MINOR ENTERING BARROOM.

Sec. 717 (3729). Minor going in barroom, etc.

If the keeper or owner of any barroom, billiard room, or bowling alley, shall allow any minor to enter or remain in such barroom, billiard room, or bowling alley, if before such minor enters or remains in such barroom, billiard room, or bowling alley, the owner or keeper thereof has been notified by the parents or guardian of such minor not to allow such minor to enter or remain in such barroom, billiard room, or bowling alley, he shall be guilty of a misdemeanor, and upon conviction be fined not exceeding fifty dollars or imprisoned not exceeding thirty days.

1897, c. 278.

A town ordinance prohibiting an unmarried minor from entering a barroom is valid. Austin, 114-855.

Sec. 718 (3797). Mines.

MINES.

If any person shall knowingly violate any of the provisions of the law relating to mines or shall do anything whereby the life or health of persons or the security of any mine and machinery is endangered, or if any miner or other person employed in any mine governed by the statutes shall intentionally or willfully neglect or refuse to securely prop the roof of any working place under his control, or neglect or refuse to obey any orders given by the superintendent of a mine in relation to the security of a mine in the part thereof where he is at work and for fifteen feet back of his working place, or if any miner, workman or other person shall knowingly injure any water-gauge, barometer, air course or brattice, or shall obstruct or throw open any air ways, or shall handle or disturb any part of the machinery of the hoisting engine or signaling apparatus or wire connected therewith, or air pipes or fittings, or open a door of the mine, and not have the same closed again, whereby danger is produced either to the mine or those that work therein, or shall enter any part of the mine against caution, or shall disobey any order given in pursuance of law, or shall do any willful act whereby the lives and health of the persons working in the mines or the security of the mine, or the machinery thereof is endangered, or if the person having charge of a mine whenever loss of life occurs by accident connected with the machinery of such mine or by explosion shall neglect or refuse to give notice thereof forthwith

by mail or otherwise to the inspector and to the coroner of the county in which such mine is situated, or if any such coroner shall neglect or refuse to hold an inquest upon the body of the person whose death has been thus caused, and return a copy of his findings and a copy of all testimony to the inspector, he shall be guilty of a misdemeanor, and upon conviction, fined not less than fifty dollars or imprisoned in the county jail not more than thirty days, or both.

1897, c. 251, s. 8.

MISJOINDER.

Where two persons are jointly indicted for an act which becomes an offense merely by reason of some circumstances applicable to each individual severally the judgment must be arrested. Deaton, 92-790.

Two persons can not be jointly indicted for using profane or vulgar language, though they use words literally similar. Deaton, 92-790.

Since drinking is a personal vice two persons can not be jointly indicted for getting drunk in violation of a town ordinance. Deaton, 92—789.

MISMARKING ANIMALS.

Sec. 719 (3317). Mismarking.

If

any person shall knowingly alter or deface the mark or brand of any other person's horse, mule or ass, neat cattle, sheep, goat, or hog, or shall knowingly mismark or brand any such beast that may be unbranded or unmarked, not properly his own, with intent to defraud any other person, the person so offending shall be guilty of a felony, and punished as if convicted of larceny.

Code, s. 1001; R. C., c. 34, s. 57; 1797, c. 485, s. 2.

INDICTMENT ORIGINAL MARK.-An indictment for altering the mark of a cattle-beast need not set forth the original mark nor in what manner the alteration was made. O'Neal, 29 (7 Ired.), 251.

PAROL EVIDENCE OF MARK.-Parol evidence is competent to prove the mark of the prosecutor. King, 84-737.

Where the act is proved to have been willfully done the intent to injure or defraud the owner necessarily follows unless there be proof to the contrary. Davis, 24 (2 Ired.), 153.

The fact that the cattle had strayed from the owner at the time the injury was done is no defense. Davis, 24 (2 Ired.), 153.

MISTRIAL.

The court, in furtherance of justice, may withdraw a juror and order a mistrial in all misdemeanors whenever the circumstances render such a course necessary. Weaver, 35 (13 Ired.), 204.

The question as to whether there is cause for a mistrial is a matter of law. Tilghman, 33 (11 Ired.), 513.

Where a mistrial is ordered, but the court refuses to discharge the prisoner, the proper mode of procedure to have such case reviewed is by petition for a writ of certiorari, and not by appeal. Locke, 86–647.

The proper method of reviewing the action of the superior court in refusing to discharge a defendant upon ordering a mistrial is by certiorari. Twiggs, 90-687.

It was not error to refuse to order a mistrial on motion of defendant's counsel because a child of one of the jurors was killed during the argument and before the counsel for defendant had addressed the jury. Guthrie, 145—.

MONUMENTS.

Sec. 720 (3680). Monuments and tombstones; defacing or removing. If any person shall, unlawfully and on purpose, remove from its place any monument of marble, stone, brass, wood, or other material, erected for the purpose of designating the spot where any dead body is interred, or for the purpose of preserving and perpetuating the memory, name, fame, birth, age or death, of any person, whether situated in or out of the common burying ground, or shall unlawfully or on purpose break or deface such monument, or alter the letters, marks or inscription thereof, he shall be guilty of a misdemeanor.

Code, 1088, R. C., c. 34, s. 102; 1840, c. 6.

INDICTMENT.-The indictment need not designate the name of the person whose tomb has been defaced, nor is it necessary to charge that the dead body was that of a human being. Wilson, 94-1015.

EVIDENCE.-Evidence that defendant caused his employees to plow up the ground and displace the grave-stones, is sufficient to go to the jury. Wilson, 94-1015.

