which he refers. A complaint in all substantial particulars precisely like the one at bar was held good in two cases by this court, and they were cited in support of the original opinion, and no reason has been suggested why we should depart from them. They are Railroad Co. v. Rowan, 104 Ind. 88, 3 N. E. 627; Railway Co. v. Wright, 115 Ind. 378, 16 N. E. 145, and 17 N. E. 584. We think we ought to adhere to them. Therefore the petition for a rehearing is overruled. WALKER v. STATE. (Supreme Court of Indiana. Feb. 16, 1894.) CRIMINAL LAW - CHANGE OF VENUE CONTINU ANCE-ASSAULT WITH INTENT TO MURDER-EVIDENCE-INSTRUCTIONS. 1. The refusal of a change of venue on account of local prejudice will not be reversed where it does not affirmatively appear that the court abused its discretion. 2. Whether or not a continuance should be granted because of public excitement rests in the discretion of the trial court. 3. On trial for an assault with intent to murder one E. it appeared that E. and her children were met in the highway by two men and two women riding in a buggy, when one of the men got out of the buggy, and fired five shots at E. and her children. One of the women who were in the buggy testified that it was 'her belief that defendant was one of the men, but on cross-examination she stated that she would not like to say he was the man. Held, that it was not error to permit such witness to testify on re-examination that she stated after the shooting that she recognized defendant as the person who shot E. 4. Nor was it error to permit the women who were in the buggy to testify that the men said they had previously been in the neighborhood, where there was some proof that defendant did the shooting. 5. It was not error to permit the prosecuting attorney to testify that after the arrest defendant stated that he was guilty, and desired to plead guilty; that he did the shooting; and that the man who was with him had nothing to do with it. 6. It was not error to exclude evidence that E.'s son had thrown stones at horses driven by other persons, on occasions other than the one under investigation. 7. Where insanity must be specially pleaded in a criminal case, (Rev. St. 1881, § 1764,) it is not error to exclude evidence of defendant's insanity in the absence of such special plea. 8. On trial for an assault with intent to murder, the intent need not be proved by positive evidence, but may be inferred from the deliberate use of a deadly weapon. 9. Where the jury are satisfied beyond a reasonable doubt of the guilt of defendant, that he had a good character before the alleged offense will not avail as a defense. Kistler v. State, 54 Ind. 400, distinguished. 10. Defendant cannot complain of an instruction that it is the duty of the court to instruct it as to the law of the case, but the instructions are advisory merely, and it has the right to disregard them, and determine the law for itself. 11. Where an indictment contains all necessary allegations, it is not error to charge that the state must prove beyond a reasonable doubt the material allegations of the indictment. 12. It was not error to refuse to charge that if, while defendant was passing along the highway, prosecutrix's son, in her presence, threw in the face of him and his companions watermelon, and defendant, aggravated thereby, did the act complained of, this fact is to be considered in determining the penalty to be affixed. Appeal from circuit court, Henry county; E. H. Bundy, Judge. Abe Walker was convicted of an assault and battery with intent to commit the crime of murder, and he appeals. Affirmed. M. E. Forkner and Hord & Adams, for appellant. A. G. Smith, W. O. Barnard, and Frank E. Beach, for the State. COFFEY, J. On the 19th day of September, 1893, the appellant and one Stephen E. Perkins were jointly indicted in the Henry circuit court, in which indictment they were charged with assault and battery upon the person of one Alice Elliott, with the felonious intent to commit the crime of murder. The appellant sought to obtain a change of venue from the Henry circuit court upon the ground that there was such a prejudice against him in the county as would preclude him from obtaining a fair trial, but the court overruled his motion. In this ruling we think there is no available error. The question as to whether a change of venue shall be granted in a case like this rests in the sound discretion of the trial court, and this court will not interfere with such discretion unless it affirmatively appears that it has been abused, to the injury of the party complaining. Griffith v. State, 12 Ind. 548; Fahnestock v. State, 23 Ind. 231; Merrick v. State, 63 Ind. 327; Spittorff v. State, 108 Ind. 171, 8 N. E. 911. We are not able to say that it affirmatively appears from the