Opinion of the Court.

[43 App.

83; State v. Sudduth, 52 S. C. 490, 30 S. E. 408; Turman v. State, 50 Tex. Crim. Rep. 13, 95 S. W. 533; State v. King, 117 Iowa, 484, 91 N. W. 768.

the

In presenting the case to the jury an assistant district attorney suggested that before there could be a finding of not guilty, the jury must account for the condition of the child's clothing and for certain physical conditions present in child, as testified to by witnesses. Counsel for the defendant excepted to this argument on the ground that it was not incum bent upon counsel for the defendant to account for those con ditions. The court thereupon suggested that the prosecuting attorney was "not talking about any change of the burden under the law, which compels the government to prove everything that makes up this crime beyond a reasonable doubt," but was merely drawing inferences from the evidence, which he had a right to do. We agree with the trial court.

The court instructed the jury that any one of three verdicts was possible: "Not guilty; guilty as indicted; or not guilty as indicted, but guilty of attempt to have carnal knowledge. When the jury returned they were asked by the clerk whether a verdict had been agreed upon, and answered in the affirma tive. The clerk then inquired of their foreman what the ver diet was, and he answered, "Guilty." The clerk thereupon зaid, “Guilty as indicted." Counsel for the defendant thereupon noted an exception to the clerk's remark. The court then ordered the jury to retire and reconsider its verdict, the result being a verdict of "guilty under the first count," which was the count charging carnal knowledge. Counsel for the defendant excepted to the recording of this verdict on the ground that the jury had been improperly influenced by the suggestion of the clerk, and upon the further ground that the clerk had not polled the jury. It would be a sad reflection upon the intelliof jurors should we rule that the verdict as first rendered could possibly have meant other than guilty as indicted. They certainly did not mean that the defendant was not guilty, we think it equally clear that they did not mean that he guilty of merely an attempt to have carnal knowledge. How

gence

and

was

ever, all possible ambiguity was removed when they found the defendant "guilty under the first count." The suggestion that the jury was improperly influenced by the clerk's correct interpretation of the verdict as first rendered is too farfetched to require consideration. The defendant did not ask to have the jury polled. The failure to do so, therefore, was not error. In the absence of any showing to the contrary, we must assume that the usual practice was followed to the end that any misapprehension that might have existed concerning the verdict could be corrected. Givens v. State, 76 Md. 485, 25 Atl. 689; Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220.

The justice presiding at the trial having died, a bill of exceptions was signed by his successor, "after an examination of the minutes of the trial court and the typewritten report of the stenographic notes of the trial," the court being satisfied that he could allow "a true bill of exceptions." Counsel for the defendant found no fault with the exceptions allowed, but reserved an exception "to the authority of the court to sign the same." While counsel, both in his brief and in the argument at bar, did not insist upon this point, we will briefly notice it. In Malony v. Adsit, 175 U. S. 281, 44 L. ed. 163, 20 Sup. Ct. Rep. 115, it was ruled that under sec. 953 of the Revised Statutes, Comp. Stat. 1913, sec. 1590, a bill of exceptions would not be deemed sufficiently authenticated unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat. Thereafter the section was amended by the act of June 5, 1900 (31 Stat. at L. 270, chap. 717, Comp. Stat. 1913, sec. 1590), so as to authorize, in a case where a judge before whom a case has been tried is, by reason of death or other disability, unable to hear and pass upon a motion for a new trial, the signing of a bill of exceptions by the judge who succeeds such trial judge, or by any other judge of the court in which the case was tried, holding such court thereafter, "if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion and allow a true bill of exceptions." If the judge is not satisfied that he can fairly pass

Statement of the Case.

[43 App. upon such motion and allow and sign such bill of exceptions, he may, in his discretion, grant a new trial. Section 953 as amended being of general application, and not inconsistent with any legislation particularly applicable to the District of Columbia, is controlling in this jurisdiction. Johnson v. United States, 38 App. D. C. 347, 225 U. S. 405, 56 L. ed. 1142, 32 Sup. Ct. Rep. 748.

This disposes of every exception of sufficient gravity to warrant notice. Judgment will therefore be affirmed. Affirmed.

ALLEN v. LINQUIST.*

PUBLIC PARKING; NEGLIGENCE.

The right to use the parking in front of a dwelling house, and a fence surrounding the parking, passes to a purchaser of the house as an appurtenance to the land purchased by him, and he may be liable to a pedestrian injured by a gate in the fence being allowed to negligently swing outward over the sidewalk.

No. 2771. Submitted April 26, 1915. Decided May 10, 1915.

HEARING on an appeal by one of two defendants from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages for alleged personal injuries. Affirmed.

