James D. Rice, of Bangor, and Wm. R. stable did not take fire until after the shed I Pattengall, of Waterville, for plaintiff. Fel- and from the shed or ell, and in the second lows & Fellows, of Bangor, for defendant. place it was found locked when the plaintiff and his boarder went to it and removed the animals and contents. The other suggested source is within the hotel, and, to prove this, three employés of the defendant, who were living in a caboose at the station, testified that when they reached the fire it seemed to be on the roof of the ell near the main part, and they saw no fire elsewhere. But this testimony, negative at the best, was overwhelmed by that of the neighbors, who clearly prove that the fire spread from the shed to the ell and thence to the main part.

CORNISH, J. Action on the case to recover damages for the loss of a hotel in Kingman, with outbuildings, stable, and contents, including furniture, supplies, and personal effects, alleged to have been destroyed by fire communicated by a locomotive of the defendant.

Liability.

[1] The evidence justifying the finding of liability is ample. It is for the most part undisputed. The plaintiff's premises adjoined the railroad location, being situated northerly thereof, with the shed nearest the right of way and the long ell and main part extending to Marginal street. A freight train of the defendant, with 12 empty cars, left Mattawamkeag at 1:50 on the morning of September 29, 1913, going east, passing Kingman about 2:15 a. m., and arriving at Danforth at 3:15 a. m. The train did not stop at Kingman station. There was an upgrade from the station for nearly one-half a mile, and the hotel was situated about midway this distance. The train was 50 minutes late. The night was unusually dry; there being practically no dew on the grass, as several witnesses stated. The wind was light, but from a southerly or southwesterly direction, blowing from the track toward the buildings.

One witness testified that he was up at 2 o'clock and looked toward the hotel, and no fire was visible then. Between that time and the time when the fire was discovered, 2:30 or 2:45 a. m., this freight train passed by. The fire originated on the part of the premises toward the railroad and spread to the rest of the buildings. A large number of witnesses testified that when they first saw the fire it was on the southerly side of the shed and creeping up onto the roof. The posts of an old pigpen which had formerly stood between the shed and the track were burned, showing that the grass between the location and the buildings was on fire.

All other sources, except the engine, are practically eliminated. There had been two fires in the hotel, one a coal fire in the office, and the other a wood fire in the kitchen for the 6 o'clock supper. The latter had gone out, and the former could not have caused the fire in question, because the people were in and about the office, as well as the other rooms in the ell and main part, at the same time that the fire was burning in the shed.

The defendant attempted to suggest two other sources, but failed utterly. The fireman on the locomotive testified that, while going through the town at the rate of 20 or 22 miles an hour, he saw through a crack in the stable a light that looked like a lantern, but he saw no fire of any kind. This story has many inherent improbabilities, but the

The only other evidence introduced by the defendant was that the engine was equipped with a spark arrester in good condition, and, in the opinion of the witnesses, sparks could not have been emitted that would have set the fire. But, as showing the distance to which the sparks or cinders could fly, one neighbor testified to finding a large quantity of cinders on her piazza the same morning; her premises being in close proximity to the burned buildings and adjoining the railroad location.

Without discussing the evidence in detail further, it is sufficient to say that, the proximity of the premises, the direction of the wind, the dryness of the night, the time of the passage of the train, the discovery of the fire within a short time thereafter, the location of the fire when first discovered, and the absence of all other reasonably probable sources justified the jury in drawing the inference that the locomotive of the defendant caused the fire. As was said in Jones v. Railroad Co., 106 Me. 442, 76 Atl. 710:

"It is a question of reasonable inference from all the facts and circumstances, and the evidence should be of such a character that a reasoning mind shall see the connection between cause and effect."

That test is fully met by the evidence in this case.

Damages.

[2] The plaintiff's evidence showed the fair value of the buildings to be $3,000 or $3,500. The schedule of personal property amounted to $3,000, making an outside limit of $6,500. The verdict was $5,341.67. This might be divided into buildings $3,500 and personal property $1,841.67, and the evidence would justify the finding. The furniture was for the most part nearly new, having been purchased within a year. The defendant offered no evidence whatever on values, either of buildings or contents, and it would seem that, on the uncontradicted evidence offered by the plaintiff, the damages are not so manifestly excessive as to warrant the interference of the court.

