
hearing, and any other circumstances which would indicate what his
actual knowledge and intentions were. Id.
1. Entries made on slips of paper by a book-keeper, on informa-
tion furnished him by the ice cream man and the soda man as to the
amount of ice used, were entries made in the usual course of business
by a person who had no interest to misstate what had occurred, and
were admissible in evidence, though the entrant was called to testify,
if verified and adopted by him, as auxiliary to his testimony, as ex-
ceptions to the rules excluding acts, declarations, etc., of third per-
sons. Remington Mach. Co. vs. Wil. Candy Co., 288.
2. Where the issue is one concerning the capacity of a machine to
conform to the warranty under which it was sold, entries made on
slips, in the usual course of business, were admissible to show the am-
ount he actually used and bought, so that the amount of ice actually
made by the machine could be shown by the difference between the
ice used and the ice bought. Id.
HIGHWAY.-See RIGHT OF WAY; ROADS; STREETS OF CITY.
1. Murder of the first degree defined.
2. Murder of first and second degree, and manslaughter defined.
State vs. Tilghman, 54.
3. Malice defined, and also the effect of killing by a deadly weapon.
Id.; State vs. Cephus, 160; State vs. Adams, 178; State vs. Uzzo, 212.
4. The different kinds of felonious homicide defined. State vs.
Honey, 148; State vs. Cephus, 160; State vs. Johns, 174; State vs.
Underhill, 491; State vs. Mills, 497.
5. Under an indictment for murder of the second degree, where the
death was caused by an abortion, the verdict may be murder of the
second degree; manslaughter, assault only, or not guilty. Upon the
trial of any person for any felony whatever, (capital cases only ex-
cepted), where the crime charged shall include an assault against the
person, it shall be lawful for the fury to acquit of the felony, and find
a verdict of guilty of assault. State vs. Fleetwood, 153.
6. In such a trial the defendant may introduce testimony to con-
tradict the dying declarations of the deceased put in evidence by the
State. Id.
7. Any person who administers a drug, or uses an instrument,
with the intent to procure the miscarriage of any pregnant woman,
supposed by such person to be pregnant unless the same may be neces-
sary to preserve her life, is engaged in the commission of a felony, and
if the death of the pregnant woman results from his act, the law im-
plies malice, and the perpetrator thereof would be guilty of murder
of the second degree. And it would be no defense, or mitigation of
the crime, that the deceased woman consented to or even solicited
him to perform such act. ld.
8. All homicides with a deadly weapon are presumed to be mali-
cious until the contrary appears from the evidence, and the burden of
proof to the contrary lies on the accused, as the natural and probable
consequences of the act are presumed by law to have been intended by
the person using a deadly weapon. State vs. Johns, 174.
9. If the prisoner deliberately killed the deceased under the im-
pulse of anger, jealousy, hatred or revenge, created or incited by his
belief or knowledge of the prior infidelity of the deceased, or any prior
wrong doing of the deceased, such killing was not only without ade-
quate provocation, but was wilful and malicious, and constituted the
crime of murder of the first degree. Id.
10. The general rule is that drunkenness is no excuse for crime.
The question of the degree of the alleged intoxication of the defen-
dant at the time of the alleged murder, as well as the condition of
mind, and mental capacity from that cause, to form a specifie intent
or deliberate design to kill, is to be decided by the jury upon all the
evidence before them on that subject. State vs. Adams, 178.
11. Six witnesses testified that the deceased said the prisoner was-
not at fault and that the shot went off accidentally. A seventh wit-
ness was called and objected to under the rule. It was contended
that the rule did not apply in a murder case. Held that there was
no distinction as to the application of the rule, between murder cases
and other cases; that only six witnesses could testify as to the one
point. State vs. Uzzo, 212.
12. Murder, manslaughter and malice defined. Id.
The presumption of law stated where the killing was done
with a deadly weapon. Id.
1. Joint action against husband and wife for professional services.
Held that plaintiff could not recover except upon a joint cause
action, binding both the husband and wife. If in making the agree-
ment with the plaintiff the husband acted for himself and wife, and
was authorized so to do, or if the wife subsequently by her words or
conduct directly or indirectly adopted or ratified the agreement, it
would bind her; but if she neither was a party to the alleged agree-
ment, or subsequently ratified or adopted the same she would not be
liable jointly with her husband. Dussoulas et al. vs. Thomas, 1.
That part of Section 9, Chap. 550 Vol. 14, (Revised Code 600),
Laws of Delaware which provides: "And in any case a married woman,
at the age of twenty-one years, may give a bond, with or without a
warrant of attorney, just as if she were a femme sole." should be so
construed as clothing a married woman with legal authority to give
a bond to another person other than her husband, but as to him she is
not in that respect authorized to act as a femme sole. Masten vs.
Herring, 282.
3. The said act is in derogation of the common law. It is remedial
-the purpose of its enactment being to remove from a femme covert
certain disabilities existing at common law. While a married woman
may do these acts and things which the act authorizes her to do, the
same as if unmarried, yet the act should not be construed so as to alter
or change the common law status of husband and wife beyond its
clearly expressed scope and purpose. At common law the husband
and wife could not contract with or maintain an action against each
other. Id.
HYPNOTISM.-See PRACTICING MEDICINE WITHOUT A LICENCE.
ILLEGAL RATE OF INTEREST.-See CHARGING ILLegal Rate of
INTEREST.
IMMATERIAL EVIDENCE, CONDITIONALLY RELEVANT; RULE.
1. Slips containing entries not strictly pertinent to the issue the
capacity of a machine sold under a warranty-were offered in evidence
and properly admitted for the purpose of showing the amount of ice
used by the plaintiff in its business-the ice having been derived from
two sources, namely, that made by the machine and that bought-
under the promise, at the time of the offer, that the amount of ice
bought would be shown so that the ice made by the machine could be
shown by the difference between the ice used and the ice bought.
Remington Mach. Co. vs. Wil. Candy Co., 288.
2. An irrelevant fact, standing alone, may be conditionally rele-
vant in connection with other facts, necessary to its admissibility;
and in such case counsel may offer to introduce such irrelevant fact for
a specific purpose, coupled with a statement of and promise to intro-
duce other facts necessary to show the relevancy of the fact offered. Id.
3. Where conditionally relevant testimony is admitted, if op-
posing counsel does not make application to the Court to strike out
such provisional evidence upon failure to introduce other testimony
necessary to its materiality, the Court may reasonably conclude that
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