Hopkins v. Carr.

HOPKINS v. CARR.

STATUTE OF FRAUDS.- Verbal Contract.-Partner.-A partnership liability may become an individual debt against one member of the firm by contract not in writing between the partners, with the consent of the creditor. PRACTICE.-Supreme Court.-Abstracts.-The evidence, although it be made a part of the record, if not abstracted as required by rule tenth of this court, will not be examined.

APPEAL from the Newton Common Pleas.

GREGORY, J.-Suit before a justice of the peace by Carr against Hopkins. Appeal by Carr to the court below.

One item in the account filed by Hopkins as a set-off was "for board bill and feed bill of Daniel Graves and Dempsey Johnson, in the sum of $13.00."

On the trial in the court below, the defendant offered to testify that in 1864, Carr, Johnson, Jenners, and Graves, who were partners, had a lot of cattle in his pasture; that while the cattle were on pasture Graves and Johnson boarded with him, to the amount of some seventy dollars; that this included some feed for cattle; that the item in the answer was for an unpaid balance of that charge, which the plaintiff promised to pay at a time Carr and defendant had a settlement of their accounts; that Jenners had paid the other portion of the seventy dollars. The court ruled out this evidence, on the ground that it was a verbal promise to pay the debt of another, and not binding on the promisor. The ruling out of this testimony was one of the grounds assigned in the written motion for a new trial.

This presents the only question in the case. The evidence, although a part of the record, is not abstracted as required by rule tenth of this court, and therefore is not examined by us.

The rejected testimony tended to show that it was the debt of the appellee, and not the debt of another. A partnership liability may become an individual debt against one member of the firm by contract, not in writing, between

Piggott v. Kirkpatrick.

the partners, with the consent of the creditor. The evidence ought to have been admitted.

Judgment reversed, with costs; cause remanded with direction to grant a new trial, and for further proceedings. J. Wallace, E. L. Urmston, and B. K. Elliott, for appellant. E. P. Hammond and T. J. Spitler, for appellee.

PIGGOTT V. KIRKPATRICK.

PRACTICE.-Amicus Curiæ.-A motion to dismiss a suit on account of alleged defects in the complaint cannot properly be made by an amicus curiæ.

APPEAL from the Montgomery Common Pleas.

RAY, J.-A motion was made by amicus curiæ to dismiss the suit on account of alleged defects in the complaint. The motion was sustained by the court, over the objection of the plaintiff. There was no appearance by the defendant.

If the facts stated are not regarded as sufficient, a demurrer by the defendant will present that question to the court; but a motion to dismiss for that cause, filed by the defendant, should be overruled, as the plaintiff has a right to amend his complaint, and is deprived of this right by a nonsuit. No such motion can properly be made by any one not a party to the suit. We therefore decide nothing in regard to the merits, but reverse the case, and direct the motion to dismiss to be stricken from the files.

Costs against appellee.

M. D. White and T. Patterson, for appellant.

S. C. Willson, L. B. Willson, and J. M. Butler, for appellee.

White v. The State.

WHITE V. THE STATE.

CRIMINAL LAW.-Continuance.-The fact that in a joint prosecution upon information a continuance is granted as to a part of the defendants is no ground for continuance as to another defendant.

SAME.-Evidence.-Alibi.-The fabrication of an alibi, like the wilful introduction of false and fabricated evidence in support of any other ground of defense, is a circumstance against the accused, to be weighed by the jury in connection with all the other evidence in the case; but where the evidence tending to prove an alibi is uncontradicted, and the witnesses are unimpeached, and the facts testified to are reasonable in themselves, the failure of the defendant to account for his whereabouts during all the time within which the offense was probably committed should not be taken as a circumstance tending to prove his guilt.

APPEAL from the Clay Common Pleas.

This was a joint prosecution against the appellant and others for an assault and battery on the body of Elizabeth Miller.

