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dealing out to B. two gills of whis- moved to have been a part of the
key, and receiving therefor twenty realty..........

...Ibid.
cents,' &c.

6. Construction of Statute.- Words.
Held, that as it did not appear from The words "remove from” in this

the information whether or not the section have not a technical mean-
cefendant had a license, it was bad ing authorizing, in such a case, the
on motion in arrest based upon the implying of an averment that the
ground that it did not state facts thing removed was a part of the
sufficient to constitute a public of- realty...

........ Ibid.
fense........

...... Ibid. 7. Forgery.- Indictment.-An indict-
3. Justice of the Peace.- Obstructing ment for defacing and destroying a

Ilighway.- Affidavit.- Prosecution promissory note, in which it is al-
before a justice of the peace for ob- leged, as an excuse for not setting
structing a highway. The affidavit forth the tenor of the note, that it
charged, “that on or about, &c., at the was destroyed by the defendant,
said county of Jefferson, in the State must state its substance and effect.
of Indiana, one A. did unlawfully Birdg v. The State....................83
obstruct a highway then and there 8. Same.—An indictment for defacing
situate, being the highway running and destroying a promissory note
nearly north and south through must show whether the note was
section ninc, town three, range eight for the payment of money or prop.
cast, from the Scaffold Lick and erty......

Ibid.
Kent road to the Lexington and 9. Sunday.- Work of Necessity.-On
Paris road, in said county and State, the trial of an information for a vi-
by then and there unlawfully erect- olation of the Sabbath, under the
ing fences across said highway, as act of 1855 (2 G. & II. 481), the cv-

affiant is informed and believed." idence showed that the defendant
Held, that the highway was sufficient. was engaged on a certain Sunday
ly described.

in gathering and boiling sugar-wa-
Held, also, that it was enough to charge ter on his premises; that it was a

that the obstruction was within the good day for the flowing of the wa-
jurisdiction of the court, and not ter; that his troughs were full and
necessary to state the particular running over; that he had no way
place where it was erected on the to save the water but by gathering
road.

and boiling it.
Held, also, that the fact that the charge Held, that this was a work of necessi-

was made on information and belief ty within the statute. Morris v. The
did not render the information de- State....
fective.

10. Practice.- Motion in Arrest.-A
Ileld, also, that the mistake of the variance between the affidavit and

draftsman in writing "believed," the information cannot be taken ad-
instead of believes, was immaterial. vantage of by motion in arrest.Ibid.

The State v. Buxton..................67 11. Indictment.— Obtaining Money Un-
4. Indictment.- Where a statute in a der False Pretenses.- Indictment

criminal case is not to be taken in charging, that “A. and B., on, &c.,
the broad mcaning of the words at, &c., did, feloniously, designedly,
used, but to be limited by construc- and with intent to defraud C., rep-
tion to a special subject or matter, resent and pretend to said C. that a
it is proper that an indictment there- certain bank check and order for
under should not charge the crime the payment of money (here set out
in the language of the statute sim- in hæc verba, purporting to be drawn
ply, but should limit the case and by D., payable to E., and indorsed
bring it within the construction by the latter in blank), which the
placed upon the statute. Bates v. said A. then had in his possession,
The State......

.72 was good and of the value stated on
5. Same.- Trespass to Land.-- An in- its face, to wit, cight hundred dol-

dictment, under section 14, 2 G. & lars in currency; by means of which
II. 462, for removing a quantity of false pretensc said A. and B. did
valuable gravel from the land of an- then and there obtain from said C.
other, should show the property re- (certain money specified) the goods,

....189

&c., of said C.; and the said A. and ruled the defendant's challenge s'for
B. then and there delivered said cause."
check to said C., to be kept by him Held, that this ruling was correct.Ioid.
as security for the payment of said 15. Dying Declarations.— When 1d-
money by him loaned to said A. and mitted. Where the statements of a
B., which was then and there ob- person are offered in evidence as
tained from said C. as aforesaid by his dying declarations, the proof
them, with intent to cheat and de- must clearly show that the declar-
fraud him; whereas in truth, &c., ant was in fact at the very point đ
said check was not good, was not of death, and that he was fully con-
the value of eight hundred dollars scious of that fact, not as a thing of
in currency, but was of no value surmise and conjecture or appre-
whatever; all of which said A. and hension, but as a fixed and evitable
B. then and there well knew, &c. fact......

