a pint of whisky, and told him to go home, | session of tools suitable for effecting an esand that Lambert then drove off with the Lufkin team. Other witnesses testified for the state that they met these two men riding together in the same team that day towards Falmouth corner. One witness testified that he met them riding in separate teams on the road from Walnut Hill Church; that he identified the Lufkin horse on the road that day, and recognized Lambert as the driver of it. cape is also deemed an incriminating fact which may go to the jury. State v. Duncan, 116 Mo. 288, 22 S. W. 699; Clark v. Com. (Ky.) 32 S. W. 131; State v. Palmer, 65 N. H. 216, 20 Atl. 6. And evidence that the defendant had a revolver under his pillow when arrested, and that he resisted arrest, was held admissible in People v. Burns, 67 Mich. 537, 35 N. W. 154. So, in a prosecution for picking a pocket, it is competent to show that the accused when arrested had a In the case at bar it was for the jury to estimate what weight and value should be given to the evidence excepted to as an indication of the conscious guilt of the defend. ant. The defendant testified, inter alia, that his residence at that time was in Tyngs-billy on his person. People v. Machen, 101 boro, Mass., and that his business was buy- Mich. 400, 59 N. W. 664. ing and selling goods, including horses. He admitted that he was with Groves on the day of the larceny, and that in the afternoon they drove in a "roundabout way" to the electric cars at Falmouth Foreside, where they separated, and that he, the defendant, then went on to Portland by the electric cars, and left for Boston on the steam cars, arriving there between 9 and 10 o'clock. No part of the Lufkin team was afterwards found. 1. At the trial, Deputy Sheriff Foley testified that he arrested the defendant on an electric car coming from Yarmouth to Portland October 3, 1907. The county attorney inquired if the defendant was armed at the time of the arrest. The defendant's counsel objected to the question, but before the court could rule upon it, the witness promptly answered that the defendant was armed with a revolver. The court denied the request of the defendant's attorney to have the testimony stricken out, and the witness testified further as to the details of the arrest, and stated the defendant had the revolver in his right-hand overcoat pocket, and that it was loaded. The defendant admitted in cross-examination that he was coming from Groves' house at the time of the arrest, and had then learned from Groves' wife, for the first time, that Groves was under arrest, but she did not know upon what charge. Upon this state of facts, it is the opinion of the court that there was no error on the part of the presiding judge in declining to strike out the testimony. The defendant had just been informed that his accomplice was under arrest. There was no apparent occasion for any legitimate use of the revolver by the defendant that day, and, if it was not loaded and carried for the purpose of aid ing him to escape by intimidating any officer who might recognize him and attempt to arrest him, the defendant had full opportunity to explain for what purpose he did have it. "It is to-day universally conceded," says Mr. Wigmore, "that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself." 1 Wigmore on Ev. § 2. The defendant called a witness by the name of Jordan, a resident of Portland, who testified that he had known the defendant for five years, and that he had seen him quite frequently and had numerous business dealings with him. There was no testimony that the defendant had ever lived in Portland, nor that Jordan had ever lived in a community where the defendant had resided. The witness was asked by defendant's counsel if he knew the defendant's "reputation for honesty in that community," and the question was excluded by the court. The witness further testified, however, that in his dealings with the defendant he had found him "honest and reliable," but that he had never heard his reputation in any community discussed or referred to. The defendant called another witness who offered to testify to substantially the same facts under the same conditions, and his testimony as to the defendant's "reputation for honesty in that community" was also excluded, and exceptions were taken in each instance. It was not indispensable that the witnesses to his reputation should have resided in the same community with the defendant. His general reputation as to honesty may have been better established and more definitely understood in the community where the witnesses lived and where they had had "numerous business dealings with him." "In the conditions of life to-day, especially in large cities, a man may have one reputation in the suburb of his residence and another in the commercial or industrial circles of his place of work. * * * There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and personal observation of the man. There is no reason why the law should not recognize this. The traditional phrase about 'neighborhood' reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary limitations not appropriate in other times. Alia tempora, alii mores." 