Horton, one of the defendants, filed an affidavit for the continuance of the cause as to himself and Stingle, another defendant, in consequence of the absence of certain witnesses, by whom, it was alleged, an alibi could be proved as to said Horton and Stingle. The appellant, White, also moved for a continuance on the same affidavit. The continuance was granted as to Horton and Stingle, but refused as to the appellant, to which he excepted. White was then put upon trial on the plea of not guilty. The jury found him guilty, and assessed his fine at seventy-five dollars. A motion for a new trial was made and overruled, and judgment rendered on the verdict.

Evidence was given on the trial tending to prove an alibi, on the part of the appellant, in reference to which the court instructed the jury as follows:

"The defendant in this case seeks to show that he was not present at the time the offense is charged to have been committed; or, in the language of the law, to establish an alibi. Before a defense of this character is conclusive, the

White v. The State.

defendant must account for his whereabouts during all the time the offense was probably committed, and his failure to do so would be a circumstance against him, which you should consider in connection with the other evidence in the case." To this instruction an exception was taken, and the giving of it is one of the reasons urged for a new trial.

ELLIOTT, C. J.-There was no error in the refusal of the court to grant a continuance of the cause to the appellant. No affidavit was filed by him, or on his behalf, showing any reason for a continuance. There was no statement in the affidavit of Horton that the appellant was not present at the commission of the offense charged in the information. The fact that a continuance was granted as to Horton and Stingle afforded no ground for a continuance as to the appellant. He was properly tried separately, after the cause was continued as to the others.

ror.

Overruling the motion for a new trial is assigned for erUnder this assignment it is insisted that the court erred in instructing the jury, that as the defendant had attempted to prove an alibi, his failure to account for his whereabouts during all the time of the probable commission of the offense would be a circumstance which the jury should consider against him.

In such a case, if it should be made to appear that the defense was false and feigned, and attempted to be established by false or fabricated evidence, as by the subornation of witnesses, the attempt to impose it on the court and jury would undoubtedly be a circumstance of much weight against the defendant. But if the evidence tending to prove an alibi is uncontradicted, the witnesses unimpeached, the facts testified to reasonable of themselves, and not disproved or contradicted, it would seem unreasonable to say that the attempt to establish the fact would be a circumstance tending to prove the defendant's guilt, simply because the evidence adduced does not satisfactorily account for the whereabouts of the defendant during the entire pe

J

White . The State.

riod of time within which the offense might have been committed.

We have been unable to find any authority in support of so broad a rule, except a passage in Wills on Circumstantial Evidence, p. 83, where it is said, that "an unsuccessful attempt to establish an alibi is always a circumstance of great weight against the prisoner, because a resort to that kind of evidence implies an admission of the truth and relevancy of the facts alleged, and the correctness of the inference drawn from them, if they remain uncontradicted."

Such inferences may reasonably be drawn from an attempt to fabricate an alibi by false testimony, when that fact is disclosed; but where the evidence adduced is uncontradicted, and the facts testified to are probably true, but are deemed insufficient to establish the alibi, no good reason is perceived why the failure should, of itself, be taken as a circumstance to prove the guilt of the accused, or strengthen the evidence of the prosecution. The true rule in such cases, we think, is, that the fabrication of an alibi, like the wilful introduction of false and fabricated evidence in support of any other ground .of defense, is a circumstance against the accused, to be weighed by the jury in connection with all the other evidence in the case. See Roscoe Crim. Ev. p. 17.

In the case at bar, it was testified by the prosecuting wit ness, that the offense charged was committed between the hours of twelve and one o'clock at night, outside of the house. The parties who committed the offense were partially disguised. The prosecuting witness testified to the identity of White in very positive terms. The general characters of the principal prosecuting witnesses were strongly impeached. The evidence given by four of the sons of White, who lived with him and slept in the same room, with that of two of the other parties accused, strongly tended to show that White was not present at the commission of the offense, but, on the contrary, was in bed at home, in the same neighborhood, when the offense was committed.