one about 25 yards and the other about 75 yards from the old well, now rain-soaked and muddy, which were identified as those worn by Nora Kifer on the evening of April 3d. There were blood crystals on the rails about the well. After the water was bailed out, at the bottom were discovered a hammer, a pair of grab hooks, which had been made by appellant and used about his farm, and human hair of the color, length, and quality Nora Kifer had when last seen alive. Against this proof on the part of the state, appellant introduced evidence that he was at home the entire evening and night of April 3d. As a witness in his own behalf, he denied practically all of the admissions and circumstances adduced by the state. Much of the state's evidence tending to establish the most incriminating circumstances was strongly controverted. But counsel are in error in assuming that, because this is a capital case, a court of review will undertake to weigh the evidence. No more in this than in any other case does the transcript bring up the voice, the appearance, the demeanor of the witnesses, including appellant; and these are matters that may have been controlling with the jury and trial court in determining the weight of the evidence and the credibility of the witnesses. It was for the jury to decide what facts and circumstances were proven beyond a reasonable doubt, and for them, too, to draw the inferences deducible therefrom; and, if the inference of guilt was fairly to be drawn from the circumstances of which there was evidence, the appellate tribunal should accept the findings of the jury, approved by the trial court, although other inferences might be drawn from the circumstances in evidence. Lee v. State, 156 Ind. 541, 60 N. E. 299. Our opinion is that the verdict should not be disturbed on account of the alleged insufficiency of the evidence to sustain it. a heavy stone. The stream was sluggish. | pellant's home. Two slippers were found, The skull was found to be smashed in, particularly about the temples. The body appeared to have been dead from six to eight weeks, and to have been submerged in water during that time. The hair and nails had all slipped off. The clothing on the body was that worn by Nora Kifer when she left home April 3d. (The slippers and some other articles were not on the body.) A birthmark and other physical characteristics were those of Nora Kifer. The father and others identitied the deceased as Nora Kifer. That day appellant painted his buggy and washed the floor carpet thereof. Blood crystals were found in the carpet. An autopsy disclosed that the blood was yet fluid in the body. On the 25th appellant was arrested at his home in Warrick county, and taken to Evansville. The officers permitted him to ride separately with his son Jesse. He told Jesse that, if he was asked about the note, he should say that he did not take any note. At the jail he was searched, and a pair of cast-iron knuckles were found on him. After giving forth many conflicting oral declarations, he made and signed a written statement to the effect that the deceased had caused him so much trouble that he wanted to get her out of the way; that he sent the note making the appointment at the bridge to enable a peddler whom he had employed for that purpose to take her to Chicago; that the peddler returned and said he had taken her to Chicago; that he wrote the letter of April 8th to quiet her parents. The officers arrested a peddler answering the description given by appellant. When the peddler was brought into appellant's presence, he said. "That is the man." On the peddler's fearfully beseeching him not to accuse an innocent man of the crime, appellant laughed and said: "You are not the man. I have wronged you." Appellant then told the officers that he had employed a man named Asbury to take deceased away. The officers replied that it was futile to try to deceive them further, that they had had a talk with his son Jesse, and that he was the man. Whereupon appellant replied: "You need not look for outsiders any longer. If you will wait till to-morrow morning, after I have seen my wife, I will tell you who did it, where it was done, and all about it." In the morning, after consulting counsel, he refused to talk further. An aged aunt visited him in jail, and said: "If you are guilty, Joe, own it like a man, and get the mercy of the court; but, if you are not guilty, say so like a man." He replied: "She broke my peace at home, and was getting away with all my money, and something had to be done." While in jail appellant attempted to arrange with fellow prisoners, and with other persons by letter, for proof of an alibi for himself, and of the life and whereabouts of Nora Kifer after April 3d. In the latter part of June some men were cutting wheat in the field between the old well and the highway leading to ap Appellant argues separately that the venue was not proven. This is really a part of the question whether the evidence sustains the verdict. The venue, like other material averments of the indictment, must be proven beyond a reasonable doubt. The indictment was returned by the grand jury of Warrick county. The dead body was found in Vanderburg county. From the latter fact, taken by itself, the presumption would be that the murder was committed in Vanderburg county. But the probative force of the circumstances in evidence was to the effect that appellant slew deceased in Warrick county near the canal bridge on the night of April 3d, and cast her body into the well, where it lay until the night of May 22d, when