Exceptions.

[3] 1. The testimony of Mrs. Leach, a neighbor, who lived five houses west of the hotel,

(Supreme Judicial Court of Maine. Oct. 10, Hospital for observation. He was tried at the. January term, 1914, and was found guilty of murder.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

91 ATLANTIC REPORTER

(Me.

spondent moves that the said cause be continued | again changed, providing that a justice of to the next term of the Supreme Judicial Court the Supreme Judicial Court be designated to to be held within and for said county having ju- preside at such trials. In 1899, the provision risdiction of the offense alleged."

as amended reads as follows:

and appellate jurisdiction in all criminal matters "Laws of 1913, chap. 220, sec. 3. The original and all powers incident thereto, originally exerin said counties of Cumberland and Kennebec, fore conferred upon and exercised by said supecised by the Supreme Judicial Court, but heretorior courts, are continued."

Counsel for the respondent argues: (1) requiring indictments to be certified to this That it has never been the policy of the state until 1913, when the section providing for court was restored, and remained in force to allow a court of limited and inferior jurisdiction to determine the rights of a man this court was repealed, and section 90, c. 79, charged with murder. (2) That the respond-R. S., was amended by chapter 220, § 3, and certifying and transmitting indictments to ent was denied the constitutional right to a change of venue; that, if such change were sought and ordered, he would then receive only what the law insures, the right to a trial before a justice of this court. (3) That he is entitled thereto, because "the law of April 11, 1913, attempted to repeal section 2 of chapter 132, R. S., which gives the Supreme Court jurisdiction, * late back to the time of the shooting, namely, must reMarch 20, 1913"; that therefore the amendment in question was not in force on that day; and that, as to his client, such amendment was entirely inoperative in any event until after the expiration of 90 days from the date of its approval. (4) While supporting his exceptions as stated in the foregoing, counsel concludes his brief with this statement:

"We do not undertake to argue upon the unconstitutionality of the law on this question. "Our contention is not whether the law is ex post facto, but we claim that the attempt of the state to control the situation as it was March 20, 1913, was futile, and, under the 90 days' provision, of no force or effect. In other words, we say it was not an ex post facto law of which we complain, but 'no law' which could take effect until long after the shooting took place on that fateful day of March 20th near the reservation at Togus, Me.

"And concerning the fifth section of page 12 of the printed case, wherein it is set forth that the respondent declined to plead in the superior court, while a ruling of the superior court may be open to exceptions, we think comment unnecessary and depend more fully upon the attempt of the prosecution to keep the case away from a justice of the Supreme Judicial Court in the manner herein before stated."

As to the first objection raised by the respondent's counsel, it is sufficient to say that, when the superior court for Kennebec county was established in 1878 (Laws 187880, c. 10), it had full jurisdiction in criminal At the same session, the act creating that court was amended as follows:

cases.

"Sec. 19. When any indictment is found for any of the offences described in sections one and two of chapter 117 of the Revised Statutes, sections two, three, four, five, six, eight, nine, ten, eleven, twelve, thirteen, fifteen, twenty-five and twenty-seven of chapter 118 of the Revised Statutes, sections one, two and three of chapter 119 of the Revised Statutes, the clerk of said superior court shall certify and transmit the indictment to the Supreme Judicial Court for said county, at the next term, when it shall be entered. The Supreme Judicial Court shall have cognizance and jurisdiction thereof, and proceedings shall be had thereon in the same manner as if the indictment had been found in that court." (Laws 1878-80, c. 48.)

