Kennedy v. The State.

of this State, husband and wife are incompetent witnesses for or against each other, and they cannot disclose any communication from one to the other, made during the existence of the marriage relation, whether called as a witness while that relation exists or afterward. 2 G. & H..170, sec. 240. Notwithstanding this general rule of the common law, and notwithstanding, also, our statute on this subject, the wife may be a witness against the husband in a few instances. Among these are cases for surety of the peace against her husband, 2 G. & H. 642, sec. 29, and assault and battery committed by the husband upon the person of the wife, 3 Ind. Stat. 560, sec. 2. There may be other exceptions to the rule.

We think, however, that in a prosecution under the statute above quoted, for carrying weapons, either concealed or openly, the wife cannot be a witness against the husband, and that, therefore, she cannot make an affidavit against him on which to found such a prosecution.

The judgment is reversed, and the cause remanded.
C. E. Walker and W. S. Roberts, for appellant.
B. W. Hanna, Attorney General, for the State.

KENNEDY V. THE STATE.

PRACTICE.-Affidavits.—Bill of Exceptions.-Affidavits in support of motions for postponement of trial and for change of venue must be made part of the record by bill of exceptions.

APPEAL from the Shelby Circuit Court.

PETTIT, J.-This was an indictment for an assault and battery, with intent to murder one David Hoover.

Plea of not guilty; trial by the court; finding of guilty; imprisonment for eight years, and one dollar fine and costs; motion for a new trial overruled; and judgment on the finding.

Kennedy v. The State.

The errors assigned are, first, in not granting the appellant a postponement of his cause for six hours, as asked for by him, to prepare for his defence; second, in refusing to allow the appellant to file additional affidavits in support of his motion for postponement; third, in refusing the appellant a change of venue; fourth, in refusing to allow the appellant to file additional affidavits in support of his motion for a change of venue; fifth, in overruling the appellant's motion for a new trial.

There is no affidavit or other paper in the record, by bill of exceptions, in relation to the first, second, third, and fourth assignments of error; and they are not properly or legally parts of the record, unless made so by bill of exceptions, nor can this court take notice of them, although the clerk may have copied them into the transcript. We will not cite authorities, but we refer the curious inquirer on this question to the Digests and Reports of our own State, from which we believe he will be fully satisfied as to the correctness of this ruling.

This leaves remaining the sixth, that of overruling the motion for a new trial, for consideration. The evidence is set out in the bill of exceptions, and it consists of the testimony of one man, the injured party. It is clear, conclusive, and leaves not a doubt on our minds of the correctness of the finding and judgment of the court below.

The judgment is affirmed, at the costs of the appellant.* K. M. Hord, A. Blair, F. T. Hockmon, and L. F. Hackney, for appellant.

N. T. Carr and B. W. Hanna, Attorney General, for the State.

*Petition for a rehearing overruled.

Waggoner et al. v. Liston.

WAGGONER ET AL. v. LISTON.

PLEADING.-Denial.-Demurrer.-Where there is a denial of a complaint, it is not error to sustain a demurrer to a paragraph of answer which states facts which simply amount to a denial.

PRACTICE. Weight of Evidence.-That the finding is against the weight of evidence, is no ground for reversing a judgment.

SAME.-Reasons for New Trial.-Too General.--That the court erred in giving or refusing instructions, or in receiving or rejecting evidence, are reasons too general in their statement to present any question on appeal. The instructions or the evidence should be pointed out.

SAME.-Demurrer.—The ruling on a demurrer is no ground for a new trial.

APPEAL from the Wabash Common Pleas.

DOWNEY, J.-This was an action by the appellee against Waggoner and Steinberger, to recover the possession of forty barrels of whiskey, the property and right to the possession of which were alleged to be in the plaintiff, and of which it was alleged the defendants had possession, and unlawfully detained from the plaintiff. There was an answer by the defendants, reply thereto, trial by jury, verdict for the plaintiff, motion for a new trial overruled, and judgment on the verdict.

