Action by Miss Burget against the Ohio Farmers' Insurance Company. Verdict for plaintiff was affirmed by the circuit court, and defendant brings error. Affirmed.

*

Miss Burget brought an action in the court of common pleas to recover of the insurance company upon its policy the value of chattels which had been destroyed by fire during the life of the policy. By appropriate exceptions to the instructions given to the jury upon the trial, the insurer presented as a question of law its liability upon the following state of facts: On the 22d day of November, 1895, the company executed to Miss Burget its policy on the chattels destroyed, insuring them for three years. At the time of the insurance the chattels were located at a residence No. 363 Prospect street, in Cleveland. The policy contains the following stipulation: "This policy shall become void unless consent in writing is indorsed by the company hereon in each of the following instances, viz.: If any change takes place in the location of the property." About the 1st of February, 1896, Miss Burget removed from Prospect street to Huron street, in Cleveland, taking the insured property with her. The company had no knowledge of this removal, and, of course, did not consent thereto. On the 3d day of February, 1896, she removed to a residence on Winchester avenue, in Cleveland, taking the property with her. The property was there destroyed by fire on the following day. the 3d day of February she obtained the consent of the company to the removal of the property to the residence on Winchester avenue, where it was destroyed. Under the instructions given, a verdict was returned for the plaintiff, and a judgment following the verdict was affirmed by the circuit court.

On

Lee Elliott and Hile & Horner, for plaintiff in error. Hart, Canfield & Callaghan, for defendant in error.

SHAUCK, J. (after stating the facts). The sound propositions advanced by counsel for the insurance company must be unavailing if the following is unsound: The removal of the property insured from Prospect street to Huron street without the consent of the company rendered the policy wholly void for its entire term, and incapable of further operation, except by the subsequent consent of the company with knowledge of that removal. The scope and materiality of this proposition appear from the considerations that the chattels were not destroyed at the residence on Huron street to which they were removed without the company's consent, but later, at the residence, on Winchester avenue, to which they were removed with its consent; and that when it gave such consent it had no knowledge of the previous removal to Huron street. A change in the location of insured chattels may increase the hazard or it may diminish it, but the insurer is not required

to leave the question of increased hazard to be tried as a matter of defense after a loss. It may, by the stipulations of its contract, reserve the right to decide that question for itself, and to decide it conclusively. That right was exercised by the insurer in this case by the stipulation that the policy should become void if, without its consent, there should be a change in the location of the The stipulation is conclusive, but property. the duration of the avoidance of the policy for which it provides is to be determined by the intention of the parties, as that is evinced by the subject and terms of the contract. A like conclusive character attaches to other stipulations of insurance policies by which the insurer secures exemption from liability. The condition that the policy shall be void if the house which is the subject of insurance should "be vacated or left unoccupied" when broken was held to be determinative of the rights of the parties, and to exempt the insurer from liability, the loss occurring during vacancy. Insurance Co. v. Wells, 42 Ohio St. 519. The same view has been taken of stipulations against liability in cases of the alienation of the title of the insured, of other insurance, of forbidden liens, of increased hazard from repairs, of the insured property being used in violation of law, of a ship navigating forbidden waters, of the use of the property for more hazardous purposes, of lighting with gasoline, and other like conditions. With respect to all of the conditions enumerated it has been considerately held that the avoidance intended by the stipulation is during, and only during, the existence of the forbidden hazard. Insurance Co. v. Kimberly, 34 Md. 224, 6 Am. Rep. 325; Insurance Co. v. Schreck, 27 Neb. 527, 43 N. W. 340, 6 L. R. A. 524, 20 Am. St. Rep. 696; Mutual Fire Ins. Co. v. Coatesville Shoe Factory, 80 Pa. 407; Obermeyer v. Insurance Co., 43 Mo. 573; Hinckley v. Insurance Co., 140 Mass. 38, 1 N. E. 737, 54 Am. Rep. 445; Worthington v. Bearse, 12 Allen, 382, 90 Am. Dec. 152; Lane v. Insurance Co., 12 Me. 44, 28 Am. Dec. 150. There are numerous other decisions of like import, but these are sufficient for present purposes.

