very low condition of the deceased, of which he was manifestly conscious, “we cannot doubt that the declarations were made under a belief of a speedily impending death.”—State v. Johnson, 9 Cr. L. Mag. 451 (S.C.).
A note collects cases. See also State v. Newhouse, 2 So. Rep. 799 (La.), and note.
Evidence—Rape—Fresh Complaint.—The assaulted party related the particulars to her mother on the morning after the alleged assault. Held—Not admissible. To be admissible such statements must be contemporaneous with and illustrative of the assault, and therefore pars rei gestæ. McGee v. State, 2 S. W. Rep. 890 (Tex). The rule has not been confined to facts which are part of the res gesta, but in cases of rape the fact that the injured party has complained of the outrage at the first opportunity, may be shown as corroborating her testimony. What she said is also admissible. Reg. v. Guttridges, 9 Car. & P. 471; Haynes v. Commonwealth, 28 Grat. 942; McCombs v. State, 8 Oh. St. 643. See also Dunn v. State, 12 N. E. Rep. 826 (Ohio).
Intoxicating Liquors—Damnum absque Injuria.—“The local option legislation of this State being constitutional as a valid exercise of the police power, it follows that the incidental effects upon the value of property, such as a brewery and its fixtures, resulting from the inability of the owners to adjust their old business to the new law, is damnum absque injuria. The law does not take or damage their property for the use of the public, but only prevents them from taking or damaging the public for their use.” (Syllabus.) Menken v. City of Atlanta, 2 S. E. Rep. 559 (Ga.).
Larceny—What Constitutes?—The defendants were farm laborers, hired to pick cotton. They entered a cotton-house, carried cotton therefrom to the field, and placed it with cotton which they had picked the day before, but which had not been weighed. The intent was not to deprive the owner of the cotton, but to obtain from him compensation for picking cotton which they had not picked. Held—That such act has the secrecy, in fraudulent purpose, and the intent to deprive the owner of an interest in his property, elements which distinguish larceny from a civil trespass. The defendants had fraudulently taken and placed the property where they could assert a false lien on it. Fort et als. v. State, 2 So. Rep. 477 (Ala.).
Libel—Privileged Communication—Mercantile Agency.—B, a mercantile agency, published a “Notification Sheet” giving information as to the business standing of traders, which they issued indiscriminately to subscribers. In it they stated that A had placed a chattel mortgage upon her property, which statement was false, and resulted in breaking up her business. Held—B was liable. The communication of the false information to those who had no interest in it was not privileged. Five of the fourteen judges dissented on the ground that communications made in good faith in the performance of what may reasonably be considered a duty to the public or an individual are privileged. “The old adjudications relied on to support the more narrow rule are the declarations of judges whose vision did not take in the widely different conditions which prevail in the affairs of men to-day.” King v. Patterson, 36 Alb. L. J. 226 (N.J.).
Libel—Publication.—The libellous matter was contained in a sealed letter opened by the prosecuting witness. As he was unable to read, he gave the letter to his wife, who thereupon read the contents to him. Held—That, in the absence of any evidence whatever to show that the defendant knew of the prosecutor’s inability to read, there was not a publication of the libel by the defendant. State v. Syphrett, 2 S. E. Rep. 624 (S. C.). (The count of the indictment which charged a publication to the prosecutor himself, failed because it was not charged that the defendant’s act was done with the intent to cause a breach of the peace.)
Life Insurance Policy—Change of Beneficiary—Trust.—A took out a policy of insurance upon his own life, payable to his mother, who, together with A’s sister, furnished the money for the first premium. Eight years later A surrendered the policy, which had been shown, but never delivered, to his mother. The policy was cancelled, and a new one in favor of A’s wife was issued indorsed: “Original Pol. No. 9372 was issued May 25th, 1874, of which this is a continuation, and entitled to all its benefits.” A’s mother never knew of the change. A paid all the premiums after the first. Held—Upon A’s death the entire amount of the policy was due to A’s mother. The taking out the policy amounted to a settlement in trust upon the mother, and no power of revocation
