sumptions of innocence are allowed to prevail over presumptions of identity from mere identity of names, some further proof is often required." It has been held by the weight of authority that where prior conviction of a crime is an essential element of a crime charged, mere identity of name is not enough to sustain the burden of proof beyond reasonable doubt. State v. Adams, 64 N. H. 440, 13 Atl. 785; People v. Price (Sess.) 2 N. Y. Supp. 414, 416, affirmed on opinion below in 119 N. Y. 650, 23 N. E. 1149; State v. Smith, 129 Iowa, 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023; Bandy v. Hehn, 10 Wyo. 167, 174, 67 Pac. 979; Russell on Crimes (7th Ed.) 213– 215, and cases cited.

In the

The good name of a witness is precious to him. It is important in the administration of justice that his credibility should not be made the subject of adverse comment without some foundation in evidence. light of our decisions and of these principles, bald identity of name without other confirmatory facts or circumstances is not enough to at bar such facts and circumstances were indicate identity of person. But in the case

court of Northern Norfolk, which showed | cases involving a charge of crime, when prethat "Herbert C. Brown of Boston" was convicted on January 27, 1909, of operating an automobile while under the influence of intoxicating liquor, and was fined twenty-five dollars. There was no special evidence to identify the person mentioned in the record with the defendant's chauffeur other than whatever reasonable inference might be drawn from other facts. There is nothing in the record to indicate the residence of the defendant's chauffeur, except that his employer had a house in Brookline, and that he himself was the driver of an automobile kept at a garage in Boston. The statement has been made broadly that identity of name is sufficient evidence to warrant the inference of identity of person. Hatcher v. Rocheleau, 18 N. Y. 86, 92-96; State v. Court, 225 Mo. 609, 615, 125 S. W. 451; State v. Le Pitre, 54 Wash. 166, 103 Pac. 27, 18 Ann. Cas. 922; Boyd v. State, 150 Ala. 101, 43 South. 204; State v. Loser, 132 Iowa, 419, 426, 104 N. W. 337; Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601; Colbert v. State, 125 Wis. 423, 104 N. W. 61; State v. Lashus, 79 Me. 504, 11 Atl. 180; Reg v. Levy, 8 Cox C. C. 73; Gemell v. Evans, 4 Q. B. 626; Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150, 154, 83 N. E. 448; 16 Cyc. 1055, and cases there collected. In many, if not all, of these cases there will be found facts which supplement the identity of name as ground for drawing the inference that the same person is meant. That is true of Dolan v. Mutual Reserve Fund Life Assur., 173 Mass. 197, 53 N. E. 398, and Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632. In Commonwealth v. Norcross, 9 Mass. 492, it was said respecting identity of name in a certificate of marriage with one charged in the indictment that testimony was necessary "to prove the identity of parties." In Commonwealth v. Briggs, 5 Pick. 429, it was held that identifying evidence was required. See, also, Wedgwood's Case, 8 Greenl. (Me.) 75; Snowman v. Mason, 99 Me. 490, 59 Atl. 1019; Mooers v. Bunker, 29 N. H. 420, 431; Stebbins v. Duncan, 108 U. S. 32, 47, 2 Sup. Ct. 313, 27 L. Ed. 641. In Bogue v. Bigelow, 29 Vt. 179, 183, identity of name was held prima facie evidence of identity of person in tracing title to real estate, but it was said by Redfield, C. J., that "in

could have been committed in all probability only by one competent to operate an automobile, a class few in number compared with the entire population, but to which the defendant's employé belonged. The person convicted was described as of Boston, and the offense was committed and the conviction had in the vicinity of Boston, within less than a year before the accident in question which occurred in Boston, and near a garage where the automobile was kept operated by the defendant's servant. It would have been a warrantable conclusion that the defendant's chauffeur lived in or near Boston. These circumstances together with identity of name were enough to warrant an inference that the court record applied to the defendant's servant.

present. The record was of a crime which

Of course it was an inference of fact which the jury alone could draw. But the only exception saved was to the admission in evidence of the copy of the record, and it is conceded expressly in the exceptions that "the charge was proper if the record was rightly admitted."

Exceptions overruled.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 101 N.E.-6 † Rehearing denied.

Appeal from Circuit Court, Fayette Coun- | wholesale, in amount equal to the unpaid ty; George L. Gray, Judge.

Action by David W. Andre against John G. Murray and others. Judgment for defendants, and plaintiff appeals. Transferred from Appellate Court under Burns' Ann. St. 1908, § 1394. Reversed. See, also, 98 N. E. 322.

Finley H. Gray, L. L. Broaddus, and George C. Florea, all of Connersville, for appellant. Reuben Conner, Raymond Spring er, G. E. Johnston, and Allen Wiles, all of Connersville, for appellees.