2 Wigmore on Evidence, § 1616, and cases Ellenborough, "must expand according to the | Atl. 790, 18 L. R. A. 60; Hamlin v. Treat, 87 exigencies of society." Pritt v. Fairclough, Me. 310, 32 Atl. 909; Jameson v. Weld, 93 3-Camp. 305. Me. 345, 45 Atl. 299. In the case at bar the witness Jordan was allowed to testify that "in his dealings with the respondent he had found him honest and reliable, but that he had never heard his reputation in any community discussed or referred to." So far as this last statement implies that the witness had not had sufficient opportunity to learn what the defendant's reputation was, he would not be qualified to testify as to reputation. But if, from long acquaintance and "numerous business dealings" with him, he had had opportunities for learning about his reputation, the fact that he had never heard it "discussed or referred to" would be cogent evidence that it was good. It is accordingly a rule of evidence that a witness to good reputation may testify that he has never heard anything said against the person. 2 Wigmore on Ev. § 1614. But since the defendant's reputation for honesty was not regularly provable by personal knowledge of the witness derived from specific instances in his dealings with the defendant, the ruling which allowed the witness to state that he "found him honest and reliable" was more favorable to the defendant than he was entitled to. If, therefore, it be assumed that the witness was qualified to state what the general reputation of the defendant was in that community, the defendant was not aggrieved by the refusal of the presiding judge to permit him to answer the question, and there was no exceptionable error. Furthermore, in the case at bar, in order that nothing in the conduct of the trial or the charge to the jury should be construed as an expression of opinion upon the question of the defendant's guilt, the presiding judge made the following observations at the close of the charge: "The presiding justice has no right, and in this case no intention, to express any opinion as to the guilt or innocence of the respondent, or the effect or weight to be given to any evidence in the case; and that the jury, if they thought they detected any such expression of opinion, were to entirely disregard it, and, so far as their verdict was concerned, rely entirely upon their own independent judgment as to the weight and effect to be given to the testimony as a whole." 1. CRIMINAL LAW (§ 1149*) MOTION TO QUASH INDICTMENT-EXCEPTIONS. A motion to quash an indictment or complaint is addressed to the discretion of the court, and, if overruled, no exceptions can be allowed. Law, Cent. Dig. § 3042; Dec. Dig. § 1149.*] [Ed. Note.-For other cases, see Criminal 2. CRIMINAL LAW (§ 286*)-PLEA IN BAR. The court has no occasion or duty to rule upon a plea in bar in a criminal case until it is traversed or demurred to. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 286.*] (Official.) Exceptions from Superior Court, Cumberland County. William A. Holland was indicted for maintaining a liquor nuisance. Motion to quash the indictment overruled, and defendant excepts. Dismissed. 3. A careful examination of all of the defendant's exceptions relating to the comments of the presiding judge upon the testimony and the conduct and appearance of witnesses, and the language in which the instructions were given in his charge to the jury, fails to disclose any exceptionable infringement of the statute in that respect. In McLellan v. Wheeler, 70 Me. 285, the court said: "The statute does not go so far as to prohibit the The defendant was indicted at the Janupresiding judge from stating to the jury the ary term, 1908, superior court, Cumberland questions which they are called upon to de- county, for maintaining a liquor nuisance. termine. * * If the judge is of such a He then filed the following motion to quash happy temperament as to be indifferent the indictment: "And now the said William whether the cases tried before him are decid- A. Holland, respondent in said case, comes ed rightly or wrongly, or not at all, the stat- and moves that the said indictment be quashute will justify him in omitting such state- ed for the following reasons, to wit: Because ment. But it does not prohibit it. * * * an indictment for a liquor nuisance was Neither is the utterance of a mere truism, or found against him on the first Tuesday of of a matter of common experience which no- May, A. D. 1904, that it was a valid indictbody would think of disputing, however it ment, the court has jurisdiction of the ofmight bear upon the issue, an infringement fense, the jury was impaneled, and the deof the statute prohibition. It does fendant placed on trial, and was then and not follow that the judge has expressed an there in jeopardy. After a hearing on the opinion upon the issue because his opinion said indictment the jury disagreed, and at may be inferred from some allusion which he the September term of the superior court, may make to some obvious and indisputable A. D. 1904, said indictment was nol. pros'd. fact." See, also, State