[1] Full jurisdiction was restored in 1881, and so continued until 1891, when the provision relating to the trial of murder cases was

The following section was added, and the principal contention in this case arises there

under:

by the grand jury in said superior court at the "Sec. 4. Any indictment for murder returned April term thereof, in the year nineteen hundred next September term of said court, which shall and thirteen, shall be in order for trial at the have jurisdiction of all matters pertaining thereto."

sion, "in its attempt to reach the case at bar,
It is urged in the motion that this provi-
its nature." If the point raised related to
is retroactive legislation and ex post facto in
rights of the respondent thereunder, our con-
the crime charged, or to the constitutional
clusion would not be reached so easily, but
the provision in question, directed, as it
plainly is, to procedure, and relating entirely
to the remedy, and having for its obvious
purpose the conduct and disposition of a
pending case, is constitutional, and wholly
within the legislative power and control, and
is not as to this case an ex post facto law, or
retroactive in its nature or tendency. Cool-
ey's Const. Lim. (6th Ed.) p. 326; Bishop's
Crim. Law, vol. 1, §§ 279, 277, 280, 282, 283;
Commonwealth v. Phelps, 210 Mass. 78, 96
N. E. 349, 37 L. R. A. (N. S.) 567, Ann. Cas.
390, 1 L. Ed. 648; Thompson v. Missouri, 171
1912C, 1119; Calder v. Bull, 3 Dall. 386,
U. S. 386, 18 Sup. Ct. 922, 43 L. Ed. 204.

ceptions, and the brief made by other coun-
The motions were made a part of the ex-
sel follows substantially the remaining points
made in the motions. Both urge the right to
was denied.
a change of venue, and say that the right
reason existed why change of venue should
It does not appear that any
be had, that a fair trial could not be had, or
was not in fact had.

common-law right. It is created and regulat[2] The right to a change of venue is not a ed by statute, and is also a matter of procedure authorized by the Legislature under its sole and plenary power to determine what course shall be pursued in the administration of justice, as well as in all other matters concerning the public good. Hopt v. Utah, Gibson v. Miss., 162 U. S. 589, 16 Sup. Ct. 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; 904, 40 L. Ed. 1075; Thompson v. Utah, 170 U. S. 351, 18 Sup. Ct. 620, 42 L. Ed. 1061.

The fact that the crime was committed before the passage of the act in question, and that 90 days must elapse before such act has the force of law, does not avail the respondent. He had violated the law. There is no pretense that the law so violated had been

[3] The right to have a jury selected from | (7th_Ed.) 381, and cases cited; Commonwealth another county or district is not one of the v. Phillips, 11 Pick. (Mass.) 32. rights within the words and intent of the Constitution prohibiting the passage of ex post facto laws, under article 1, §§ 9 and 10. Chase, J., in the leading case (Calder v. Bull, 3 Dall. 386, 390 [1 L. Ed. 648]), stated the laws included thereunder as follows: "(1) Every law that makes an action done be-changed. The only change effected was in the fore the passing of the law, and which was in- manner in which he should be tried for that nocent when done, criminal, and punishes such offense against the law. That change was action. (2) Every law that aggravates a crime, or makes it greater than it was, when commit made by the law-making power whose will is ted. (3) (4) Every law that alters paramount and whose right to shape the polithe legal rules of evidence, and receives less, cy of the state is not to be questioned by the or different, testimony than the law required at the time of the commission of the offense, in or- court, nor is the administration thereof to be der to convict the offender. All these and simi- dictated by the offender. He has no vested lar laws are manifestly unjust and oppressive, right in the matter of procedure. Cooley's but I do not consider any law ex post Const. Lim. (7th Ed.) p. 381; Cyc. vol. 8, § facto, within the prohibition that mollifies the rigor of the criminal law, but only those that 1031. The rules and orders provided for the create or aggravate the crime, or increase the conduct of courts, officials, and community punishment, or change the rules of evidence, for generally are to be observed by all alike as the purpose of conviction." Cooley's Const. the law, unless they interfere with some subLim. (7th Ed.) 373, 374. stantial right guaranteed by the fundamental law.

*

[4] It is well settled that a mere change in the Constitution of the trial court, which leaves unchanged all the substantial protections which the law in force at the time of the commission of the alleged offense threw about the accused, is not ex post facto. Duncan v. Missouri, 152 U. S. 377, 14 Sup. Ct. 570, 38 L. Ed. 485. Nor is a change in the place of trial. Gut v. Minnesota, 9 Wall. 35, 19 L. Ed. 573, quoted and affirmed in Cook v. United States, 138 U. S. 157, 11 Sup. Ct. 268, 34 L. Ed. 906; Cooley's Const. Lim. (7th Ed.) 375, note.