ERWIN, J. Action in replevin. The only error assigned arises on the sustaining of appellees' demurrer to the complaint. Appellant alleges in his complaint that on May 28, 1906, he conditionally sold and delivered to appellee John G. Murray and one Edwards a retail stock of drugs and other property, located in a certain business room in Connersville, Ind.

balance of said sum and interest, and said stock so added to stand hereunder in place of stock sold. That vendees shall pay to vendor, as rent for said room where said retail stock is now located, the sum of $8.25 each week until said principal of $2,000 and interest is paid; the first weekly payments of, and one payment of $8.25 coming due thereof coming due one week from date hereeach week thereafter until said principal and interest is paid, as above provided."

It is also averred in the complaint that by the mutual mistake of each of the parties to the contract, and by the mistake of the scrivener who drafted the same, the provision "that the title to all of said property shall be and remain in the said vendor until full payment of said purchase price, and that upon default of said vendees in any of the conditions that said vendor shall be entitled to the possession thereof," was omitted from said agreement, as reduced to writing; that subsequently Edwards sold and assigned his interest in the property to Murray, who assumed the obligations of the orig

The contract of sale was in writing, and is as follows: "This indenture witnesseth: That David W. Andre, of the city of Con-inal contract of purchase. nersville, in the county of Fayette, in the It is further averred that on July 28, 1908, state of Indiana, has this 28th day of May, | Murray and Edwards made default, in that 1906, for the sum of two thousand ($2,000) they failed and refused to pay the monthly dollars, and full compliance with the terms installment of principal and interest then and conditions thereof, sold and transferred due, and informed the appellant that they to John G. Murray and Arthur J. Edwards, would pay no further amounts upon said of said city, county, and state, the following contract, and that on said date there was a described personal property and chattels, lo- balance of said purchase price and interest cated in said city, county, and state, and unpaid in the sum of $1,727.50; that on said described as follows, to wit: All the ven- day the vendees made further default, in dor's stock of retail drugs, sundries, paints, that they had failed to keep said stock reoils, liquors, the same to include all retail newed, as provided, but had sold and restock on hand of vendor of every descrip- duced the same, so that said stock did not tion, now located in what is known as the exceed $1,000, wholesale value, including reOpera House Drug Store Room, at No. 128 newal goods, and that the value of the origW. Fifth street, in said city; also seven inal goods remaining did not exceed $200; show cases, two pair of scales, and one pre- that on said day appellee Murray, assumscription scale, located in said room. The ing to own said property, assigned the same terms and conditions, above mentioned, are as a failing debtor to appellee John Payne, that said vendees shall pay to said vendor as assignee for the benefit of his bona fide the sum of two thousand ($2,000) dollars, creditors; that after the bringing of the with interest thereon at the rate of six (6) original action, upon petition of creditors of per cent. per annum from date hereof until Murray and of the partnership of Murray & paid, said sum and interest thereon to be pay- Edwards, said Murray, individually, and able in monthly installments of not less than said partnership were adjudged involuntary twenty ($20.00) dollars each, the same to be bankrupts, and that appellee Charles W. applied, first, to the payment of interest, Neff was duly appointed trustee in bankand the balance to said principal; the first ruptcy; that by the proceedings in bankinstallment coming due at the expiration of ruptcy the assignment to John Payne was one month from the date hereof, and one in- superseded and annulled. stallment at the expiration of each month thereafter, until the whole amount of principal and interest is paid. The retail stock shall remain where the same is now located until said sum, together with all interest thereon, is paid in full; and until said principal sum and interest is paid said vendees shall keep said stock renewed and replenished, so that same shall at all times be maintained at not less than the cash value, at

The prayer is for a reformation of the contract, so that the same shall include the omitted conditions, as agreed upon, judgment for the possession of the goods found and taken on the writ of replevin, and for the value of the goods not found.

The appellees separately filed demurrers to the complaint for want of sufficient facts, which demurrers were sustained by the court. Appellant refusing to plead further and elect

ing to abide by his complaint and exception! for; the only condition being that the goods to the ruling of the court in sustaining the should not be removed from the town of demurrer thereto, judgment was rendered Geneva where located-a thing he was not for the return of the property taken on the attempting to do. writ of replevin to appellee Neff, trustee in bankruptcy, and that defendants recover costs.