appellant removed it to Pigeon creek, in Vanderburg county. Complaint is made of the court's ruling in permitting the father of deceased and another witness to testify that the body found in Pigeon creek was that of Nora Kifer. Counsel contend that, if a dead body is But It is alleged that appellant did not have a fair and impartial trial, by reason of misconduct of three jurors, in this: that each had formed and expressed an opinion of appellant's guilt, and concealed the fact on his voir dire examination. This was disputed by the state. The trial court heard affidavits and oral testimony pro and con. We are not authorized to disturb its finding on conflicting evidence. Hinshaw v. State, 147 Ind. 334, 47 N. E. 157; Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465. Appellant's objections to the court's action in permitting a stenographer to testify and to read her shorthand notes regarding the testimony of certain witnesses before the grand jury are fully covered by the decision in Higgins v. State (Ind. Sup.) 60 N. E. 685. William Clark, a witness for appellant, was not permitted to testify that he was to marry deceased on April 5th, and that on that day he was searching for her with threats to kill her if she did not marry him. There was neither proof nor offer of any overt act by Clark against the life of Nora Kifer. Evidence of isolated threats by third parties is not admissible. Bonsall v. State, 35 Ind. 460; Jones v. State, 64 Ind. 473; Walker v. State, 102 Ind. 502, 1 N. E. 856; Davidson v. State, 135 Ind. 254, 34 N. E. 972; Siple v. State, 154 Ind. 647, 57 N. E. 544; Green v. State, 154 Ind. 655, 57 N. E. 637. Appellant offered to prove by Union Henon that about May 1, 1900, at 9 o'clock at night, while he was on a highway four or five miles north of the Keith and Kifer | neighborhood, he heard blows, and a woman's voice begging some one not to strike or kill her; the sounds apparently coming from a place about 70 yards away. This was coupled with an offer to prove that appellant was not present at that time and place. If the prosecution fails to make a case, the defendant is not required to introduce any evidence. If the state makes a prima facie case, the defense is not limited to controverting the facts and circumstances proven by the state, but may bring forward any legitimate evidence to meet or throw doubt upon the state's case, including proof that another than the defendant committed the crime under investigation. Green v. State, 154 Ind. 655, 57 N. E. 637. But proof of an assault at another time and place upon some person other than the deceased is irrelevant. The evidence on the part of the state pointed tó no other time and place than April 3d and the vicinity of the old canal bridge. This was what the jury had to believe in order to find appellant guilty under the evidence. But on the part of appellant there was neither proof nor offer that Nora Kifer was alive and in the neighborhood of the alleged assault on the night of May 1st. We do not find the case of Synon v. People, 188 Ill. 609, 59 N. E. 508, to be applicable to the facts here. The court properly refused an instruction submitted by appellant in which were embodied the reasons given in section 214 of Greenleaf why "admissions and confessions are to be received with great caution." The weight and the credibility of the evidence of confessions in a given case are to be determined by the jury as facts. Some admissions or confessions may be entitled to little credit, owing to confusion of the prisoner and the heedlessness or worse of the narrator. Other confessions, deliberately made, as Greenleaf says in section 215, "are among the most effectual proofs in the law." But the court cannot properly charge as a matter of law that the confessions in evidence belong to the one class or the other. Garfield v. State, 74 Ind. 60; Davis v. Hardy, 76 Ind. 272; Unruh v. State, 105 Ind. 117, 4 N. E. 453; Mauro v. Platt. 62 Ill. 450; Com. v. Galligan, 113 Mass. 202; Castleman v. Sherry, 42 Tex. 59. Lastly, appellant challenges the correctness of this instruction: "If you find the defendant guilty of murder in the first degree, as charged in the indictment, you have the right to fix his punishment at imprisonment for life, or that he suffer death." From the organization of the Northwest Territory down to 1881, the penalty in this jurisdiction for murder in the first degree was death. Since 1881 the jury has had a discretion to fix the punishment at death or imprisonment in the state prison during life. Throughout the whole period of Indiana's existence as territory and state, the death penalty has been named in the statute defining murder in the first degree; and the common law has been in force, except as modified by constitutions and statutes. As appellant's punishment was not fixed at imprisonment, his complaint is necessarily limited to that part of the charge which informed the jury that they might assess the death penalty. The charge was correct, unless capital punishment in this state has been abolished by implication. Prior to 1897 there was a state prison south, located at Jeffersonville, and a state prison north, located at Michigan City. In 1889 a statute was passed directing that sentences of death pronounced in counties south of a named line should be executed at the Jeffersonville, and those north at the Michigan City prison. Section 1941, Burns' Rev. St. 1894. Under this statute, appellant should suffer death at the Jeffersonville prison. But in 1897 the name of the southern prison was changed to the "Indiana Reformatory," and the title of the officer in charge from "warden" to "superintendent." So far as imprisonment was concerned, the purpose of the institution was changed from the incarceration of male felons generally to that of those who were more than 16 and less than 30 years old. Male felons over 30 years old were to serve their time at the northern prison, the name of which was changed to the "Indiana State Prison." Acts 1897, p. 69. The act of 1897. made no mention of the execution of death sentences. This was the state of the statutory law when the verdict in this case was returned, on January 11, 1901, finding appellant guilty, and assessing the death penalty. On January 28, 1901, a statute came into effect which provided that all sentences of death thereafter pronounced should be executed at the Michigan City prison. Acts 1901, p. 4. The court thereafter pronounced judgment, and directed that the sentence be executed according to the provisions of the act of 1901. Appellant argues that as to him the act of 1901 is an ex post facto law, and that the act of 1897 repealed the act of 1889, which prescribed when, where, how, and by whom death sentences should be executed. But the assignment is that the court erred in overruling the motion for a new trial. The motion sets forth various alleged "errors occurring at the trial." The particular ground to which the argument is addressed is that the court erroneously instructed the jury that they might fix appellant's punishment at death. The instruction was given, the trial concluded, and the verdict returned before the act of 1901 was passed. The only question under the motion, therefore, was as to whether that part of the Penal Code which defines murder in the first degree and fixes the punishment at death was in force when the instruction was given. It is unneces sary to decide whether or not the failure of the act of 1897 to prescribe when, where, how, and by whom death sentences should be executed impliedly repealed that part of the act of 1889 which did name the time, place, manner, and officer, because the express repeal of all legislation touching time, place, manner, and officer would not abrogate the death penalty for murder, but would merely leave the court free to follow the common law in directing the execution of the sentence. Down to 1807 our statutes were silent respecting time, place, manner, and officer. Laws Northwestern Territory 1787-1802, p. 98, c. 6, § 2. The court issued its writ, and the sheriff executed it. 1807 to 1824 nothing was prescribed but the manner (hanging by the neck until dead), which was a mere affirmation of the common-law method previously employed. Rev. St. Indiana T. 1807, p. 39, c. 6, § 29. In 1824 and 1838 the time was fixed, but no officer nor place was named. Rev. Laws 1824, p. 149, § 65; Rev. St. 1838, p. 219, § 76. In 1843 (Rev. St. 1843, p. 997, § 70), the sheriff was named. He was the proper officer by the common law. In 1852 (2 Rev. St. 1852, p. 379, § 134), the place and the persons entitled to be present were named for the first time. In 1881 (Rev. St. 1881, §§ 1872, 1875) some changes were made in time and place. Then followed the legislation of 1889, 1897, and 1901, heretofore referred to. Just as, starting from none, the details of method have been built up, so they might be taken down, one by one, or collectively, without affecting the definition of murder, and the infliction of the death penalty therefor. There was no error in overruling the motion for a new trial. From Since the oral argument, and after the cause had been taken under advisement, appellant's counsel, probably having perceived that their attacks upon the law of 1901, and the part of the judgment which directs when, where, how, and by whom the penalty shall be inflicted, had not been duly presented to the trial court or here, have asked leave to file additional assignments of error, with a view to having a basis for their attacks. At least two reasons forbid the granting of the request. The application comes too late. And there is nothing in the record on which to found the proposed assignments. The part of the judgment which sentences appellant to death is affirmatively approved. Appellant therefore cannot successfully assail the judgment as an entirety. Having failed to move for a modification of the judgment with regard to the details of executing sentence, appellant is unable to point out any ruling of the trial court on that subject for review. Appellant procured a change of venue from the Warrick to the Gibson circuit court. The unusually voluminous record discloses that the trial was conducted with great care, zeal, and ability by the respective counsel. A conservative and painstaking judge, who saw the witnesses face to face, pronounced the sentence, and no valid reason has been advanced why it should not stand. Judgment affirmed. (157 Ind. 341) SCHRADER, Road Supervisor, v. STATE ex rel. MASON. (Supreme Court of Indiana. Oct. 30, 1901.) OFFICERS-MANDAMUS-TERM OF OFFICE-EXPIRATION-SUBSEQUENT APPEAL-EFFECT SUCCESSOR-SUBSTITUTION AS APPELLANT. 1. Where a peremptory mandate was awarded against a road supervisor to compel him to issue a road tax receipt, he was officially, and not personally, bound to comply therewith, and hence he could not appeal from such judgment after the expiration of his term of office. 2. A judgment of mandamus against a road supervisor to issue a road tax receipt is binding on the supervisor's successor in office. 