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found indicated that it might have been done. | full consideration of some of the other exThat is as far as I can go. C. Q. 137. “Indi- ceptions will be of service for guidance in a cations only show
Answer: "That it could have been done."
future trial of the case. There was no testimony showing such a
[4, 5] The fourteenth exception was taken' disarrangement of the dead boy's clothes, to the admission in evidence of a certain box as for example that the top of the trousers and its contents, which said box was marked were below the hips, as to give added "State's Exhibit 3.” It is somewhat diffiweight to this suggestion of Dr. Griffin. It cult to determine from the record whether therefore derives its whole significance from the box was so admitted or not. This exthe dilated condition of the anus. Upon ception is noted on page 75 of the transcript, this slender foundation is erected a struc- but there is no express ruling of the court
to that effect. ture of testimony, which includes the narra
The uncertainty on this point tive as to the defendant's physical examina- offered it in evidence near the close of its tive as to the defendant's physical examina- appears to have been such that the state tion, the description of his physical appear case, as appears on page 452 of the tranance and development, and the four photo- case, as appears on page 452 of the trangraphs all adduced in order to show to the sion on the point of its admissibility, but no
script. There was then a prolonged discusjury his physical capacity to commit a crime, ruling by the court is shown. As, however, the actual commission of which is only sug- the exception on page 75 is allowed and the gested as a mere possibility. We think the box is marked "State's Exhibit 3,” it is to be testimony was not sufficiently relevant to the issues in the case. Sodomy is a crime treated as having been duly admitted in against nature, and as such is a disgusting evidence. The objections to its admissibiland repulsive offense. So that, if the person the defendant as to the nature and extent
ity are: First, that no dispute was made by who killed William Mather did it in the endeavor to commit the crime of sodomy, or if of the wounds on the skull of William the killing was the result, accidental or oth- Mather; and, second, that such evidence only erwise, of a personal quarrel, and then,
tended to prejudice the jury against the dehaps under a sudden impulse, while the
fendant. Inspection shows the exhibit to stricken body of the victim was yet warm-contain the crown or upper and back portion whether before or after his death the slay- of the skull with some fragments of bones. er availed himself of the opportunity to grat- Demonstrative evidence of this character is ify his lustful passion, for this vile act he relevant and admissible when it serves either would naturally be regarded by most men as to show the commission of a crime or throws a foul degenerate and a wicked and criminal light on the way it was committed. On the pervert. We think therefore that all of this other hand, if it explains no fact and is releevidence relative to the defendant's ability vant to no disputed issue, then it is excluded to commit the crime of sodomy could not on account of its tendency to create prejuhave failed to prejudice his case with the dice. See Wharton, Crim. Ev. vol. 2, &$ 518, jury. State v. Ellwood, 17 R. I. 763, 769, 5180, 941; 2 Wigmore on Evidence, $ 1157; 24 Atl. 782. It should have been excluded. Cole v. State, 45 Tex. Cr. R. 225, 232, 75 s. The fifth, sixth, seventh, eighth, ninth, tenth, W. 527. In this case the manner of the kill
The fraceleventh, twelfth, thirteenth, fourteenth, six- ing was a matter of inference. teenth, and twenty-second exceptions are sus- tured bones served to demonstrate the detained.
structive force and effect of the blows inflictWith the sustaining of these exceptions the ed better than a technical verbal description fifteenth exception becomes unimportant,
and gave the jury opportunity as practical and it is overruled.
men to judge for themselves whether the Defendant, under exception 22, also urges
injuries were likely to follow from a stone that the taking of the photographs and their or similar weapon as described by the mediadmission in evidence was in effect compel- cal witnesses. The mere fact that the deling the defendant to testify against himself fendant announced that he would deny all in derogation of his constitutional rights in knowledge of the death of Mather, and therethis particular, making specific reference to fore would not dispute any of the evidence certain sections of the federal Constitution. as to the homicide itself, simply left upon In view of the fact that we have found that the state the burden of properly proving its this evidence should have been excluded, it
case and did not bar it from offering any is not necessary to consider this claim of demonstrative evidence which might tend to constitutional privilege beyond calling atten- throw light not only on the fact but on the tion to the case of Twining v. New Jersey, mode of killing. The necessity of its admis211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. Å sion is perhaps a debatable question; but, part of the syllabus is:
taking into consideration the character and "Exemption from compulsory self-incrimina- appearance of the exhibit itself, we do not, tion in the state courts is not secured by any under the circumstances of this case, think part of the federal Constitution,” and this is it was clearly an error to admit the box and upheld by the text of the opinion.