v. Day, 79 Me. 120, by the state. A copy of said indictment is 8 Atl. 544; York v. R. R. Co., 84 Me. 117, 24' hereto annexed and made a part of this mo * tion. (Omitted in this report.) Reference is hereby made to the records of this court in case No. 229 on this docket for the year A. D. 1904. The defendant further says that the present indictment covers a period from the first day of October, A. D. 1903, covering several months of the period covered by the prior indictment of 1904. He says the offense in the prior indictment was the same as the offense alleged in the present indictment, but that the period covered by the last indictment extends from October 1, 1903, to the first Tuesday of January, A. D. 1908. Defendant says that under the provisions of our Constitution he cannot again be placed in jeopardy for the same cause. Wherefore the defendant asks that said indictment be quashed." The motion was overruled, and the defendant excepted. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ. Joseph E. F. Connolly, Co. Atty., for the State. Dennis A. Meaher, for defendant. He EMERY, C. J. The defendant was indicted for maintaining a liquor nuisance. filed a motion to quash the indictment because of a former jeopardy. The facts relied upon to show the former jeopardy were set out in the written motion, which concluded with the prayer "that said indictment be quashed." The court overruled the motion, and the defendant excepted. A motion to quash an indictment for any reason is addressed to the discretion of the court, and exceptions do not lie to the overruling such a motion, since the defense stated therein may be made by plea, demurrer, or motion in arrest of judgment. State v. Stuart, 23 Me. 111; State v. Hurley, 54 Me. 562. If the motion filed in this case was intended for, or could be regarded, as a plea in bar, there was no question presented for the court to rule upon, since there was no demurrer to nor traverse of the plea. If a plea, the court had no occasion to rule upon its sufficiency until demurred to, nor to question its truth until traversed. The exceptions must be dismissed, and the defendant left to interpose his defense by plea or de murrer. Exceptions dismissed. (104 Me. 391) STATE v. HOLLAND. (Supreme Judicial Court of Maine. Nov. 3, 1908.) [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 368-374; Dec. Dig. § 248.*] 2. CRIMINAL LAW (§ 974*)-MOTION__IN_AB REST OF JUDGMENT-IMPOSSIBLE DATE IN COMPLAINT. A motion for arrest of judgment on the ground that the alleged date, namely, the year, of the commission of the offense, is an impossible date, will not be sustained, when upon an examination of the certified copies furnished to the law court it appears that the date should be read either as "1908" or "1980," but it is not made to appear which is correct, as when some of the copies may properly be read "1908" and others "1980." It is incumbent upon the defendant to make it appear to the court that the date was "1980," and not "1908," which he nas failed to do. [Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 974.*] (Official.) Exceptions from Superior Court, Cumberland County. William A. Holland was convicted of an unlawful sale of intoxicating liquors. Motion in arrest of judgment overruled, and defendant excepts. Exceptions overruled. Complaint against the defendant for keeping and depositing intoxicating liquors intended for unlawful sale, and on which a warrant was issued by the Portland municipal court. The defendant was adjudged guilty by the said municipal court, and thereupon he appealed to the superior court. On trial in the superior court he was found guilty by the jury. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ. Dennis A. Meaher, for defendant. SAVAGE, J. Motion in arrest of judgment. The defendant was convicted upon a complaint for keeping and depositing intoxicating liquors intended for unlawful sale in this state. He then filed this motion, which was overruled, and he excepted. The motion sets out two grounds for arrest: 1. It is contended that the complaint is double, ambiguous, and indefinite, in that it is based upon two inconsistent situations and upon two differing statutes. The defendant 1. INTOXICATING LIQUORS (8 248*)-KEEPING claims that the complaint contains the necFOR ILLEGAL SALE-COMPLAINT-DUPLICITY. essary allegations for obtaining a warrant A complaint for keeping and depositing in- for a search and seizure of intoxicating liqtoxicating liquors intended for unlawful sale, in which it is alleged that they had been first uors, under Rev. St. c. 29, § 49, and likewise seized by the complainant without a warrant, the allegations necessary for obtaining a and in which there is the further averment re warrant for the seizure of liquors already taken without a warrant, under section 48 of the same chapter. As to this ground, it is only necessary to say that the defendant has misinterpreted the language in the complaint. Rev. St. c. 29, § 48, provides that "in all cases where an officer may seize intoxicating liquors, or the vessels containing them, upon a warrant, he may seize the same without a warrant, and