3. An appeal from a judgment awarding mandamus against a public officer, being ineffectual and void when taken after the expiration of his term, will not authorize the substitution of his successor as appellant. Appeal from circuit court, Warrick county. Mandamus by the state, on relation of William F. Mason, against William Schrader, supervisor of a road district, etc. From a judgment awarding the writ, defendant appeals. Dismissed. Esarey & Ewing, for appellant. JORDAN, J. The state, on relation of William F. Mason, petitioned the lower court for a mandamus to compel William Schrader, as the supervisor of road district No. 1 of Troy township, Perry county, Ind., to issue and deliver to the relator a road tax receipt as a credit upon his road taxes, in consideration of his cutting down and destroying burrs and other obnoxious weeds growing along a certain public highway contiguous to the lands owned by the relator. The latter claims his right to such receipt and credit upon his road tax by virtue of an act of the legislature approved March 3, 1897, entitled "An act concerning the cutting down and destroying of briers, thistles, burrs, docks, and other obnoxious weeds, by the owners of lands along public highways." Acts 1897, p. 122. The venue of the action was changed from the Perry circuit court to that of the Warrick circuit court, wherein a trial upon the issues resulted in the court, on June 12, 1900, rendering its final judgment, whereby a peremptory writ of mandate was directed to issue against Schrader 61 N.E.-46 as supervisor, requiring him to issue to the relator a road tax receipt for $12, the same to serve as a credit on his highway taxes to that amount. On February 1, 1901, Schrader, as such supervisor, appealed from the judgment of the lower court to this court; and, on the same day, he, as the appellant in said appeal, filed his assignment of errors, whereby he complained of various alleged erroneous rulings of the trial court, by reason of which he prayed that the judgment below be in all things reversed. On August 28, 1901, appellee filed a motion to dismiss this appeal on the grounds that Schrader was not the supervisor of the road district in question at the time the appeal was taken by him. It is fully established by the verified evidence filed in support of this motion that one Fred Wagner at the general November election of 1900 was duly elected as the successor of appellant herein, as provided by law, as the supervisor of road district No. 1 of Troy township, Perry county. Ind., and thenceforward has been discharging the duties of said office. It is evident from the facts that Wagner, for over two months prior to the time that the appeal in this case was taken by his predecessor, had succeeded to all the rights and duties of said office When he was elected and qualified, appellant was thereby devested of his office as supervisor, and no longer had any title or interest therein. As he was neither de jure nor de facto supervisor of the road district in question, he had no color of right to prosecute this appeal. Conceding, without deciding, that the duty of issuing the road tax receipt in dispute to the relator was, under the law, incumbent upon Schrader as the supervisor of the district in question, it would follow, therefore, that such duty would continue to rest upon him and his successor in office until performed. In such cases as this the action is viewed and considered as being against the office, to compel the performance of a duty devolving upon it regardless of the incumbent. The action is not against the incumbent in his personal or individual capacity, but is prosecuted against him in his official capacity, and there can be no recovery against him in the capacity of an individual. Consequently, when a peremptory mandate has been awarded against the officer, but his term of office has expired, and the writ has not been obeyed, the court may and should order an alias peremptory writ to issue against his successor in office, who is bound by the judgment, for the performance of the required act. High, Extr. Rem. § 38; People v. Supervisors of Barnett Tp., 100 Ill. 332. The mere fact that the judgment in this case for the peremptory writ may have been rendered against Schrader as such supervisor before he was devested of his office by the election and qualification of his successor did not invest him with such an appealable interest or right in the matter as coula be enforced by him after the election and qualification of his successor. Where it is disclosed to this court that a party who assumes to appeal a cause has no appealable interest therein, the appeal will be dismissed for the reason that a party who no longer has any substantial interest in the controversy will not be allowed to prosecute an appeal to this court. Elliott, App. Proc. § 526; Ewbank, Man. § 142; Stauffer v. Gas Co., 147 Ind. 71, 46 N. E. 342. Whatever appealable interest or right Schrader, in his official capacity, had in the proceeding, terminated or ceased after the election and qualification of his successor. The latter, therefore, upon his succession to the office, became bound by the judgment of the lower court, and was entitled to appeal therefrom to this court, instead of his predecessor, provided such appeal was taken within one year from the date of the final judgment. On October 15, 1901, Wagner, as the successor of appellant, filed an application in this court to be made appellant in this appeal in the place and stead of Schrader. As the appeal by the latter, under the circumstances, is equivalent to no appeal, the granting of this application would operate to allow an appeal to be taken after the expiration of the time limit fixed by the statute. If Schrader had appealed from the judgment before his right or title to the office had been terminated, and he had thereafter been devested of his office, the substitution of his successor as appellant would have been proper. The application of Wagner to be made appellant herein is denied, and it follows, for the reason stated, that the appeal must be dismissed. Appeal dismissed. ACTION FOR DEATH-NEGLIGENCE-PLEADING -STATUTES-CONSTITUTIONALITY-APPLICA TION CONTRIBUTORY NEGLIGENCE - VERDICT- OBJECTIONS WAIVER ON APPEAL GENERAL VERDICT SPECIAL ANSWERS CONFLICT-PROOF-INSTRUCTIONS. 