of mental suffering than does disappoint- | tal anguish, and claims damages on that acment. Both are of very frequent occur- count. The plaintiff must therefore prove rence in the lives of most men, and with some scarcely disturb their mental poise. In this connection we desire to supplement what was said by Judge Douglas in Hunter's Case as to what particular mental anguish is to be considered by the jury in awarding damages. Jurors may possibly confound the mental anguish naturally arising from the loss of a near relative with that which grows out of the defendant's negligence. The jury have no right to consider anything except the latter in awarding damages. We commend to the careful consideration of the superior-court judges the language of the opinion in the Hunter Case upon that subject, and that they explain the law in reference thereto with great care to the juries, whether requested to do so or not, lest injustice be done the defendant by confounding the natural grief at the loss of a near kinsman with that anguish which is claimed to result from the negligence of telegraph companies.

3. The judge charged the jury that they might consider the failure of the father to arrange for the interment of the deceased, if they should find from the evidence that such arrangements would naturally be presumed to have been made by the sendee if the telegram had been delivered prior to the arrival of the train on Monday. It is plain that the plaintiff has no cause for complaint that his father did not meet the 3 A. M. train Sunday, for the plaintiff did not arrive until Monday at 4 A. M. The only contention the plaintiff makes is that, if the telegram had been delivered with reasonable promptness, his father would have met him promptly on Monday morning, and would have had all arrangements made for the interment, so that it would not have been delayed from about 10 A. M. until 5 P. M. Monday, in consequence of which delay the plaintiff avers he suffered great men

that his father could and would have met him promptly on Monday morning on arrival of the train at 4 o'clock, and that he could and would have made on Sunday, or prior to the plaintiff's arrival, all necessary arrangements for the prompt interment of his brother's body on Monday morning, and avoided the delay in the obsequies from 10 A. M. until 5 P. M., thereby saving the plaintiff from the pangs of mental anguish which he avers he endured. The law does not presume that the father could have done these things. Many contingencies, such as illness, absence from home, inability to get the work done on Sunday, may have prevented, however willing the father may have been to discharge such a parental duty. There was no evidence tending to prove such facts, and the jury had no right to presume them. In Bright v. Western U. Teleg. Co. 132 N. C. 326, 43 S. E. 844, Justice Walker says, referring to defendant's objection to the testimony of Cooper, the addressee, that he would have gone to Wilkesboro had he received the telegram, that the testimony was not only competent, but indispensable; and uses the following language: "We are unable to understand why this is not competent. It tended to prove the very fact which the defendant, in the last exception considered by us, asserted it was necessary for the plaintiff to prove in order to recover substantial damages; and it was necessary to prove this fact if the plaintiff sought, as she did by her complaint and evidence, to recover damages for the mental anguish which resulted from his failure to go to Wilkesboro."

As there is to be a new trial, it is unnecessary to consider the defendant's further exceptions. They relate to alleged errors that may not again occur. New trial.

v. People, 32 L. R. A. 139; People v. Gilman, 46 L. R. A. 218; State v. Abley, 46 L. R. A. 862; and People v. Mills, 67 L. R. A. 131.

NOTE. As to effect of instigation or consent | note: Com. v. Hollister, 25 L. R. A. 349: Love to crime for purpose of discovering criminals as defense to prosecution, see also, in this series, Connor v. People, 25 L. R. A. 341, and

.

made any suggestions to the defendant as to the burglary; that he simply acquiesced and agreed to defendant's plans. In answer to a question as to "why you didn't go on with your plans then, everything being all right," he testifies: "Yes sir, right enough if I had wanted to work the plan myself, but I didn't want to do that. I wanted him to do it himself, if he wanted to do it." Walker and defendant agreed to break into the store Saturday night, and went to the store for that purpose, but something happened after they got to the store causing the breaking to be abandoned on defendant's request. He then said, however, "We will try it to-morrow night." On Sunday night they again went to the store, and broke into it by joint force. The defendant removed the marked bills and other money from the money drawer, and a fur-lined coat was also taken from the store by defendant, and they left the building together. After leaving the building the money, $16.60, was equally divided between them. The overcoat was hidden in a livery barn by the defendant, and subsequently found by an officer and returned to the owner. In a few days the defendant was arrested at the instance of one Gile, and his trial and conviction followed.

fendant. Several stores were suggested by be burglarized. Walker says that he never the defendant as ones that might be burglarized, and among them Zulesdorff's, the one that was broken into. Before the store to be burglarized was agreed upon, Walker secured a letter of introduction to the mayor of Minto from the state's attorney. Walker presented the letter to the mayor, and told him of the contemplated burglary, and further stated: "I told him what I was there for, and told him about the stores, this building to be broken open, and told him that I didn't want myself in some place where I might get shot, . and told the doctor, if he knew any storekeeper in town there that would keep a secret, he had better go and notify him, and afterwards I would see him." Dr. Evans, the mayor, suggested that Zulesdorff's store be selected, and saw Zulesdorff in pursuance of this request, and Zulesdorff sent Walker word that he wished to see him. Walker saw Zulesdorff thereafter, and testifies as to what transpired between them as follows: "And he said that he had seen Dr. Evans, and he said that things would be all right; and I told him that after it was broken into he was to keep still about it, and told him what I wanted to know on the outside; and I said, 'By doing that I can get in a little work, and can find out the rest of these people;' so that was about all that was said between I and Frank Zulesdorff."