OWNER OF LAND.-Where the owner of land consents, either expressly or by implication, to the interment of the dead bodies on his land, he has no right afterwards to remove the bodies, or to deface or pull down the grave-stones and monuments erected. Wilson, 94-1015.

MORTGAGED PROPERTY.

Sec. 721 (3435). Mortgaged property, disposing of; indictment; proof. If any person, after executing a chattel mortgage, deed in trust or other lien for a lawful purpose, shall make any disposition of

any personal property embraced in such mortgage, deed in trust or lien, with intent to hinder, delay or defeat the rights of any person to whom or for whose benefit such deed was made, every person so offending and every person with a knowledge of the lien buying the property embraced in any such deed or lien, and every person assisting, aiding or abetting the unlawful disposition of such property, with intent to hinder, delay or defeat the rights of any person to whom or for whose benefit any such deed or lien was made, shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, in the discretion of the court. In all indictments for vio lations of the provisions of this section, it shall not be necessary to allege or prove the person to whom any sale or disposition of the property was made, but proof of the possession of the property embraced in such chattel mortgage, deed in trust or lien, by the grantor thereof, after the execution of said chattel mortgage, deed in trust, or lien, and while it is in force, and further proof of the fact that the sheriff or other officer charged with the execution of process can not after due diligence find said property under process directed to him for its seizure, for the satisfaction of such chattel mortgage, deed in trust or lien, or that the mortgagee demanded the possession thereof of the mortgagor for the purpose of sale to foreclose said mortgage, deed in trust or lien, after the right to such foreclosure had accrued, and that the mortgagor failed to produce, deliver or surrender the same to the mortgagee for that purpose, shall be prima facie proof of the fact of a disposition or sale of such property, by the grantor, with the intent to hinder, delay or defeat the rights of the person to whom said chattel mortgage, deed in trust or lien was made.

Code, s. 1089; 1887, c. 14; 1873-4, c. 31; 1874-5, c. 215; 1883, c. 61.

INDICTMENT.-An indictment for disposing of mortgaged property, which after giving the name of the mortgagor and mortgagee, charges that defendant, a third person, sold and disposed of the property with a knowledge of the lien and with intent to hinder, delay and defeat the rights of the mortgagee, without charging that he aided or abetted the maker of the mortgage, or that he bought with a knowledge of the lien, can not be sustained. Woods, 104— 898.

The statute embraces three classes of offenders: (1) The maker of the lien who shall dispose of the property with unlawful intent; (2) those who buy with a knowledge of the lien; and (3) those who aid or abet the unlawful disposition with unlawful intent. Ibid.

The indictment must set forth that the lien was in force at the time of the sale, and must also state to whom the property was sold. Burns, 80-376. Where the indictment contains two counts, one charging an intent to defraud G, "business manager" of an association, the other an intent to defraud G, "business manager and agent" of such association, the counts are not repug

nant to each other, since they relate to one transaction varied only to meet the probable proof, and the court will neither quash nor force the state to elect. Surles, 117-720.

DESCRIPTION.-A mortgage conveyed "my tobacco crop, to be grown this year on my own land, and to contain eight acres, including one-third in the crop of G to contain not less than three acres, and my one-third interest in J's crop, not less than two acres, all on my own land to be grown this year." The evidence was that the mortgagor held only a bond for title to the tract of land. Defendant purchased of the mortgagor with a knowledge of the lien: Held, that the description was sufficient, and that the mortgage embraced all the crop mentioned, notwithstanding the mortgagor held only a bond for title, and that defendant was guilty. Logan, 100-454.

A description of the lands on which the crop disposed of was grown as "18 acres on my (defendant's) own land in A township, H county" is sufficient. Surles, 117-720.

CONSIDERATION.-A chattel mortgage given for a past debt, or for supplies to be afterwards furnished, is based on sufficient consideration. Surles, 117720.

INFANTS. An indictment for disposing of mortgaged property can not be sustained against an infant, since the alleged disposition amounts to a disaffirmance of the contract. Howard, 88-650.

INTENT. Where the disposition of the mortgaged property necessarily results in hindering, delaying or defrauding the mortgagee, it will be presumed that the intent to produce such result existed, but where such result would not naturally or necessarily follow, as where sufficient property remains after the disposition to pay the debt secured, the intent with which the disposition was made is a question of fact to be passed on by the jury. Manning, 107— 910.

The burden is on the defendant to disprove the criminal intent in disposing of the mortgaged property. Surles, 117-720.

The actual sale of mortgaged crops raises a presumption of fraudulent intent. Holmes, 120-573.

Evidence that defendant applied the whole crop mortgaged to the discharge of his landlord's prior lien, is competent to disprove the criminal intent. Ellington, 98-749.

NAME OF PERSON RECEIVING PROPERTY MUST BE GIVEN.-An indictment for disposing of mortgaged property which fails to state the manner of disposition, or the name of the person receiving the property, is fatally defective. Pickens, 79-652.

COLLATERAL OFFENSE.-Evidence that five months after the offense was committed the defendant offered to dispose of another article covered by the same mortgage is inadmissible to prove the intent with which the offense was committed. The collateral offense to prove the intent must be confined to a time before, or just about the time the offense charged against the defendant is alleged to have been committed. Jeffries, 117-727.

EVIDENCE.-Where the indictment charges an intent to defraud G, the manager of an association, the fact that G is such manager can be proved by parol though the books of the association contain a record of his election. Surles, 117-720.

Sec. 722 (3436). Secreting property to hinder enforcement of lien.

Any person removing, exchanging, or secreting any personal property on which a lien exists, with intent to prevent or hinder the enforcement of the lien, shall be guilty of a misdemeanor.

1887, c. 14.