
    EVIDENCE — CRIMINAL LAW.
    [Hamilton Circuit Court,
    January Term, 1899.]
    Shearer, Summers and Wilson, JJ.
    (Sitting in Hamilton County.)
    Charles Kuhl Artificial Stone Co. v. Martin Mack.
    Evidence — Custom Among Contractors — Criminal Law.
    While a custom among contractors of helping themselves to each others1 material when a small quantity is needed to complete a job, is unreasonable and not binding as a rule of property, it is competent for the purpose of tending to prove a lack of criminal intent in taking such material.
    Heard on Error.
    
      Jerome D. Creed, for the plaintiff in error.
    
      Geo. W. Hardacre, contra.
   Memorandum of Decision.

The defendant in error recovered a judgment for $385, damages for malicious prosecution on a charge of taking a small quantity of the Kuhl company’s material in completing a cement sidewalk contract, a line of work in which the Kuhl company and Mack were competitors. Error was claimed in the admission of testimony as to a general custom prevailing among contractors of helping themselves to each other’s material when a small quantity was needed to complete a job.

The reviewing court holds that while such a custom is unreasonable as a rule of property, and therefore not binding, yet it was competent for the purpose for which it was evidently introduced — that is, as tending to prove a lack of criminal intent.

Judgment affirmed.  