......... Ibid.
Held, that the indictment showed, not 16. Same. It is not required that the

merely a false promise, but a false deceased should have declared in
pretense as to an existing fact, and terms that he expected to die at

was sufficient. Maley v. The State.192 once, if his condition was such that,
12. Change of Venue.- Atidavits.- of necessity, such an impression

In a criminal action the defendant must have existed on his mind. On
moved for a change of venue on ac- the other hand, no matter how strong
count of local excitement and prej. the expression of this certainty of
udice, and filed affidavits in support death may have been, if there be
of the motion. Counter affidavits any evidence of hope in the lan-
were filed by the State; and there- guage or actions of the declarant,
upon the defendant moved for leave his statements will be rejected.. Ibid.
to file additional affidavits in sup- 17. Information.— Uncertainty.-An
port of the application, which the information in which the district
court refused.

attorney charges the offense, “as he
lield, that as no additional affidavits verily believes," is bad on motion

were offered by the defendant, no to quash. Vannatta v. The Slate.210
question could be raised in the Su- 18. Practice.-- Supreme Court.-As-
preme Court upon this ruling. Mor- signment of Errors.- In the assign-
gan v. The State.......

..193 ment of errors on an appeal by the
13. Same.---Judicial Discretion.- Que- defendant in a criminal action, the

ry, whether the Supreme Court only errors assigned were, that the
ought, under any circumstances, to finding was contrary to law, and to
reverse the ruling of a court refus- the evidence given on the trial.
ing to grant a change of venue where Ileld, that no question was properly
the affidavit is founded upon excite- presented for the decision of this
ment or prejudice in the county court. Cavanaugh y. The State.229
against the defendant............. Ibid. 19. Liquor Law.— Sunday.- Section
14. Juror.- Competency.- Previously 8 of the act to regulate the license

Formed Opinion.—On the examina- and sale of intoxicating liquors, &e.,
tion of persons called as jurors to (1 G. & H. 616) as amended in 1863
try an indictment for murder, as to (Spec. Sess..197), prohibits the sale
their competency, certain ones of on Sunday of any quantity of intoxi-
the panel answered, that they had cating liquor by a licensed retailer,
formed opinions as to the guilt or and is not in conflict with the Con-
innocence of the defendant, from stitution of the State. Schlict r.
rumor and newspaper statements on The State...

246
that subject. Upon further exami- 20. Same.--Evidence.- On the trial of
nation cach of said persons answered, an information under this section,
that it would require neither more clarging, that the defendant was
nor less evidence to satisfy him of licensed under said act to sell intos.
the existence or non-existence of the icating liquors in a less quantity
material facts involved in the case than a quart at a time, it appeared
by reason of his so already formed in evidence that the defendant, at
opinion. The court thereupon over- the time of the sale charged (the

fall of 1867), was engaged in the
sale of intoxicating liquors by the Exceptions.--In a criminal case, the
"small;" and there were given in court, in its instructions, told the
evidence two orders of the board of jury, that the defendant had, during
county commissioners, one made at the progress of the trial, admitted
the December term, 1866, and the certain important facts, and that the
other at the December term, 1867, facts thus admitted must be taken
granting license to the defendant to as if prored beyond a reasonable
sell intoxicating liquors by retail. doubt. A bill of cxceptions, pur-
lleld, that this cvidence did not show porting to contain all the evidence,

that the defendant was licensed, and was silent as to such admissions
was not sufficient to justify a finding having been made.
against him........

..Ibid. Held, that, as the record stood, tlıcre
21. Continuance. -The fact that in a was no warrant for this statement
joint prosecution upon information of the court.... ........

... Ibid.
a continuance is granted as to a part 26. Jury.--Instructions 10.-Right of
of the defendants is no ground for to Determine the Law.—The court in
continuance as to another defend- such case also instructed the jury,

ant. White v. The State.......... 262 that it was their duty to apply the
22. Evidence.- Alibi.-The fabrica- law, as given by the court, to the

tion of an alibi, like the wilful in- facts of the case; that they might
troduction of false and fabricated determine the law for themselves,
cvidence in support of any other however; but that they should be
ground of defense, is a circumstance well satisfied in their own minds of
against the accused, to be weighed the incorrectness of the law as giv-
by the jury in connection with all en by the court before assuming the
the other evidence in the case; but responsibility of determining it for
where the cridence tending to prove themselves.
an alibi is uncontradicted, and the Held, that this was crror............ Ibid.
witnesses are unimpeached, and the 27. Same.--Irrelevant Instructions.-
facts testified to are reasonable in Instructions to the jury should be
themselves, the failure of the de- applicable to the cvidence....... Ibid.
fendant to account for his where- 28. Presumption.-- Use of Deadly
abouts during all the time within Weapon.-- Contradictory Instruc-
which the offense was probably com- tions.—The intent to murder is not
mitted should not be taken as a cir- conclusively inferred from the delib-
cumstance tending to prove his erate use of a deadly weapon; and
guilt