The cases upon the subject have been collected by Mr. Joyce in a note to section 2239 of his work on Insurance. Some of them are plainly irreconcilable with the view above stated. They are entitled to the most respectful consideration, because they are supposed to pay the greatest possible deference to the terms of the contract into which the parties have entered, and to administer merited rebuke to those who would adjudicate with respect to these contracts otherwise than in accordance with the rules generally recognized. They proceed upon the view that, to give full effect to the terms used by the parties, they must be deemed to have intended that upon any breach of the stipulation against an extra hazard, unless the breach is merely temporary, the contract

is terminated, and that it cannot again be put into operation except by some act of the insurer which amounts to a waiver of the defense which was made available by the breach. These cases take no note of the necessity for the construction of such stipulations in view of the variety of senses in which the word "void" is used. They do, however, by the clearest implication, admit that the word is not, in such connections, used in its extreme sense; for, if it were so used, the liability of the insurer could not, after the breach, be revived by mere waiver. The necessity for construction is also impliedly admitted in the attempted distinction between such forbidden hazards as are temporary merely and those which are permanent. For that distinction the terms of the contract afford no basis whatever. If the distinction is made, it must be deduced by construction which applies the terms of the contract to its subject; and, having regard to the reasonableness of conclusions, every hazard is temporary which is not operative when a loss occurs. Any other distinction between temporary and permanent hazards must be arbitrary, and quite apart from any supposed intention of the contracting parties. In this portion of the policy the parties stipulated for the immunity of the insurer from liability on account of losses which might occur during its life. The sole purpose of the stipulation under consideration was to exempt it from liability for a loss which might occur from hazards which it did not have an opportunity to estimate for itself, and which it did not contemplate; that is, from hazards not existing at the place where the chattels were when insured, or at another to which they might be removed with its consent. The consent of the insurer to the removal of these chattels to the residence on Winchester avenue, where they were destroyed, was its election to accept the hazards of that location in lieu of those of their location when the policy was written. The hazards of the location in which the chattels were destroyed were in no wise augmented by the previous removal to Huron street without the consent of the company. Judgment affirmed.

MINSHALL, C. J., and WILLIAMS, BURKET, and SPEAR, JJ., concur.

DAVIS, J. (dissenting). I cannot accept the postulate of the majority that the "avoidance intended by the stipulations is only during the existence of the forbidden hazard." That it may be so in some cases I do not deny, but in a case so plainly stipulated for by the parties such a qualification cannot be read into the contract. Upon a change of location of the insured property it is stipulated,

not that the policy shall become void at the election of the insurer, but that it shall become void. That means that upon the violation of the contract by the insured the policy eo instante becomes absolutely void. Such was the judgment of this court upon a similar policy. Insurance Co. v. Wells, 42 Ohio St. 519. In this case Judge McIlvaine says: "The cases relied upon as authority to the contrary by the defendant in error involved the construction of contracts materially different from this one. Here no construction or interpretation is needed. The plain and unequivocal terms of the contract must be enforced." To the same effect are numerous decisions elsewhere, of which Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 452, 464, 14 Sup. Ct. 379, 38 L. Ed. 231, is a representative case. On the same day on which the decision was announced, this court also held, construing a clause of a condition in a policy identical with the one now under discussion, that a breach of that condition rendered the policy void, not voidable; that is to say, it was held that a transfer of the property avoided the policy. Insurance Co. v. Waters. 65 Ohio St. 61 N. E. 711. The language of this agreement is that the transfer, or the change of location, etc., of the property, shall render the policy void. This being so, the policy became void on the removal of the property from Prospect street to Huron street without the knowledge or consent of the insurer; and it is settled law that, "if the policy has become forfeited or void for any cause, it cannot be renewed or revived except there is a waiver or estoppel arising from the acts or statements of the company or its authorized agent, or unless there is an express agreement to revive." Joyce, Ins. § 1467. It does not appear from the record in this case that at the time the insured property was removed from Prospect street to Huron street the insurer intended to move to Winchester street, nor that the repose at Huron street was merely temporary; and it is conceded that, if a loss had occurred while the property was at Huron street the insurance company would not have been liable. If the theory of the law which I have presented is correct. the policy was at that time void, not merely voidable. But it does appear that the insured knew of this provision of the contract making the policy void, because she applied for the company's consent to the removal to Winchester street, and concealed the fact that she had already removed the goods from Prospect street to Huron street, which would avoid the policy. At all events, there is an utter failure to show any waiver of its rights by the company, with knowledge of the facts; much less an agreement to revive the policy. I therefore am of the opinion that the judg ment of the circuit court should be reversed.

1. Under Burns' Rev. St. 1894, § 7845, providing that every person having a legal claim against a county shall file it with the auditor, to be presented to the commissioners, mandamus will not lie to compel the county council to make an appropriation to pay a claim which has not been so filed and presented for allowance.

2. Where a claim against a county has not been included in the estimates for the year, and no fund has been provided out of which it can be paid, mandamus will not lie to compel the county council to make an appropriation for its payment.