contents in evidence. Exception 14 is overAlthough a new trial is to be granted for ruled. the reason stated, nevertheless a somewhat  The seventeenth exception to the tes
timony of Ricci Petrochelli, in answer to down on the box. I said, 'You don't know who question 129 in redirect examination, is not I am, do you?' 'No, Ma'am.' 'Well,' I said, 'I of importance. In the cross-examination of am an officer, I work in the courthouse in the
. this witness, in question 114, defendant's Providence? I says, 'Yes.' Now,' I says, 'I counsel had asked him who it was that told am going to ask you about the Mather boy. the witness “to say that you did not want Whatever you tell me will be used either for you to take the watch that Mariano wanted to
or against you. Now remember, Tony, whatev
er you tell me, it may tell for you or it may give you because it was William Mather's tell against you. Be sure and understand it, it watch." The answer to question 129 and the may hurt you, or it may help you; but whatquestions immediately preceding show that ever you tell me, I want you to tell the truth.' it was the sister of the witness who so told
The boy said, "Honest to God, Mister, I him. The exception is overruled.
didn't kill him," but afterwards told the  Exception 20, to the overruling of de- stories and made the statements hereinbefendant's objection to question 154 by the fore repeated. Mr. Kinnecom also states last witness, is overruled, as the answers that the boy did not appear to be frightened of this witness to this and the following ques during the talk, but was cool and calm. He tion could not have prejudiced the defend- seemed to be somewhat worried about someant.
thing, but after making his statement acted The twenty-third exception is taken to the as if relieved of a burden. overruling of defendant's objection to ques
[8, 9] The statements made to Mr. Kinnetion 48 in the direct examination of San.com by the defendant were not in strictness a ford E. Kinnęcom, as follows: "And what
“confession.” was the commencement of your conversation “A confession is a person's declaration of his with him?” This refers specifically to the agency or participation in a crime. The term is admission in evidence of the conversation the v. Ammerman, 118 Cal. 23, 32, 50 Pac. 15, 18.
restricted to acknowledgments of guilt." People defendant had with Mr. Kinnecom in the cell room of the town hall on the evening of
See, also, Greenleaf on Evidence, $ 170; 6 March 30, 1912; but it goes also to the ad- Am. & Eng. Encyc. of Law, 521; 12 Cyc. 459. mission of his statements during the night in
These statements by the defendant were of the presence of Mr. Kinnecom. The objec
an explanatory and exculpatory character, adtion to the admission of this evidence was on mitting that he caused Mather's death by the ground that these statements were not accident, but denying criminal intent or liavoluntary.
bility. Statements and declarations by an In the examination of Mr. Kinnecom before accused person, although not amounting to a the court in the absence of the jury for the confession, but from which in connection purpose of determining the admissibility of with other evidence and the surrounding cirhis evidence, he said that on the evening of cumstances an inference of guilt may be March 30, 1912, he chanced to be in the vicin-drawn, are admissible against him as admisity of the town hall of North Providence and sions. 12 Cyc. 418. went in there and saw Mr. Willis, who in
The state claims that it is not necessary to formed him that he had a boy in custody who show that these statements were voluntarily
made, One of the best modern writers on "gets right on the verge of telling us something and then stops. I wish you would talk evidence holds that exculpatory statements with him.” Thereupon Mr. Kinnecom went i denying guilt cannot be treated as confesdownstairs with Officer Brown. He found
sions, and that in order to admit them in evithere Antonio Capuano, an Italian police of- dence it is not necessary to show them to be ficer, who was talking in Italian to the de- voluntary in character. 1 Wigmore on Evifendant through the door of his cell. Mr. dence, $ 82102 and 3), and cases cited in notes. Kinnecom did not understand it, and what In the author's discussion of the subject this this conversation was was not at that time in view is impressively stated. In practice, howevidence. Capuano finally wound up in Eng- ever, there is a great lack of uniformity in the lish, saying to Mariano:
decisions on the point; but in the greater “If you did it, say so, and I will do all I number of jurisdictions it is held that the can for you. If you did not do it, don't say voluntary character of such admissions must I've got four kids myself."