record in this case that the circuit court abused its discretion in refusing to grant the appellant a change of venue from the Henry circuit court. The appellant also applied for a continuance of his cause until the next term of the court in order that public sentiment and excitement should be allowed to settle down, alleging that at the time of the application the public excite ment against him was such that he could not have a fair and impartial trial. The court overruled his motion, and he excepted. The cause assigned for a continuance in this case is not one of the causes prescribed by statute. Whether a continuance should be granted on account of public excitement we think rests in the discretion of the trial court. If satisfied that a defendant could not have a fair and impartial trial, on account of public excitement against him, the trial court would doubtless postpone the hearing until there was good reason to believe that an impartial hearing could be secured. But the court in which the cause is pending can much better determine the necessity for a postponement than this court, and it should require a very strong showing to induce an appellate court to interfere with the rulings of the trial court on a ques tion of this character. We do not think there is anything in this record which would en able us to say that the Henry circuit court erred in refusing the application of the appellant for a continuance on the ground stated in his application. A trial of the cause by a jury resulted in a verdict finding the appellant guilty as charged, upon which the court, over a motion for a new trial, rendered judgment. It is assigned as error that the circuit court erred in overruling the appellant's motion for a new trial. It was assigned as reasons for a new trial that the circuit court erred in the admission and rejection of evidence on the trial of the cause, and that it erred in giving and refusing to give certain instructions to the jury. It appears from the evidence in the cause that about 10 o'clock on the evening of the 7th day of September, 1893, two men, in company with two prostitutes, were riding in a buggy on one of the public highways in Henry county. They met the injured party, Mrs. Elliott, with her children, in the highway, when one of the men jumped from the buggy, and commenced shooting at Mrs. Elliott and her children with a revolver, firing five shots. Mrs. Elliott was struck by one of the shots, and severely wounded. There was evidence on the part of the defense tending to show that when Mrs. Elliott and her children met the parties who did the shooting some one of the children threw some portion of a watermelon, which struck them in the face, while the evidence on the part of the state contradicted this, and tended to show that one of the little boys threw a piece of watermelon on the ground just as the buggy was passing him. One of the controverted questions in the case related to the identity of the appellant as the person who did the shooting. We do not think the court erred in permitting Mrs. Durham to testify on reexamination that she stated, at a time after the shooting occurred, that she recognized the appellant as the person who shot Mrs. Elliott. She was called as a witness by the state, and, after testifying that she was one of the women who was in the buggy with the men who did the shooting, she stated it as her belief that the appellant was one of the men, but upon cross-examination stated that she would not like to say he was the man. On re-examination we think it was proper to call her attention to her former statements to the effect that she recognized appellant, and to inquire into the reason why she was not at the time of the trial also able to do the same thing. The case is, we think, quite different from the case of Hull v. State, 93 Ind. 128, where the witness had not made any statement relating to the material questions in the case. Nor do we think there was any available error in permitting the women who were with the men doing the shooting to testify that the men said they had previously been in the neighborhood. The declarations of a defendant, if in any way connected with the matter under investigation, are alwaysadmissible; but before the declarations are admissible, of course there must be some proof that they were made by the defendant. In this case there was proof tending. to identify the appellant as the party who did the shooting, including his own admission. In this respect the case is distinguished from the case of Arthur v. Arthur, (Kan.) 17 Pac. 187, where declarations were admitted in evidence without any proof other than the declarations themselves that they were uttered by the defendant. The state was permitted to prove by the deputy prosecuting attorney, over