3. Where the county council fails to include in its estimates and appropriations a sum sufficient to pay an assessor's salary, the validity of his claim for the amount due is not thereby affected, but payment thereof is postponed until the amount is fixed by the proper board, and an appropriation is duly made or judgment recovered.

4. Except in case of an emergency, mandamus will not lie to compel a county council to make an appropriation to pay a claim against the county until the claim has been reduced to judgment, and the council at an annual meeting has refused to make such appropriation, when a writ may issue, under Burns' Rev. St. 1901, § 5594h1.

Appeal from circuit court, Wayne county; Henry C. Fox, Judge.

Mandamus by the state, on the relation of Samuel J. Johnston, against Wayne county council and others. From a judgment for defendants, relator appeals. Affirmed.

Chas. E. Shively and A. C. Lindemuth, for appellant. John L. Rupe and Thomas J. Study, for appellee.

DOWLING, J. The relator applied to the Wayne circuit court for a writ of mandate requiring the auditor to convene the Wayne county council in special session, and commanding that body, when so convened, to make an additional appropriation of the funds of Wayne county to pay an alleged claim of the relator for services rendered by him as assessor of Boston township. An alternative writ was issued, and on motion of the appellee, the Wayne county council, the same was quashed by the court. To this ruling the relator excepted, and, electing to stand upon his complaint and writ without amendment, judgment was rendered against him. The relator appealed, and insists that the court erred in quashing the alternative writ and in rendering judgment against him. The material allegations of the complaint and writ are as follows: The relator, Johnston, is, and during the times mentioned in the complaint and writ was, the assessor of Boston township, Wayne county, Ind. On April 1, 1900, he began the work of assessing the real and personal property within his township, and continued such work until fin. ished. He was actually and necessarily oc

cupied in such work 60 days, and there is due him as compensation therefor, at $2 per day, as prescribed by law, the sum of $120. Prior to the Thursday following the first Monday in August, 1899, to wit, on July 21, 1899, he prepared an estimate of the amount of money required for his office for the ensuing calendar year, which estimate amounted to $120, and such estimate was presented to the auditor of said county and filed with that officer on the same day. Said estimate was by the auditor kept on file in his office, subject to inspection by any taxpayer of the county, and due notice of the same was given by said auditor before the presentation of said estimate to the Wayne county council at its regular annual meeting on the first Tuesday after the first Monday of September of said year. On said last-named date the auditor presented said estimate to the Wayne county council, which neglected and refused to make a sufficient appropriation to pay said claim, but appropriated $90 only as compensation for the services of the relator. On June 4, 1900, the relator filed with the auditor of said county an itemized bill of the services rendered by him as such township assessor, verified by his oath; and on the 23d day of July, 1900, that officer audited the said claim, and found that there was due to the relator thereon the sum of $120. Said auditor thereupon issued to the relator his warrant upon the county treasurer for $90 so appropriated as aforesaid by the Wayne county council, but refused to issue a warrant for the full amount of said sum of $120 because a sufficient appropriation had not been made therefor. The relator appeared before the Wayne county council September 4, 1900, at a regular meeting thereof, and demanded that an additional appropriation be made by said council to pay the balance due on his claim, but his demand was refused. The appellee Reid is the auditor of said county. There is due on relator's claim the sum of $30. The auditor is unable to issue a warrant for the same for the reason that no appropriation has been made to pay it. The Wayne county council is now in session, and will not again be in session, unless specially called by the auditor, until January, 1901. The complaint concluded with a prayer for an alternative writ commanding the auditor to call together the Wayne county council in special session, to make an order for an additional appropriation of the funds of the county to pay the balance of relator's said claim.

The case is a plain one. The action of the court in quashing the writ was clearly right on at least two grounds. The compensation of the relator was not a fixed salary, but was so much per diem for an indefinite period, not exceeding 60 days; and before he could collect such claim against the county it was his duty to file it with the auditor, and to obtain its allowance by the board of commissioners. He could not fix the amount to

be paid to himself, nor had the auditor authority to do so. The relator's claim did not differ from other unliquidated demands against the county. Burns' Rev. St. 1894, § 7845. This case is easily distinguishable from Morris v. State, 96 Ind. 597. There the Iclerk was the agent of the county in purchasing the goods. He had no personal interest in the demand, and the statute made his certificate sufficient evidence of the claim.

Again, the county council could not be compelled by mandate to make a further appropriation to be paid out of the county funds. No such claim had been included in the estimates for the year, and no fund had been provided out of which it could be paid. Only in a case of emergency arising after the close of the regular annual meeting of the county council can further appropriations be made at a special meeting of the council. No emergency was shown to exist. Burns' Rev. St. 1901, § 5594a1.