be shown. 12 Cyc. 419. In State v. Nagle, The reply of the boy was, "I didn't kill 25 R. I. 105, 54 Atl. 1063, 105 Am. St. Rep. him, so I can't say I did.” Capuano then 864, this court treated similar statements or went out of the station. Mr. Kinnecom testi- admissions having “a vital bearing upon a fies that then:
highly important link in the chain of cir"I walked up to the cell door and said, 'Well, cumstantial evidence relied on by the proselittle fellow, what have they got you in here cution" as in the nature of confessions and for?' He made no reply. Officer Brown was subject to the same rules of admissibility in going toward the door to go out, and I said, evidence; that is, that they must be volun', to said, 'Yes. I said, "Come back and let this tary. From this standpoint we will consider boy out.' He came back and let the boy out, this and the next two exceptions. and I looked around and found a box and a chair, and I took the box and set it down side
 The defendant makes little real obof the furnace and set the chair in front of it jection to the preliminary conversation and and said, 'Little fellow, sit down here.' He sat admonition given by Mr. Kinnecom. The
words "but whatever you tell me, I want you lege of cross-examining them. Yo ruling was to tell the truth," do not constitute an in- requested and none made. The counsel did ducement rendering the statements thereup- not himself offer to call the persons named on made involuntary and inadmissible. 2 or any others for examination. These witWhart. Crim. Ev. $ 654. This court, in nesses were all afterwards called by the state State v. Nagle, supra, said:
in the progress of the trial, and they were "We do not wish to be understood in what cross-examined. There is obviously nothing we have thus said, however, as deciding that a in this occurrence to lead to the exclusion of mere request, advice, or admonition to tell the
the truth will render a confession induced thereby
testimony of defendant's statements. inadmissible in evidence, for the strong current State v. Jacques, 30 R. I. 578, 585, 76 Ati. of authorities, as well as the better reason, is 652. The twenty-third exception is overto the contrary. Am. & Eng. Encyc. L. (2d
ruled. Ed.) vol. 6, p. 531, and cases cited; State v. Habib, 18 Á. I. 558 [30 Atl. 462].”
 The twenty-fifth exception is to the The remarks of Mr. Kinnecom to the de- admission in evidence of defendant's state
ment to Judge Reuckert when arraigned. It fendant did not render the defendant's state is not necessary to consider this at length. ments made to him inadmissible under this
“Where the accused is taken before a magrule.
istrate, * unless otherwise provided by [11, 12] Was the statement in English of statute, and whether cautioned or not, his conCapuano to the defendant an inducement to fession is admissible in evidence against him make a false confession? If he had simply about by some inducement that renders the
* * such confession was brought said, “If you did it, say so, and I will do all confession untrustworthy or has induced a false I can for you,” the promise of assistance confession.” 2 Whart. Crim. Ev. p. 1279. might raise a question as to the following
There is no suggestion of the happening of statements being voluntary; but the added anything at the time of arraignment to renwords, "If you didn't do it, don't say you der defendant's statement inadmissible. did,” naturally refute any suggestion in the Wolfe v. Commonwealth, 30 Grat. (Va.) 833, preceding words of a recommendation to 840; State v. Washing, 36 Wash. 485, 78 Pac. confess. The effect of similar expressions 1019. The previous consideration of the obhas been passed on by other courts. In Dot-jection to the admission of the defendant's son v. State, 88 Ala. 208, 7 South. 259, an statements to Mr. Kinnecom the night of his officer told a prisoner he would help him all arrest made on similar grounds renders it he could, adding:
unnecessary to say more as to this particu“If you did do it, it might be best for you to lar exception, which is overruled. say so; but, if you did not, stick to it that you did not."
