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Leits such injury as was reasonably necessary for his protection. But if he could have withdrawn from the conflict, and avoided the same, or if it were not necessary, or if it did not appear to him, as a reasonably careful, prudent, and cautious man, necessary to protect his life, or to protect himself from great bodily injury or harm, to inflict painful or hurtful wounds or other injury upon the said Lewis Leits, then he would not be authorized, under the law, in self-defense, to have inflicted such painful or hurtful wounds or other injury upon the said Lewis Leits. In determining whether an assault, if any, was made in such a manner by Lewis Leits as would authorize the defendant in self-defense, as herein before defined, to inflict upon the said Lewis Leits painful or hurtful wounds, if any, or to inflict upon him any injury, you should take into consideration the relative strength of the two contending parties; the nature and character of the assault, if any, made by Lewis Leits upon the defendant; whether made with arms or weapons of some kind, or whether made simply with the hands or fists; the feeling existing between the parties at the time of and prior to the assault; the character and number of blows given by the defendant, if any; and all the other surrounding facts and circumstances disclosed and shown by the evidence in this case."

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The complaint made of this instruction is that it limits the right of defendant to act in self-defense to cases where he is in reasonable fear of losing his life or of suffering great bodily harm, at the hands of his adversary. We have italicized the portions of the instruction to which appellant excepts. very cursory reading will show that there is good ground for the criticism made. Four times in this single paragraph is the thought repeated that, if Leits assaulted defendant, the latter had no right to defend himself unless it reasonably appeared to him that his life was in danger, or that he was likely to suffer great bodily harm from such assault. As an abstract proposition of law, this statement is incorrect. The rule is elementary that one unlawfully assailed may, in self-protection, repel force with force. The extent to which he may go is to be measured by the character of the assault; but the right, as we have stated it, exists under any and all circumstances. Counsel for the state insist that the instruction may have been correct under the evidence in this case, and that, as the evidence is not before us, we should presume a state of facts justifying the rule given. It does, however, appear in the record, that there was evidence on the part of defendant tending to prove that Leits, armed with a knife, assaulted him, and that defendant, in resistance, struck his assailant with his fists, and with those only. It is manifest that the rule announced is erroneous when applied to any such state of facts.

2. But counsel for the state say that the defendant cannot be heard now to urge an objection to this instruction, because he did not ask that any different rule be given. Where the court undertakes to give the law to the jury, it is its duty to do so correctly: and a failure in this respect can be taken advantage of by defendant. The rule that counsel have in mind, doubtless, is that where the instructions given are correct, so far as they go, but objection is made that they are not sufficiently specific, such complaint will not be heard, if no more specific requests are submitted. State v. Viers, 82 Iowa, 397, 48 N. W. 732, and cases cited. We know of no rule that requires a party to do more than except to an instruction containing affirmative error, in order to secure its review by this court. For the error complained of in this instruction, the judgment is reversed.

EDGERLY et al. v. COVER et al. (Supreme Court of Iowa. Dec. 15, 1898.) CHATTEL MORTGAGES-EXECUTION-AUTHORITY OF AGENT.

A merchant's son-in-law, who managed the business as agent, and bought and paid for stock, and who, on the principal's becoming sick, was told to do the best he could, and to make collections or take notes for outstanding accounts, and apply them on a certain claim. and "to work things to the best advantage, and to do anything [the agent] could to keep the business going," had no authority to execute a chattel mortgage of the stock; that not being effective to keep the business going.

Appeal from district court, Iowa county; M. J. Wade, Judge.

Action to foreclose a chattel mortgage covering a stock of goods owned by J. V. Hatter in his lifetime, alleged to have been executed February 6, 1896, by John L. Miller, as his agent. The defendant Aaron Cover has two mortgages, each covering the same stock of goods, executed by Hatter on the 28th day of February and the 23d day of April, 1896. The defendants Seaton and Hatter are administrators of the estate of J. V. Hatter, deceased. The sole question is whether John L. Miller had authority from J. V. Hatter to execute the mortgage to plaintiff. The district court found he had not, and dismissed the petition. The plaintiff appeals. Affirmed.

Thomas Stapleton, McNett & Tisdale, and W. A. Work, for appellant. Hedges & Rumple, for appellees.