the objection of the appellant, that soon after the arrest the appellant called him into the prison where the appellant was confined, and stated that he was guilty of the charge preferred against him, and that he desired to plead guilty; that he did the shooting, and that the man who was with him had nothing to do with it, and should be released. We think there was no error in admitting this evidence. There can be no pretense that the relation of client and attorney or any other confidential relation existed between the appellant and the witness. It does not appear that the appellant was not fully informed as to the duty of the prosecuting attorney, but, on the contrary, it appears that he made the confession voluntarily, and without solicitation or promise. We are of the opinion that the court did not err in refusing to permit the appellant to introduce evidence tending to prove that he was of unsound mind. No issue of that kind was involved in the case. Section 1764. Rev. St. 1881, requires insanity to be specially pleaded. In the absence of such a plea, the state is not expected to be prepared to meet such an issue. If the appellant desired to avail himself of such a defense, he should have pleaded it specially, which he did not. do. Nor was there any error in refusing to permit the appellant to prove that the son of the injured party had thrown stones at horses driven by other parties, on occasions other than the one under investigation. Such evidence had no tendency to throw light on the matter under investigation. It was not error to instruct the jury that an intent to kill need not be proved by positive evidence, but might be inferred from the circumstances of the case, and that an intent to kill might be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death. Murphy v. State, 31 Ind. 511; Kunkle v. State, 32 Ind. 220; McDermott v. State, 89 Ind. 187; Padgett v. State, 103 Ind. 550, 3 N. E. 377. Upon the subject of the effect to be given evidence of good character, the court instructed the jury as follows: "Evidence has been given in regard to the character of the defendant for peace and quietude. This evi dence should be considered by the jury in determining the guilt or innocence of the defendant; but, if the jury should be satisfied beyond a reasonable doubt of the guilt of the defendant, then, in that view of the case. although you might believe that the defendant had a good character before the alleged offense occurred, if it did occur, that would not avail him as a defense or entitle him to an acquittal." We do not think there is any error in this instruction. It is easily distinguished from the case of Kistler v. State, 54 Ind. 400, in which the jury was instructed that, if the defendant was guilty, evidence of good character was of no benefit. Good character may always benefit a guilty defendant, for the jury may take it into consideration in fixing his punishment, and may, by reason of his character, mitigate the punishment. Under this instruction, the jury was given the liberty of considering the good character of the appellant in mitigation of his punishment, if it chose to do so; but they were told, if he was guilty of the charge preferred against him, he was not entitled to acquittal because his character had previously been good. We do not think the appellant is in a condition to complain of an instruction which informed the jury that it was the duty of the court to instruct it as to the law of the case, but that such instructions were advisory merely, and that it had the right to disregard them, and determine the law for itself. The provision of our constitution making the jury the judge of the law as well as the evidence is a provision intended for the benefit of persons charged with crime, and it is a well recognized principle that a party has no right to complain of an instruction which is more favorable to him than he had a right to ask. We are unable to perceive how the appellant could by any possibility be injured by this instruction. The court also instructed the jury as follows: "To entitle the state to a conviction, it must prove beyond a reasonable doubt the material allegations of the indictment. If the state has done this, you should convict; if not, you should acquit." It is contended by the appellant that this instruction is erroneous, because it takes away from the jury the right to determine the sufficiency of the indictment. It is not claimed here that the indictment is not sufficient. Its examination will disclose the facts that it contains all the necessary allegations to constitute a good charge of assault and battery with the intent to commit the crime of murder. It was not error, therefore, to tell the jury that, if these allegations were sustained beyond a reasonable