The failure or refusal of the county council to make an appropriation to pay a claim against the county does not affect the validity of the claim. Its payment, however, is postponed until an appropriation is made, and public funds are provided to meet it. If at the time the estimate of its amount is presented to the county council the claim is an unliquidated or disputable one, and the appropriation subsequently made is not sufficient to pay the full amount demanded, such claim should first be presented to the proper board or tribunal, and its amount legally determined. Not until the amount of the claim is so fixed is it obligatory on the county council to make an additional appropriation for its payment, nor will mandamus lie to compel the council to make such further appropriation. Had the relator filed his claim with the board of commissioners, and obtained its allowance, or, failing to secure such allowance, had he brought suit and recovered a judgment against the county for the amount due him, then, upon the refusal of the council at a regular annual meeting to make a sufficient appropriation for the payment of such allowance or judgment, or, in a case of emergency, upon a like refusal at a special meeting, the county council might have been compelled by mandate to include such claim in its appropriations for the year, and to levy a tax sufficient to pay the same. Burns' Rev. St. 1901, § 5594h1.

The motion to quash the alternative writ was properly sustained. We find no error. Judgment affirmed.

(157 Ind. 376)

KEITH v. STATE.

(Supreme Court of Indiana. Nov. 1, 1901.) MURDER-EVIDENCE-STENOGRAPHER-SUFFI

CIENCY-VERDICT-IDENTITY EXECUTION -APPEAL-ASSIGNMENT OF ERRORS-AMEND

MENT.

1. Where on a trial for murder there is evidence amply supporting the verdict of guilty, and much of it is controverted by that offered

by defendant, it is for the jury to decide what facts are proven beyond a reasonable doubt; and, if the inference of guilt is fairly to be drawn from the circumstances of which there is evidence, the appellate court should accept the findings of the jury in capital as in other

cases.

2. Where the state claims, and the evidence strongly tends to show, that the murder was committed in the county in which the indictment was found, and the body afterwards removed to another county, where it was found, the finding of the jury that the murder was committed in the former county should not be set aside.

3. Where the body of a murdered girl was not found for several weeks, but was then in such condition that her father and others stated that they recognized her, they may testify to such recognition, as well as to the peculiar marks and points of resemblance.

4. Where, on a motion for a new trial after conviction of. murder, defendant's claim that certain jurors had each found and expressed an opinion of defendant's guilt, and concealed the fact on the voir dire examination, was disputed by the state, and the trial court heard affidavits and oral testimony pro and con, its findings thereon should not be disturbed.

5. Where a stenographer took the testimony of certain witnesses before the grand jury which indicted defendant of murder, she may testify to the correctness of her notes and read them in the trial court.

6. On the trial of defendant for murdering a girl, it was not error to exclude the testimony of a witness that he was to marry her two days after the supposed date of the murder, and that on that day he was looking for her with threats to kill her if she did not marry him; there being no proof or offer of any overt act on his part.

7. Where, on a trial for murder, the state's evidence all pointed to the commission of the crime at a certain time and place, when and where deceased was last seen alive, testimony of a witness that four weeks thereafter, but before the body was discovered, when five miles from there, he heard blows, and a woman's voice begging some one not to strike or kill her, is not admissible.

8. Where, on a trial for murder, there is evidence of admissions and confessions made by defendant, it is not error to refuse an instruction embodying the reasons given in section 214, Greenl. Ev., why confessions are to be received with great caution, since the weight of the evidence is for the jury, and the court cannot properly charge whether the confession in evidence is to be received with caution, or is of the class which includes the most effectual proofs in the law.

9. Burns' Rev. St. 1894, § 1941, provided that sentences of death pronounced in certain counties shall be executed at the Jeffersonville prison by the warden or his deputy. By Acts 1897, p. 69, the name of this prison was changed to the "Indiana Reformatory," and the title of the officer in charge from "warden" to "superintendent"; nothing being said about execution of sentence of death. Held, that if the act of 1897 impliedly repealed section 1941, prescribing the time, place, manner, and officer who should execute the death sentence, such repeal would not affect the penalty of death for murder as prescribed by the Penal Code, but would leave such details of the exe cution to be prescribed by the court, as was done prior to statutes fixing any such details. 10. After defendant was found guilty of murder, but before sentence was pronounced, Acts 1901, p. 4, came into effect, prescribing that all sentences of death thereafter pronounced should be executed at the Michigan City prison, by the warden thereof. Defendant's motion for new trial "for errors occurring at the trial" was denied, and on appeal the only er

ror assigned was in denying such motion. Held, that the question whether as to defendant such act was an ex post facto law is not raised by such assignment.