LADD, J. That J. V. Hatter was indebted to the plaintiff on the 6th day of February, 1896, as alleged, is not questioned. At that time he was very sick, and, because of the advice of his physician, could not be consulted. His son-in-law, John L. Miller, had been in his employment as clerk in the drug store for seven years, and for two or three years bought the goods, kept the books, made collections, paid the bills, and waited on the

trade. In addition to this, during the last six months of Hatter's life, he conducted the correspondence, and made all adjustments with the wholesale houses. On the day mentioned, Miller signed Hatter's name to the mortgage sued on, covering the entire stock of drugs and other goods, by himself as agent. This was done after consulting the sons of Hatter, and under the apprehension that the agent of the plaintiff, armed with a verified petition and bond as he was, would immediately sue out a writ of attachment, and cause it to be levied on the property. The competency of Miller and his wife as witnesses, under section 4604 of the Code, is exhaustively argued by the appellant, but, as the appellees ignore the point, and submit the case on the theory that they might testify, we pass that question. Each party relies on the evidence of Miller, which is confirmed by that of his wife, and we set it out in extenso. He testified: "During the first and second weeks of his sickness, I went up to see him [Hatter] almost every day, and sometimes twice a day. Sometimes, during the first part of his sickness, something came up that I wanted to talk to him about. A claim had come in that I couldn't meet. I went to see him. I told him I didn't like to trouble him, because I knew he wasn't in a condition to be troubled about business, but if he did not feel able to talk to tell me so. He said he could talk to me a little then, and we talked a little about the claim. He told me to make some collections, to sue if I thought best, to make the customers give their notes, and to turn these in, or to work things to the best advantage, and to do anything I could to keep the business going. 'Come up when you can and see me, and I will talk to you when I can; but in the meantime,' he says, 'go ahead, and do the business just as though it was your own.' He said that he knew that there was a great many debts to be paid, and things weren't in very good condition, but to go ahead, and do the best I possibly could, and that whatever I did would be all right until he got well; and he said, 'If I don't get well, it will be all right anyhow.'" It will be observed that the special duty of Miller was to "keep the business going." To this end he was given very general powers. If the execution of the mortgage was included within these, it is a valid instrument. Richmond v. Greeley, 38 Iowa, 666. The authority is not expressly given, and cannot be implied unless practically indispensable to the accomplishment of the object of his agency. This is the rule with respect to the making of promissory notes. Whiting v. Stage Co., 20 Iowa, 557; Miller v. House, 67 Iowa, 737, 25 N. W. 899; Paige v. Stone, 43 Am. Dec. 420; Mechem, Ag. § 389 et seq.; 1 Am. & Eng. Enc. Law, 1022, 1032. And it must be applied with strictness to the giving of chattel mortgages. The evidence plainly indicates the purpose of Hatter to have been that the business continue a going concern. This appears from his

suggestions with reference to raising money. But observation teaches that the execution of a chattel mortgage on the stock of a retail merchant is ordinarily quite as effective in putting an end to his business as the levy of a writ of attachment. In Dispatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205, Chief Justice Parker remarked: "It is not carrying on the business of the company to pledge or mortgage the machinery used by the company, and thereby suspend its operation, or place them at the will and pleasure of a mortgage." In Taylor v. Labeaume, 17 Mo. 338, an agent, having an entire management of a business of a lumber company, the members thereof living abroad, was held to have power to transfer lumber in trust in payment of the servants of the company. Only a part of its property was so disposed of, not enough to terminate its business. If the agent was permitted to do what the owner might have done, this must be construed with reference to carrying on his business, and not in respect to ending it. The mortgage, if valid, transferred the right of possession to the plaintiff. The mere fact that he did not exercise this right does not argue against the existence. Miller had the authority to sell in the ordinary course of trade, but, authority to mortgage cannot be inferred from that to sell. Jeffrey v. Hursh, 12 N. W. 898, 49 Mich. 31; Wood v. Goodridge, 52 Am. Dec. 771. As the mortgage transferred the right to the possession of the goods and fixtures in the store, and placed the operation of Hatter's business beyond the control of Miller, its execution was inimical to the very purpose of his agency. Clearly, under such circumstances, the authority to mortgage cannot be implied. Affirmed.

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OIL INSPECTORS-SALARIES. Under Acts 24th Gen. Assem. c. 52, § 3, authorizing a deputy oil inspector to retain for services fees earned by him, up to $50 per month, and 25 per cent. thereafter, not to exceed $100 per month, where one inspector died in the middle of the month, and his successor filled out the time, two salaries of $100 each are not authorized; and this though the fees for each half month were sufficient to warrant them.

Appeal from district court, Polk county; Thomas F. Stevenson, Judge.

John Morris died December 15, 1893, and during that month, as deputy inspector of oils, had tested 3,376 barrels of oil, entitling him to charge as fees the sum of $337.61. The defendant was appointed deputy inspector to succeed Morris, and during the remainder of the month tested 3,561 barrels of oil, entitling him to charge fees amounting to $351.60. He reported to the inspector of oils the total work of himself and Morris, and retained from the moneys received $100 as com

pensation for his services, and the same amount for the estate of Morris. As the executive council decided only $100 could be allowed for the services of both during December, he paid the inspector another $100, but at the time of settling with him in May, 1893, again retained the $100 from the fees collected by him during that month and April; and this action was brought to recover that amount, with interest. Judgment was entered as prayed, and defendant appeals. Affirmed.

J. A. Dyer and Dale, Kinkead & Bissell, for appellant. Milton Remley, Atty. Gen., and Jesse A. Miller, for the State.

LADD, J. The very point in controversy is whether an officer who is paid, in fees collected, a salary not exceeding a fixed sum, and whose entire time belongs to the state, in event there is work to do, shall receive a month's salary for a half month's service. The number of deputy oil inspectors must be approved by the board of health, and their compensation is fixed for each calendar month. The deputy is allowed certain expenses, and must report under oath to the state inspector "at the beginning of each mouth for the calendar month preceding." Acts 24th Gen. Assem. c. 52. Section 3 of that chapter is in part as follows: "Each deputy inspector shall collect all fees and commissions, now or hereafter provided by law for inspecting products of petroleum, earned by him, and each deputy inspector may retain for his services actually rendered, all fees and commissions earned by him until the same amount to fifty dollars per month; also twenty-five per cent. thereafter: provided, that no deputy inspector shall be allowed to receive as salary, fees or commissions exceeding one hundred dollars per month." It is plain that the legislature intended the maximum salary for a full month's labor. But Morris was prevented by death from working longer than one-half month. He was entitled, then, at the most, to no more than onehalf a month's salary. The same rule applies to defendant. The intention was that all fees received during the month in excess of the maximum salary fixed should go to the state. And the fact that the fees collected during the half month would warrant the full salary would not relieve the officers from giving the entire month to the inspection of oils. If two performing services during part of the same month may each receive the entire salary for that month, then any number may accomplish the same end. The number of those officers is limited, and one simply succeeds his predecessor in the work. Men change, but the office continues. And to this office is attached a defined compensation for a calendar month. Each was only entitled to the pro rata share of the maximum salary. See State v. Frizzell, 31 Minn. 460, 18 N. W. 316, and Ex parte Lawrence, 1 Ohio St. 431.

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1. Soon after an owner missed a steer, one similarly marked appeared in a certain pasture. where it remained until a certain day, during which it was seen to stand near a spot where the entrails of a steer were afterwards found. A gunshot was heard on that day, and fresh wagon tracks and mule tracks passed by the entrails, and led to and from the home of one of the defendants. The tracks showed that one of the mules had a broken hoof, similar to a hoof of one of defendant's mules. Next day fresh steer meat was found in defendants' smokehouse. Held sufficient to sustain a conviction of larceny.

2. The corpus delicti of larceny may be established by circumstantial evidence.

3. A charge that an intent to appropriate another's property is an ingredient of larceny is not erroneous, as failing to state that the intent must be "felonious.'

4. Where defendant, accused of larceny, denies taking the property, a failure to define the intent of taking more fully than to state that accused must have intended to appropriate the property to his own use is harmless.

5. An instruction to reject the evidence of witnesses, if their testimony is not believed, is proper.

6. There was evidence that defendant killed another's steer, and fresh meat was found in defendant's smokehouse. Defendant testified that the meat came from a steer of his own. Held proper to refuse to charge to acquit, if the jury found that the meat came from his steer. such fact was not inconsistent with his

as

guilt.

7. The mere fact that a material prosecuting witness treated two of the jurors to beer, in a saloon, before any deliberation on the verdict was commenced, is not sufficient to show that the jurors were guilty of misconduct.

8. An accused's objection that the first appearing talesman, drawn under Code, § 349. was called to the jury box, without reference to the order in which names were drawn from the talesmen box, is waived, if not made before the jury is accepted.

Appeal from district court, Harrison county; George W. Wakefield, Judge.

The defendants were indicted and convicted for stealing a steer, and appeal. Affirmed.

