OPINION OF COURT. and no evidence from which the jury would have been justified in drawing the inference of such negligence. The first assignment of error is therefore overruled. The remaining assignments of error are in substance as follows: Second and Third. That the Court erred in refusing to allow testimony as to drawheads used on other roads. Fourth. That the Court erred in refusing to allow testimony as to the course of business on another road, and how cars were put on barges of that road on Christiana Creek. Fifth. That the Court erred in refusing to allow a witness to testify in reply to the question whether he had measured the height of the draw bars on certain cars on the Baltimore & Ohio Railroad." Sixth. That the Court erred in refusing to sustain the objection to "the above line of testimony as not in cross examination, but as being an effort to inject into the plaintiff's case testimony in favor of the defendant." Seventh, Eighth and Ninth. That the Court erred in refusing to overrule as not proper on cross examination, certain questions as to the presence of Creswell while certain appliances and conditions relating to loading cars on barges were as described by the witness on his direct examination. Tenth and Eleventh. That the Court erred in refusing to allow certain witnesses to testify as experts. In view of the ground upon which the first assignment of error is overruled, the remaining assignments are not important, even if some or all of the rulings objected to were erroneous. "No judgment should be reversed in a Court of Error when it is clear OPINION OF COURT. that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made." Lancaster vs. Collins, 115 U. S., 227; Fisher vs. State, 1 Pennewill, 388. All of the said remaining assignments of error are overruled upon the following grounds: The Second and Third.-As immaterial, as it did not appear that the drawheads referred to were used under conditions similar to those in this case. The Fourth.-As immaterial, as it did not appear that the conditions were similar to those in this case. The Fifth. As irrelevant, because it did not appear that the height of the drawbars measured by the witness were the same as that of the drawbar in this case, or that the witness knew of the height of the latter. The first, there was no motion to strike out the whole or any specified part of the cross examination. Second, it does not appear from the objection or exception taken what part of the cross examination was objected to, and third, sufficient ground for the cross examination had been laid by the direct examination of the witness. The Seventh, Eighth and Ninth.-Because sufficient ground for the cross examination had been laid by the direct examination of the witness. The Tenth and Eleventh.-Because it had not been shown that the witnesses were qualified to testify as experts in the manner proposed. The judgment below is affirmed. FALL SESSIONS, 1899. STATE VS. ALFRED SPENCER. Criminal Law-Indictment-Larceny-Description of the Property -Evidence-Charging Upon Facts-Reasonable Doubt. 1. An indictment for larceny which contained the following language in relation to the value of the property-" of the $5.00 lawful money of the United States," held not to be defective because the words "value of" were omitted. 2. Such an indictment describing the property alleged to have been stolen as a 'mileage book on the Philadelphia, Wilmington and Baltimore Railroad Company," without any averment that the book was stamped, held sufficient. 3. The Court cannot charge the jury "that there is no evidence at all before them connecting the defendant with the larceny," because they are not permitted to charge upon the facts. (September 23, 1899.) LORE, C. J., and BOYCE, J., sitting. Peter L. Cooper, Jr., Deputy Attorney-General, for the State. Court of General Sessions, New Castle County, September Term, 1899. INDICTMENT FOR LARCENY (No. 43, September Term, 1899). The indictment charged, "That Alfred Spencer, late of Wilmington Hundred, in the County aforesaid, on the thirteenth day of May, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms at Wilmington Hundred, in the INDICTMENT-OPINION OF COURT. County aforesaid, one mileage book on the Philadelphia, Wilmington and Baltimore Railroad Company of the five dollars lawful money of the United States of America, one pair of men's shoes of the value of two dollars like lawful money as aforesaid and one man's hat of the value of one dollar like lawful money as aforesaid, of the goods and chattels of John V. Boyer then and there being found, then and there feloniously did steal, take and carry away," etc. Counsel for the prisoner moved to quash the indictment, first on the ground that the omission of the words "value of" relating to the part of the indictment charging the larceny of the mileage book, being matter of substance, and there being but one count in the indictment, rendered the whole indictment defective. LORE, C. J.:-We do not think this fatal as to the rest of the count, and we think it would be sufficient even as to that specific item, it says "of the $5.00 lawful money of the United States." It must be the subject matter of larceny and of some value. So that we think the connection there is sufficient even in that respect. Mr. Richards:-We further object to the indictment and move that it be quashed on the grounds, first, that it does not sufficiently show that the mileage book is the subject of larceny. It is a railroad ticket, and the indictment does not aver that it was stamped, and unless stamped it is not the subject of larceny under the decisions of this State. Second, the description of the book is insufficient. State vs. Hall, 1 Houst., 420; State vs. Halman, 34 Pac. Reporter, 283; McCarty vs. State, 37 Pac. Reporter, 299; Clark's Criminal Procedure, 216. LORE, C. J.:-We think this indictment is sufficient. The uniform rule in this State has been that an indictment must set out the property with sufficient certainty to identify it and to protect CHARGE OF COURT. the defendant from being prosecuted again. This indictment sets out specifically that it is a mileage book on the P., W. & B. R. the property of this prosecuting witness. The prisoner is certainly apprised of what he is to meet and could not be convicted the second time for the larceny of that book. The case of State vs. Hall, 1 Houst., 420, was a railroad ticket which had never been issued or used. This is a ticket issued by the railroad, paid for and partly used by the owner. The Court charged the jury upon the points raised by the respective counsel as follows: LORE, C. J.:-Gentlemen of the jury: Alfred Spencer is indicted for larceny. We are asked to charge you only upon two points. The first is that you should bring in a verdict of not guilty for the reason that the railroad ticket is not proved to be stamped, and for that reason it is not a subject of larceny. We cannot so charge you. We are again asked to charge you that there is no evidence at all before you connecting the defendant with the larceny of the coat, boots, hat and other property. We are not permitted to charge you upon the facts. So far as the evidence delivered in this case is concerned, you are the exclusive judges of it. Under the circumstances attending this case, it is for you to say whether there has been any testimony given of such character as to connect this prisoner with the prosecuting witness so as to show that when he was last consciously in the company of the prisoner that those articles were in his possession and when he recovered himself they were not. From all the circumstances of the case you are to judge as to what was the testimony and the effect of it with respect to those articles. The testimony is all before you, and from that you are to say whether the prisoner is guilty of larceny or not guilty. If you have any reasonable doubt upon any of the material points of this case; that is, whether the prisoner committed this |