ARTICLE 22a-STOLEN PROPERTY. SEC. 1901a. Disposition of stolen property. 1901b. Unclaimed property - Sale of. 1901c. Perishable property Sale of. SEC. 1901d. Proceeds of sale. [1895 S., p. 293. In force March 11, 1895.] 1901a. Disposition of stolen property. 1. That if any money, goods or other property, which has been stolen, lost, abandoned, or taken, or received from a person under arrest, comes into possession of a member of the police force of a city by virtue of his office, he shall deliver the same to such officer or member of the police department as may be designated by the order or rules of such department or Commissioners of Public Safety, and shall thereupon be relieved from further responsibility therefor. 1901b. Unclaimed property-Sale of. 2. If any such money, goods or other property remains unclaimed in the possession or control of any such department or Commissioners of Public Safety, or any member thereof, for six months, and the owner and his place of business are unknown, such department or Commissioners shall cause such money to be paid into the City Treasury, and such goods or other property to be sold at public auction, notice of the time and place of such sale, with a description of the property to be sold, being first given by publishing the same once a week for three weeks consecutively in some newspaper of general circulation printed in such city. 1901c. Perishable property- Sale of. 3. Any such property which is of a perishable nature, or which will deteriorate greatly in value by keeping, or the expense of keeping which will be likely to exceed the value thereof, may be sold at public auction in accordance with the rules or orders of such department, or Commissioners, reasonable notice of the time and place of sale being first given by publishing in some newspaper of general circulation printed in such city. 1901d. Proceeds of sale. 4. The proceeds of every such sale, after deducting all reasonable charges and expenses incurred on such property, shall be paid into the Treasury of the city. In cities having a Department of Finance, the Commissioners, upon payment of said money into the City Treasury, shall certify to the Comptroller, the date and amount of money so paid in, and the Comptroller shall keep an account of all money so paid in, and of all sums thereafter drawn from the Treasury under the provisions of the following section. 1901e. Identification after sale. 5. If within one year after such sale the owner of any such money, goods or other property makes claim to and proves his ownership thereof, the said money or proceeds, after deducting all reasonable charges and expenses, shall be paid over to him upon the order of the head of such department. After one year said money or proceeds shall be deemed a part of the general fund of such city. 1901f. Exception. 6. The provisions of this act shall not apply to property seized upon a search warrant, the custody and disposition of which is otherwise provided for by existing laws. 1881. In order to have questions reviewed by the supreme court the proper steps must be taken to reserve such questions as prescribed by statute. Hornberger v. State, 5 Ind. 300. Appeals can only be taken from final judgments. Farrel v. State, 7 Ind. 345; Miller v. State, 8 Ind. 325; Wingo v. State, 99 Ind. 343; State v. Evansville, etc., Co., 107 Ind. 581. The defendant can only appeal when there is a judgment rendered against him. Musselman v. State, 33 Ind. 267. If the defendant escapes, he can not, while at large, prosecute an appeal. Sargent r. State, 96 Ind. 63. If the defendant pleads guilty to an insufficient indictment, he may appeal and question the sufficiency of the Indictment for the first time in the supreme court. Henderson r. State, 60 Ind, 296; O'Brien v. State, 63 Ind. 242; Arbintrode v. State, 67 Ind. 267; Hays c. State, 77 Ind. 450; Pattee r. State, 109 Ind. 545. Errors must be assigned in the supreme court as in civil cases. Ind. 278. Sturm v. State, 74 The assignment of error must clearly indicate the ruling complained of. Dye v. State, 130, Ind. 87. Whatever is cause for a new trial can not be made an independent assignment of error. Wagner v. State, 63 Ind. 250. 1882. See section 1915, and notes. The state can not in any manner by an appeal have a question of fact reviewed. State v. Hall, 58 Ind. 512; State v. Van Valkenburg, 60 Ind. 302; State v. Rousch, 60 Ind. 304; State v. Campbell, 67 Ind. 302; State v. Overholser, 69 Ind. 144. When the state appeals on account of a refusal to give instructions it must appear that there was evidence to which the instructions were applicable. State v. Kern, 127 Ind. 465. The state can only appeal when the defendant is acquitted, and the fact must be shown by the record. State . Hamilton, 62 Ind. 409; State v. Hallowell, 91 Ind. 376; State v. Spencer, 92 Ind. 115. An appeal may be taken by the state from the quashing of an indictment without a bill of exceptions. State v. Day, 52 Ind. 483. If one count of an indictment is quashed and the cause is pending on another count the state can not appeal. State v. Evansville, etc., Co., 107 Ind. 581. If an indictment is quashed the state may appeal, although the defendant is retained in custody to answer another charge. State v. Allen, 94 Ind. 441. 