..Ibid. the crror of giving an instruction to
23. Term of Imprisonment.- Where a the jury to that effect on the trial

defendant was sentenced to an im- of an indictment for murder, at the
prisonment in the county jail for instance of the prosecution, is not
ninety days, and until a fine of one cured by giving a contradictory and
dollar and the costs of the prosccu- correct charge upon that subject at
tion were paid or replevicd;

the request of the defendant... Ibid.
IIeld, that when the imprisonment for 29. Apparently Conflicting Instruc.

the ninety days had been completed, tions. In a criminal case, the court,
that portion alone of the sentence instcad of giving to the jury instruc-
was discharged, and there remained tions which arc apparently conflict-
the imprisonment for the fine and ing, though not so intended, and
costs that the defendant was not leaving the jury to conjecture which
entitled to a credit of fifty cents per of them should be applied to a given
day upon the fine and costs from the state of facts, should generally tell
date when his imprisonment com- the jury the state of facts to which

menced. Ex Parte Tongate ......370 the proposition of law announced is
24. Evidence.- Venue.--If in a crim- applicable........... ........Ibid.

inal case there be no evidence that 30. Insanity.- Where a person is
the offense charged was committed moved to the commission of an un-
within the jurisdiction of the court, lawful act by an insane impulse con-
there should be an acquittal. Clem trolling his will and his judgment,
v. The State.........

480 he is not guilty of a crime; and if
25. Admissions on the Trial.-Bill ofl he is a monomaniac on any subject,

row....

it is wholly immaterial upon what them of the guilt of the defendant
subject, so that the insane impulse with such certainty that a prudent
leads to the commission of the act. man would feel safe in acting upon

Stevens v. The State........ ...485 such conviction in his own import-
31.--Same.-Knowledge of Right and ant affairs, then, in such case, there

Wrong.On the trial of an indict- would be no reasonable doubt of the
ment for murder in the first degree, defendant's guilt.
the court instructed the jury, that if Held, that this test was too nar-
they believed from the evidence

........Ibid.
"that the defendant knew the dif- 37. Insanity.— The defendant in :
ference between right and wrong in criminal case is not required to
respect to the act in question, if he prove his insanity in order to avail
was conscious that such act was one himself of that defense, but merely
which he ought not to do, and if to create a reasonable doubt on this
that act was at the same time con- point, whereupon the burden of
trary to the law of the State, then proving his sanity falls upon the
he is responsible for his acts.''

state

....... Ibid.
Held, that this is not law........... Ibid. 38. Samc.-- Cognitive and Conatire
32. Same.-So far as a person acts Facultics.- Insanity is a disease

under the influence of mental dis- which may impair or totally destroy
case he is not criminally account- either the understanding or the vill,
able; and the jury in a criminal or both; and in a criminal case all
case must be satisfied beyond a rca- symptoms of such disease and its
sonable doubt of the defendant's eflect upon these faculties should go
mental capacity to commit the crime to the jury, and they must deter-
charged..

.Ibid. mine, as a matter of fact, the men-
33. Instructions to Jury.--Conflict of. tal condition of the defendant; and

An erroneous instruction to the jury an instruction to them which limits
in a criminal case cannot be cor- their inquiry to the condition of the
rected by another instruction which power to apprehend by the under-
states the law accurately, unless the standing is erroneous............. Ibid.
erroneous instruction be thereby 39. Same.- Voluntary Drunkenness.-
plainly withdrawn from the jury. Continued Drunkenness.- Voluntary

Bradley v. The State......... .492 drunkenness is no excuse for the
34. Same.- Extracts from Books.- commission of a crime, but insanity

The law which goes to the jury from produced by continued drunkenness
the court should be given as law, is a good defense in a criminal ac-
unquestioned by authorities extract- tion......

..Ibid.
cd from books.....

..Ibid. 40. Same.- Hereditary.-- Evidence.-
35. Reasonable Doubt.-A juror in a Evidence of the insanity of the

criminal case ought not to condemn mother and uncle or other relatives
unless the evidence excludes from of the defendant in a criminal case
his mind all reasonable doubt as to must be disregarded if there be not
the guilt of the accused—that is, other evidence tending to show that
unless he is so convinced by the he was himself insane at the time
evidence, no matter what the class he did the act charged............ Ibid.
of the evidence, of the defendant's 41. Presumption.— Use of Deadly
guilt, that a prudent man would Weapon.—The intent to murder is
feel safe to act upon that conviction not conclusively presumed from the
in matters of the highest concern deliberate use of a deadly weap-
and importance to his own dearest on...