keep them in some safe place for a reasonable time until he can procure such warrant." This is sometimes called, perhaps not with strict accuracy, a "seizure" warrant, in distinction from a "search and seizure" warrant. Such was the warrant in this case. In order to obtain such a warrant, it was necessary for the officer, after seizing the liquors without a warrant, to make complaint setting out that he had already seized and was holding the liquors, and also in apt terms that he was, when he seized the liquors, an officer authorized by law to seize, upon a warrant, liquors intended for unlawful sale. Such an officer only can obtain a "seizure" warrant, and his authority must be alleged. The language which the defendant now complains of as one of two inconsistent descriptions of the offense is in these words, namely, "being then and there an officer, to wit, a deputy sheriff, within and for said county, duly qualified and authorized by law to seize intoxicating liquors kept and deposited for unlawful sale and the vessels containing them, by virtue of a warrant therefor issued in conformity with the provisions of law." This is not descriptive of the offense. It is merely the averment of the officer's authority. Having alleged his authority, the complainant then proceeded to allege that he had found and seized the liquors, and he prayed for a warrant. So far the complaint appears to be in proper form. four figures, first "19," and then an "8" written upon and partly above an "0," or an “0” written upon and partly beneath an "8." But the "O" and the "8" are not in the same perpendicular line. In some of the copies the "8" appears to be a little to the left of the center line of the "0," and in others a little to the right. Though the complaint in this respect was bunglingly made, we think it would be putting too fine a point upon it to say that we cannot tell by inspection that this was written and should be read not as "198," but either as "1908" or as "1980," according to the relative positions of the "8" and "0." But which? If "1908," the complaint was good. If "1980," it was bad. It is doubtless true that the writer intended to write "1908." But that does not help the case. We cannot rewrite it. We must take it as written, And that is uncertain. The defendant has not clearly shown to us how it was written, or, at any rate, that it was written "1980." For the purposes of this case, we do not place any stress upon the fact that defendant in his motion described the date as "198” instead of "1980." But we think that it was incumbent upon him, in support of his exceptions, to show that the date was "1980" instead of "1908," and that he has failed to do. It therefore has not been shown that the date was impossible as alleged. Exceptions overruled. Judgment for the state. (81 Conn. 707) ROBINSON v. NATIONAL FRATERNAL 1. INSURANCE (8 807*) – MUTUAL BENEFIT CERTIFICATE STIPULATION FOR ARBITRA TION-CONSTRUCTION. A stipulation, in a benefit certificate pro"as to the amount payable on account of any viding for weekly benefits, that on disagreement valid claim" the amount should be determined by arbitration, requires the submission to arbiclaim in case of a disagreement, but not where the validity of the claim is disputed, and in such case a holder of a certificate may sue thereon without submitting the issues to arbi tration. Dec. Dig. & 807.*] 2. The other alleged ground for arresting judgment is that the allegation of the time of the seizure is an impossible date, or, to use the language of the motion, "that the officer says he seized the liquors by virtue of a warrant therefor on the fourth day of January, A. D. 198." This is not an accurate state-tration of the question of the amount of a valid ment. There is no allegation that the liquors were seized "by virtue of a warrant." But passing that, it is not correct to say that the complaint alleges the seizure to have been "on the fourth day of January, A. D. 198." What the actual date written was, the court, of course, must determine, if it can, by inspection. We have inspected the certified copies which were evidently intended to be fac simile copies of the original, but we find that they are not alike. The complaint made January 6, 1908, sets out that the defendant unlawfully kept and deposited the liquors "on the fourth day of January in said year." And the time of the seizure is alleged as "on the fourth day of January, A. D." Then the year appears in 2. APPEAL AND ERROR (§ 1042*)-HARMLESS ERROR-STRIKING OUT PLEADINGS. Where, in an action on a benefit certificate stipulating for weekly benefits, the complaint alleged performance of all the conditions required of the holder to entitle him to the benefits, the striking out of a defense describing one of the conditions of the certificate, which it was claimed that the holder violated, without prejudicing the right of the association to prove the alleged facts, was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4110, 4111; Dec. Dig. § 1042.