2. It is insisted that the third, fourth, and fifth instructions are erroneous, in that they hold the crime of robbery may be committed by taking goods not upon the person or in the immediate presence of the individual robbed; the thought of counsel being that though "with force or violence, or by putting in fear," the goods were obtained by the accused from the possession and custody of the prosecuting witness, yet the crime is not robbery, for the reason that the goods taken were found by defendant in a room of the house other than the one in which the violence was used towards the witness for the purpose of extorting from her information of the place where the money and valuables in her possession could be found. The statute defining robbery, which is correctly quoted in the second instruction given to the jury, contemplates the taking of property" from the person" of another. Counsel interpret this language to mean that the property, in order to constitute the crime, must be upon or in some way attached to the per son of the individual robbed, or in his immediate presence. The preposition "from" does not convey the idea of contact or propinquity of the person and property. It does not imply that the property is in the presence of the person. The thought of the statute, as expressed in the language, is, that the property must be so in the possession or under the control of the individual robbed that violence or putting in fear was the means used by the robber to take it. If it be away from the owner, yet under his control, in another room of the house, as in this case, it is nevertheless in his personal possession and if he is deprived thereof, it may well be said it is taken from his person. Goods are called personal property in the law, and presumed to accompany the person. If taken from the owner, this relation of owner and property is surrendered, and the goods are separated from the person. In the case before us, defendant, by violence, bound the prosecuting witness and thereby put her in fear. By this violence, he extorted from her information of the place where she kept her money and watch in another room of the house. Leaving her bound, he went into that room and took the property. We are clearly of the opinion that it was taken from her person in the sense of the words as used in the statute. In support of this conclusion, see the following authorities cited thereon: 2 Bishop's Criminal Law, sec. 975; Wharton's Criminal Law, sec. 1696.

3. Counsel insists that the eighth and ninth instructions are erroneous, in that they submit to the jury the question

whether the cord with which the prosecuting witness was bound is a dangerous weapon. One of the definitions of the word "weapon" is "anything used or intended to be used in destroying or annoying the enemy." A cord is often used as an instrument by robbers to kill or disable their victim; when so used it is properly called a weapon. The instructions correctly submitted to the jury the question whether the cord used by defendant was a dangerous weapon.

4. Counsel insist that the motion for a new trial should have been sustained, on the ground that the attorney for the state, in his argument to the jury, referred to the fact that defendant did not testify in his own behalf. The record fails to support the allegation upon which the motion is based.

5. Another ground upon which the motion for a new trial was based is, that the state's attorney, in the argument of the case, used inflammatory and extravagant language. We think the remarks of the state attorney complained of in this connection are not of such a character as to raise the presumption that defendant was prejudiced in any degree.

We have not all the evidence before us, and no claim is therefore made that the verdict lacks the support of proof. Having considered all objections to the judgment presented in argument by counsel, we discover no ground for disturbing the judgment.

Affirmed.

ROBBERY, WHAT CONSTITUTES: See Bussey v. State, 51 Am. Rep. 256; Hope v. People, 38 Id. 460; Stegar v. State, 99 Am. Dec. 472; State v. McJune, 70 Id. 176, note 178 et seq., where this subject is discussed at length.

HICKMAN V. CRUISE.

172 Iowa, 528.]

PERSON WHO EARNS HIS LIVING BY FARMING IS FARMER, within the meaning of the exemption laws, although he does not own a farm nor have one leased, and is not doing any specific thing as a farmer on the particular day on which an execution is levied upon his property. VERDICT SHOULD NOT BE DIRECTED FOR Defendant wHEN THERE IS EVIDENCE tending to sustain the plaintiff's cause of action.

ACTION to recover specific personal property levied upon and taken by the defendant, as sheriff, under an attachment. The facts are stated in the opinion.

Welch and Welch, for the appellant.

Herrick and Doxsee, for the appellee.

By Court, SEEVERS, J. At the conclusion of the plaintiff's evidence the defendant moved the court to "direct a verdict for the defendant, for the reason that plaintiff bases his ground of recovery upon the allegation that he was at the time a farmer, earning his living, and that he used the implements or property that is sought to be recovered for the purpose of supporting his family; and the uncontradicted evidence shows that the plaintiff was not at the time a farmer, nor engaged in farming, and that his intention was not to carry on farming, in a reasonable period, within the state of Iowa." This motion was sustained, and the jury returned a verdict accordingly.

As we understand the motion and the ruling of the court, the question whether the plaintiff had started to leave the state was eliminated from the case. The motion is based alone on the thought that the plaintiff was not a farmer. The levy was made on the sixteenth day of March, and the plaintiff testified that he had been engaged in farming, as we understand, the preceding year, but that his lease had expired on the 1st of March, and he had not leased another farm when the levy was made. The plaintiff also testified: "I reside in Hopkinton, Delaware County. Have resided all my life in the state. Am the head of a family. My business is farming, and was at the time of the levy, and prior thereto, and always has been, farming. . . . . I used the property in farming, for the support of my family." Now, while it is true the plaintiff was not at the time of the levy engaged in farming, that was his business or vocation by which he earned his living; and although it is true he did not own a farm, nor had he leased one, still he was a farmer. A man may be a farmer, although he is not, on the particular day an execution may be levied on property, doing any specific thing as a farmer, if such is his vocation or business. It may be conceded as true that plaintiff gave other evidence which tended to show that he was not a farmer; still, if the case had been submitted to the jury, and it had been found that he was a farmer, in our opinion the court would not have been justified in setting aside the verdict, and therefore the court erred in instructing the jury as it did.