1887. An appeal can only be taken by service of notice; the praying of an appeal in term time is ineffectual. McLaughlin v. State, 66 Ind. 193. When the defendant appeals it is not necessary to serve notice upon the clerk. Darr v. State, 82 Ind. 11. Under the statute of 1852 it was held that a notice of appeal could not be served upon a defendant in any county except the county where the trial was bad. Sate c. Quick, 73 Ind. 147. If a transcript is filed in the supreme court, and notice then given of the appeal, all of which is done within a year after judgment, it is sufficient. Beggs v. State, 122 Ind. 54. 1891. Failure to call names of jurors on return of a verdict is no cause for reversal. Short v. State, 63 Ind. 376; Norton r. State, 106 Ind. 163. The admission of improper evidence which could not harm the accused is no cause for reversal. Binns v. State, 66 Ind. 428; Powers v. State, 87 Ind. 114. Wood v. Refusal to allow the defendant to waive an arraignment is harmless error. State, 92 Ind. 269. When there is doubt of the guilt of the defendant, what may usually be regarded as harmless error will have weight in causing a reversal of the judgment. Riley . State, 95 Ind. 446. Failure of the foreman of a jury to sign a verdict before separation of the jury. when a sealed verdict is ordered, will not be cause for reversing à judgment. Clayton c. State, 100 Ind. 201. Where the verdict is right upon the evidence, abstract and practically harmless errors will be disregarded. Epps v. State, 102 Ind. 539; Strong e. State, 105 Ind. 1; Galvin c. State, 93 Ind. 550. Stating to the jury by the court of the manner of forming the issue is erroneous, but it is a harmless error. Henning v. State, 106 Ind. 386. This statute may render indictments or informations good on motions in arrest of judgment, that might be held bad on motions to quash. Nichols . State, 127 Ind. 406. Clerical errors in Informations will be regarded as harmless. Trout . State, 107 Ind. 578. Failure to prove with exactness unnecessary allegations will not be cause for reversal. Taylor v. State, 130 Ind. 66. The record must show that the error complained of was injurious to the defendant, or it will be regarded as harmless. Skaggs r. State, 108 Ind. 53. If there is a charge of an assault and battery with intent to commit a felony, and there is proof only of an assault with intent, à finding and judgment for an assault and battery with the intent will be upheld. Keeling v. State, 107 Ind. 563. [1881 S., p. 174. In force September 19, 1881.] 1902. Treason. 1. Whoever levies war against this State, or knowingly adheres to its enemies, giving them aid or comfort, is guilty of treason against the State of Indiana, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1903. Misprision of treason. 2. Whoever, having knowledge that any person has committed treason or is about to commit treason against this State, willfully omits or refuses to give information thereof to the Governor or some Judge of the State, as soon as may be, is guilty of misprision of treason, and, upon conviction thereof, shall be imprisoned in the State prison for any period not exceeding twenty-one years and fined in any sum not exceeding ten thousand dollars, and shall also be disfranchised and rendered incapable of holding any office for any period not less than ten 1908. Manslaughter. 1918. Rape of insane woman. 1909. Assault and battery, with intent, etc. 1920. Poisoning springs, etc. [1881 S., p. 174. In force September 19, 1881.] 1904. Murder in first degree. 3. Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate, any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kills any human being, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1. The dying declarations of the victim are admissible, if it clearly appear that he had no hope of recovery and believed death so near as to supersede all motives to falsehood by the strongest purpose of telling the truth.-Morgan v. State, 31 Ind. 193; Watson v. State, 63 id. 548: Jones v. State, 71 id. 66. 2. If life be taken in perpetrating robbery, intent to kill is not necessary to make murder in the first degree.-Moynihan v. State, 70 Ind. 126.—But if, in administering poison, life be taken with no intent to kill, it is only manslaughter.— Bechtelheimer v. State, 54 Ind. 128. 3. Premeditated malice does not necessarily imply an appreciable space of time between the formation of the intention to kill and the fatal stroke. Burns v. State, 66 Ind. 428. 4. When sufficient time has elapsed between an angry altercation with the deceased and the killing for the defendant's anger to cool, it can not be said to be unpremedi. tated. Watson v. State, 63 Ind. 548. 5. Homicide is justifiable when committed in defense of self or those whom one has a right to defend.— Waybright v. State, 56 Ind. 122. -- 6. The indictment need not aver that the killing was unlawful.- Beavers v. State, 58 Ind. 530. It must allege that the killing was purposely done. Snyder v. State, 59 Ind. 105. It need not aver that the deceased was a human being.- Merrick v. State, 63 Ind. 327. As to what is a sufficient indictment, see Dias v. State, 7 Blackf. 20; Dillon v. State, 9 Ind. 408; Dukes v. State, 11 id.557; Cordell v. State, 22 id. 1; Whelcheli v. State, 23 id. 89; Jones v. State, 35 id, 122; Long v. State, 46 id. 582; Shepherd v. State, 54 id. 25; Meiers v. State, 56 id. 336; Veatch v. State, id. 584. See, also, sections 1834, 1836, and 1960. 1905. Murder by duel in this State. 4. Whoever fights a duel with another in this State, and in so doing inflicts a wound upon his antagonist or any other person, whereof the person thus injured shall die, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1906. Murder by duel outside of this State. 