*] Appeal from Superior Court, Fairfield | required to offer to submit his claim to arCounty; Silas A. Robinson, Judge. HALL, J. The complaint, dated the 31st of August, 1904, alleges that by the terms of his certificate of membership in the defendant's association, made a part of the complaint, the plaintiff, by reason of bodily injuries sustained in a railroad accident on the 31st of March, 1903, which wholly disabled him from transacting any business, and of which the defendant had due notice, became, on the 1st of April, 1904, entitled to receive $25 a week for the 52 weeks between March 31, 1903, and April 1, 1904, less the sum of $300 alleged to have been paid by the defendant to the plaintiff, and that the defendant has refused to pay the sum of $1,000 still remaining due, and has denied any liability to the plaintiff under said certificate. The defendant demurred to the complaint upon the grounds, in substance, that it was not alleged that before the commencement of this suit the plaintiff had requested the defendant to arbitrate said claim, and that the defendant had declined to submit it to arbitration. The court having overruled this demurrer, the defendant afterwards pleaded the failure of the plaintiff to offer to submit his said claim to arbitration, as one of his special defenses. The principal questions of law raised by the appeal are based upon the action of the court in overruling said demurrer, and in deciding that the failure of the plaintiff to submit his claim to arbitration do not constitute sufficent defenses to this action. The provisions of the section of the certificate of insurance, material to these questions, are the following: "7. In the event of a disagreement as to the amount payable on account of any valid claim made under this certificate, it is expressly understood and agreed that said amount shall be determined by arbitration. * No legal proceedings for recovery under this certificate shall be brought until ninety days after the receipt of affirmative and positive proof of loss by the league at its home office, nor be brought at all unless the league shall have declined to arbitrate having been requested to do so in writing; and the league shall not be liable in any legal proceedings whatever unless the same are actually begun within one year from the date of said proof." The trial court did not err in overruling the demurrer, and in holding that under the bitration before commencing this action. Not only the amount justly payable upon a confessedly valid claim, but the legality of the entire claim presented, are clearly questions upon which there might be a disagreement between the defendant league and a certificate holder. Twenty-five dollars a week, for 52 weeks, is a maximum payment for a maximum period, when the certificate holder is wholly disabled. There might be a dispute between the insured and the league, as to whether his valid claim was not for a less sum and for a shorter period than such maximum sum and period. There might also be a question whether a certificate holder, however seriously injured, had so complied with the conditions and requirements of his application and certificate of insurance as to entitle him to any indemnity. In this case, by numerous separate defenses and a counterclaim, the defendant contends that it is under no liability whatever to the plaintiff. It denies that the plaintiff was a member of the league in good standing, that he was injured in the railroad accident, that he gave the required notice to the defendant, and that he has paid his dues. It alleges that the plaintiff failed to comply with several named conditions of the certificate of insurance; that the plaintiff falsely and fraudulently pretended that he was suffering from the alleged injuries; and by its counterclaim asks for $500 damages on account of the plaintiff's fraudulent acts. The issues thus framed do not present questions which by the terms of the certificate of insurance were required to be submitted to arbitration. Only the question of the amount of a valid claim, and not the existence of a claim, the validity of which was disputed, was to be submitted to arbitration by section 7 of the certificate. The former is generally a question of fact, which generally may more properly be submitted to arbitration than the latter, which is usually one of law. The trial court rightly construed the language of the. section in question as not requiring the plaintiff, upon the facts found, to offer to submit his claim to arbitration before commencing this action. Fricke v. United States Indemnity Society, 78 Conn. 188, 191, 61 Atl. 431. There was no harmful error in striking out the second defense, which described one of the conditions of the certificate of insurance which the defendant claimed had been violated. The facts were not correctly pleaded as a special defense, but could properly have been alleged as specifying a claimed breach of a condition of the certificate, all the conditions of which the plaintiff had alleged he had performed. Hennessey v. Metropolitan Life Ins. Co., 74 Conn. 699, 702, 52 Atl. 490. The ground upon which the allegations were stricken out in no way prejudiced the defendant's right to prove the alleged facts. The 150 pages of evidence unnecessarily |