1. Act Feb. 17, 1899 (Acts 1899, p. 58), providing that in actions for damages on account of the alleged negligence of any person, copartnership, or corporation for causing personal injuries or the death of any person it shall not be necessary for the plaintiff to allege or prove the want of contributory negligence on his part or the part of the party for whose injury or death the action is brought, and that contributory negligence on the part of the plaintiff or such other person shall be a matter of defense, is not unconstitutional. 2. Such statute applies to all actions for damages for personal injuries or death on ac count of negligence brought after its passage, though the cause of action accrued prior thereto. 3. No presumption adverse to a plaintiff will arise on failure to allege freedom from contributory negligence in an action under such statute, as such averments are unnecessary. 4. In an action against a railroad for causing the death of a railroad engineer, it was shown that defendant's road at a certain town 1 Rebaring denied. used the station of the road on which decedent was employed, reaching the same by means of a Y, which intersected decedent's road a quarter of a mile from the station. The complaint alleged that one of defendant's trains was due at the station two minutes after that of decedent, and the latter's train was five minutes late; but it did not appear when defendant's train was due on the Y at the point of intersection, or that decedent knew when it was due there. Held, that decedent would not be charged with knowledge that defendant's train was due at the intersection when he arrived with his train, so as to be guilty of culpable negligence in attempting to pass the intersection without first stopping, or tak ing precaution to avoid the danger. 5. In the absence of a separate presentation of a ruling refusing to direct a verdict, objec tions thereto will be deemed waived on appeal. 6. The special findings of fact in an action against a railroad for causing the death of the engineer of another road established that defendant and decedent's roads by agreement used a certain station in common, the former road reaching the same by means of a Y; such agreement, which was known to all employés, requiring the former to send forward a flagman to warn trains on the latter track before running any trains from the Y onto such track. On the latter road's time-table was an instruction that when tracks of two railroads connect at common grades all trains passing over such tracks shall come to a full stop before reaching such crossing; and, further, that engineers, when inside yard limits at such station, should have their engines under control, and that defendant road's engi neers would be governed by such time-table and special instructions. Another rule provided that all trains must approach junctions and railroad crossings at grade, prepared to stop, and must not proceed until the signals were seen to be right, or the track was plainly seen to be clear. It was further found that decedent, on reaching the yard limit, 900 feet from the intersection, was five minutes late, but had his train under full control, and when approaching the intersection defendant's switch target indicated a free track, and decedent did not stop his train. Defendant's train crew did not send forward any flagman, nor had they set the switch to run onto the track from the Y, but ran the train forward till it occupied a part of such track, and a collision resulted. Decedent knew defendant's train was due at that time. No rules required him to stop at the intersection and ascertain whether another train was about to come upon his track. Held that, though such answers tended to show contributory negligence, a general verdict for plaintiff was not in irreconcilable conflict with such answers, as it would be presumed in support of the general verdict that there were other rules waiving the application of the rules in evidence. 7. Where each paragraph of a complaint states a good cause of action, an instruction that, if plaintiff had proved the material allegations of either paragraph by a fair preponderance of the evidence, she is entitled to recover, is not improper. 8. In an action against a railroad for the death of an engineer employed by another road, which roads connected by means of a Y, the court instructed that it was the duty of defendant's employés, before running on decedent's track, to exercise ordinary care to ascertain the presence of trains on the latter track that might lead to a collision; and if it was shown that such employés did not use such care, and decedent's death was caused by such negligence, and without fault on his part, there should be a recovery. Held, that an objection that such instruction misled the jury from finding negligence or nonnegligence from all the evidence was untenable, as the |