11. After an appeal has been argued and submitted, an application for leave to file additional assignments of error comes too late.

12. Where there is nothing in the record on which to found proposed additional assignments of error, an application for leave to file them should be denied.

13. On a trial for murder, the contention being as to whether defendant was the one who committed the crime, the evidence is considered, and found sufficient to support the verdict of guilty.

bridge at dusk. She did not leave either east or west along the road. South of the bridge is a wood. Adjoining this is a field, in which, near the fence, lies an abandoned well, full of water to within a few feet of the surface, fenced off from the field with rails, overgrown with briars and bushes. That night of Tuesday, April 3d, was the last time that Nora Kifer was seen alive. About 11 o'clock that night neighbor Hedges saw appellant approaching his home along the road leading from the direction of the bridge and old well. Upon seeing Hedges, appellant

Joseph D. Keith was convicted of murder, and appeals. Affirmed.

Posey & Chappell and Chas. W. Armstrong, for appellant. W. L. Taylor, Atty. Gen., C. C. Hadley, Merrill Moores, Thomas W. Lindsey, and Wm. Espenschied, for the State.

BAKER, J. Appellant is under sentence of death for murder. The only assignment presented in briefs and oral argument is that the court erred in denying appellant's motion for a new trial.

In

The sufficiency of the evidence to sustain the verdict is questioned. The state produced witnesses whose testimony went to establish these facts and circumstances: the autumn of 1899, appellant, a farmer in Warrick county, about 40 years old, married, living with his wife and children, began a liaison with the deceased, Nora Kifer, daughter of a neighboring farmer, about 18 years old, unmarried. In December they lived together two or three days at a hotel in Evansville, in Vanderburg county, some 20 miles from appellant's home. From this time until April following, deceased stayed mainly in Evansville, sometimes in a brothel. During this period appellant paid out considerable money to her and on her account. Deceased was not discreet, and her intimacy with appellant became current gossip in the home neighborhood. It reached the ears of appellant's wife and caused trouble. Appellant also became fearful of a threatened action by deceased for her seduction. On Saturday evening, March 31st, deceased returned home from Evansville. On Monday appellant sought to see her, but failed. On Tuesday appellant sent her a note by his son Jesse, a lad in his teens. She destroyed the note, but, from the testimony of Jesse, who helped deceased decipher it, and from subsequent declarations of appellant, it read, "Lora, meet me at the bridge at dark." Deceased instructed the lad to tell his father, "All right." In the late afternoon she donned her best clothes, rather gaudy and easily described, and started for the bridge. (This bridge crosses an old canal in a valley where darkness falls rapidly after the sun descends behind the adjacent hills.) She was seen to reach and pace back and forth upon the

the fence. This was of pickets about four feet high. Appellant failed to climb over, but skirted along the fence, with averted gaze, until he had passed Hedges. Hedges accosted appellant, but he neither replied nor looked up. April 9th the mother of deceased received a letter, postmarked at Evansville on April 8th, reading: "Dear Mother: I start this evening for Schicago on a trip. I May be gone three months and mite six with a friend. I expect To have a fine Trip. Do not be uneasy about me. From your Dauter, Lora." Appellant was accustomed to call deceased "Lora." The writing of the letter and envelope was identified as appellant's. From this time until May 22d appellant spoke to nearly every one he met about the Kifers' receiving letters from their daughter, that she was in a sporting house either at Evansville or Paducah or St. Louis, and that, if she told lies on people around Evansville like she had on him, she would be found in the creek with a stone around her neck. Finally the father of deceased said to the appellant that Nora had not been heard from; that a letter purporting to be from her had been received, but that it was in a man's handwriting; that plenty of men would swear whose writing it was; and that he proposed to search for his daughter, and find her if alive. On the night of May 22d William Blackman was returning from Evansville. About five miles from the canal bridge, about an hour after dark, he met a covered buggy, top up, side curtains on, back curtain down, drawn by a gray horse, proceeding towards Evansville. The horse was "just flying," swerved wide in passing Blackman, and never slackened speed as far as he could hear it. About 10 o'clock that night appellant arrived at a livery barn in Evansville. He drove a gray mare, harnessed to a top buggy. At 6 o'clock the next morning he had breakfast, and shortly afterwards left Evansville. That morning the body of a woman was found in Pigeon creek, about two miles from Evansville, at the side of a bridge on the road leading towards the canal bridge and appellant's home. The body was near the middle of the creek in about four feet of water. The head and upper part of the body were submerged. The legs and lower part of the abdomen were out of the water. Around the neck was a rope, to which was attached