Reversed.

AM. ST. REP., VOL. II.-17

WHERE PERSON WHO HAD BEEN MERCHANT QUIT BUSINESS, and engaged in settling up his old business, and in doing some farming, it was held that a horse and wagon used by him in both pursuits were exempt: Kenyon v. Baker, 97 Ain. Dec. 158.

INSTRUCTION THAT PLANTIFF CANNOT RECOVER IS JUSTIFIED only where there is a total failure of evidence: Claflin v. Rosenberg, 97 Am. Dec. 336. But if there is no evidence to support the issue, it is the duty of the court to so instruct the jury: Alexander v. Harrison, 90 Id. 431, note 438, where other cases in that series are collected.

INDEPENDENCE MILLS Co. v. BURLINGTON, Cedar RAPIDS, AND NORTHERN R'Y Co., AND MINNEAPOLIS AND ST. LOUIS R'Y Co.

172 Iowa, 535.1

WHERE COURT INSTRUCTS JURY THAT IF RAILROAD CAR WAS PUT IN PROPER PLACE FOR UNLOADING, the railroad company was not liable on any ground, either as carrier or warehouseman, the company cannot complain of the failure of the court to submit to the jury the question as to its liability as a warehouseman.

LIABILITY OF RAILROAD COMPANY AS CARRIER OF WHEAT IN BULK does not cease until it has placed the car containing it in such a position at the place of destination that it can with safety and a reasonable degree of convenience be unloaded by the consignee. And if the car containing the wheat be left in a position where it cannot be conveniently unloaded, and while there is destroyed by fire, the company will be liable for the loss, although as a physical fact the car could have been unloaded in such position.

TWO RAILROAD COMPANIES ARE JOINTLY LIABLE FOR LOSS OF WHEAT DESTROYED BY FIRE while in transit over the line of one of them, although the contract for its transportation was made with the other company which agreed to carry it over its line and that of another company, different from the one over which it was actually carried. PETITION IN ACTION AGAINST CARRIER FOR WHEAT DESTROYED WHILE IN

TRANSIT, which avers a demand for the wheat, or payment for the same, the number of bushels destroyed, and that the claim is the property of the plaintiff and justly due, demanding judgment for a certain sum, is, in the absence of a motion for a more specific statement, sufficient to support a verdict and judgment for the plaintiff, although it does not in terms aver the value of the wheat.

ACTION to recover the value of a car-load of wheat. The facts are stated in the opinion.

S. K. Tracy, for the appellant, the Burlington etc. Railway Company.

C. E. Ransier, for the appellant, the Minneapolis etc. Railway Company.

Lake and Harmon, and Woodward and Cook, for the appellee.

By Court, RоTHROCK, J. 1. On the twenty-ninth day of August, 1885, Peavy & Co., of Minneapolis, Minnesota, shipped from that place to plaintiff, at Independence, Iowa, a car-load of wheat in bulk. The wheat was ordered by the plaintiff to be shipped by way of the Minnesota and Northwestern railroad, in care of the Illinois Central railway, and the bill of lading issued by the Minneapolis and St. Louis Railway Company provided for a shipment by that route. The Minneapolis and St. Louis Railway Company did not follow such directions, but transported the car to Albert Lea, Minnesota, and there turned it over to the Burlington, Cedar Rapids, and Northern Railway Company, to be hauled by it to Independence. The grain arrived at Independence on the eighth day of September, 1885, and the car was not moved to the Illinois Central depot, where it would have been placed if the shipping order and the provisions of the bill of lading had been observed, but it was placed upon a side-track of the Burlington, Cedar Rapids, and Northern company, and remained there for a time, and was hauled to another place near an elevator, and on the night of September 10, 1885, it was destroyed by the burning of the elevator, over which neither company had any control, and the burning of which was without the fault of either defendant.

Thus far there is no dispute in the facts of the case. The petition seeks to recover of the defendants for negligence as common carriers, and not as warehousemen. It recites the facts as to the requirement that the shipment should be by the Minnesota and Northwestern and Illinois Central roads, and that the wheat was not delivered at the depot of the Illinois Central road at Independence according to the contract of shipment. It appears, however, that the plaintiff had notice of the arrival of the car at the depot of the Burlington, Cedar Rapids, and Northern Railroad Company at Independence, and as nearly all of the evidence in the case was directed to the question whether the car was placed in such a position that it could be conveniently and safely unloaded by the plaintiff, the court in its instructions to the jury held, in effect, that all questions were out of the case excepting one, which was, whether, under the evidence, the responsibility of a common carrier had ceased, and that of a warehouseman begun, before the wheat was destroyed. The jury were advised, in effect, that if the car was put in a suitable place to be unloaded, and the transportation of it was completed when