Later, he testified as follows upon his

further cross-examination:

Q. And Zulesdorff told you it would be all right?

A. Yes, sir.

9. And that he would permit you to use his store in your plans, and would keep the matter a secret for a sufficient length of time to enable you to complete the job? A. Yes, sir.

Upon these facts, two questions are presented for consideration which were raised at the trial by requests to instruct the jury, and they were also urged on a motion for a new trial: (1) Did the owner of the property consent to the breaking into of his building by the defendant? (2) Did the fact of the detective Walker's participation in the burglary entitle the defendant to a reversal of the judgment of convic

tion?

Upon the first question, the facts as narrated show that Zulesdorff did nothing by Zulesdorff did nothing further in refer- any act to aid in the burglary of his buildence to the burglary, except that he marked formed of the intended burglary. The plan ing. He remained passive after being intwo $5 bills that he left in the money of a burglary had been arranged before he drawer with other money on the Saturday was advised of the plan of the detective to night preceding the burglary, which was committed on Sunday night. The doors join the defendant in the proposed burglary and safe and money drawers were locked, as a feigned participant. Zulesdorff gave and left in the same manner as usual. He marked the bills so that he could identify them in case they were stolen. On these facts it is claimed that Zulesdorff consented to the breaking, and that the defendant cannot, in consequence of such consent, be rightfully convicted of the crime of burglary.

After the conversation between Zulesdorff and Dr. Evans and Walker, it was definitely decided by defendant and Walker that the Zulesdorff store was the one to

the detective no instructions. He did not advise him as to the manner of proceeding, nor do anything to assist in the burglary. The store was closed and locked in the usual manner. When he consented to remain away, at the request of the detective, for the purpose of securing evidence, it was not certain that his store was the one to be burglarized, nor when it was to occur. The Zulesdorff store was selected as the one to be burglarized after the detective's interview with him. Under these conditions it

cannot be said that he consented to the bur- | and agreed with the defendant's plan. It glary. Before the owner's consent will be a defense to a burglary, the owner must participate, or in some way aid or solicit or encourage the burglary. Mere knowledge that a person's property is to be burglarized, followed by nonaction on his part to thwart it, is not deemed a consent to it. His consent must be manifested by some act of assistance. Mere passiveness for the purpose of securing evidence of the burglary is not such consent as can be urged by the burglar as a defense. The detective was not the agent of Zulesdorff in the matter at all, nor did he have charge of the building in any sense, hence the detective's acts cannot be said to be those of the owner. In People v. Hanselman, 76 Cal. 460, 9 Am. St. Rep. 238, 18 Pac. 425, the court said: "And under the authorities we do not think that there is such consent where there is mere passive submission on the part of the owner of the goods taken, and no indication that he wishes them taken, and no knowledge by the taker that [he] . . wishes them taken, and no mutual understanding between the two, and no active measures of inducement employed for the purpose of leading into temptation, and no preconcert whatever between the thief and the owner." In State v. Sneff, 22 Neb. 481, 35 N. W. 219, the court said: "The fact that those in charge of a building hear of an intended burglary to be committed by breaking into the build

ing, do not prevent it, but put a force in the building to capture the burglar, and he is so captured, does not affect the guilt of any burglar." In a similar case to this, in State v. Jansen, 22 Kan. 498, in speaking of the conduct of the owner of the building the court said: "His willingness to assist in and facilitate the detection and arrest of a criminal was no consent to the commission of the crime." In McAdams v. State, 8 Lea, 456, the court said: "A man may direct his servant or a third person to appear to encourage the design of a thief and lead him on until the offense is complete, so long as he does not induce the original intent, but only provides for its discovery after it has been formed." See also Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364; Clark, Crim. Law, p. 11; Varner v. State, 72 Ga. 745; State v. Stickney, 53 Kan. 308, 42 Am. St. Rep. 284, 36 Pac. 714; State v. Adams, 115 N. C. 775, 20 S. E. 722; 6 Cyc. Law & Proc. p. 182, and cases cited.