5. Whoever, by previous appointment made within, fights a duel without, this State, and in so doing inflicts a mortal wound upon any person, whereof the person thus injured shall die within this State, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the State prison during life, in the discretion of the jury. 1907. Murder in second degree. 6. Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, upon conviction thereof, shall be imprisoned in the State prison during life. 1. For an explanation of the distinction between the degrees of murder, see Fahnestock v. State, 23 Ind. 231. See, also, section 1958. 1908. Manslaughter. 7. Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and, upon conviction thereof, shall be imprisoned in the State prison not more than twenty-one years nor less than two years. 1. For construction, see Hittner v. State, 19 Ind. 48; Creek v. State, 24 id. 151; Murphy v. State, 31 id. 511; Miller v. State, 37 id. 432; Bechtelheimer v. State, 54 id. 128. 2. As to the indictment, see Reed v. State, 8 Ind. 200; Willey v. State, 46 id. 363. 1909. Assault and battery, with intent, etc. 8. Whoever perpe trates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction thereof, be imprisoned in the State prison not more than fourteen years nor less than two years, and be fined not exceeding two thousand dollars. 1. See note to section 1836. 2. As to the indictment, see State v. Farley, 14 Ind. 23; Carder v. State, 17 id. 307; State v. Murphy, 21 id. 441; State v. Miller, 27 id. 15; Dooley v. State, 28 id. 239; Sloan v. State, 42 id. 570; Williams v. State, 47 id. 568; State v. Prather, 54 id. 63; Buntin v. State, 68 id. 38; Dickinson v. State, 70 id. 247. 3. If acquitted of the intent, the defendant may be found guilty of the assault or of assault and battery. State v. Murphy, 21 Ind. 441. See, also, sections 1836 and 1837. 4. See section 1958. 1910. Assault. 9. Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault, and, upon conviction thereof, shall be fined in any sum not exceeding fifty dollars. I. For what is a sufficient charge of the offense, see State v. Trulock, 46 Ind. 289. 1911. Assault and battery. 10. Whoever, in a rude, insolent, or angry manner, unlawfully touches another, is guilty of an assault and battery, and, upon conviction thereof, shall be fined not more than one thousand dollars, to which may be added imprisonment in the county jail. not exceeding six months. I. For various illustrations of what is, and what is not, the offense, see Kirland v. State, 43 Ind. 146. 2. As to the indictment, see Cranor v. State, 39 Ind. 64; Sloan v. State, 42 id. 570; State v. Wright, 52 id. 307. 1912. Malicious mayhem. 11. Whoever purposely and maliciously, with intent to maim or disfigure, cuts bites, or slits the nose, ear, or lip, cuts out or disables the tongue, puts out or destroys an eye, cuts off or disables a limb or any member of another person, is guilty of malicious mayhem, and upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than two years, and be fined not more than two thousand dollars. 1913. Simple mayhem. 12. Whoever violently and unlawfully deprives another of the use of any bodily member, or unlawfully and wilfully disables the tongue or eye, or cuts, bites, or slits the nose, ear, or lip of another, is guilty of simple mayhem, and, upon conviction thereof, shall be fined not more than two thousand dollars nor less than five dollars, and shall be imprisoned in the county jail not more than six months nor less than twenty days. 1. Son assault is a good defense, if the degree of resistance was proper in view of the injury offered.-Hayden r. State, 4 Blackf. 546. 1914. Robbery. 13. Whoever forcibly and feloniously takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and, upon conviction thereof, shall be imprisoned in the State prison not more than fourteen years nor less than two years, and be fined not exceeding one thousand dollars, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period. 1. If the defendant, by falsely pretending to be an officer having a warrant for A.. and threatening to arrest him, but offering no violence or other menace, obtain money from B. (A, agreeing to re-pay it), it is not robbery.-Perkins r. State, 65 Ind. 317. 2. A mere snatching of property from the person unawares is not robbery, unless the person be injured, or there is a previons struggle for the possession, or some force is used in obtaining the property.-Bonsall v. State, 35 Ind. 460; Shinn . State, 64 id. 13. 3. If there be no putting in fear, there must be force enough to amount to violence. -Brenton v. State, 25 Ind. 403. 4. The property taken need not be more particularly described than in larceny.-Id. 5. On an indictment for robbery there may be a conviction for larceny; and proof of a robbery will support an indictment for larceny.-Hickey r. State, 23 Ind. 21. 6. Indictment for assault with intent to rob may be sustained though, the robbery was consuminated - there being no merger of offenses of equal grade.-Hamilton r. State, 36 Ind. 280. 1915. Kidnapping. 14. Whoever kidnaps, or forcibly or fraudulently carries off or decoys from his place of residence, or arrests or imprisons any person, with the intention of having such person carried away from his place of residence, unless it be in pursuance of the laws of this State or of the United |