In the case of Winchester, etc., Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 382, the facts shown were that the vendee had sold the wagons in question in due course of trade, and at retail. In the case of Steele v. Aspy, Adm'r, 128 Ind. 367, 27 N. E. 739, the vendor's administrator under-purchaser took no better title than that held took to have a receiver appointed to take charge of a stock of goods sold to Steele by one Nelson, deceased. That case is not in point here, for the reason that there was no condition in said contract that the ownership of the goods should be retained by the vendor until payment should be made there

Assignee for the Benefit of Creditors, supra, | any reference to any instruction given by the that court held "that a conditional sale of goods to a retail merchant is binding upon him and his assignees, but not upon vendees in the regular course of business; and that one to whom he sells the whole stock took no title. Neither would his assignees in bankruptcy."

It is insisted that, as the contract of sale provides for the payment of rent, this is conclusive as to the nature of the transaction, and is conclusive that the instrument is a chattel mortgage. This is a question we are not called upon to decide, as the failure to pay rent is not alleged as one of the breaches of the contract. Neither does the contract make any provision as to return of the property on failure to pay rent.

court, and under the heading "Argument" set ror in the giving of them, with reasons in supout certain instructions given, and asserted erport thereof, did not comply with Supreme Court rule 22, cl. 5 (55 N. E. vi), prescribing that no alleged error in a point not contained in the statement of points shall be thereafter raised, and, in the absence of the prescribed cure of such defects by brief for the state specifying the instructions to which tha points apply and discussing them on their erits, presented no question for review.

[Ed. Note.-For other cases. see Criminal Law, Cent. Dig. §§ 2965-2970, 3205; Dec. Dig. § 1130.*]

Appeal from Circuit Court, Dubois County; Bomar Traylor, Special Judge.

John Anderson was convicted of assault and battery with intent to kill, and he appeals. Affirmed.

Richard M. Milburn, of Jasper, and Robert W. Armstrong, of Huntingburg, for ap pellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, of Indianapolis, for

the State.

The case of West v. Fulling, 36 Ind. App. 617, 76 N. E. 325, seems to hold that the right to retail carries with it in all cases title to the property transferred, and that a contract retaining title in the seller is void as against creditors and trustee in bankruptcy, citing the bankruptcy act, as follows: "That the trustee of a bankrupt shall take MORRIS, J. Appellant was convicted on title to all property which, prior to the fil- a charge of assault and battery with intent ing of the petition, he could, by any means, to kill. His motion for a new trial was have transferred, or which might have been overruled, and this ruling is the only error levied upon and sold under judicial process assigned. against him." The stock of goods could not have been transferred in bulk, neither could it be levied upon by execution and sold to satisfy creditors other than the original vendor; and, in so far as that case holds that the same may be taken by the trustees in bankruptcy, the same is overruled. It appears from the averments of the com-der the heading "Points and Authorities," plaint that at least $200 worth of goods, appellant's brief contains statements of eight originally purchased under the conditional abstract legal propositions. contract, are still on hand. As to this prop- such propositions is found any reference to erty received from the original vendor, ap- any instruction given by the court to the pellant herein is clearly entitled to recover; jury, and consequently no information is and the complaint stated a good cause of given as to which, if any, of the instructions action as to that part of the property. given such legal propositions are intended As to apply. to the after-acquired property, we express no opinion.

The court erred in sustaining a demurrer to the complaint.

Judgment reversed.

MORRIS, J., did not participate.

(179 Ind. 590)

ANDERSON v. STATE. (No. 22,291.)1
(Supreme Court of Indiana. March 13, 1913.)
CRIMINAL LAW (§ 1130*) — APPEAL — RULES
AS TO BRIEFS-WAIVER OR CURE.

A brief on appeal from a conviction, which set out neither the motion for a new trial nor the substance thereof, and under the heading "Statement of the Record" stated that the motion and the rulings and exceptions thereon were set out in full at certain pages of the record, and under the heading "Points and Authorities" contained statements of abstract legal propositions, in none of which was there

In appellant's brief, neither the motion nor the substance thereof is set out. Under the heading "Statement of the Record" appears only this: "The motion for a trial is set out in full on pages 318 and 319, and the ruling of the court thereon, and exceptions by defendant on page 320."

new

Un

In no one of

In the brief, under the heading of "Argument," appellant sets out instructions Nos. 7 and 5 given by the court, and asserts error in the giving of each of them, and adduces reasons in support thereof.

It is contended by the Attorney General that no question is here presented for review, because (1) of appellant's failure, in his statement of points and authorities, to specifically refer to any particular ruling or action of the trial court alleged to be erroneous; and further (2) because appellant's brief, in its statement of the record, under clause 5, rule 22 of this court, fails to disclose any portion of the record relating to instructions given so as to present the error or exception on which he relied. The Attorney General in his brief has refrained from any discussion of any matter appearing in appellant's brief, except as above stated.

The precise question here involved was determined in Michael v. State, 99 N. E. 788.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe 1 Rehearing denied.