Upon the second question, the state's evidence shows that the detective did not instigate the commission of the offense. The suggestion of committing the crime, and the active planning of it, is shown to have come from the defendant. The detective fell in

is true the detective deceived the defendant
as to the purpose of his complicity in the
crime. He assisted by his acts, but with a
hidden purpose. Without commending this
practice, or commenting upon it as danger-
ous and generally of doubtful propriety, we
will say that, if the defendant is shown to
have committed the crime in its complete-
ness, the feigned complicity of a detective
in the crime should not be a shield to the
defendant. The authorities almost unani-
mously hold that a detective may aid in the
commission of the offense in conjunction
with a criminal, and that the fact will not
exonerate the guilty party. Mere deception
by the detective will not shield the defend-
ant, if the offense be committed by him free
from the influence or instigation of the de-
tective. The detective must not prompt or
urge or lead in the commission of the offense.
The defendant must act freely of his own
motion, and, if he so acts, the fact that the
detective was not an accomplice in fact will
not accrue to his benefit. The defendant is
not to be charged with what was done by
the detective, as the two are not acting to-
gether for a common purpose. As was said
by the court in State v. Jansen, 22 Kan. 498:
"The act of a detective may, perhaps, not he
imputable to the defendant, as there is a
want of a community of motive.
But where each of the overt acts going to
make up the crime charged is personally
done by the defendant, and with criminal
intent, his guilt is complete, no matter what
motives may prompt or what acts be done
by the party who is with and apparently as-
sisting him." The cases cited above are all
to the effect that the assistance of a detect-
ive in a burglary is no defense to a person
who himself does every act essential to con-
stitute the burglary.

The defendant did not testify at the trial, hence the facts as to what transpired between him and Walker at and before the burglary are all to be gathered from Walker's testimony. From this testimony, carefully scrutinized, there is no support, even by inference from the facts stated, for the contention that Walker instigated the crime, hence the proposed requests on the question of the instigation of the crime by him were properly refused as not applicable to the case under any theory or hypothesis to be drawn therefrom. The court gave the jury correct instructions on the question of consent. They were told that mere knowledge by the owner that the building was to be burglarized, without taking steps to prevent the same, would not be a consent to the commission of the offense. They were also in

The judgment is affirmed.

All concur.

structed that, if the building was burglarized | properly refused. The evidence amply susby the "procurement and consent" of the tains the verdict, and the trial was without owner, the defendant would not be guilty. prejudicial error. The jury were properly instructed on the effect of the intoxication of the defendant. Under such instructions the jury should have acquitted the defendant if the facts warranted a finding of intoxication as defined in the instructions. The evidence, in our judgment, would not warrant a finding that he was intoxicated at all when the crime was committed.

Complaint is made on the ruling of the court in admitting admissions in the nature of a confession made by the defendant in the presence of the state's attorney and others soon after the offense was committed. The ground of complaint is that such confession was made under the inducement of a promise made by the detective. The detective told the defendant while in jail after his arrest that "in order to help himself out" he had better tell who the parties were that were implicated in the crimes that had previously been committed in Minto. There was nothing said by him at this time as to the commission of the offense for which he was tried and what was there said by defendant was not admitted in evidence. In the conversation or presence of the state's attorney, the defendant admitted having assisted in burglarizing the Zulesdorff store. At this time defendant knew that Walker was a detective. But there was no promise made, and there is no ground for any claim that the admission was not voluntarily made, and without any suggestion even of any benefit to be gained by him by such admission. The admission was admissible. Willett v. People, 27 Hun. 469.

The court read to the jury the section of the Code relating to persons on trial for offenses not becoming witnesses for themselves, and the effect thereof, and that the jury should not consider that fact in making up their verdict. We have recently held that giving such instruction is not error. State v. Wisnewski, 13 N. D. 102 N. W. 883. Exceptions were saved to the introduction and to the exclusion of certain evidence. We have carefully considered these exceptions, and find them without merit. One of these exceptions relates to excluded evidence of the defendant's condition as to sobriety when he was arrested two days after the burglary. Another relates to the ownership of the livery barn where the overcoat was hidden, and that the owner was defendant's father. Other assignments of error in refusing requests have been carefully considered, and found not prejudicial error, but

Thomas BEARE, Respt.,

บ.

J. A. WRIGHT et al., Impleaded, etc., Appts.

(...... N. D. ......)

*1. In an action to recover damages for false and fraudulent representations, by which the plaintiff had been induced to exchange real property for stock in a corporation, and had affirmed the contract after discovering the deceit, the measure of plaintiff's recovery, in the absence of a claim for special or exemplary damages, is the difference in value between what was received or parted with, as the case may be, and what would have been received or parted with, had the representations been true. 2. Misrepresentation of the price paid for property by the vendor or others does not constitute actionable deceit, in the absence of fiduciary relations between the parties, or other facts or circumstances giving rise to an express or implied agreement that the price paid should determine the price in the contract.

3. Where the facts found in a special verdict are insufficient to support the judgment for plaintiff, by reason of the absence of findings on matters in dispute essential to the complete determination of the issues, a new trial must be granted.