The twenty-third exception relates to the In Rafe v. State, 20 Ga. 62, 68, a sheriff testimony of Mr. Kinnecom only, and the told a prisoner if he did do it he had better twenty-fifth to
to the testimony of Judge
Reuckert. acknowledge it; but, if he did not do it, not to acknowledge it. In State v. Kirby, 1
The twenty-eighth exception was taken to Strob. (S. C.) 155, the prisoner was told that the refusal of the court to strike from the if he was really guilty and confessed who record all the testimony of all the witnesses were the right persons he might be pardon- for the state in so far as such testimony pured, but was admonished not to confess if he ported to give statements of the defendant was innocent. In none of these cases were of the nature of confessions or admissions the statements quoted held to make the con- on the same ground, namely, that these alfession which followed involuntary.
leged confessions or admissions were not vol"Mere advice to confess if guilty, and, if not, untary. This exception covers not only the to stand firm, does not render the confession testimony of Judge Reuckert and Mr. Kinneinvoluntary.” 2 Whart. Crim. Ev. § 654. com, but also that of Inspectors Ahearn and
See, also, cases in note 3 to section 832, 1 Wolf, and large portions of the testimony Wigmore on Evidence.
of Chief of Police Willis and of Domenico The answer of the defendant to Mr. Cap- Conca, although to this testimony, apart uano, "I didn't kill him, so I can't say I from that of Mr. Kinnecom and that of did,” shows no indication of his being in- Judge Reuckert, no objection was made fluenced to confess by what Capuano had when it was offered. The motion to strike said to him. We think there is nothing in out was made after practically all of the evithese statements to the defendant to make dence in the case was in. The additional his subsequent statements to Mr. Kinnecom testimony pertinent to this exception relates involuntary. In the discussion before the to the happenings to the defendant, after his court as to the admissibility of the testimony arrest and before the arrival of Mr. Kinneof Mr. Kinnecom as to his conversation with com at the town hall, including in such hapthe defendant, the defendant's counsel ex- penings what was said to him or in his hearpressed a desire to have the state then call ing by other persons, his surroundings when Chief of Police Willis, Domenico Conca, and locked in the cell, and how these conditions Antonio Capuano for examination as to what affected or influenced him. The undisputed was done and said to the defendant the eve- testimony shows: That he was questioned ning of March 30th before Mr. Kinnecom ar- somewhat about Mather's watch while being rived in order that he might have the privi- taken to the town hall. Questioned more at
length as to the whole affair after his ar- 150 N. E. 1035; 7 Am. & Eng. Encyc. of Law, rival there before being taken downstairs to 863, 861. the cell. That on being taken down he said,  Exception 31 was taken to certain re"Going to leave me here?" On being told, marks of the court made while discussion "Yes,” he said, "Take me upstairs, I will tell was in progress as to a question calling for you all about it." That on being taken up- testimony concerning "the character or repustairs he said, "I don't know anything about tation of the defendant.” While, of course, it.” Whereupon, after a brief questioning, it is always incumbent upon a court, and he was locked in the cell. That he said most of all in the heat of a trial when it may several times in the course of these inter- be annoyed by the persistence of zealous views that, if he could go home, he would tell counsel in the face of its rulings already all about it. That he cried at times, the tes- made, to avoid any utterance which would timony being conflicting as to extent of this prejudice a defendant with the jury, the and as to whether the cellroom was lighted words objected to in this case are not such while he was in the cell. Defendant him- as to require comment, inasmuch as the deself tells of occurrences and remarks, which, fendant obtains a new trial on other grounds, if true, might tend to frighten him, and of and as there is small probability of the prehis being persuaded by promises of assist- cise situation occurring again. The excepance from some of the state's witnesses to tion is overruled. make the statements he did relative to the
 The thirty-third exception was taken manner of Mather's of Mather's death. Upon these to the refusal of the court to charge the ju
. points the testimony was conflicting.
ry as follows:  Upon consideration of all the testimo
"The state having produced no evidence that ny then in, pertinent to the question raised, the defendant possessed the discretion to judge the justice presiding was apparently of the between right and wrong, and the evidence beopinion that on the facts found by him to ing clear that the defendant was dull and backexist the statements of the defendant testi- rected to bring in a verdict of not guilty."