The COURT in the opinion stated the facts as follows:

This suit was brought in the supreme court of the District

*Highways-Injury to Pedestrian-Liability of Abutting Owner-For cases passing on the liability of an abutting owner for injuries caused by excavations under the street, see notes in 14 L.R.A. 398, and 11 L.R.A. (N.S.) 993; as to liability of an abutting owner for injury to pedestrian by refuse on sidewalk, see note in 29 L.R.A.(N.S.) 707.

of Columbia to recover damages for personal injuries sustained by appellee, Susan Linquist, plaintiff below. She was injured by coming in contact with a gate swinging outwardly over the sidewalk from a fence inclosing the parking in front of appellant's premises. Appellant, William H. H. Allen, and the District of Columbia, were sued as joint tort feasors,—appellant for negligently maintaining the gate in a position dangerous to the public, and the District for negligently permitting it to be so maintained. From a joint judgment, appellant

Allen has appealed.

His contention is that the fence, of which the gate was a part, was erected upon the public parking which lies between the front line of his lot and the sidewalk; that it was there when he purchased the property; that he never repaired it, nor exercised any dominion over it, and that he did not own it, nor was it a part of his premises. The District admits its liability; hence, the sole question presented is whether or not Allen is liable.

Mr. Walter C. Clephane and Mr. Alan O. Clephane, for the appellant:

Appellant cannot be held liable for any injury caused by the condition of a gate in a fence that was not erected by him, was never owned by him, did not stand on property owned by him, and over which gate and fence he had never assumed to exercise any ownership or control, and the dangerous condition of which, if any, he had never seen, nor had it ever been called to his attention. Allman v. District of Columbia, 3 App. D. C. 8; Boon v. Orr, 4 Greene (Ia.) 304; Brown v. Wysong, 37 N. Y. S. 281; Burlerson v. Teeple, 2 Greene (Ia.) 542; Coster v. Peters, 28 N. Y. Super. Ct. 192; Coughlin v. District of Columbia, 25 App. D. C. 251; Domer v. District of Columbia, 21 App. D. C. 284; Dotey v. District of Columbia, 25 App. D. C. 232; Emrich v. Ireland, 55 Miss. 390; Gensler v. Kemble, 227 Pa. 508; Gottlieb v. New York, 149 N. Y. S. 589; Jones v. Johnston, 18 How. 150; Kimball v. Adams,

52 Wis. 554; Seymour v. Watson, 5 Blackf. 555; Smith v. Carroll, 4 Greene (Ia.) 146; Staples v. Dickson, 88 Me. 362; Thayer v. Wright, 4 Denio, 180; Rochester v. Campbell, 123 N. Y. 405; Walker v. Marye, 94 Md. 762; Wentz v. Fincher, 34 N. C. 297; Wheeler v. State, 109 Ala. 56.

Mr. R. B. Behrend for the appellee.

Mr. Conrad H. Syme, Corporation Counsel, and Mr. Roger J. Whiteford, Assistant, appeared and filed a brief for the District of Columbia:

1. The fence and gate in question belong to the appellant. Sheets v. Seldon, 2 Wall. 187; Hunstock v. Limberger, 115 S. W. 321; Kenney v. Apgar, 93 N. Y. 549; Frey v. Drahos, 6 Neb. 1; Irvine v. Wood, 51 N. Y. 224; Canandaigua, v. Foster, 156 N. Y. 356; Haycock v. Sherman, 14 Wend. 58.

2. The gate in question, by swinging and remaining open over the sidewalk, constituted a nuisance. Holroyd v. Sheridan, 53 App. Div. 14; McGrath v. Walker, 64 Hun, 182; Congress v. Smith, 18 N. Y. 82; Tinker v. New York, O. & W. R. Co. 157 N. Y. 318; Knight v. Foster, 163 N. C. 329; 1 Taylor, Land. & T. § 175; Dalay v. Savage, 145 Mass. 38; Gridley v. Bloomington, 68 Ill. 47.

3. Appellant is liable, although the premises were in possession of his tenant, because the dangerous condition of this gate existed when he rented said premises. Dalay v. Savage, 145 Mass. 38; Moody v. Mayor, 43 Barb. 282; Mfg. Co. v. Lindsay, 10 Ill. App. 583; Owings v. Jones, 9 Md. 108; Matthews v. De Groff, 13 App. Div. 356; Hill v. Hayes, 199 Mass. 415.

4. Appellant was liable, even though the gate constituting the nuisance was erected by his predecessor in title. Irvine v. Wood, 51 N. Y. 224; Gridley v. Bloomington, 68 Ill. 47; Doty v. District of Columbia, 25 App. D. C. 235.

5. Parking is a private easement of the adjoining owner. Allman v. District of Columbia, 3 App. D. C. p. 18.