doubt, the state was entitled to a conviction. We think this instruction was not erroneous. Anderson v. State, 104 Ind. 467, 4 N. E. 63, and 5 N. E. 711. The appellant asked the court to instruct the jury that "every person has the lawful right to pass unmolested along the public highway, and if, while the defendant was so doing, in the nighttime, a son of Mrs. Elliott, in her presence, threw in the face of him and his companions watermelon, and the defendant, aggravated thereby, did the act complained of, this fact is material for you to consider in determining the penalty to be af fixed, if you convict him of any offense." We think the court properly refused to give this instruction. If the appellant was assaulted by the son of the injured party, as claimed, that furnished no excuse for an attack upon her. If such assault was made, it is not claimed that Mrs. Elliott was in any way connected with it, or in any degree responsible for it; and, this being true, we are unable to perceive how it could mitigate an unprovoked attack upon her. We think instructions 921⁄2 and 9 asked by the appellant were fully covered by the instructions given by the court. We have carefully considered all the alleged errors in the record pointed out by counsel in their able briefs in this case, and find no error of which the appellant has the right to complain. The judgment of the circuit court in this case is therefore affirmed. HACKNEY, J., took no part in the decision of this case. BELL et al. v. MAISH, Treasurer, et al.' (Supreme Court of Indiana. Feb. 2, 1894.) TAXATION PROCEEDING TO ENJOIN CONSTITU TIONAL LAW-TITLE OF AMENDATORY ACT. 1. The existence of facts giving a county board jurisdiction to entertain proceedings for an appropriation in aid of railroad reconstruction cannot be questioned by a petition to enjoin the collection of taxes levied for such appropriation. 2. Elliott's Supp. § 1086, amending Rev. St. 1881, § 4045, and entitled "An act to amend an act to authorize aid to the construction of railroads," does not violate Const. art. 4, § 19, providing that every act shall embrace but one subject and matters connected therewith, which subject shall be expressed in the title, though it provides, also, for aid in the "reconstruction" of railroads; "reconstruction" being but a form of construction. 3. As such act applies alike to all townships voting aid to railroads in the manner, and under the conditions, prescribed thereby, it is not unconstitutional as being special or local. Appeal from circuit court, Clinton county; S. H. Doyal, Judge. Action by James M. Bell and others to enjoin Willard P. Maish, treasurer of Clinton county, and others, from collecting an alleged illegal tax. From a judgment for defendants, plaintiffs appeal. Affirmed. R. W. Irvin and J. V. Kent, for appellants. Bayless & Guenther, Claybaugh & Son, and Wm. P. Marsh, for appellees. HOWARD, C. J. This was an action brought by appellants against appellees to enjoin the collection of alleged illegal taxes. A demurrer to the complaint by the appellee 1 For opinion on rehearing, see 36 N. E. 1118. Willard P. Maish, treasurer of Clinton county, was sustained by the court. This ruling is assigned as error. The complaint shows that on the 9th day of April, 1889, at a special meeting of the board of commissioners of Clinton county, a petition, signed by more than 25 persons claiming to be freeholders and legal voters of Center township, in said county, was presented to said board of commissioners, asking that said township make an appropriation of $57,000 to aid the Toledo, St. Louis & Kansas City Railroad Company in the reconstruction of its railroad through said township, under the terms and conditions stated in the complaint; that thereupon such proceedings were had by the board that an election was held in said township, resulting in favor of making such appropriation; and that the same was placed upon the tax duplicate for collection by the treasurer. Those proceedings were had under provisions of section 1086, Elliott's Supp., (being an amendment of section 4045, Rev. St. 1881,) and under succeeding sections of the Revised Statutes relating to the voting of aid to railroads by townships, (being sections 53405376, Burns' Rev. St. 1894.) Appellants contend that those proceedings were void for two reasons: (1) That the statutes above referred to do not authorize the proceedings; and (2) that the amendment to section 4045, Rev. St. 1881, (being section 1086, Elliott's Supp.,) is unconstitutional. It is first argued that in all the sections of the statute referred to, except the amended section, provision is made only for aiding in the construction of railroads, and not for the reconstruction of any railroad. This seems a refinement of criticism. A reconstruction