S. H. Cochran, for appellants. Milton Remley, Atty. Gen., and W. H. Redman, for the State.

LADD, J. Falk purchased 46 steers at Nickerson, Neb., and brought them past the Dray pasture to his farm, in Harrison county, in April, 1896. One of these (a whitefaced, red, two year old steer, with right horn lopping to the right eye, and brands not especially noticed at the time) disappeared about June 15th of the same year. At about the same time a stray steer, of like description, with brands identified as a "pick" and

a "U," appeared in the Dray pasture, and continued there till Sunday, October 4th. It was last seen between 4 and 5 o'clock p. m. of that day, within 300 feet of where the entrails of a steer were discovered the next day. One Granger was through the pasture near this locality earlier Sunday afternoon, and did not notice entrails at that time. A gunshot was heard by King from that direction at about 5 o'clock. The tracks of a wagon and team of mules standing were observed near by. These indicated that a piece of the right forefoot of the near mule, about 11⁄2 inches long, was broken from the outside and front quarter. The tracks of this team and wagon were traced 11⁄2 miles to the gate of the pasture at the Blair bridge, and from there more than that distance past the house of Jeff Minor, to and from the locality of the entrails. Rain fell shortly after 5 o'clock Sunday, and the difference in these tracks indicated that those leading to the entrails were made before the rain, and those therefrom afterwards. Other mule teams had been in the pasture that day,-one with a defective foot,-but had left through the east gate, near Dray's house. Several witnesses testify to the tracks; and whether, owing to the character of the soil, they could be observed, was a question for the jury. The defendant James Minor had three colts and a mule in this pasture, and had been there to see them on each of the previous Sundays. He and the other defendants started there, by way of the house of Jeff Minor, on the 4th of October, and left the latter's place, in the direction of the Blair bridge, for that purpose, about 4 o'clock in the afternoon. They testify that, owing to the appearance of a dark cloud in the west, they were apprehensive of a storm, and drove on without entering the pasture. The evidence tends to show that on Tuesday the feet of the mules then driven by Minor were measured, that a piece was gone from the right forefoot of the near mule, and that these corresponded with the tracks. At the same time 132 pounds of fresh meat were found in his smokehouse, 175 pounds in a tub in the second story of Frank Farlow's house, and 8 or 10 pounds at Chance Farlow's home. All this meat had been recently salted down, and was shown by a butcher to be from a steer. On the part of the defense it was claimed: That James Minor killed a two year old crippled steer, belonging to himself and mother, October 2d, and sold the 175 pounds of meat to Frank Farlow in payment of a debt, and that at the home of Chance was purchased by his brother. That delivered to Frank was not weighed, nor was the price agreed. Dogs had carried away the head and hoofs of the steer, and a Jew peddler received its hide in payment for trousers. Whether the mother and James had such a steer in 1896 is put in issue by the evidence. One witness testified that she saw defendants near home between 5 and 6

o'clock p. m. Sunday, but the impeaching evidence was such that the jury might have rejected her story. It might also be added that the traditional tall man and short man were seen along the river in this pasture, with a Winchester rifle, and a dead red steer on the sand bar. We have found it necessary to set out the evidence somewhat in detail, in order to pass upon the points raised by the appellants.

1. The circumstances all point to the killing of the stray steer October 4, 1896, at about 5 o'clock in the afternoon. It was last seen after 4 o'clock, near where the entrails of a steer were found the next day. The sound of a gunshot was heard from there within an hour. The team and wagon were there at about that time. The mark of the broken hoof of the mule, similar to that of Minor's, going before the rain, and returning afterwards; the fall of the rain shortly after 5 o'clock; the defendants' purpose of going to the pasture at that time; and all confirmed by their possession of the meat of a steer,warranted the jury, if believed, not only in finding the particular steer was killed, but that these defendants did the killing, and appropriated the meat to their own use.

2. The steer was peculiarly marked by the drooping horn and the white face. Falk and his employés noticed brands, but not their character, while Dray observed that of a "pick," and also "U." It disappeared from Falk's farm at about the time it appeared in Dray's pasture, which was near the road it had been driven when brought from Nebraska. The positive identification of animals is always a matter of some difficulty, but we are of the opinion that the similarity in the description and size, when considered in connection with the other circumstances, was such that the identity of the steer killed as that of Falk might well be left to the judgment of the jury.

3. Whether the corpus delicti may be established by circumstantial evidence is not an open question in this state. State v. Keeler, 28 Iowa, 551; State v. Millmeier (Iowa) 72 N. W. 276. Counsel seem to have confused this with the mooted question mentioned in State v. Clemons, 51 Iowa, 277, 1 N. W. 549, which is whether, "where a party is sought to be convicted upon circumstantial evidence alone, the evidence of the circumstance relied upon must be direct, and not circumstantial."