A careful examination of the questions involved convinces the court that the respondent was not deprived of the full protection to which he was entitled under existing law. The entry must therefore be: Exceptions overruled.

ANDERSON v. SALANT et al. (No. 455.) (Supreme Court of Rhode Island. Oct. 21, 1914.)

The remaining objection is to the jurisdic-
tion of the court, on the ground that the act
of April 7, 1913, did not become a law until
90 days after its passage, to wit, July 11,
1913, and that, the crime having been com-
mitted on March 20, 1913, the statute which
that law was intended to amend in part and
repeal in part was itself then in force, and
urges that the respondent should have been
tried thereunder; the justice presiding to be
a justice of this court. We do not so hold.
We think the reasons already given are suffi-
cient to justify the ruling of the presiding
justice in this as well as in the other claims
of the respondent's counsel, and we may adding defendants. Motion granted.
that the practice is uniform, and it is well
settled that:

COURTS (§ 243*)-CASE CERTIFIED TO SUPREME
COURT REMITTING TO SUPERIOR Court.

A cause certified to the Supreme Court on constitutional questions will, upon motion of defendants, be remitted to the superior court, to permit there a motion to dismiss as to them without prejudice to the rights of others.

Dig. § 243.*]
[Ed. Note. For other cases, see Courts, Dec.

Action by William E. Anderson against
On motion by
Gabriel Salant and others.
Gabriel Salant and others to remit the cause,
certified on a constitutional question to the
Supreme Court, to the superior court, to per-
mit a motion there to dismiss as to the mov-

Fred A. Otis, of Providence, for plaintiff. Irving Champlin, James Harris, and Herbert A. Rice, all of Providence, for defendants. Gardner, Pirce & Thornley, of Providence, for moving defendants, appearing specially for the purposes of this motion, and not otherwise.

"So far as mere modes of procedure are concerned, a party has no more right, in a criminal than in a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the Legislature, and it would create endless confusion in legal proceedings if every PER CURIAM. The motion of Gardner, case was to be conducted only in accordance Pirce & Thornley is hereby granted, and with the rules of practice, and heard only by the case is remitted to the superior court, to the courts in existence when its facts arose. permit said Gardner, Pirce & Thornley to The Legislature may abolish courts and create new ones, and it may prescribe altogether differ- make a motion in said superior court that ent modes of procedure, in its discretion, though said action be dismissed as to Gabriel Salant, it cannot lawfully, we think, in so doing, dis- Aaron B. Salant, and Solomon J. Wallach pense with any of those substantial protections with which the existing law surrounds the per- without prejudice to the rights of any party son accused of crime.' Cooley's Const. Lim. properly before the court in said action to

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

have the constitutional question, upon which |2. CRIMINAL LAW ( 1056*) — APPEAL — INthe action has been certified to this court, hereafter heard and determined by this court. After hearing and determining said motion to dismiss, said superior court is directed to transmit the papers in said action to this court, for the purpose of enabling

Greenough, Easton & Cross, of Providence (William B. Greenough, of Providence, of counsel), for petitioners. Herbert A. Rice, The judgment under reAtty. Gen., for respondent. Lewis A. Water-view will be affirmed, for the reasons set man, of Providence, for certain interested par- forth in the opinion of the Supreme Court. ties.

PER CURIAM. It does not appear from the testimony presented at the hearing that the persons alleged to have been nominated (Court of Errors and Appeals of New Jersey.

1. CRIMINAL LAW (§ 1149*)-INDICTMENT AND INFORMATION (§ 136*)-MOTION TO QUASH

INDICTMENT-MATTERS REVIEWABLE.

A motion to quash an indictment is addressed to the discretion of the court, and is

The said petitions are therefore denied and not reviewable on strict writ of error. dismissed.

An indictment charging the crime of keeping a disorderly house, in that defendant ha1. CRIMINAL LAW (8_1036*)-APPEAL-RUL-bitually sold, or permitted to be sold, intoxicatINGS ON EVIDENCE-OBJECTIONS AT TRIAL. Rulings on evidence cannot be reviewed on appeal, where no objection was made at the trial.