is a construction over again. All the sections of the statute relating to the voting of aid to railroads must be construed together; and, so construing them, we must understand that the legislature in amending section 4045 by providing for aid in reconstructing railroads, in addition to aid in constructing them, intended that all the subsequent proceedings before the board, provided for in the sections following, should apply to reconstruction as well as to construction; otherwise, the amendment made would be a vain thing. Section 4281, Rev. St. 1881, provides that the township trustee may, in certain cases, apply for drainage for highways by petition, as in case of landowners. While this section was in force, the legislature enacted a statute by which the control of highways was placed in the hands of road superintendents; and it was held in the case of Jones v. Dunn, 90 Ind. 78, that, under the statute providing that the trustee might file a petition for drainage of the highway, the superintendent of roads, and not the township trustee, was the proper person to apply for the drainage. The words of a statute, when it is possible to do so, will be interpreted so as to harmonize with the acts of the legislature subsequently passed. It is, besides, to be remembered that this is not an appeal, but a collateral attack upon the action of the board. It has been held that when, in such a case as this, the county board orders an election, such order is a finding by the board that the necessary facts are shown to exist to give the board jurisdiction, (Brocaw v. Board, 73 Ind. 543; Goddard v. Stockman, 74 Ind. 400;) and whenever the board, in acting upon a petition, passes upon questions of fact, the decision of the board cannot be collaterally attacked, but the remedy is by appeal, (Faris v. Reynolds, 70 Ind. 359; Board v. Hall, Id. 449; Hilton v. Mason, 92 Ind. 157; Hill v. Probst, 120 Ind. 528, 22 N. E. 664.) Whatever question there might be, therefore, as to facts giving jurisdiction to the board under the statute referred to, has been passed upon by the board in assuming jurisdiction; and, no appeal having been taken from that decision, such question is no longer open for consideration. It is next insisted that the amendment to section 4045, Rev. St. 1881, (being section 1086, Elliott's Supp.; Acts 1889, p. 82,) is in conflict with section 19 of article 4 of the constitution, which provides that "every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title." The title of the amendatory act names the section of the Revised Statutes, and also the section of the original act, to be amended, sets out in full the title of the original act, and states the date of the approval of that act. The title of the original act shows it to have been "An act to authorize aid to the construction of railroads," etc., whereas the body of the amendment provides also for aid in the reconstruction of railroads. From what we have already said of appellant's criticism distinguishing "construction" from "reconstruction," we think it evident that the title of the amended act is sufficient. Reconstruction is but a form of construction,-a construction again of what had first been constructed. In addition, it is very clear that reconstruction is a "matter properly connected" with construction. Besides these considerations, we think that a title stating that an act is an act to amend a given section of another act sufficiently advertises the purposes of the amendatory act, which is the chief object of the constitutional provision. A further specification of the purpose of the amendment would but add confusion to an already cumbrous title. We do not say that a matter might not be embodied in an amended act so foreign to the original subject that there would be a clear violation of the letter and spirit of the constitutional provision as to title, but such is not the case here. Construction and reconstruction of rail roads, and the voting of aid to either, are matters closely and intimately connected, if, indeed, as we have intimated, they are not, in effect, but different forms of the same thing. See Barner v. Bayless, (Ind. Sup.) 33 N. E. 907, 34 N. E. 502. Neither is the act unconstitutional as being special or local. The law applies to all townships voting aid to railroads in the manner, and under the conditions, prescribed in the act, and so operates alike upon all persons under the same circumstances. This is sufficient. Gilson v. Board, 128 Ind. 65, 27 N. E. 235. The proceedings seem to have been all regular, and in pursuance of the provisions of the statute. The judgment is affirmed. MILBURN v. PHILLIPS et al. (Supreme Court of Indiana. Feb. 16, 1894.) EXECUTION SALE-APPRAISEMENT-ADMISSIONS OF COUNSEL-PRESUMPTIONS. Where, on appeal by plaintiff