4. "Larceny" is thus defined in paragraph 4 of the court's charge: "Larceny' is the felonious taking of the property of another without the knowledge or consent of that other, and with the intent of the party taking, at the time of the taking, to permanently deprive the owner thereof, and with the further intent at said times to wholly and permanently appropriate it to the use of the party taking." It is said the word "felonious" should have been used in describing the intent. The virtue of this instruction is in explaining to

the jury just what constitutes the felonious intent in taking, without employing that word in doing so. See Georgia v. Kepford, 45 Iowa, 51. In paragraph 5 the elements of the crime are set out, and the third part, relating to the intent, was as follows: "That said defendants took said property with intent at the time of taking to wholly and permanently deprive the owner of it, and to permanently appropriate it to the use of defendants, or some of them." It will be noticed that the word "felonious" was not used as describing the intent, nor is the taking required to be without the knowledge or consent of the owner. But the court, as seen, had so indicated in the instruction quoted. We have often held that all instructions must be considered together. In this case the defendants denied all taking or knowledge of the steer alleged to have been stolen, and we think that the omission to more fully define the intent of the taking required was wholly without prejudice to the defendants. The criticism of the sixth instruction is without any foundation whatever. The court did

not instruct the jury to reject the evidence of witnesses, if found to be impeached, but simply that, if the jury believed their testimony untrue, they might reject it. Again, complaint is made because the court refused to instruct the jury that, if the meat found was from a steer belonging to James Minor, the defendants were entitled to an acquittal. The fact, if so found, would have been a strong circumstance in favor of the defendants, but not inconsistent with their guilt.

5. Complaint is made of misconduct on the part of some of the jurors and the officers in charge. One Wilson was a material witness for the state, and it is shown by affidavit that on the evening of November 10, 1897, he treated two of the jurors to beer at a saloon in Logan. Whether this was during the progress of the trial, or after its conclusion, we have no means of knowing. We are satisfied, however, that it was not while the jurors were deliberating on their verdict. No other intimacy between Wilson and these jurors is shown. While we are not prepared to say that, under some circumstances, the giving of intoxicating liquors to jurors by a witness might not be such misconduct as to render a new trial necessary, the mere indulgence in this social custom, without anything more, will not warrant the inference of any wrongdoing. See State v. Bruce, 48 Iowa, 530; State v. Livingston, 64 Iowa, 560, 21 N. W. 34.

The conclusion of the lower court that the jurors were properly cared for by the officers when deliberating upon their verdict is fully substantiated by the affidavits filed.

6. The regular panel of jurors having been exhausted, talesmen were drawn, as provided in section 349 of the Code. The one first appearing in court was called to the jury box, and this without reference to the order in which names were drawn from the talesmen box. No objection was made by the de

fendants, and it is now argued that talesmen should be called to the jury only in the order drawn from that box. The section referred to is in part as follows: "In drawing such names, the clerk, when the court directs, shall reject those known to be unable to serve or absent from the territory from which drawn. and proceed until the required number is secured. The persons whose names are so drawn, or as many thereof as may be found within the territory from which talesmen are selected, shall be immediately summoned by the sheriff to appear forthwith, and the jury shall be completed from the persons so summoned and appearing. The names of jurors so drawn, and who serve, shall be placed in a safe receptacle from time to time until all the ballots are drawn from the talesmen's box, when such ballots shall be returned to the said box, to be drawn in like manner as before." It will be observed that the statute does not in direct terms require talesmen to be called to the box in the order drawn. Usually a sufficient number are drawn and summoned to meet the requirements of the particular case. To procure one at a time would occasion inexcusable delay. The statutes relating to the manner of procedure by public officers, where no negative words are used, are generally construed as directory. Dishon v. Smith, 10 Iowa, 212; Parish v. Elwell, 46 Iowa, 162. A challenge to the panel must be exercised before a juror is sworn. Code, § 3680. The drawing of talesmen is in open court, and subject to the inspection of all parties. The defendants were as well advised (or, by giving attention, might have been) as the court of the method pursued. It was their duty to urge any objection to the drawing or summoning of talesmen before the jury was accepted, and, having failed to do so, they will be deemed to have acquiesced in the method pursued. See State v. Pickett (Iowa) 73 N. W. 346. Affirmed.

STATE. OLSON.

Dec. 14, 1898.)

(Supreme Court of Iowa. SEDUCTION-INDICTMENT-SUFFICIENCY-CHarge. 1. An indictment for seduction, under Code, § 4762, is not defective in referring to prosecutrix as a "person" of previously chaste character, instead of a "woman" of previously chaste character.

2. Where, on trial for seduction, the issues as to previous chaste character were fully submitted, and nothing further asked, the court's action in not referring in his charge to previous association of the prosecutrix with other men was

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