ward under the age of 14, you are hereby dified to were of a voluntary character. Upon the evidence relative to this question, as to
The defendant lacked three months of bewhich there was no dispute, we find that the ing 14 years of age when the crime was com
mitted. testimony objected to was properly admissi
At 14 the presumption of criminal ble. If, and in so far, as he considered the incapacity would cease. Obviously with a conflicting testimony in the formation of boy of average intelligence at his age on his opinion, we find no sufficient reason for February 29th slight evidence might rebut differing with his conclusion. He had the op- that presumption. The defendant was unportunity of seeing and hearing the witness- doubtedly a backward boy, but he said in es, as we have not. Relative to the question his cross-examination that he knew it was of a confession being voluntary or not as af- wrong to kill another boy. We think that fected by a conflict of testimony, in Com. v. the evidence in this case was sufficient to Preece, 140 Mass. 276, 5 N. E. 494, the court make the question of his capability to com
mit crime one for the jury. State v. Mcsays:
“When there is conflicting testimony, the hu- Donald, 14 R. I. 270. See, also, State v. mane practice in this commonwealth is for the Learnard, 41 Vt. 585, 589; State v. Guild, 10 judge, if he decides that it is admissible, to N. J. Law, 163, 18 Am. Dec. 404, 416. This instruct the jury that they may, consider all exception is overruled. the evidence, and that they should exclude the confession, if, upon the whole evidence in the
Exception 34 lies to the additional instruccase, they are satisfied that it was not the vol- tions given to the jury in response to their untary act of the defendant."
request after they had been out a consideraSee, also, Com. v. Cuffee, 108 Mass. 285; ble time. We have carefully read and conCom. v. Bond, 170 Mass. 41, 48 N. E. 756; sidered these instructions. Some members Burton v. State, 107 Ala. 108, 18 South. 284; of the jury seemed confused as to how they Stallings V. Johnson, 27 Ga. 572, 581, 583. should treat the so-called confessions. SevThe record shows that the court instructed eral specific questions were asked the court the jury in this manner, and that no excep-by different jurors. The additional instruction was taken thereto. There was no error tions were given in reply. We are not prein denying the motion to strike out, and the pared to say that these instructions were obtwenty-eighth exception is overruled.
noxious to the charge of an unfair reference  The twenty-ninth and thirty-second to and use of the testimony. They were not exceptions were taken to the denial of sepa- a complete charge in themselves, but were rate motions for the direction of a verdict obviously intended to be considered together in favor of the defendant. In our opinion with the original instructions. This excepthe court's action on these motions was cor- tion is overruled. rect. We think a suitable case had been The fifth, sixth, seventh, eighth, ninth, presented for determination by jury, and tenth; eleventh, twelfth, thirteenth, fourthat the evidence, if believed to be true, teenth, sixtcenth, and twenty-second excepmight properly leave no doubt of the de- tions are sustained. All the others are overfendant's guilt. These exceptions are over- ruled and the case is remitted to the superuled. See Com. v. Williams, 171 Mass. 461, rior court for a new trial.
(37 R. I. 107)
the superior court, from which the case was BULLARD et al. v. REDWOOD LIBRARY certified under Gen. Laws 1909, c. 298, $ 10, et al. (No. 4747.)
upon an agreed statement of facts. Papers (Supreme Court of Rhode Island. July 10, in the cause, with decision certified thereon, 1914.)
remitted with direction to enter a decree dis 1. TAXATION (8 891*) INHERITANCE TAX
missing the appeal and affirming the decree PERSONS LIABLE - INTENTION TESTATOR
In the construction of a will giving lega: of the probate court. cies of personal property situated in and sub
William MacLeod, of Newport, for appelject to the inheritance tax laws of another state
lants the question whether such tax shall be charged
Sheffield & Harvey, of Newport, foj against the legacies given or not is one of the appellees. testator's intent, in view of all the circumstances. [Ed. Note. For other cases, see Taxation,
JOHNSON, C. J. This is an appeal from Cent. Dig. § 1712; Dec. Dig. § 891.*]
a decree of the probate court of the town of 2. PROPERTY ($ 6*)—SITUS OF PERSONAL PROP - Middletown to the superior court of Newport ERTY.
county, certified to this court upon an agreed Personal property has no locality, but is statement of facts. sold, transmitted, bequeathed by will, and de
The appellants are the executors of the scendible by inheritance according to the law of the owner's domicile, and not according to will of Mary E. W. Perry, a domiciled resithe law of the situs.