from a judgment refusing to set aside a sheriff's certificate of sale, appellant states in his brief that there was no appraisement of the rents and profits, and appellees admit such fact, the supreme court will not presume that the sheriff did his duty, and made the appraisement, from the fact that his return is silent as to such matter. On rehearing. Petition denied. DAILEY, J. Counsel for appellees earnestly insist that there should be a rehearing in this cause, for the reason that the court erred in ruling that the record shows that the sheriff who made the sale of the real estate in controversy did not have the rents and profits appraised prior to such sale. They further say: "It is true that the record shows that the sheriff attached to his return what purported to be an appraisement of the real estate, and the schedule signed by the appraisers makes no mention of any appraisement of the rents and profits. But such appraisement is no part of the return, and, if it were, is no evidence that the rents and profits were not appraised." In support of this contention, they cite Coan v. Elliott, 101 Ind. 275. We are now asked by the learned counsel to construe the record in this case as if it were wholly silent upon the question whether there was or was not an appraisement of the rents and profits, and to find, this being so, that there is nothing to rebut the presumption that the land was appraised. Counsel say: "All that a purchaser who relies upon a sheriff's deed need do in order to show a valid title to real estate, is to prove a valid judgment against the owner, an execution thereon, and a sheriff's deed pursuant thereto." To uphold this doctrine, they cite Mercer v. Doe, 6 Ind. 80; Hall v. Craig, 125 Ind. 522-527, 25 N. E. 538. Our attention is also called to 2 Freem. Ex'ns, (4th Ed.) § 339, p. 1139, declaring that "the presumption is, and continues until overcome by affirmative proof, that the sheriff did his duty in all respects." Several other authorities are cited, sustaining the same rule. It is clearly the law that courts indulge this presumption when the record is silent as to what he did in the matter under consideration. But appellees are confronted in this case with a singular condition of affairs. Among other points made by the appellant in his original brief, filed December 16, 1891, (nearly two years before the decision was rendered,) is the following: "There is one other consideration: The judgment of Phillips against Joseph E. Milburn was not without relief from valuation or appraisement laws. The sheriff had the lands appraised, but did not have the rents and profits of the land appraised. He offered the rents and profits, and, receiving no bid, offered the fee simple. For this reason the sheriff's sale is invalid, and should be set aside." In support of this contention, appellant cited Rev. St. 1881, § 754; Davis v. Campbell, 12 Ind. 192; Railway Co. v. Bradley, 15 Ind., on page 26; Tyler v. Wilkerson, 27 Ind., on page 453. In response to this, appellees, on April 20, 1892, in their only brief, except on petition for rehearing, say: "Appellant admits that the land was appraised, but finds fault that the rents and profits were not appraised. In answer to this, we can only say that the rents and profits were not sold. Therefore, no injury occurred to the appellant, or any one else, even if it was necessary to appraise the rents and profits, which we think was not necessary in this action." To maintain this theory, counsel cited Rev. St. 1881, § 743; Mugge v. Helgemeier, 81 Ind. 123, 124. It thus appears that appellant made a clear and concise statement in his brief, challenging the record, and asserting that the rents and profits were not appraised prior to the sale of the real estate sought to be recovered in this action. This fact appellees admit to be true, but assert that, as the rents and profits were not sold, no injury was sustained by appellant. Counsel having made this concession, the court relied upon it as true. Rule 26 of this court provides that: "If a statement of fact is made by counsel, and not questioned or explained by opposing counsel, it will be deemed by the court to be accurate." Elliott's App. Proc. note 1, p. 373, says: "This provision does no more than give expression to a general doctrine that has long prevailed." In section 443 of this valuable work, he uses this language: "The presumption is that facts stated in the brief of counsel are correctly stated, and that the record is truthfully represented. As it has been said, 'Counsel's statement of the facts is a certificate of fairness and accuracy,' and the courts will assume, in the absence of a countervailing showing, that the facts are fairly stated, and that there is neither intentional wrong nor innocent mistake. |