The following are the errors assigned:

"First, overruling demurrer to complaint; second, in sustaining demurrer to pleas; third, in excluding defendants' evidence; fourth, in admitting plaintiff's evidence; fifth, in overruling motion for new trial; sixth, in giving charges to the jury; seventh, in refusing charges to the jury."

We see no objection to the first and fifth assignments of error, and the second may be sufficient, if we are allowed to understand from the word "pleas" that the paragraphs of the answer were intended. The conclusion to which we have arrived, however, with reference to this alleged error renders it unnecessary that we should be very accurate in this matter. The third, fourth, sixth, and seventh assignments raise no question in this court. They are embraced in the fifth, if they were urged as reasons for a new trial.

37 357 134 113

Waggoner et al. v. Liston.

First, the objection to the complaint is not followed up by counsel in their brief. They point out no defect in it. We have examined it, and think it sufficient. Second, the defendant Steinberger did not plead. Waggoner answered in eleven or twelve paragraphs, and among them the general denial. The first, second, and third, to which demurrers were sustained, were each a statement of facts intended to show that the plaintiff was not the owner and entitled to the possession of the whiskey. The facts were fully put in issue by the general denial of the complaint. This ruling cannot, therefore, be successfully assigned for error. Third, the fifth assignment of error requires us to examine the reasons assigned for a new trial. They are as follows: "First, that the finding of the jury is against the law; second, that the finding of the jury is against the weight of the evidence; third, that the court erred in its charges given to the jury; fourth, that the court erred in refusing to give to the jury charges asked to be given by defendants; fifth, that the court erred in refusing to allow evidence which the defendants produced and offered to the jury; sixth, that the court erred in allowing evidence on behalf of the plaintiff over the defendants' objection; seventh, and Steinberger, defendant, adds to the foregoing, that the court refused him the conclusion of the argument; eighth, the court below erred in sustaining demurrers to the defendants' answer, which are stated in the record."

What state of case would require the court to grant a new trial under the first reason assigned is not very definitely settled. It is freely used by counsel, occurring as a reason in the motion in almost every case where a motion is made. But, in a limited examination, we have found no case in this court where a new trial has been granted, for this We will not say that there may not have been cases, or that they may not occur hereafter. But see Bosseker v. Cramer, 18 Ind. 44. Counsel state no ground on which a new trial should have been granted in this case for this reason.

reason.

The second reason for a new trial is not any of the reasons for which the court was authorized by statute to grant

Waggoner et al. v. Liston.

a new trial. The statutory reason for granting a new trial on account of a defect of evidence is, "that the verdict or decision is not sustained by sufficient evidence." But if the common pleas could have granted a new trial because the verdict was "against the weight of the evidence," and refused to do so, this court could not reconsider that question. In The Indianapolis, etc., Railroad Co. v. Trisler, 30 Ind. 243, this court said, repeating, in substance, what had many times before been said: "The appellant argues the case as if this court were to weigh the evidence and determine the preponderance thereof. Such is not our province. It must appear by the record, not merely that the finding below was against the weight of evidence, but that that finding was wrong beyond any question whatever, before we can interfere upon the evidence alone." If the reason had been in the statutory form, we would have examined the evidence; but as it is implied by the form of the reason given that there was some evidence on which the jury might have found as they did, and as the question is only as to the weight of the evidence, we cannot pass upon that question.

The next reason for a new trial was that the court erred in its charges given to the jury. This reason is indefinite. The court cannot, under such an objection, be required to search among the instructions given for the erroneous charges. In Dawson v. Coffman, 28 Ind. 220, in sustaining a reason more specific that this, this court overruled or questioned several cases previously decided, under which it would probably have been insufficient. This reason is not sufficiently specific to present any question. According to the case to which we have referred, if the motion had designated the objectionable charges as those to which the party had excepted, it would have been sufficient. All the charges given cover nine pages of the record. We do not know where to look for the erroneous charges.

The fourth reason was, that the court refused to give to the jury charges asked to be given by the defendants. Here again no charges are designated. Whether these charges