.......Ibid.
personal interests, under circumstan- 42. Witness.- Discredit of by the
ces where there was no compulsion Court.-An attempt in an instruc-
resting upon him to act at all. Ar- tion to the jury in a criminal caso
nold v. The State, 23 Ind. 170, ex- to cast discredit upon a medical wit-
plained...

.. Ibid. ness because he had attended the
36. Same.--On the trial of an indict- trial from a neighboring state to

ment for murder in the first degree testify in behalf of the defendant,
the court instructed the jury, in ef- with the expectation that his ex.
fect, that if the evidence satisfied penses would be paid by the defend-

ant or others for him, the defendant which however fails, and another
being a stranger to such witness, thing of value is obtained and ac-
was disapproved....................Ibid. cepted with

intent to defraud,
43. Ilcmicide.- Malice.- Purpose to the law imputes to the person mak-

Kill:- Manslaughter.— Although a ing the false pretense a design from
person unlawfully and purposely kill the beginning to consummate the
a human being, yet if it be done in latter result; and under our criminal
il sudden licat of passion, caused by code this conclusion of law from the
a sufficient provocation, and in the facts need not be alleged in the in-
absence of express malice, then mal- dictment, if the facts are alleged
ice will not be implied from the act, from which it inevitably results. Ibid.
but the offense will be manslaugh- 50. Same.-Indictment against T. for

ter. Murphy v. The State.........511 obtaining money and a signature as
41. Samc.- Provocation by Words.- surety by false pretenses, charging

Words only, however abusive and that the defendant," on, &c., at, &c.,
insulting they may be, cannot con- feloniously, designedly, and with in-
stitute such sufficient provocation to tent to defraud one G., did falsely
rebut the presumption of malice pretend to said G., that he, said T.,
arising from the act, in such a case, was then and there the owner of a
and reduce the offense from murder certain house and lot in a town

to manslaughter..... .... Ibid. named, in an adjoining state named,
45. Sime.- Deadly Wcapon.-If the of great value, to wit, twenty-six

act be perpetratcd with a deadly hundred dollars, and a certain bar-
weapon, so used as likely to produce ness-shop, in another town named,
death, the purpose to kill may be in said adjoining state named, of
inferred from the act..... ..Ibid.

great valuc, to wit, six hundred and
46. Same.- Words.-Definition of.- fisty dollars; by mcans of which false

Statute Construed.-The word “vol- pretenses, the said G. relying upon
untarily," in our statutory definition and believing the same to be truc,
of manslaughter, means, by the free said T. did then and there felonious-
cxcrcise of the will, done by design, ly obtain from said G., on his, said
purposely ........

..Ibid. Ti's, sole and individual credit, the
47. Same.- Instruction to Jury.-On sum of four hundred dollars, lawsul
the trial of an indictment for assault

money, as a loan for nine months,
and battery with intent to murder, and the signature of said G. &c., &c.,
the court instructed the jury, in cf- with intent then and there to dc-
fect, that there can be no purpose to fraud said G.; Whcreas, in truth, said
kill in manslaughter; and that if T. was not then and there the own-
such a purpose be shown to exist, cr," &c., &c.
and if death result, the killing is lield, that the indictment was not
murder.

double.
IIcld, that this was crror.. .Ibid. Tield, also, that though it was not al-
48. Talse Pretenses. Statute Con- leged expressly that in making the

strucd.--The statute 2 G. & H. 445, representations the defendant's in-
sec. 27, does not require, as an ele- tention was to accomplish the par-
ment of the offense thereby defined, ticular result which was in fact ob-
that the falsc representation should tained—though the indictment was
be made for the purpose of accom- not so certain as to exclude the con-
plishing the particular thing which clusion that the defendant may have
does result. A false pretense such designed to accomplish his fraudu-
as would tend to produce the result lent purpose in another mode--yet
accomplished, an obtaining thereby, it sufficiently showed a connection
and designedly, a thing of value between the false representations
from another, and an intention by made and the result produced.. Ibid.
the transaction to defraud that oth-51. Same.-Evidence.--It was not nec-
cr, arc the only clcmcnts of the of- cssary to prove all the pretenses

fense. Todd v. The State..........514 charged in the indictment........Ibid.
41. Same.- Indictment.--If a particu- 52. Same.Similar Representations to

lar result is designed to be accom- Others.-The State was allowed,
plished by making the false pretense, over defendant's objection, to put in

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