dent of Middletown in this state, who died [Ed. Note.–For other cases, see Property, December 10, 1910, and, the will having been Cent. Dig. $ 3; Dec. Dig. § 6.*]
duly proved, are qualified to act as such by 3. WILLS (8 436*)–PROBATE-PRESUMPTIONS. the decree of the probate court of MiddleA testator, domiciled in the state of Rhode
town. Island, is presumed to have made his will in accordance with the existing laws of such state. The agreed statement of facts is as fol
[Ed. Note. For other cases, see Wills, Cent.lows: Dig. $8 947-950; Dec. Dig. § 436.*]
“The parties hereto, having adversary inter4. TAXATION ($ 889*) - INHERITANCE Tax-ests in the construction of the will of Mary E. PERSONS LIABLE-EXECUTORS OR LEGATEES. W. Perry in the within cause, concur in stat
Testatrix died domiciled in this state, and ing a special case for the opinion of the Suher will was probated and her executors ap- preme Court upon the following agreed statepointed by a probate court of this state. She ment of facts: left personal property in Massachusetts, to get “(1) That Mary E. W. Perry, late of the town possession of which her executors were oblig- of Middletown, deceased, died on the 10th day ed to take out ancillary letters testamentary in of December, A. D. 1910, leaving a last will and Massachusetts and to pay inheritance taxes as- testament duly admitted to probate by the prosessed against certain legacies. Held, that as bate court of said town of Middletown (a copy the taxes were merely a charge on the particu- of which said will is hereto attached and marked lar property because of the jurisdiction of Mas- 'Exhibit A'). sachusetts over it by reason of its situs there “(2) That in and by said will testatrix left in, and not on the legacies given by the will, certain legacies as follows: and as such foreign tax law could not regulate Redwood Library, Newport, books, the exercise of testamentary power by a domi clock, and.. ciled resident of this state, the amount of the St. Mary's Church, So. Portsmouth,
$50,000 tax was not a charge against the pecuniary leg share in Redwood Library, and.... 2,000 acies, but a part of the expenses of adminis-St. Mary's Church, rector's fund.. 1,000 tration chargeable against the general estate. Trinity Church, Newport, rector's
[Ed. Note. For other cases, see Taxation, fund, and sundry articles of furniture 5,000 Cent. Dig. § 1710; Dec. Dig. $ 889.*]
Bowdoin College, Brunswick, Me..... 10,000 5. EXECUTORS AND ADMINISTRATORS (8 84*)— Home for Aged Women, Bangor, Me... 5,000 COLLECTION OF ASSETS.
Eastern Maine General Hospital, It is the ordinary duty of an executor or
4,000 administrator to collect and get in the assets First Congregational Church, Groveof the estate.
land, Mass., seven-tenths of Perry [Ed. Note. For other cases, see Executors
Mansion property, to be used as a and Administrators, Cent. Dig. § 323; Dec. Town of Groveland, land for public park.
3,000 Dig. § 84.*]
Mary Bamfield Davies....
1,000 6. WILLS (8 587*)—"RESIDUE"-EXTENT. Mary Wilkinson Richardson.
1,000 A gift of a' "residue" is subject to the Helen Robinson Woodbury.
1,000 precedent claims upon the estate; it is a gift Lisa Carroll.
1,000 of what remains after the debts and legacies Alice Bullard Ide...
1,000 are paid.
Eleanor May Barker.
2,000 [Ed. Note.-For other cases, see Wills, Cent. Mary Adams Willard..
2,000 Dig. 88 1279, 1281-1291; Dec. Dig. 8 587.* Edward F. Fitzgerald, gardner.
1.100 For other definitions, see Words and Phras- Marie Bernier...
500 es, vol. 7, pp. 6169-6171; vol. 8, p. 7789.] George E. Bullard..
Louis Curtis.... Case Certified from Superior Court, New-Clark Burdick..
10,000 port County.
500 Proceeding by George E. Bullard and oth-Jeremiah Lawton..
100 ers, executors of the will of Mary E. W. -the pecuniary legacies in all amounting to Perry, deceased, against Redwood Library $121,200. and others, for construction of the will.
“(3) That the estate of said Mary E. W. Perry
was invested in stocks, bonds, notes, and other From a decree of the probate court in favor property amounting to $2,315,964.48, of which of defendants, Bullard and others appeal to $17,330.32 was within the state of Rhode Is
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes